CODE OF FEDERAL REGULATIONS
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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:
Title 1 through Title 16
Title 17 through Title 27
Title 28 through Title 41
Title 42 through Title 50
The appropriate revision date is printed on the cover of each volume.
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Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.
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Title 32—
The current regulations issued by the Department of Defense appear in the volumes containing parts 1-189 and parts 190-399; those issued by the Department of the Army appear in the volumes containing parts 400-629 and parts 630-699; those issued by the Department of the Navy appear in the volume containing parts 700-799, and those issued by the Department of the Air Force, Defense Logistics Agency, Selective Service System, National Counterintelligence Center, Central Intelligence Agency, Information Security Oversight Office, National Security Council, Office of Science and Technology Policy, Office for Micronesian Status Negotiations, and Office of the Vice President of the United States appear in the volume containing parts 800 to end.
For this volume, Jonn V. Lilyea was Chief Editor. The Code of Federal Regulations is published under the direction of Frances D. McDonald, assisted by Alomha S. Morris.
(This book contains part 800 to End)
5 U.S.C. 552.
This part makes this guidance an Air Force supplement to the DoD regulation at 32 CFR part 286. It transfers responsibility for the Air Force Freedom of Information Act (FOIA) Program from the Office of the Secretary of the Air Force (SAF/AAI) to Headquarters United States Air Force (HQ USAF/SC) and Headquarters Air Force Communications and Information Center/Corporate Information Division (HQ AFCIC/ITC); contains significant changes and additions to implement the Electronic Freedom of Information Act (EFOIA) Amendments of 1996; addresses electronic records; increases time limits to 20 working days; adds procedures for multiple tracking and expedited processing of requests; changes annual report date and content; adds major command (MAJCOM) inspectors general (IG), MAJCOM Directors of Inquiries (IGQ), and wing commanders as initial denial authorities (IDAs).
A list of Air Force MAJCOMs, field operating agencies (FOAs), and Direct Reporting Units (DRUs) is at § 806.26.
(a)
(b) HQ AFCIC/ITC will make the Air Force handbook and guide for requesting records available on the World Wide Web (WWW) from Air ForceLINK,
(a)
(b)
(1) Simple requests can be processed quickly with limited impact on the responding units. The request clearly identifies the records with no (or few) complicating factors involved. There are few or no responsive records. Only one installation is involved and there are no outside Office of Primary Responsibility (OPRs). There are no classified or nongovernment records. No deliberative process/privileged materials are involved. The responsive records contain no (or limited) personal privacy information and do not come from a Privacy Act system of records. No time extensions are anticipated.
(2) Complex requests take substantial time and cause significant impact on responding units. Complications and delays are likely. Records sought are massive in volume. Multiple organizations must review/coordinate on requested records. Records are classified; originated with a nongovernment source; are part of the Air Force's decision-making process; or are privileged.
(c)
(d)
(e)
(f)
(g)
(h)
(a) The Director, Communications and Information (HQ USAF/SC) has overall responsibility for the Air Force FOIA Program. The Corporate Information Division (HQ AFCIC/ITC) administers the procedures necessary to implement the Air Force FOIA Program, submits reports to the Director, Freedom of Information and Security Review (DFOISR), and provides guidance and instructions to MAJCOMs. Responsibilities of other Air Force elements follow.
(b) SAF/GCA makes final decisions on FOIA administrative appeals.
(c) Installation commanders will: Comply with FOIA electronic reading room (ERR) requirements by establishing a FOIA site on their installation public web page and making frequently requested records (FOIA-processed (a)(2)(D)) records available through links from that site, with a link to the Air Force FOIA web page at http://www.foia.af.mil. See § 806.12(c).
(d) MAJCOM commanders implement this instruction and appoint a FOIA manager, in writing. Send the name, phone number, office symbol, and e-mail address to HQ AFCIC/ITC, 1250 Air Force Pentagon, Washington, DC 20330-1250.
(e) Air Force attorneys review FOIA responses for legal sufficiency, provide legal advice to OPRs, disclosure authorities, IDAs, and FOIA managers, and provide written legal opinions when responsive records (or portions of responsive records) are withheld. Air Force attorneys ensure factual and legal issues raised by appellants are considered by IDAs prior to sending the FOIA appeal files to the Secretary of the Air Force's designee for final action.
(f) Disclosure authorities and IDAs apply the policies and guidance in this instruction, along with the written recommendations provided by staff elements, when considering what decisions to make on pending FOIA actions. Where any responsive records are denied, the IDA tells the requesters the nature of records or information denied, the FOIA exemption supporting the denial, the reasons the records were not released, and gives the requester the appeal procedures. In addition, on partial releases, IDAs must ensure requesters can see the placement and general length of redactions with the applicable exemption indicated. This procedure applies to all media, including electronic records. Providing placement and general length of redacted information is not required if doing so would harm an interest protected by a FOIA exemption. When working FOIA appeal actions for the appellate authority review:
(1) IDAs grant or recommend continued denial (in full or in part) of the requester's appeal of the earlier withholding of responsive records, or adverse determination (for example, IDAs may release some or all of the previously denied documents).
(2) IDAs reassess a request for expedited processing due to demonstrated compelling need, overturning or confirming the initial determination made by the FOIA manager.
(3) When an IDA denies any appellate action sought by a FOIA requester, the IDA, or MAJCOM FOIA manager (for no record, fee, fee estimates, or fee category appeals) will indicate in writing that the issues raised in the FOIA appeal were considered and rejected (in full or in part). Include this written statement in the file you send to the Secretary of the Air Force in the course of a FOIA appeal action. Send all appeal actions through the MAJCOM FOIA office.
(g) OPRs:
(1) Coordinate the release or denial of records requested under the FOIA with OCRs, FOIA offices, and with Air Force attorneys on proposed denials.
(2) Provide requested records. Indicate withheld parts of records annotated with FOIA exemption. Ensure requesters can see the placement and general length of redactions. This procedure applies to all media, including
(3) Provide written recommendations to the disclosure authority to determine whether or not to release records, and act as declassification authority when appropriate.
(4) Make frequently requested records (FOIA-processed (a)(2)(D)) available to the public in the FOIA ERR via the Internet. As required by AFIs 33-129, Transmission of Information Via the Internet, and 35-205, Air Force Security and Policy Review Program, OPRs request clearance of these records with the PAO before posting on the WWW, and coordinate with JA and FOIA office prior to posting. The FOIA manager, in coordination with the functional OPR or the owner of the records, will determine qualifying records, after coordination with any interested OCRs.
(5) Complete the required GILS core record for each FOIA-processed (a)(2)(D) record.
(6) Manage ERR records posted to the installation public web page by updating or removing them when no longer needed. Software for tracking number of hits may assist in this effort.
(h) FOIA managers:
(1) Ensure administrative correctness of all FOIA actions processed.
(2) Control and process FOIA requests.
(3) Obtain recommendations from the OPR for records.
(4) Prepare or coordinate on all proposed replies to the requester. FOIA managers may sign replies to requesters when disclosure authorities approve the total release of records. If the MAJCOM part directs the OPR to prepare the reply, the OPR will coordinate their reply with the FOIA office.
(5) Make determinations as to whether or not the nature of requests are simple or complex where multitrack FOIA request processing queues exist.
(6) Approve or initially deny any requests for expedited processing.
(7) Provide interim responses to requesters, as required.
(8) Provide a reading room for inspecting and copying records.
(9) Provide training.
(10) Review publications for compliance with this part.
(11) Conduct periodic program reviews.
(12) Approve or deny initial fee waiver requests.
(13) Make the initial decision on chargeable fees.
(14) Collect fees.
(15) Send extension notices.
(16) Submit reports.
(17) Sign “no record” responses.
(18) Provide the requester the basis for any adverse determination (i.e., no records, fee denials, fee category determinations, etc.) in enough detail to permit the requester to make a decision whether or not to appeal the actions taken, and provide the requester with appeal procedures.
(i) On appeals, FOIA managers:
(1) Reassess a fee category claim by a requester, overturning or confirming the initial determination.
(2) Reassess a request for expedited processing due to demonstrated compelling need, overturning or confirming the initial determination.
(3) Reassess a request for a waiver or reduction of fees, overturning or confirming the initial determination.
(4) Review a fee estimate, overturning or confirming the initial determination.
(5) Confirm that no records were located in response to a request.
(j) The base FOIA manager acts as the FOIA focal point for the FOIA site on the installation web page.
(k) When any appellate action sought by a FOIA requester is denied by an IDA or FOIA manager for authorized actions, the IDA or FOIA manager will indicate, in writing, that the issues raised in the FOIA appeal were considered and rejected (in full or in part). Include this written statement in the file you send to the Secretary of the Air Force in the course of a FOIA appeal action. Send all appeal actions through the MAJCOM FOIA office.
(a) Examples of letters to FOIA requesters (e.g., response determinations and interim responses) are included in § 806.27.
(b) Multitrack processing. (1) Examples of letters to FOIA requesters (e.g.,
(2) Simple requests can be processed quickly, with limited impact on the responding units. The request clearly identifies the records with no (or few) complicating factors involved. There are few or no responsive records, only one installation is involved, there are no outside OPRs, no classified or nongovernment records, no deliberative process/privileged materials are involved, records contain no (or limited) personal privacy information/did not come from Privacy Act systems of records concerning other individuals, or time extensions not anticipated.
(c) Complex requests will take substantial time, will cause significant impact on responding units. Complications and delays are likely. Records sought are massive in volume, multiple organizations must review/coordinate on records, records are classified, records originated with a nongovernment source, records were part of the Air Force's decision-making process or are privileged.
(d) Expedited processing. Examples of letters to individuals whose FOIA requests and/or appeals were not expedited are included in § 806.27.
(a) A listing of some AFIs that provide guidance on special disclosure procedures for certain types of records is provided in § 806.28. Refer to those instructions for specific disclosure procedures. Remember, the only reason to deny a request is a FOIA exemption.
(b) Refer requests from foreign government officials that do not cite the FOIA to your foreign disclosure office and notify the requester.
(c) If you have a non-U.S. Government record, determine if you need to consult with the record's originator before releasing it (see § 806.9 and § 806.15(c)). This includes records created by foreign governments and organizations such as North Atlantic Treaty Organization (NATO) and North American Aerospace Defense (NORAD). You may need to coordinate release of foreign government records with either the U.S. Department of State or with the specific foreign embassy, directly through the MAJCOM FOIA office. Coordinate release or denial of letters of offer and acceptance (LOA) with SAF/IA through 11 CS/SCSR (FOIA), 1000 Air Force Pentagon, Washington DC 20330-1000.
Air Force elements must make reasonable efforts to find the records described in FOIA requests. Reasonable efforts means searching all activities and locations most likely to have the records, and includes staged or retired records, as well as complete and thorough searches of relevant electronic records, such as databases, word processing, and electronic mail files.
(a) Send all referrals through the FOIA office. The receiving FOIA office must agree to accept the referral before transfer. The FOIA office will provide the name, phone number, mailing address, and e-mail address of both the FOIA office point of contact and the record OPR point of contact in their referral letter. Include the requested record. If the requested records are massive, then provide a description of them. Referrals to, or consultations with, DFOISR are accomplished from the MAJCOM level. Section 806.27 has an example of a referral memo.
(b) In some cases, requested records are available from the GPO and NTIS, 5285 Port Royal Road, Springfield VA 22161. These organizations offer certain records for sale to the public. Current standard releasable Air Force publications are available electronically on the WWW at http://afpubs.hq.af.mil/. For requesters without electronic access, NTIS has paper copies for sale. Give requesters the web address or NTIS address when appropriate. However, if the requester prefers to pursue the FOIA process, consult with HQ AFCIC/ITC through the MAJCOM. Refer FOIA requests for Air Force publications that are classified, FOUO, rescinded, or superseded to the OPR through the appropriate FOIA office.
Keep records that were fully released for 2 years and denied records for 6 years. Include in the 6-year record file copies of records or parts of records that were released in response to the same request. Refer to Air Force Manual (AFMAN) 37-139, Records Disposition Schedule (converting to AFMAN 33-339, see § 806.9(b)). The functional OPR or FOIA office may keep the records released or denied. The FOIA office keeps the FOIA case file for each request. The FOIA case file consists of: the initial request; tasking to OPRs; OPR's reply; memoranda for record (MFR) of phone calls or other actions related to the FOIA request; DD Forms 2086, Record of Freedom of Information (FOI) Processing Cost, or 2086-1, Record of Freedom of Information (FOI) Processing Cost for Technical Data; final response; and any of the following, if applicable: extension letter; legal opinions; submitter notification letters and replies; the appeal and required attachments (except for the released or denied records if maintained by the OPR); and all other correspondence to and from the requester.
Each FOIA office will arrange for a reading room where the public may inspect releasable records. You do not need to co-locate the reading room with the FOIA office. The FOIA does not require creation of a reading room dedicated exclusively to this purpose. A “reading room” is any location where a requester may review records. For FOIA-processed (a)(3) records, if requesters meet the criteria for search and review costs, they must be paid before inspecting records. Assess reproduction costs at the time of inspection, if appropriate.
(a) HQ AFCIC/ITC will make the traditional FOIA-processed (a)(2) materials (5 U.S.C. 552(a)(2)(A), (B), and (C)) available to the public. Each Air Force activity must make 5 U.S.C. 552(a)(2)(D) records (“FOIA-processed (a)(2)(D) records”—records which they determine will, or have become, the subject of frequent or subsequent requests) available to the public in a reading room in hard copy and electronically by posting it to their appropriate web site. There is no requirement to make all FOIA-released records available electronically. The FOIA manager, in coordination with the functional OPR, or the owner of the records, determines qualifying records, after coordination with any interested OCRs. As required by AFIs 33-129 and 35-205, OPRs request clearance of these records with the PAO before posting on the WWW.
(b) Normally, if the FOIA office or OPR receives, or anticipates receiving, five or more requests for the same record in a quarter, they will consider it a frequently requested record (FOIA-processed (a)(2)(D) record) and make it publicly available in hard copy and electronically as outlined in § 806.12(a). OPRs may elect to make other records publicly available if they receive, or expect to receive, less than five requests a quarter. The purpose is to make records available in an ERR to potential future FOIA requesters instead of waiting to receive a FOIA request, and reduce the number of multiple FOIA requests for the same records requiring separate responses. In making these determinations, recognize there are some situations in which a certain type of record becomes the subject of simultaneous FOIA requests from all interested parties and then ceases to be of interest. Activities may typically receive a “flurry” of FOIA requests for contract records immediately after a contract is awarded, but do not receive any subsequent requests for such bulky records after that point. In some cases, activities may decide that placing records in the ERR would not serve the statutory purpose of “diverting some potential FOIA requests for previously released records.” The following types of records should be considered for inclusion in the ERR (excluding individuals assigned to overseas, sensitive, and routinely deployable units): organizational charts and limited staff directories; lists of personnel reassigned with gaining base; MAJCOM FOIA supplements; lists of International Merchant Purchase Authority Card (IMPAC) card holders. Do not post lists of e-mail addresses.
(c) GILS. Each activity that posts FOIA-processed (a)(2)(D) records (records which they determine will, or have become, the subject of frequent or subsequent requests) must create a GILS record for each FOIA-processed (a)(2)(D) record and post it to DefenseLINK. The OPR prepares the GILS record. You can complete and submit a GILS record on-line using a web browser. Instructions for completing the GILS record, and an on-line form are at http://www.defenselink.mil/locator/index.html. Follow the steps listed on the web page. The GILS site on DefenseLINK will serve as the central index of Air Force FOIA-processed (a)(2)(D) records.
(d) In addition, installations will post a list, or index, of locally produced FOIA-processed (a)(2)(D) records on their web page at their FOIA site. Each listing will point or link to the particular record. In addition, MAJCOMs may choose to post their own index of MAJCOM specific FOIA-processed (a)(2)(D) records to their appropriate web site. Installation web pages will include the following phrase (or similar words) on their FOIA site if they do not have any frequently requested FOIA records: “There are no frequently requested FOIA records to post at this time.” Include the following statement, or a similar one, on the installation web page with the records: “Some records are released to the public under the FOIA, and may therefore reflect deletion of some information in accordance with the FOIA's nine statutory exemptions. A consolidated list of such records is on DefenseLINK.” Link the word “DefenseLINK” to www.defenselink.mil/locator/fpr
(e) FOIA web pages should be clearly accessed from the main installation page, either by a direct link to “FOIA” or “Freedom of Information Act” from the main page, or found under a logical heading such as “Library” or “Sites.”
The GILS records on DefenseLINK will serve as the index for 5 U.S.C. 552(a)(2)(D) materials.
HQ AFCIC/ITC makes the appropriate FOIA-processed (a)(1) materials available for the Air Force.
(a)
(b)
(c)
(d)
(2) Based on court decisions in FOIA litigation, which led to the release of results of personnel surveys, FOIA managers and IDAs should get advice from an Air Force attorney before withholding survey results under FOIA exemption (b)(5).
(e)
(2) Personal information may not be posted at publicly accessible DoD web sites unless to do so is clearly authorized by law and implementing regulation and policy. Personal information should not be posted at nonpublicly accessible web sites unless it is mission essential and appropriate safeguards have been established. See also AFIs 33-129 and 35-205.
(3) Withhold names and duty addresses of personnel serving overseas or in sensitive or routinely deployable units. Routinely deployable units normally leave their permanent home stations on a periodic or rotating basis for peacetime operations or for scheduled training exercises conducted outside the United States or United States territories. Units based in the United States for a long time, such as those in extensive training or maintenance activities, do not qualify during that period. Units designated for deployment on contingency plans not yet executed and units that seldom leave the United States or United States territories (
(i) Each MAJCOM and FOA will establish a system and assign OPRs to identify United States-based units in their command qualifying for the “sensitive or routinely deployable unit” designation, under this exemption. Appropriate OPRs could include directors of operations, plans and programs, and personnel.
(ii) MAJCOM FOIA managers will ensure the list of sensitive and routinely deployable units is reviewed in January and July, and will follow that review with a memo to the Air Force Personnel Center (HQ AFPC/MSIMD), 550 C Street West, Suite 48, Randolph AFB, TX 78150-4750, either validating the current list or providing a revised listing based on the current status of deployed units at that time. This listing is in American Standard Code for Information Interchange (ASCII) format on a 3
(f)
(a) Markings. Record owners may also add the following sentence to the statement above: “(Further distribution is prohibited without the approval of (owner's organization, office symbol, phone).)”
(b) Dissemination and transmission. (1) When deciding whether to send FOUO records over facsimile equipment, balance the sensitivity of the records against the risk of disclosure. When faxing, use cover sheets to indicate FOUO attachments (
(2) For Privacy Act records, refer to AFI 33-332 for specific disclosure rules. For releases to GAO and Congress, refer to AFI 90-401, Air Force Relations With Congress and AFI 65-401, Relations With the General Accounting Office. See § 806.9(b) for availability.
(c) Termination, disposal and unauthorized disclosures. You may recycle FOUO material. Safeguard the FOUO documents or information to prevent unauthorized disclosure until recycling. Recycling contracts must include specific responsibilities and requirements on protecting and destroying FOUO and Privacy Act materials.
(a) Individuals seeking Air Force information should address requests to an address listed in § 806.26. MAJCOM FOIA office phone numbers and mailing addresses are available on the Air Force FOIA Web Page at http://www.foia.af.mil.
(1) A list of Air Force FOIA processing steps, from receipt of the request through the final disposition of an administrative appeal is at § 806.29, which also includes guidance on preparing and processing an Air Force FOIA appeal package.
(2) Air Force host tenant relationships. The Air Force host base FOIA manager may log, process, and report FOIA requests for Air Force tenant units. In such cases, the host base FOIA office refers all recommended denials and “no records” appeals to the Air Force tenant MAJCOM FOIA manager. This does not apply to the Air
(b) Use FOIA procedures in this part to process any congressional request citing FOIA, or covering a constituent letter citing FOIA. This does not apply to requests from a Congressional Committee or Subcommittee Chair on behalf of the committee or subcommittee.
(a) Disclosure authorities make final decisions on providing releasable records within the time limits and provide recommendations to the IDA on proposed denials and partial denials after coordination with the appropriate FOIA and JA office. Normally, disclosure authorities are division chiefs or higher at Air Staff level. MAJCOMs will designate their disclosure authority levels. The level should be high enough so a responsible authority makes the disclosure according to the policies outlined in this part. At out sourced units or functions, the disclosure authority must be a government official. Contractors who are functional OPRs for official government records are not authorized to make the decision to disclose government records.
(b) On receipt, Air Force FOIA offices will promptly inform Air Force PAOs of all FOIA requests that are potentially newsworthy, or that are submitted by news media requesters. FOIA offices will coordinate final replies for such cases with public affairs.
Delete information exempt from release under the FOIA from copies of otherwise releasable records. Do not release copies that would permit the requester to “read through the marking.” Examples of records with deletions of exempted data are in § 806.30.
(a) The Air Force, in compliance with Executive Order 12600, will advise submitters of contractor-submitted records when a FOIA requester seeks the release of such records, regardless of any initial determination as to whether FOIA exemption (b)(4) applies. See § 806.15(c) and § 806.31. Due to a change to 48 CFR, submitter notification is not required prior to release of unit prices contained in contracts awarded based upon solicitations issued after January 1, 1998. For solicitations issued before January 1, 1998, conduct a normal submitter notice. Unit prices contained in proposals provided prior to contract award are protected from release, as are all portions of unsuccessful proposals (before and after contract award) (10 U.S.C. 2305(g)).
(b) Department of State involvement. Air Force FOIA managers will notify their MAJCOM (or equivalent) FOIA office, in writing, via fax or e-mail when the Department of State becomes involved in any Air Force FOIA actions. The MAJCOM FOIA office will provide 11 CS/SCSR, via fax or e-mail, a summary of the issues involved, and the name, phone number, mailing address and e-mail address of: their own FOIA office point of contact; the Air Force record OPR point of contact, the DoD component FOIA office point of contact (if any), and the Department of State point of contact. 11 CS/SCSR will inform SAF/IA of any State Department involvement in Air Force FOIA actions. (See § 806.7(b).) An example of a memo advising 11 CS/SCSR of State Department involvement in an Air Force FOIA action is provided in § 806.27.
(a) FOIA requesters seeking Air Force records must address appeals to the Office of the Secretary of the Air Force, through the FOIA office of the IDA that denied the request. Requesters should attach a copy of the denial letter to their appeal and give reasons for appealing. Air Force IDAs may reconsider any prior denials and may grant all or part of a requester's appeal. When any appellate action sought by a FOIA requester is denied by an IDA, the IDA will include a statement that the issues raised in the appeal were considered and rejected (in full or in part) in any file sent to the Secretary of the Air Force in the course of a FOIA appeal action. Send all appeals to IDA decisions at the wing level
(1) MAJCOM FOIA offices and record OPRs are responsible for ensuring adequate preparation of the FOIA appeal package for reconsideration by the IDA. FOIA offices and records OPRs will coordinate with Air Force attorneys, who will provide written opinions on substantive issues raised in the appeal.
(2) If a requester appeals an Air Force “no records” determination, Air Force elements must search again or verify the adequacy of their first search. The package must include documents that show the Air Force element systematically tried to find responsive records. Tell, for example, what areas or offices were searched and how the search was conducted—manually, by computer, by telephone, and so forth. In the event a requester sues the Air Force to contest a determination that no responsive records exist, formal affidavits are required to support the adequacy of any searches conducted.
(3) FOIA requesters seeking to appeal denials involving Office of Personnel Management's controlled civilian personnel records must appeal to the Office of the General Counsel, Office of Personnel Management, 1900 E Street NW, Washington, DC 20415.
(4) If a requester appeals a denial of a fee waiver, fee estimate, or fee reduction request, FOIA offices and record OPRs must account for actual and estimated costs of processing a request, and will include copies of the DD Forms 2086 or 2086-1 in the appeal package.
(5) When any appellate action sought by a FOIA requester is denied by an IDA, prepare the FOIA appeal package as specified in § 806.29, and then the MAJCOM FOIA office forwards the appeal file to the Secretary of the Air Force's designated appellate authority, SAF/GCA (through AFLSA/JACL), for a final administrative determination.
(b) Air Force activities will process appeal actions expeditiously to ensure they reach the Office of the Secretary of the Air Force in a timely manner.
Any FOIA appeals received after the 60-day time limit are not processed, unless the requester provides adequate justification for failing to comply with the time limit. If a late appeal is received, and there is no adequate justification for failing to comply with the time limit, the FOIA office will advise the FOIA requester their appeal has been closed. An example of a closure letter is included in § 806.27.
For an appeal in process and not yet forwarded to AFLSA/JACL, the MAJCOM FOIA office is responsible for advising the requester of the status of the appeal. For an appeal in process at AFLSA/JACL, that office will advise the requester regarding status of the appeal.
For FOIA purposes, Air Force activities will consider the cost of collecting a fee to be $15 and will not assess requesters’ fees for any amount less than $15.
(a) MAJCOM FOIA managers and AFLSA/JACL send a consolidated report for the fiscal year on DD Form 2564, Annual Report Freedom of Information Act, to HQ AFCIC/ITC by October 30 via regular mail, e-mail, or facsimile. AFLSA/JACL will prepare the appeals and litigation costs sections of the report. HQ AFCIC/ITC will make the Air Force report available on the WWW.
(b) Total requests processed. “Processed” includes responses that give an estimated cost for providing the records, even if the requester has not paid.
(c) Denied in full. Do not report “no record” responses as denials.
(d) Other reasons.
(1)
(2)
(e) Other. The “Other (Specify)” block must contain the reason with the total number for the reason. For example: “FOIA request had no return address-4.”
(f) 5 U.S.C. 552(b)(3) statutes invoked on initial determinations. A corresponding statute is required for each instance entered in the Exemption 3 block. List the statute by number, not title. For any statute on the report that is not on DoD's list of commonly used 5 U.S.C. 552(b)(3) statutes, attach a copy of the pertinent page of the statute that states information must be withheld from public disclosure. HQ AFCIC/ITC makes the DoD list available to FOIA managers electronically. Statutes on the DoD list with an asterisk indicate they are valid 5 U.S.C. 552(b)(3) statutes from litigation. Do not enter any of the following as 5 U.S.C. 552(b)(3) statutes:
(g) Appeal determinations. Enter the total number of FOIA appeals received and total number of FOIA appeals completed during the fiscal year.
(h) Average. Air Force will use the “median age” and will not collect or report averages.
(i) Number of initial requests received during the fiscal year. This number includes open and closed cases.
(j) Total number of initial requests. “Processed” includes responses which give an estimated cost for providing the records, even if the requester has not paid.
(k) Total program cost. This figure includes all costs from the DD Forms 2086 and 2086-1, as well as personnel costs for individuals primarily involved in administering the FOIA program. To figure personnel costs, multiply the annual salary of each person by the percentage of time spent on FOIA.
(l) MAJCOMs and bases do not include the 25 percent. HQ AFCIC/ITC will add to the final Air Force report to DoD.
(m) Authentication. MAJCOM SCs will sign as approving official (or two-letter functional equivalent for FOIA offices in other functional areas).
(a) FOIA requests concerning Air National Guard Inspector General records should be sent to 11 CS/SCSR (FOIA), 1000 Air Force Pentagon, Washington, DC 20330-1000.
(b) Addressing Air Force Freedom of Information Act requests. The Department of the Air Force, a component of the DoD, includes the Office of the Secretary of the Air Force, the Chief of Staff of the Air Force (who is supported by Headquarters Air Force or “Air Staff” elements), the MAJCOMs, the FOAs, and DRUs. This section lists the FOIA office addresses. A selected subordinate unit is also included in this section. Realignment of Air Force elements is frequent; addresses listed below are subject to change.
(c) The Department of the Air Force does not have a central repository for Air Force records. FOIA requests are addressed to the Air Force element that has custody of the record desired. In answering inquiries regarding FOIA requests, Air Force personnel will assist requesters in determining the correct Air Force element to address their requests. If there is uncertainty as to the ownership of the record desired, refer the requester to the Air Force element that is most likely to have the record. Two organizations that include Air Force elements, and hold some Air Force-related records, are also included in the addresses listed below.
(d) MAJCOMs:
(e) FOAs:
(1) Air Force Audit Agency (AFAA): HQ AFAA/IMP, 1126 Air Force Pentagon, Washington, DC 20330-1126.
(2) Air Force Base Conversion Agency (AFBCA): AFBCA/ESA, 1700 North Moore Street, Suite 2300, Arlington, VA 22209-2802.
(3) Air Force Center for Environmental Excellence (AFCEE): HQ AFCEE/MSI, 3207 North Road, Brooks AFB, TX 78235-5363.
(4) Air Force Civil Engineering Support Agency (AFCESA): HQ AFCESA/IMD, 139 Barnes Drive Suite 1, Tyndall AFB, FL 32403-5319.
(5) Air Force Historical Research Agency (AFHRA): AFHRA/RSA, 600 Chennault Circle, Maxwell AFB, AL 36112-6424.
(6) Air Force Inspection Agency (AFIA): (Shared FOIA office/function, AFIA and Air Force Safety Agency) AFSA/JAR, 9700 Avenue G SE, Suite 236B, Kirtland AFB, NM 87117-5670.
(7) Air Force Medical Support Agency (AFMSA): AFMSA/CCEA, 2510 Kennedy Circle, Suite 208, Brooks AFB, TX 78235-5121.
(8) Air Force News Agency (AFNEWS): HQ AFNEWS/SCB, 203 Norton Street, Kelly AFB, TX 78241-6105.
(9) Air Force Office of Special Investigations (AFOSI): HQ AFOSI/SCR, P. O. Box 2218, Waldorf, MD 20604-2218.
(10) Air Force Personnel Center (AFPC): HQ AFPC/MSIMD, 550 C Street West, Suite 48, Randolph AFB, TX 78150-4750.
(11) Air Force Center for Quality and Innovation (AFCQMI): AFCQMI/CSP, 550 E Street East, Randolph AFB, TX 78150-4451.
(12) Air Force Safety Agency (AFSA): (Shared FOIA office/function, AFIA, and AFSA) AFSA/JARF, 9700 Avenue G SE, Suite 236B, Kirtland AFB, NM 87117-5670.
(13) Air Force Security Forces Center (AFSFC): AFSFC/CCQ 1720 Patrick Street, Lackland AFB, TX 78236-5226.
(14) Air Force Services Agency (AFSVA): AFSVA/SVSR, 9504 1H-35 North, Suite 250, San Antonio, TX 78233-6635.
(15) Air Force Technical Applications Center (AFTAC): AFTAC/LSCS, 1030 South Highway, Suite A1A, Patrick AFB, FL 32925-6001.
(16) Air Intelligence Agency (AIA): AIA/DOOI, 102 Hall Boulevard, Suite 229, San Antonio, TX 78243-7029.
(17) Air Reserve Personnel Center (ARPC): ARPC/SCS, 6760 East Irvington Place,
(18) Air Force Weather Agency (AFWA): HQ AFWA/SCI, 106 Peacekeeper Drive Suite 2N3, Offutt AFB, NE 68113-4039.
(19) Air Force History Support Office (AFHSO): AFHSO, 500 Duncan Avenue Box 94, Bolling AFB, DC 20332-1111.
(f) DRUs:
(1) Air Force Operational Test and Evaluation Center (AFOTEC): AFOTEC/SCM, 8500 Gibson Boulevard SE, Kirtland AFB, NM 87117-5558.
(2) 11th Wing: 11 CS/SCSR (FOIA), 1000 Air Force Pentagon, Washington, DC 20330-1000 (if a person is unsure where to send a FOIA request for Air Force records, or is seeking records from the Office of the Secretary of the Air Force, or other Headquarters Air Force records, use this address).
(3) United States Air Force Academy (USAFA): 10 CS/SCBD, 2304 Cadet Drive, Suite 232, USAFA, CO 80840-5060.
(g) Selected subordinate units: Air Force Communications Agency
(h) Organizations which include air force elements:
(1) Army and Air Force Exchange Service (AAFES): HQ AAFES/GC-E, P.O. Box 660202, Dallas, TX 75266-0202.
(2) National Guard Bureau (NGB)/Air National Guard: NGB-AD, 2500 Army Pentagon, Washington, DC 20310-2500. (FOIA requests concerning Air National Guard IG records should be sent to 11 CS/SCSR (FOIA), 1000 Air Force Pentagon, Washington, DC 20330-1000)
(a) This section includes suggested language in paragraph format that tracks Air Force and DoD FOIA guidance. The rest of the body of letters and memorandums should comply with Air Force administrative guidance. Each MAJCOM may elect to prepare their own verbiage to meet their specific needs, so long as FOIA processing actions are consistent with guidance in DoD 5400.7-R and this part. In this section, language in parentheses is for explanatory purposes only. Do not include any of the parenthetical language of this section in your FOIA correspondence. When optional language must be selected, the optional language will be presented within parentheses. Use only the portions that apply to the specific request or response.
(b) Initial receipt of Freedom of Information Act request.
We received your Freedom of Information Act (FOIA) request dated
(c) Interim response:
Your request will be delayed because: all or part of the responsive records are not located at this installation; (and/or) Processing this FOIA request will require us to collect and review a substantial number of records (and/or) Other Air Force activities or other agencies (if applicable) to include the submitter of the information, need to be involved in deciding whether or not to release the responsive records. We expect to reply to your request not later than (give a date that is not more than 30 workdays from the initial receipt of the request); (or) If processing the FOIA request will take more than the allowed time limits to respond). We find we are unable to meet the time limits imposed by the FOIA in this instance because (tell the requester the reason for the delay) (example: the records are classified and must be reviewed for possible declassification by other activities or agencies). We anticipate completing your request by (date).
(When charging fees is appropriate.) The FOIA provides for the collection of fees based on the costs of processing a FOIA request and your fee category. Based on the information in your request, we have determined your fee category is (commercial/educational or noncommercial scientific institution or news media/all others). As a result, you (if commercial category) are required to pay all document search, review and duplication costs over $15.00. (or) As a result, you (if educational or noncommercial scientific institution or news media) will be provided the first 100 pages free of charge; you are required to pay any duplication costs over and above those amounts. (or) As a result, you will be provided the first 2 hours of search time and the first 100 pages free of charge; you are required to pay any search and duplication costs over and above those amounts.
(d) Request for a more specific description:
Your request does not sufficiently describe the desired records. The FOIA applies to existing Air Force records; without more specific information from you, we cannot identify what documents might be responsive to your request. Please give us whatever additional details you may have on the Air Force records you want. Can you tell us when the records were created, and what Air Force element may have created the records? If this request involves an Air Force contract, do you know the contract number and dates it covered? Our address is (include name and complete mailing address), our fax number is (give fax number), our e-mail address is (optional—give complete e-mail address). Based on the original request you sent us, we are unable to respond.
(e) Single letter acknowledging receipt of request and giving final response. (If you can complete a FOIA request within the statutory 20-workday processing period, Air Force elements may elect to send a single letter to the requester, along with responsive
We received your Freedom of Information Act (FOIA) request dated
(f) Collection of fees:
The FOIA provides for the collection of fees based on the costs of processing a FOIA request and your fee category. We have placed you in the (enter the fee category) fee category. In your case, we have assessed a charge of $
(g) Multitrack processing letters to FOIA requesters. (When using the multitrack FOIA processing system, determine which of the following paragraphs to include in your letters to the requester. To the extent it may apply, include language from paragraph 2 of the sample. If a requester asks for expedited processing, answer carefully if you decide not to provide expedited processing, because requesters may appeal denial of their request for expedited processing. Advise requesters placed into the complex track in writing how they can simplify their request to qualify for the simple track.)
We received your Freedom of Information Act (FOIA) request dated
Based on our current backlog, we expect to respond to your request not later than (give an estimated date). Our policy is to process requests within their respective tracks in the order in which we receive them. We do process each FOIA request as quickly as we can.
(h) If the request is placed in the complex track:
In your case, processing your request is complex because (give basic reasons this is a complex case: request was vague or complicated; the records sought are voluminous; multiple organizations will have to work on this request; records are classified; responsive records came from another command/another service/a nongovernment source; responsive records were part of the Air Force's decision-making process, and the prerelease review will require policy determinations from different Air Force elements; records describe law enforcement activities; records involve foreign policy issues; due to the nature of your request and/or the nature of our computer system, responding to your request or providing a response in the electronic format you requested will be technically complex, etc.). Simplifying your request might permit quicker processing in the following ways: (describe ways the search could be narrowed to fewer records, or ways policy issues could be avoided, etc.) Can you tell us when the records were created, and what Air Force element may have created the records? If this request involves an Air Force contract, do you know the contract number? Please give us whatever additional details you may have on the Air Force records you are seeking, so we can attempt to streamline the processing of your request. Our address is (give complete mailing address), our fax number is (give fax number), our e-mail address is (optional—give complete e-mail address).
(i) If the requester asks that you expedite their request:
Because individuals receiving expedited processing may receive a response before other earlier requesters, there are administrative requirements you must meet before we can expedite a request. In your request, you asked that we expedite processing. In order for us to expedite a request, the requester must provide a statement certifying the reasons supporting their request are true and correct to the best of their knowledge.
In the second category, “urgently needed” means the information itself has a particular value that it will lose if it is not disseminated quickly. Ordinarily this means the information concerns a breaking news story of
In this case, we have determined your FOIA request (will/will not) receive expedited processing. We came to this conclusion because you (did/did not) demonstrate you need the information because failure to obtain the records on an expedited basis (could or could not) reasonably expect to pose an imminent threat to life or physical safety of an individual (or) the information (is or is not) urgently needed in order to inform the public about actual or alleged Federal Government activity (or) failure to obtain the records on an expedited basis (could or could not) reasonably expect to lead to an imminent loss of substantial due process rights, (or) release (would or would not) serve a humanitarian need by promoting the welfare and interests of mankind (and/or) your request for expedited processing did not meet the statutory requirements of the FOIA; you did not provide enough information to make a determination of compelling need for the information you requested (and/or) you did not properly certify your request.
(j) If you deny a request for expedited processing:
If you consider our decision not to expedite your request incorrect, you may appeal our decision. Include in your appeal letter the reasons for reconsidering your request for expedited processing, and attach a copy of this letter. Address your appeal to Secretary of the Air Force through (address of MAJCOM FOIA office). In the meantime, we will continue to process your request in the (simple/complex) processing track.
(k) Certification, computer systems manager (electronic records or format requested).
(When answering a request for electronic records, based on the configuration of your hardware and/or software, certain factors may make a particular request complex. Have your computer system manager advise you whether or not they can create the new record/format on a “business as usual” basis. If producing the record/format would entail a significant expenditure of resources in time and manpower that would cause significant interference with the operation of the information system and adversely affect mission accomplishment, you do not need to process the request. The FOIA office needs to get a certification from the computer systems manager to document this determination to support their response. Possible language for this certification is provided below.)
I, (rank/grade and name) am the computer systems manager for (organization with electronic records responsive to FOIA request). In consultation with (FOIA office), I have considered the FOIA request of (requester's name), our
(l) “No (paper or electronic) records” or “requested format not available” letters.
This is in response to your Freedom of Information Act (FOIA) request dated
A thorough search by (identify the unit(s) that tried to locate responsive records) did not locate any records responsive to your request. (If the requester asked questions, and there are no responsive records that would provide the answers to those questions): The FOIA applies to existing Air Force records; the Air Force need not create a record in order to respond to a request.
(or) A thorough assessment by the OPR and the computer systems manager has determined we cannot provide the (electronic record data) in the format you requested. (If this can be done on a “business as usual basis):” (Paper copies American Standard Code for Information Interchange (ASCII) files) of the data you requested are attached.
If you interpret this “o records” response as an adverse action, you may appeal it in writing to the Secretary of the Air Force. Your appeal should be postmarked no later than 60 calendar days from the date of this letter. Address your letter as follows: Secretary of the Air Force, Thru: (MAJCOM FOIA Office), (mailing address).
The FOIA provides for the collection of fees based on the costs of processing a FOIA request and your fee category. We have placed you in the (enter category) fee category; however, in this case, we have waived fees. (If paper copies or ASCII files are provided: ) The FOIA provides for the collection of fees based on the costs of processing a FOIA request and your fee category. In your case, as a requester in the fee category of (add appropriate category), we have assessed a charge of $
(m) Referral or coordination letters. (These letters are to tell the requester all or part of the request was referred to another Air Force organization, to refer or coordinate the request to another federal government organization, and to advise a nongovernment submitter a FOIA request was received for information they submitted.)G56
(1) Letter to requester.
(If all or part of a request has been referred, write to the requester:) Your Freedom of Information Act (FOIA) request dated
Because we must refer (or) coordinate your request outside our organization, your request will be delayed. We will determine whether any records are available; as soon as is practicable, a decision will be made whether to release or to withhold from disclosure any responsive records under the FOIA, 5 U.S.C. 552. Your request will be processed as expeditiously as circumstances permit.
(2) Letter to another government agency.
(If all or part of a request was referred or requires coordination, write to the government entity): On
We (do/do not) hold records responsive to this request. (If do hold is used:) Copies of responsive records located in our files are included at Attachment 3 to assist you in making your assessment on the releasability of (our/your) related records. If you need to contact us, our phone number and address is (give name, phone and complete mailing address), our fax number is (give fax number), our e-mail address is (give complete e-mail address).
(3) Letter to submitter of contract-related information.
(If contractor-submitted information is involved, write to the submitter:) On
To determine the releasability of the information contained in these documents and to give you the maximum protection under the law, please review the attached documents and give us the information outlined in § 806.31. If you feel the information is privileged or confidential, consists of proprietary commercial or financial information, and otherwise meets the statutory requirements for withholding the information from release under FOIA exemption 4, 5 U.S.C. 552(b)(4), respond to us in writing not later than
You will also need to provide a written explanation of how release would adversely impact or cause harm to your competitive position, your commercial standing, or other legally protected interests. An assertion that “we should deny because all of the information was submitted in confidence” or “deny because all of the information was marked as proprietary in nature” would not justify withholding of the requested information under the FOIA. If you need to contact us, call or write (give name), phone number is (give commercial number), our address is (give complete mailing address), our fax number is (give fax number), our e-mail address is (give complete e-mail address).
(4) Letter requesting State Department coordination. (If the State Department is involved in coordinating on a request, fax or e-mail 11 CS/SCSR so they can inform SAF/IA if appropriate).
On
(n) Certification of initial classification or declassification authority (When denying a FOIA request, in whole or in part, because the information requested is classified, the initial classification authority, his or her successor, or a declassification authority, needs to determine if the records are “properly and currently classified,” and therefore must be withheld from release under FOIA exemption (b)(1); also, you need to determine that you cannot release any reasonably segregable additional portions. Language that certifies such a determination was made on a FOIA request involving classified records follows).
(1) Sample certification format—all information remains classified.
I, (rank/grade and name) am the initial classification authority (or) the successor to the original initial classification authority (or) the declassification authority for (give an unclassified description of the records concerned). In consultation with (FOIA office), I have assessed the FOIA request of (requester's name), our
(2) Sample certification format—portions remain classified.
I, (rank/grade and name) am the initial classification authority (or) the successor to the original initial classification authority (or) the declassification authority for (give an unclassified description of the records concerned.) In consultation with (FOIA office), I have assessed the FOIA request of (requester's name), our
(o) Letter to a requester who has withdrawn their request or appeal. (If a FOIA requester has withdrawn a FOIA request or appeal, sending a final letter to the requester to close the file may be wise. Suggested language to the requester follows):
We received your Freedom of Information Act (FOIA) request (or) appeal dated
(p) Letter to a requester who has appealed after the 60-day deadline. (We will not process FOIA appeals received after the 60-day time limit, unless the requester provides adequate justification for failing to comply. If you receive a late appeal, and it gives inadequate justification for failing to comply, the FOIA office will advise the requester their appeal was closed; suggested language for a letter to an untimely requester follows.)
We received your Freedom of Information Act (FOIA) appeal dated
(q) Letter to a requester who has appealed. (There are occasions when, on reconsideration, an IDA grants all or part of an appeal. When sending their appeal to higher headquarters, notify the requester. Suggested language to a requester who has appealed follows):
We received your Freedom of Information Act (FOIA) appeal, our number
(If you grant all or part of the appeal): Upon reconsideration, we are releasing the requested records (or) granting your request. (If the appeal is only partially granted, describe what portions remain in dispute). (If applicable): We are releasing and attaching all or portions of the responsive records. (If applicable): We will continue processing your appeal for the remaining withheld (records/information).
Certain records have special administrative procedures to follow before disclosure. Selected publications that contain such guidance are listed below.
(a) This section is a checklist format of processing steps and explanations of Air Force and DoD guidance. Each MAJCOM may elect to prepare its own checklists to tailor FOIA processing actions within its own organizations to meet their specific needs, so long as it remains consistent with guidance contained in DoD 5400.7-R, DoD Freedom of Information Act Program, and this part.
(b) Procedures: FOIA requests.
(1) Note the date the request was received, give the request a unique identifier/number, and log the request.
(2) Assess the request to determine initial processing requirements:
(3) Determine what Air Force elements may hold responsive records.
(i) Are responsive records kept at the same or different installations?
(ii) Is referral of (all/part) of the request required?
(4) Determine appropriate processing track (simple/complex/expedited). (Air Force FOIA offices without backlogs do not multitrack FOIA requests.)
Requesters have a right to appeal an adverse tracking decision (for example, when it is determined their request will not be expedited). Also, if their request qualifies for the complex track, tell requesters so they may limit the scope of their request in order to qualify for the simple track. FOIA managers must assess a request before placing it into a specific processing track, and must support their actions should the requester appeal. If a request is determined to be complex, or is not expedited when the requester sought expedited processing, you must advise the requester of the adverse tracking decision in writing. See § 806.27 for sample language for this kind of letter to a requester.
(i) Simple. Defines a request that can be processed quickly, with limited impact on the responding units. The request clearly identifies the records, involves no (or few) complicating factors (e.g., there are few or no responsive records, involves only one installation and there are no outside OPRs, involves no classified records (Exemption 1), a law exempts the responsive records from disclosure (Exemption 3), no contractor-submitted records (Exemption 4), no deliberative process/privileged materials (Exemption 5), records contain no (or limited) personal privacy information/did not come from Privacy Act systems of records concerning other individuals (Exemption 6), release of records would have minimal impact on law enforcement (Exemption 7); no time extensions expected, other than the additional 10-workdays allowed in situations outlined in the FOIA). If the requested data must come from electronic records, response can be completed on a “business-as-usual” basis; requires no (or limited) reprogramming of automated information systems and would cause no significant interference with operation of information systems by processing a simple request/providing a
(ii) Complex. Defines a request whose processing will take substantial time, will cause significant impact on responding units. Complications and delays are likely (e.g., the request is vague (poor description of records, unclear who or when records were created), records are massive in volume, multiple organizations will receive tasking, records are classified (Exemption 1), records came from another command/service/a nongovernment source (Exemption 4), records are part of the Air Force's decision-making process, and not incorporated into a final decision (IG/audit reports, legal opinions, misconduct or mishap investigations etc.) or are attorney-client records (Exemption 5), records are largely personal information on another individual or came from Privacy Act systems of records (Exemption 6), records describe law enforcement activities or information from (and/or identities of) confidential sources (Exemption 7); response cannot be completed on a “business as usual” basis and would require extensive reprogramming or cause significant interference with operation of the automated information systems. (Advise requester, in writing, of right to limit the scope of their request in order to qualify for simple track.)
(iii) An expedited request is when a requester asks for expedited processing and explains the compelling need (imminent threat to life or physical safety; urgently needed by a person primarily engaged in disseminating information; due process; or humanitarian need) for the requested information. In order to receive expedited processing, requesters must provide a statement certifying their “demonstration” (description) of their specific “compelling need” or due process/humanitarian need is true and correct to the best of their knowledge. When a requester seeks expedited processing, FOIA offices must respond in writing to the requester within 10 calendar days after receipt of the request approving or denying their request for expedited processing. Requesters have a right to appeal an adverse decision (e.g., when it is determined their requests will not be expedited). There are four categories of FOIA requests that qualify for expedited processing:
(A) The requester asserts a “compelling need” for the records, because a failure to obtain records quickly could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.
(B) The requester asserts a “compelling need” for the records, because the information is “urgently needed” by an individual engaged in disseminating information to inform the public (primarily news media requesters; and could also include other persons with the ability to disseminate information).
“Urgently needed,” in this case, means the information has a particular value that will be lost if it is not disseminated quickly. This normally would apply to a breaking news story of general public interest. Information of historical interest only, or sought for litigation or commercial activities would not qualify, nor would the fact a news media entity had an internal broadcast deadline of its own, which was unrelated to the “news breaking nature” of the information itself, cause the requested information to qualify as “urgently needed.”
(C) Failure to obtain records quickly could cause imminent loss of substantial due process rights or providing the information quickly would serve a “humanitarian need” (i.e., disclosing the information will promote the welfare and interests of mankind). While FOIA requests falling into these third and fourth categories can qualify for expedited processing, process them in the expedited track behind the requests qualifying for expedited processing based on “compelling need” (the first two types of expedited FOIA requests).
(5) Determine fee category of requester (commercial/educational-—noncommercial scientific institution—news media/all others) and assess fee issues. When all assessable costs are $15.00 or less, waive fees automatically for all categories of requesters. Assess other fee waiver or reduction requests on a case-by-case basis.
(6) Apply fee waiver/fee reduction criteria in appropriate cases (when requester asks for fee waiver/reduction).
(7) Find the responsive Air Force records (if any).
(i) Send the request to the appropriate OPRs to search for responsive records and to decide whether to recommend release of any responsive records. Include a DD Form 2086, Record of Freedom of Information (FOI), or a DD Form 2086-1, Record of Freedom of Information (FOI) Processing Cost for Technical Data, in each request. The OPR must complete and return the appropriate forms and statements to the FOIA office.
(ii) If the OPRs find no responsive records, or if the OPRs desire to withhold any responsive records from release to the requester, the OPRs must provide a written certificate detailing either their unsuccessful search, or their reasons why the documents should be withheld from release under the FOIA; the written OPR statements must accompany the copies of the records the OPR desires to withhold as the FOIA action is processed (e.g., include it in any denial or appeal file).
If any part of a FOIA request is denied, and the requester appeals that denial, include all forms, certificates and documents prepared by the OPRs in the FOIA appeal package required in paragraph (d)(5) of this section.
(c) Contacts with FOIA requesters and non-Air Force submitters of data.
(1) Contacts with Air Force elements. A FOIA request is considered “received” (and therefore ready to process) when the FOIA office responsible for processing the request physically receives it, when the requester states a willingness to pay fees set for the appropriate fee category, or, if applicable, when the requester has paid any past FOIA debts and has reasonably described the requested records. Keep hard/paper copies of all memoranda documenting requester contacts with Air Force elements regarding a pending FOIA request in the requester's FOIA file. If the requester contacts Air Force elements telephonically about a pending FOIA request, the Air Force member participating in the conversation must prepare notes or memorandums for record (MFR), and keep those notes or MFRs in the requester's FOIA file. If any part of a FOIA request is denied, and the requester appeals that denial, submit documentation of requester contacts with Air Force elements in chronological order in the FOIA appeal package (see paragraph (d)(1) of this section).
(2) Contacts with the FOIA Requester. See § 806.27 for samples of language to use in various types of Air Force FOIA letters. If any part of a FOIA request is denied, and the requester appeals that denial, submit documents sent by Air Force elements to the requester in the FOIA appeal package in chronological order (see paragraph (d)(5) of this section). Letters that Air Force FOIA offices may need to send to a FOIA requester include:
(i) An initial notification letter that the FOIA request was received. This letter may advise the requester that processing of the FOIA request may be delayed because:
(A) All or part of the requested records are not located at the installation processing the FOIA request (see § 806.29(c)(2)(ii)).
(B) An enormous number of records must be collected and reviewed.
(C) Other Air Force activities or other agencies, to include (if applicable) the nongovernment submitter of information, need to be involved in deciding whether or not to release the records.
(D) If you cannot complete processing of a FOIA request within 20 workdays, advise the requester of the reasons for the delay and give a date (within 30 workdays after receiving the request) when the requester can expect a final decision.
(ii) The initial notification letter may advise the requester all/part of the request was referred to another Air Force element or government activity.
(iii) The initial notification letter may advise the requester of the appropriate fee category. In cases where fees are appropriate, and requesters have not agreed to pay for responsive records and fees are likely to be more than $15.00, seek assurances that the requester agrees to pay appropriate fees. If more information is needed to make a fee category determination, or to determine whether fees should be waived/reduced, inform the requester. FOIA offices may determine fee waiver/reduction requests before processing a FOIA request; if a fee waiver/reduction
(iv) The initial notification letter may advise the requester the request does not sufficiently describe the desired records. If possible, help the requester identify the requested records by explaining what kind of information would make searching for responsive records easier.
(v) If Air Force elements can complete a FOIA request within the statutory 20-workday processing period, you may elect to send only a single letter to the requester, along with responsive records that are released to the requester in full.
(vi) A letter to the requester that the responding FOIA office uses multitrack processing due to a significant number of pending requests that prevents a response determination from being made within 20 workdays. This letter advises the FOIA requester that track the request is in (simple/complex); in this letter, if expedited processing was requested, the requester is advised if the request will be expedited or not. If the request is found to be complex, you must advise the requester he/she may alter the FOIA request to simplify processing. If it is determined the request will not be expedited, the requester must be told he/she can appeal. (This may be the initial letter to the requester, for Air Force elements with multitrack processing; if that is the case, this letter may include sections discussed in § 806.29(c)(2)(i)).
(vii) Subsequent letters to the requester on various subjects (for example, releasing requested records; advising reasons for delays; responding to the letters, facsimiles or calls; advising the requester of referrals to other Air Force units or government activities; involves a non-Air Force submitter,
(viii) A release letter to the requester, forwarding releasable responsive records with a bill (if appropriate).
(ix) A “no records” response letter to the requester if there are no responsive records, or, a denial letter, if any responsive records are withheld from release. FOIA managers may sign “no records” or “requested format not available” responses; they may also sign a letter that advises a requester the fee category sought was not determined to be appropriate, or that a fee waiver/fee reduction request was disapproved, or that a request for expedited processing has been denied. An IDA must sign any letter or document withholding responsive records. When denying records, you must tell the requester, in writing: the name and title or position of the official who made the denial determination, the basis for the denial in enough detail to permit the requester to make a decision concerning appeal, and the FOIA exemptions on which the denial is based. The denial letter must include a brief statement describing what the exemptions cover. When the initial denial is based (in whole or in part) on a security classification, this explanation should include a summary of the applicable executive order criteria for classification, as well as an explanation of how those criteria apply to the particular record in question. Estimate the volume of the records denied and provide this estimate to the requester, unless providing such an estimate would harm an interest protected by an exemption of the FOIA. This estimate should be in number of pages or, for records in other media, in some other reasonable form of estimation, unless the volume is otherwise indicated through deletions on records disclosed in part. Indicate the size and location of the redactions on the records released. You must also tell the requester how he/she can appeal the denial.
(3) Contacts with non-Air Force submitters of data. Before releasing data (information or records) submitted from outside the Air Force, determine whether you need to write to the submitter of the data for their views on releasability of their data. In many cases, this non-Air Force data may fall under FOIA Exemption 4. If it appears you must contact the submitter of the data, advise the requester in writing that you must give the submitter of the data the opportunity to comment before the Air Force decides whether to release the information. Give the submitter a reasonable period of time (30
(i) The notice requirements of this section need not be followed if the Air Force determines that the information should not be disclosed, the information has been lawfully published or officially made available to the public, or disclosure of the information is required by law.
(ii) If the submitter objects to release of the records, but the Air Force disclosure authority considers the records releasable, tell the submitter before releasing the data. Include in the letter to the submitter a brief explanation and a specific release date at least 2 weeks from the date of the letter. Advise the submitter once a determination is made that release of the data is required under the FOIA, failure to oppose the proposed release will lead to release of submitted data. Also advise the requester such a release under the FOIA will result in the released information entering the public domain, and that subsequent requests for the same information will be answered without any formal coordination between the Air Force and the submitter, unless the information is later amended, changed, or modified. A person equal to, or higher in rank than, the denial authority makes the final decision to disclose responsive records over the submitter's objection.
(iii) When a previously released contract document has been modified, any contract documents not in existence at the time of an earlier FOIA request that are responsive to a later FOIA request for the same contract, will be processed as a first-time FOIA request for those newly created documents. Notify the nongovernment submitter of the pending FOIA action, and give them the same opportunity to respond as is detailed above. Passage of a significant period of time since the prior FOIA release can also require Air Force elements to comply with the notice requirements in this paragraph.
(d) Denying all or part of a request. When responsive records are withheld from release (denied), the appropriate offices must prepare a denial package for the IDA. Air Force elements must send the request, related documents, and responsive records through their IDA's FOIA office to the IDA for a decision. The denial package must include:
(1) The FOIA request and any modifications by the requester.
(2) A copy of the responsive records, including both records that may be released and records recommended for denial.
(3) Written recommendations from the OPRs and an Air Force attorney.
(4) The exemptions cited and a discussion of how the records qualify for withholding under the FOIA. This discussion should also include the reasons for denial: to deny release of responsive records requested under the FOIA, you must determine that disclosure of the records would result in a foreseeable harm to an interest protected by a FOIA exemption (or exemptions), that the record is exempt from release under one or more of the exemptions of the FOIA, and that a discretionary release is not appropriate.
(5) Any collateral documents that relate to the requested records. For example:
(i) If the requested records came from a non-Air Force or non-U.S. Federal Government submitter, include any documents from the submitter that relate to the release or denial of the requested records. If you are not sure whether or not the non-Air Force or non-U.S. Federal Government submitted information is potentially exempt from release under the FOIA, contact an Air Force attorney. FOIA Exemptions 3, 4, 5, 6, and 7 may apply.
(ii) If the requested records came from Privacy Act systems of records, include a written discussion of any Privacy Act issues.
(iii) If any requested records came from another Air Force element, or release of the requested records would affect another Air Force element, FOIA offices should coordinate with that other element. If the FOIA request is not completely referred to the other element, include documents from that element.
(iv) If any requested records are classified, include a written certification from a classification authority or declassification authority stating the data was properly classified originally, that it remains properly classified (per E.O. 12958), and, if applicable, that no reasonably segregable portions can be released.
(e) FOIA appeal actions.
(1) If an IDA, or a FOIA office responding on behalf of an IDA, withholds a record from release because they determine the record is exempt under one or more of the exemptions to the FOIA, the requester may appeal that decision, in writing, to the Secretary of the Air Force. The appeal should be accompanied by a copy of the denial letter. FOIA appeals should be postmarked within 60 calendar days after the date of the denial letter, and should contain the reasons the requester disagrees with the initial denial. Late appeals may be rejected, either by the element initially processing the FOIA appeal, or by subsequent denial authorities, if the requester does not provide adequate justification for the delay. Appeal procedures also apply to the denial of a fee category claim by a requester, denial of a request for waiver or reduction of fees, disputes regarding fee estimates, review on an expedited basis of a determination not to grant expedited access to agency records, and for “no record” or “requested format not available” determinations when the requester considers such responses adverse in nature.
(2) Coordinate appeals with an Air Force attorney (and the OPR, if appropriate) so they can consider factual and legal arguments raised in the appeal, and can prepare written assessments of issues raised in the appeal to assist the IDA in considering the appeal. MAJCOM FOIA offices and 11 CS/SCSR (for OPRs at HQ USAF and SAF), send all appeals to the Secretary of the Air Force through AFLSA/JACL for consideration, unless the IDA has reconsidered the initial denial action, and granted the appeal.
(3) If a requester appeals a “no records” determination, organizations must search again or verify the adequacy of their first search (for example, if a second search would be fruitless, the organization may include a signed statement from either the records OPR or the MAJCOM FOIA manager detailing why another search was not practical). The appeal package must include documents (to include a certification from the records OPR) that show how the organization tried to find responsive records. In the event a requester sues the Air Force to contest a determination that no responsive records exist, formal affidavits will be required to support the adequacy of any searches conducted.
(4) General administrative matters. FOIA requesters may ultimately sue the Air Force in federal court if they are dissatisfied with adverse determinations. In these suits, the contents of the administrative appeal file are evaluated to determine whether the Air Force complied with the FOIA and its own guidance. Improper or inadequate appeal files make defending these cases problematic. Include all the documents related to the requester's FOIA action in the appeal file. If appeal file documents are sensitive, or are classified up to the SECRET level, send them separately to AFLSA/JACL, 1501 Wilson Boulevard, 7th Floor, Arlington, VA 22209-2403. Make separate arrangements with AFLSA/JACL for processing classified appeal file documents TOP SECRET or higher. Cover letters on appeal packages need to list all attachments. If a FOIA action is complicated, a chronology of events helps reviewers understand what happened in the course of the request and appeal. If an appeal file does not include documentation described below, include a blank sheet in proper place and mark as “not applicable,” “N/A,” or “not used.” Do not renumber and
(i) The original appeal letter and envelope.
(ii) The initial FOIA request, any modifications of the request by the requester or any other communications from the requester, in chronological order.
(iii) The denial letter.
(iv) Copies of all records already released. (An index of released documents may be helpful, if there are a number of items. If the records released are “massive” (which means “several cubic feet”) and AFLSA/JACL agrees, an index or description of the records may be provided in place of the released records. Do not send appeal files without copies of released records without the express agreement of AFLSA/JACL. Usually AFLSA/JACL requires all the released records in appeal files. If you do not send the released records to AFLSA/JACL when a FOIA requester has appealed a partial denial, retain a copy of what was released for 6 years.)
(v) Copies of all administrative processing documents, including extension letters, search descriptions, and initial OPR recommendations about the request, in chronological order.
(vi) Copies of the denied records or portions marked to show what was withheld. If your organization uses a single set of highlighted records (to show items redacted from records released to the requester), ensure the records are legible and insert a page in the appropriate place stating where the records are located. (An index of denied documents may be helpful, if there are a number of items. If the records denied are “massive” (which means “several cubic feet”) and AFLSA/JACL agrees, an index or description of the records may be provided in place of the denied records. Do not send appeal files without copies of denied records without the express agreement of AFLSA/JACL. Usually AFLSA/JACL requires all the denied records in appeal files. If you do not send the denied records to AFLSA/JACL, when a FOIA requester has appealed a denial, retain a copy of what was denied for 6 years.)
(vii) All legal opinions in chronological order. Include a point-by-point discussion of factual and legal arguments in the requester's appeal (prepared by an Air Force attorney and/or the OPR). If the IDA does not state in the cover letter he/she signed, that he/she considered and rejected the requester's arguments, asserting the basis for that decision (e.g., the IDA concurs in the legal and/or OPR assessments of the requester's arguments) include a signed, written statement containing the same information from the IDA, either as a separate document or an endorsement to a legal or OPR assessment. Include any explanation of the decision-making process for intra-agency documents denied under the deliberative process privilege and how the denied material fits into that process (if applicable).
(a) Certain responsive records may contain parts that are releasable, along with other parts that the Air Force must withhold from release. Carefully delete information exempt from release under the FOIA from copies of otherwise releasable records. Do not release copies that would permit the requester to “read through the marking.” In order to assist FOIA managers in redacting records, selected items appropriate to withhold in commonly requested Air Force records are illustrated below. When providing releasable portions from classified paragraphs, line through and do not delete, the classification marking preceding the paragraph.
(b) Exemption 1. Example used is an extract from a “simulated” contingency plan (all information below is
(U) Air Force members will safeguard all FELLOW YELLOW data (NOTE: FELLOW YELLOW simulates an UNCLASSIFIED code name).
During the contingency deployment in Shambala, those members assigned to force element FELLOW YELLOW will cover their movements by employing specified camouflage and concealment activities while behind enemy lines. Only secure communications of limited duration as specified in the communications annex will be employed until FELLOW YELLOW personnel return to base. (Exemption 1)
(c) Exemption 2. Example used is an extract from a “simulated” test administration guide (all information below is fictional and is used for illustrative purposes only).
When administering the test to determine which technicians are ranked fully qualified, make sure to allow only the time specified in HQ AETC Pamphlet XYZ, which the technicians were permitted to review as part of their test preparation. For ease in scoring this exam, correct answers are A, A, B, B, A, B, C, C, A, B, D, D, C, C, C, D; the corresponding template for marking the standard answer sheet is kept locked up at all times when not in use to grade answer sheets. (Exemption “high” 2)
(d) Exemption 5. Example used is a simulated IG Report of Investigation (ROI) recommendation. All parenthetical information in this example is fictional and is used for illustrative purposes only:
Having interviewed the appropriate personnel and having reviewed the appropriate documents, I recommend additional training sessions for all branch personnel on accepted Air Force standards, and the Air Force pursue administrative or judicial disciplinary action with respect to Terry Hardcase. (Exemption 5)
(e) Exemption 6. Example used is a simulated personnel computer report on a military member selected for a special assignment (all information below is fictional; information and marking is used for illustrative purposes only.):
(f) Exemption 7. Example used is summary of a law enforcement report on a domestic disturbance at on-base family housing (all information below is fictional and all parenthetical information is used for illustrative purposes only):
At 2140, the law enforcement desk, extension 222-3456, took an anonymous call that reported a disturbance at 1234 Basestreet, quarters allegedly occupied by two military members. SrA Patrolman (names of law enforcement investigators usually are withheld under Exemptions 6 and 7(C)) arrived on the scene at 2155. SrA Patrolman met Nora Neighbor, (names of witnesses usually are withheld under Exemptions 6 and 7(C)) who was very agitated. Because she feared her neighbors would retaliate against her if they knew she reported their fight, she asked that her name not be released before she would talk. After she was promised her identity would remain anonymous, she stated: (Nora Neighbor became a confidential informant; data that could identify her, and in some cases, the information she related, should be withheld from release under Exemptions 6, 7(C) and (D).) “I heard cursing and heard furniture and dishes breaking. They fight all the time. I’ve seen Betty Battle (unless Betty is the requester, redact her name Exemptions 6 and 7(C)) with a black eye, and I also saw Bob Battle (unless Bob is the requester, redact his name Exemptions 6 and 7(C)) with bruises the day after they had their last fight, last Saturday night. This time, there was a tremendous crash; I heard a man scream “My Lord NO!” then I saw Betty Battle come out of the house with dark stains on her clothes—she got into her car and drove away. I could see this really well, because the streetlight is right between our houses; I’m the wife of their NCOIC. If only Nick, my husband, was here now, he’d know what to do! I haven’t heard anything from Bob Battle.” (Exemptions 6 and 7)
(a) The FOIA requires federal agencies to provide their records, except those specifically exempted, for the public to inspect and copy. Section (b) of the Act lists nine exemptions that are the only basis for withholding records from the public.
(b) In this case, the fourth exemption, 5 U.S.C. 552(b)(4), may apply to records or information the Air Force maintains. Under this exemption, agencies must withhold trade secrets and commercial or financial information they obtained from a person or organization outside the government that is privileged or confidential. This generally includes information provided and received during the contracting process with the understanding that the Air Force will keep it privileged or confidential.
(c) Commercial or financial matter is “confidential” and exempt if its release will probably:
(1) Impair the government's ability to obtain necessary information in the future.
(2) Substantially harm the source's competitive position or impair some other legitimate government interest such as compliance and program effectiveness.
(d) Applicability of exemption. The exemption may be used to protect information provided by a nongovernment submitter when public disclosure will probably cause substantial harm to its competitive position. Examples of information that may qualify for this exemption include:
(1) Commercial or financial information received in confidence with loans, bids, contracts, or proposals, as well as other information received in confidence or privileged, such as trade secrets, inventions, discoveries, or other proprietary data.
Certain proprietary and source selection information may also fall under exemption (b)(3), under the provisions of 10 U.S.C. 2305(g) or 41 U.S.C. 423, if statutory requirements are met.
(2) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, offered and received in confidence from a contractor or potential contractor.
(3) Personal statements given during inspections, investigations, or audits, received and kept in confidence because they reveal trade secrets or commercial or financial information, normally considered confidential or privileged.
(4) Financial data that private employers give in confidence for local wage surveys used to set and adjust pay schedules for the prevailing wage rate of DoD employees.
(5) Information about scientific and manufacturing processes or developments that is technical or scientific or other information submitted with a research grant application, or with a report while research is in progress.
(6) Technical or scientific data a contractor or subcontractor develops entirely at private expense, and technical or scientific data developed partly with Federal funds and partly with private funds, in which the contractor or subcontractor retains legitimate proprietary interests per 10 U.S.C. 2320 to 2321 and 48 CFR, Chapter 2, 227.71-227.72.
(7) Computer software copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the disclosure of which would adversely impact its potential market value.
(e) Submitter's Written Response. If release of the requested material would prejudice your commercial interests, give detailed written reasons that identify the specific information and the competitive harm public release will cause to you, your organization, or your business. The act requires the Air Force to provide any reasonably segregable part of a record after deleting exempt portions. If deleting key words or phrases would adequately protect your interests, advise us in writing which portions you believe we can safely release, and which portions you believe we need to withhold from release. If you do not provide details on the probability of substantial harm to your competitive position or other commercial interests, which would be caused by releasing your material to the requester, we may be required to release the information. Records qualify for protection on a case by case basis.
(f) Pricing Information. Generally, the prices a contractor charges the government for goods or services would be released under the FOIA. Examples of releasable data include: bids submitted in response to an invitation for bids (IFB), amounts actually paid by the government under a contract, and line item prices, contract award price, and modifications to a contract. Unit prices contained in a contract award are considered releasable as part of the post award notification procedure prescribed by 48 CFR 15.503, unless they are part of an unsuccessful proposal, then 10 U.S.C. 2305(g) protects everything including unit price.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
The Privacy Act of 1974 and this part apply only to information in Air Force systems of records on living United States citizens and permanent resident aliens.
(a) An official system of records must be:
(1) Authorized by law or Executive Order.
(2) Controlled by an Air Force or lower level directive.
(3) Needed to carry out an Air Force mission or function.
(b) The Air Force does not:
(1) Keep records on how a person exercises First Amendment rights. EXCEPTIONS are when: The Air Force has the permission of that individual or is authorized by federal statute; or the information pertains to an authorized law enforcement activity.
(2) Penalize or harass an individual for exercising rights guaranteed under the Privacy Act. Give reasonable aid to individuals exercising their rights.
(c) Air Force members:
(1) Keep paper and electronic records containing personal information and retrieved by name or personal identifier only in approved systems published in the
(2) Collect, maintain, and use information in such systems only to support programs authorized by law or Executive Order.
(3) Safeguard the records in the system and keep them the minimum time required.
(4) Keep the records timely, accurate, complete, and relevant.
(5) Amend and correct records on request.
(6) Let individuals review and receive copies of their own records unless the Secretary of the Air Force approved an exemption for the system or the Air Force created the records in anticipation of a civil action or proceeding.
(7) Provide a review of decisions that deny individuals access to or amendment of their records.
An individual may file a civil suit against the Air Force for failing to comply with the Privacy Act. The courts may find an individual offender guilty of a misdemeanor and fine that individual offender not more than $5,000 for:
(a) Willfully maintaining a system of records that doesn't meet the public notice requirements.
(b) Disclosing information from a system of records to someone not entitled to the information.
(c) Obtaining someone else's records under false pretenses.
If you keep personal notes on individuals to use as memory aids to supervise or perform other official functions, and do not share them with others, and an Air Force directive does not require their maintenance, the Privacy Act does not apply.
(a) The Administrative Assistant to the Secretary of the Air Force (SAF/AA) manages the entire program.
(b) The Office of the General Counsel to the Secretary of the Air Force (SAF/GCA) makes final decisions on appeals.
(c) The Director of Information Management (SAF/AAI), through the Access Programs Office of the Policy Division, (SAF/AAIA):
(1) Administers procedures outlined in this part.
(2) Submits system notices and required reports to the Defense Privacy Office.
(3) Guides major commands (MAJCOM) and field operating agencies (FOA).
(d) MAJCOM and FOA commanders, HQ USAF and Deputy Chiefs of Staff (DCS), and comparable officials, and SAF offices implement this part. Each HQ USAF and SAF office appoints a Privacy Act monitor. Send the name, office symbol, and phone number to SAF/AAIA.
(e) MAJCOM and FOA Information Managers:
(1) Manage the program.
(2) Appoint a command Privacy Act officer.
(3) Send the name, office symbol, and phone number to SAF/AAIA.
(f) Privacy Act Officers:
(1) Guide and train.
(2) Review the program at regular intervals.
(3) Submit reports.
(4) Review all publications and forms for compliance with this part.
(5) Review system notices.
(6) Investigate complaints.
(7) Staff denial recommendations (at MAJCOMs and FOAs only).
(g) System Managers:
(1) Decide the need for, and content of systems.
(2) Manage and safeguard the system.
(3) Train personnel on Privacy Act requirements.
(4) Protect records from unauthorized disclosure, alteration, or destruction.
(5) Prepare system notices and reports.
(6) Answer Privacy Act requests.
(7) Keep records of disclosures.
(8) Evaluate the systems annually.
(h) Privacy Act Monitors (PAM):
(1) Are the focal point in their functional area for general Privacy Act questions and correspondence.
(2) Maintain a list of all systems of records and system managers in their area.
(3) Act as liaison with the Privacy Act Officer.
(4) Maintain statistics for the annual Privacy Act report.
The Commander AFOSI; the Chief, Air Force Security Police Agency (AFSPA); MAJCOM, FOA, and base chiefs of security police; AFOSI detachment commanders; and designees of those offices may ask another agency for records for law enforcement under 5 U.S.C. 552a(b)(7). The requesting office must indicate in writing the specific part of the record desired and identify the law enforcement activity asking for the record.
Record promises of confidentiality to exempt from disclosure any ‘confidential’ information under subsections (k)(2), (k)(5), or (k)(7) of the Privacy Act.
Collect personal information directly from the subject of the record when possible. You may ask third parties when:
(a) You must verify information.
(b) You want opinions or evaluations.
(c) You can't contact the subject.
(d) The subject asks you.
(a) Give a PAS orally or in writing:
(1) To anyone from whom you are collecting personal information that will be put in a system of records.
(2) Whenever you ask someone for his or her Social Security Number (SSN).
Do this regardless of how you collect or record the answers. You may display a sign in areas where people routinely furnish this kind of information. Give a copy of the PAS if asked. Do not ask the person to sign the PAS.
(3) A PAS must include four items:
(i) Authority: The legal authority, that is, the United States Code or Executive Order authorizing the program the system supports.
(ii) Purpose: The reason you are collecting the information.
(iii) Routine Uses: A list of where and why the information will be disclosed outside DoD.
(iv) Disclosure: Voluntary or Mandatory. (Use Mandatory only when disclosure is required by law and the individual will be penalized for not providing information.) Include any consequences of nondisclosure in nonthreatening language.
(a) Do not deny people a legal right, benefit, or privilege for refusing to give their SSNs unless the law requires disclosure, or a law or regulation adopted before January 1, 1975, required the SSN and the Air Force uses it to verify a person's identity in a system of records established before that date. When you ask for an SSN to create a record, tell the individual:
(1) The statute, regulation, or rule authorizing you to ask for the SSN.
(2) The uses that will be made of the SSN.
(3) If he or she is legally obligated to provide the SSN.
(b) The Air Force requests an individual's SSN and provides the individual information required by law when anyone enters military service or becomes an Air Force civilian employee. The Air Force uses the SSN as a service or employment number to reference the individual's official records. When you ask someone for an SSN as identification (ID) to retrieve an existing record, you do not have to restate this information.
(c) Executive Order 9397, November 22, 1943, authorizes using the SSN as a personal identifier. This order is not adequate authority to collect an SSN to create a record. When law does not require disclosing the SSN or when the system of records was created after January 1, 1975, you may ask for the SSN, but the individual does not have to disclose it. If the individual refuses to respond, use alternative means of identifying records.
(d) SSNs are personal and unique to each individual. Protect them as FOR OFFICIAL USE ONLY (FOUO). Do not disclose them to anyone without an official need to know.
Persons or their designated representatives may ask for a copy of their records in a system of records. Requesters need not state why they want access to their records. Verify the identity of the requester to avoid unauthorized disclosures. How you verify identity will depend on the sensitivity of the requested records. Persons without access to notary services may use an unsworn declaration in the following format: ‘I declare under penalty of perjury (if outside the United States, add ‘under the laws of the United States of America’) that the foregoing is true and correct. Executed on (date). (Signature).’
Consider a request from an individual for his or her own records in a system of records under both the Freedom of Information Act (FOIA) and the Privacy Act regardless of the Act cited. The requester need not cite any Act. Process the request under whichever Act gives the most information. When necessary, tell the requester under which Act you processed the request and why.
(a) Requesters should describe the records they want. They do not have to name a system of records number, but they should at least name a type of record or functional area. For requests that ask for ‘all records about me,’ ask for more information and tell the person how to review the Air Force systems of records published in the
(b) Requesters should not use government equipment, supplies, stationery, postage, telephones, or official mail channels for making Privacy Act requests. Privacy Act Officers and system managers process such requests but tell requesters that using government resources to make Privacy Act requests is not authorized.
(c) Tell the requester if a record exists and how to review the record. If possible, respond to requests within 10 workdays of receiving them. If you cannot answer the request in 10 workdays, send a letter explaining why and give an approximate completion date no more than 20 workdays after the first office received the request.
(d) Show or give a copy of the record to the requester within 30 workdays of receiving the request unless the system is exempt and the Air Force lists the exemption in appendix C of this part; or published as a final rule in the
(e) If the requester wants another person present during the record review, the system manager may ask for written consent to authorize discussing the record with another person present.
Give the first 100 pages free, and charge only reproduction costs for the remainder. Copies cost $.15 per page; microfiche costs $.25 per fiche. Charge the fee for the first 100 pages if records show that the Air Force already responded to a request for the same records at no charge. Do not charge fees:
(a) When the requester can get the record without charge under another publication (for example, medical records).
(b) For search.
(c) For reproducing a document for the convenience of the Air Force.
(d) For reproducing a record so the requester can review it.
Process access denials within five workdays after you receive a request for access. When you may not release a record, send a copy of the request, the record, and why you recommend denying access (including the applicable exemption) to the denial authority through the Staff Judge Advocate (SJA) and the Privacy Act officer. The SJA gives a written legal opinion on the denial. The MAJCOM or FOA Privacy Act officer reviews the file, gets written advice from the SJA and the functional office of primary responsibility (OPR), and makes a recommendation to the denial authority. The denial authority sends the requester a letter with the decision. If the denial authority grants access, release the record. If the denial authority refuses access, tell the requester why and explain pertinent appeal rights.
(a) Before you deny a request for access to a record, make sure that:
(1) The system has an SAF approved exemption.
(2) The exemption covers each document.
(3) Nonexempt parts are segregated.
(b) You may refuse to give out medical records if a physician believes that doing so could harm the person's mental or physical health. You have these options:
(1) Ask the requester to get a letter from a physician to whom you can send the records. Include a letter explaining to the physician that giving the records directly to the individual could be harmful.
(2) Offer the services of a military physician other than one who provided treatment if naming the physician poses a hardship on the individual.
(c) Do not delete third-party information from a record when the subject requests access, except as noted in § 806b.13(d), unless the Air Force covers the record with an established exemption (appendix C of this part). Presume that all information in a file pertains to the subject of the file.
(d) Do not release third-party personal data (such as SSN and home address). This action is not a denial.
(e) Withhold records compiled in connection with a civil action or other proceeding including any action where the Air Force expects judicial or administrative adjudicatory proceedings. This exemption does not cover criminal actions. Do not release attorney work products prepared before, during, or after the action or proceeding.
These officials or a designee may deny access or amendment of records. Send a letter to SAF/AAIA with the position titles of designees. You must get SAF/AA approval before delegating this authority to a lower level. Send requests for waiver with justification to SAF/AAIA. Authorities are:
(a) DCSs and chiefs of comparable offices or higher level at SAF or HQ USAF.
(b) MAJCOM or FOA commanders.
(c) HQ USAF/DPCP, Pentagon, Washington, DC 20330-5060 (for civilian personnel records).
(d) Commander, Air Force Office of Special Investigations (AFOSI), Washington, DC 20332-6001 (for AFOSI records).
Individuals may ask to have their records amended to make them accurate, timely, relevant, or complete. System managers routinely correct a record if the requester can show that it is factually wrong.
(a) Anyone may request minor corrections orally. Requests for more serious modifications should be in writing.
(b) After verifying the identity of the requester, make the change, notify all known recipients of the record, and inform the individual.
(c) Acknowledge requests within 10 workdays of receipt. Give an expected completion date unless you complete the change within that time. Final decisions must take no longer than 30 workdays.
The Air Force does not usually amend a record when the change is based on opinion, interpretation, or subjective official judgment. This action constitutes a denial, and requesters may appeal. If the system manager decides not to amend or partially amend the record, send a copy of the request, the record, and the recommended denial reasons to the denial authority through the SJA and the Privacy Act officer. SJAs will include a legal opinion.
(a) The MAJCOM or FOA Privacy Act officer reviews the proposed denial, gets a legal opinion from the SJA and written advice from the functional OPR, and makes a recommendation to the denial authority.
(b) The denial authority sends the requester a letter with the decision. If the denial authority approves the request, amend the record and notify all previous recipients that it has been changed. If the authority denies the request, give the requester the statutory authority, reason, and pertinent appeal rights.
Requesters should pursue record corrections of subjective matters and opinions through proper channels to the Civilian Personnel Office using grievance procedures or the Air Force Board for Correction of Military Records (AFBCMR). Record correction
(a) Individuals may request a denial review by writing to the Secretary of the Air Force through the denial authority within 60 calendar days after receiving a denial letter. The denial authority promptly sends a complete appeal package to SAF/AAIA, including:
(1) Original appeal letter.
(2) Initial request.
(3) Initial denial.
(4) Copy of the record.
(5) Any internal records or coordination actions relating to the denial.
(6) Denial authority's comments on the appellant's arguments.
(7) Legal reviews.
(b) If the denial authority reverses an earlier denial and grants access or amendment, notify the requester immediately.
(c) SAF/AAIA reviews the denial and forwards to SAF/GCA for legal review or staffing to grant or deny the appeal. SAF/GCA tells the requester the final Air Force decision and explains judicial review rights.
(d) The requester may file a concise statement of disagreement with the system manager if SAF/GCA denies the request to amend the record. SAF/GCA explains the requester's rights when they issue the final appeal decision.
(1) The records should clearly show that a statement of disagreement is filed with the record or separately.
(2) The disputed part of the record must show that the requester filed a statement of disagreement.
(3) Give copies of the statement of disagreement to the record's previous recipients. Inform subsequent record users about the dispute and give them a copy of the statement with the record.
(4) The system manager may include a brief summary of the reasons for not amending the record. Limit the summary to the reasons SAF/GCA gave to the individual. The summary is part of the individual's record, but it is not subject to amendment procedures.
Do not keep copies of disputed records in this file. Use the file solely for statistics and to process requests. Do not use the case files to make any kind of determination about an individual. Document reasons for untimely responses. These files include:
(a) Requests from and replies to individuals on whether a system has records about them.
(b) Requests for access or amendment.
(c) Approvals, denials, appeals, and final review actions.
(d) Coordination actions and related papers.
Include a Privacy Act Warning Statement in each Air Force publication that requires collecting or keeping personal information in a system of records. Also include the warning statement when publications direct collection of the SSN from the individual. The warning statement will cite legal authority and the system of records number and title. You can use the following warning statement: ‘This part requires collecting and maintaining information protected by the Privacy Act of 1974 authorized by (U.S.C. citation and or Executive Order number). System of records notice (number and title) applies.’
The Air Force must publish notices in the
(a) Starting a new system.
(b) Instituting significant changes to an existing system.
(c) Sending out data collection forms or instructions.
(d) Issuing a request for proposal or invitation for bid to support a new system.
At least 120 days before the effective start date, system managers must send the system notice to SAF/AAIA on a 5 1/4 or 3 1/2-inch disk in Wordstar (ASCII text file) or Microsoft Word, with a paper copy highlighting any changes through the MAJCOM or FOA Privacy Act Officer. See Appendix B of this part for a sample system notice.
Protect information according to its sensitivity level. Consider the personal sensitivity of the information and the risk of loss or alteration. Most information in systems of records is FOR OFFICIAL USE ONLY (FOUO). Refer to AFI 37-131
Balance additional protection against risk and cost. AF Form 3227, ‘Privacy Act Cover Sheet’, is available for use with Privacy Act material. For example, a password may be enough protection for an automated system with a log-on protocol. Classified computer systems or those with established audit and password systems are obviously less vulnerable than unprotected files or word processors in offices that are periodically empty. Follow AFI 33-202
You may use the following methods to dispose of records protected by the Privacy Act according to records retention schedules:
(a) Destroy by any method that prevents compromise, such as tearing, burning, or shredding, so long as the personal data is not recognizable and beyond reconstruction.
(b) Degauss or overwrite magnetic tapes or other magnetic medium.
(c) Dispose of paper products through the Defense Reutilization and Marketing Office (DRMO) or through activities who manage a base-wide recycling program. The recycling sales contract must contain a clause requiring the contractor to safeguard privacy material until its destruction and to pulp, macerate, shred, or otherwise completely destroy the records. Originators must safeguard Privacy Act material until it is transferred to the recycling contractor. A federal employee or, if authorized, a contractor employee must witness the destruction. This transfer does not require a disclosure accounting.
A system manager who believes that a system needs an exemption from some or all of the requirements of the Privacy Act should send a request to SAF/AAIA through the MAJCOM or FOA Privacy Act Officer. The request should detail the reasons for the exemption and the section of the Act that allows the exemption. SAF/AAIA gets approval for the request through SAF/AA and the Defense Privacy Office.
(a) A general exemption frees a system from most parts of the Privacy Act.
(b) A specific exemption frees a system from only a few parts of the Privacy Act.
Only SAF/AA can exempt systems of records from any part of the Privacy Act. Denial authorities can withhold records using these exemptions only if SAF/AA previously approved and published an exemption for the system in the
Approved exemptions exist under 5 U.S.C. 552a for:
(a) Certain systems of records used by activities whose principal function is criminal law enforcement (subsection (j)(2)).
(b) Classified information in any system of records (subsection (k)(1)).
(c) Law enforcement records (other than those covered by subsection (j)(2)). The Air Force must allow an individual access to any record that is used to deny rights, privileges or benefits to which he or she would otherwise be entitled by federal law or for which he or she would otherwise be eligible as a result of the maintenance of the information (unless doing so would reveal a confidential source) (subsection (k)(2)).
(d) Statistical records required by law. Data is for statistical use only and may not be used to decide individuals’ rights, benefits, or entitlements (subsection (k)(4)).
(e) Data to determine suitability, eligibility, or qualifications for federal service or contracts, or access to classified information if access would reveal a confidential source (subsection (k)(5)).
(f) Qualification tests for appointment or promotion in the federal service if access to this information would compromise the objectivity of the tests (subsection (k)(6)).
(g) Information which the Armed Forces uses to evaluate potential for promotion if access to this information would reveal a confidential source (subsection (k)(7)).
Before releasing personal information to third parties, consider the consequences, check accuracy, and make sure that no law or directive bans disclosure. You can release personal information to third parties when the subject agrees orally or in writing. Air Force members consent to releasing their home telephone number and address when they sign and check the ‘Do Consent’ block on the AF Form 624, ‘Base/Unit Locator and PSC Directory’ (see AFI 37-129
(a) Before including personal information such as home addresses, home phones, and similar information on social rosters or directories, ask for written consent statements. Otherwise, do not include the information.
(b) You must get written consent before releasing any of these items of information:
(1) Marital status.
(2) Number and sex of dependents.
(3) Gross salary of military personnel (see § 806b.32 for releasable pay information).
(4) Civilian educational degrees and major areas of study.
(5) School and year of graduation.
(6) Home of record.
(7) Home address and phone.
(8) Age and date of birth.
(9) Present or future assignments for overseas or for routinely deployable or sensitive units.
(10) Office and unit address and duty phone for overseas or for routinely deployable or sensitive units.
You don't need consent before releasing any of these items:
(a) Information releasable under the FOIA.
(b) Information for use within the Department of Defense by officials or employees with a need to know.
(c) Name.
(d) Rank.
(e) Grade.
(f) Air Force specialty code (AFSC).
(g) Pay (including base pay, special pay, all allowances except Basic Allowance for Quarters (BAQ) and Variable Housing Allowance (VHA)).
(h) Gross salary for civilians.
(i) Past duty assignments.
(j) Present and future approved and announced stateside assignments.
(k) Position title.
(l) Office, unit address, and duty phone number.
(m) Date of rank.
(n) Entered on active duty (EAD) date.
(o) Pay date.
(p) Source of commission.
(q) Professional military education.
(r) Promotion sequence number.
(s) Military awards and decorations.
(t) Duty status of active, retired, or reserve.
(u) Active duty official attendance at technical, scientific, or professional meetings.
(v) Biographies and photos of key personnel.
Use these guidelines to decide whether to release information:
(a) Would the subject have a reasonable expectation of privacy in the information requested?
(b) Would disclosing the information benefit the general public? The Air Force considers information as meeting the public interest standard if it reveals anything regarding the operations or activities of the agency, or performance of its statutory duties.
(c) Balance the public interest against the individual's probable loss of privacy. Do not consider the requester's purpose, circumstances, or proposed use.
The Air Force may release information without consent to these individuals or agencies:
(a) Agencies outside the Department of Defense for a Routine Use published in the
(b) The Bureau of the Census to plan or carry out a census or survey under 13 U.S.C. 8.
(c) A recipient for statistical research or reporting. The recipient must give advanced written assurance that the information is for statistical purposes only.
No one may use any part of the record to decide on individuals’ rights, benefits, or entitlements. You must release records in a format that makes it impossible to identify the real subjects.
(d) The Archivist of the United States and the National Archives and Records Administration (NARA) to evaluate records for permanent retention. Records stored in Federal Records Centers remain under Air Force control.
(e) A federal, state, or local agency (other than the Department of Defense) for civil or criminal law enforcement. The head of the agency or a designee must send a written request to the system manager specifying the record or part needed and the law enforcement purpose. The system manager may also disclose a record to a law enforcement agency if the agency suspects a criminal violation. This disclosure is a Routine Use for all Air Force systems of records and is published in the
(f) An individual or agency that needs the information for compelling health or safety reasons. The affected individual need not be the record subject.
(g) The Congress, a congressional committee, or a subcommittee, for matters within their jurisdictions.
(h) A congressional office acting for the record subject. A published, blanket Routine Use permits this disclosure. If the material for release is sensitive, get a release statement.
(i) The Comptroller General or an authorized representative of the General Accounting Office on business.
(j) A court order of a court of competent jurisdiction, signed by a judge.
(k) A consumer credit agency according to the Debt Collections Act when a published system notice lists this disclosure as a Routine Use.
(l) A contractor operating a system of records under an Air Force contract. Records maintained by the contractor for the management of contractor employees are not subject to the Privacy Act.
Air Force personnel may disclose the medical records of minors to their parents or legal guardians. The laws of each state define the age of majority.
(a) The Air Force must obey state laws protecting medical records of drug or alcohol abuse treatment, abortion, and birth control. If you manage medical records, learn the local laws and coordinate proposed local policies with the servicing SJA.
(b) Outside the United States (overseas), the age of majority is 18. Unless parents or guardians have a court order granting access or the minor's written consent, they will not have access to minor's medical records overseas when the minor sought or consented to treatment between the ages of 15 and 17 in a program where regulation or statute provides confidentiality of records and he or she asked for confidentiality.
System managers must keep an accurate record of all disclosures made from any system of records except disclosures to DoD personnel for official use or disclosures under the FOIA. System managers may use AF Form 771, ‘Accounting of Disclosures’.
(a) System managers may file the accounting record any way they want as long as they give it to the subject on request, send corrected or disputed information to previous record recipients, explain any disclosures, and provide an audit trail for reviews. Include in each accounting:
(1) Release date.
(2) Description of information.
(3) Reason for release.
(4) Name and address of recipient.
(b) Some exempt systems let you withhold the accounting record from the subject.
(c) You may withhold information about disclosure accountings for law enforcement purposes at the law enforcement agency's request.
Computer matching programs electronically compare records from two or more automated systems which may include the Department of Defense, another federal agency, or a state or other local government. A system manager proposing a match that could result in an adverse action against a federal employee must meet these requirements of the Privacy Act:
(a) Prepare a written agreement between participants.
(1) Secure approval of the Defense Data Integrity Board.
(2) Publish a matching notice in the
(3) Ensure full investigation and due process.
(4) Act on the information, as necessary.
(b) The Privacy Act applies to matching programs that use records from:
(1) Federal personnel or payroll systems.
(2) Federal benefit programs where matching:
(i) Determines federal benefit eligibility,
(ii) Checks on compliance with benefit program requirements,
(iii) Recovers improper payments or delinquent debts from current or former beneficiaries.
(c) Matches used for statistics, pilot programs, law enforcement, tax administration, routine administration, background checks and foreign counterintelligence, and internal matching that won't cause any adverse action are exempt from Privacy Act matching requirements.
(d) Any activity that expects to participate in a matching program must contact SAF/AAIA immediately. System managers must prepare a notice for publication in the
(e) Record subjects must receive prior notice of a match. The best way to do this is to include notice in the Privacy Act Statement on forms used in applying for benefits. Coordinate computer matching statements on forms with SAF/AAIA through the MAJCOM Privacy Act Officer.
The Privacy Act requires training for all persons involved in the design, development, operation and maintenance of any system of records. Some persons may need more specialized training. They include information managers, supervisors, and individuals working with medical, financial, security, and personnel records.
Helpful aids include:
(a) AFH 37-146
(b) ‘The Privacy Act of 1974,’ a 32-minute film developed by the Defense Privacy Office. Consult your local audiovisual library.
(c) ‘A Manager's Overview, What You Need to Know About the Privacy Act’. Contact SAF/AAIA for copies.
Formal school training groups that develop or modify blocks of instruction must send the material to SAF/AAIA for coordination.
By March 1, of each year, MAJCOM and FOA Privacy Act officers must send SAF/AAIA a report covering the previous calendar year. The report includes:
(a) Total number of requests granted in whole.
(b) Total number of requests granted in part.
(c) Total number of requests denied and the Privacy Act exemptions used.
(d) Total number of requests for which no record was found.
(e) Total number of amendment requests granted in whole.
(f) Total number of amendment requests granted in part.
(g) Total number of amendment requests wholly denied.
(h) Specific recommendations for changes to the Act or the Privacy Act Program.
a. Privacy Act of 1974, as amended, Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
b. 10 U.S.C 8013, ‘Secretary of the Air Force: Powers and Duties.’
c. Executive Order 9397, ‘Numbering System for Federal Accounts Relating to Individual Persons.’
d. 32 CFR part 806b, ‘Air Force Privacy Act Program.’
e. DoD Directive 5400.11
f. DoD 5400.11-R
g. AFI 33-202
h. AFPD 37-1
i. AFI 37-131
j. AFI 37-129
k. AFMAN 37-139
l. AFDIR 37-144
m. AFH 37-146
a. AETC - Air Education and Training Command
b. AFA - Air Force Academy
c. AFBCMR - Air Force Board for Correction of Military Records
d. AFISA - Air Force Intelligence Services Agency
e. AFMC - Air Force Materiel Command
f. AFOSI - Air Force Office of Special Investigations
g. AFSC - Air Force Specialty Code
h. AFSCO - Air Force Security Clearance Office
i. AFSPA - Air Force Security Police Agency
j. ASCII - American Standard Code for Information Interchange
k. BAQ - Basic Allowance for Quarters
l. CFR - Code of Federal Regulations
m. DCS - Deputy Chief of Staff
n. DoD - Department of Defense
o. DR&MO - Defense Reutilization and Marketing Office
p. EAD - Entered on Active Duty
q. FOA - Field Operating Agency
r. FOIA - Freedom of Information Act
s. FOUO - For Official Use Only
t. IG - Inspector General
u. IMC - Interim Message Change
v. LE - Logistics and Engineering
w. MAJCOM - Major Command
x. MIRS - Management Information and Research System
y. MP - Military Personnel
z. MPC - Military Personnel Center
aa. NARA - National Archives and Records Administration
bb. OMB - Office of Management and Budget
cc. OPR - Office of Primary Responsibility
dd. PA - Privacy Act
ee. PAM - Privacy Act Monitor
ff. PAS - Privacy Act Statement
gg. RCS - Reports Control Symbol
hh. SAF - Secretary of the Air Force
ii. SAF/AA - The Administrative Assistant to the Secretary of the Air Force
jj. SAF/AAIA - Policy Division, Directorate of Information Management
kk. SAF/GCA - Assistant General Counsel for Civilian Personnel and Fiscal Law
ll. SG - Surgeon General
mm. SJA - Staff Judge Advocate
nn. SP - Security Police
oo. SSN - Social Security Number
pp. US - United States
qq. USAF - United States Air Force
rr. U.S.C. - United States Code
ss. VHA - Variable Housing Allowance
a.
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The following elements comprise a system of records notice for publication in the
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b.
c.
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e.
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h.
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(a)
(1)
(2)
(3)
(4)
(5)
(b)
(1)
(i) All records in any systems of records that are properly classified according to Executive Orders 11652, 12065 or 12958, are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(4)(G), (H), and (I); and (f), regardless of whether the entire system is otherwise exempt or not.
(ii)
(2)
(i)
(ii)
(iii)
(3)
(i)
(ii)
(iii)
(4)
(i)
(ii)
(iii)
(5)
(i)
(ii)
(iii)
(6)
(i)
(ii)
(iii)
(7)
(i)
(ii)
(iii)
Subsection (d) because individual disclosure compromises express promises of confidentiality conferred to protect the integrity of the promotion rating system.
Subsection (e)(4)(H) because of and to the extent that portions of this record system are exempt from the individual access provisions of subsection (d).
Subsection (f) because of and to the extent that portions of this record system are exempt from the individual access provisions of subsection (d).
(8)[Reserved]
(i)
(ii)
(iii)
(9)
(i)
(ii)
(iii)
(10)
(i)
(ii)
(iii)
Subsection (d) because individual disclosure compromises express promises of confidentiality conferred to protect the integrity of the promotion rating system.
Subsection (e)(4)(H) because of and to the extent that portions of this record system are exempt from the individual access provisions of subsection (d).
Subsection (f) because of and to the extent that portions of this record system are exempt from the individual access provisions of subsection (d).
(11)
(i)
(ii)
(iii)
(12)
(i)
(ii)
(iii)
(13)
(i)
(ii)
(iii)
(14)
(i)
(ii)
(iii)
(15)
(i)
(ii)
(iii)
(16)
(i)
(ii)
(iii)
(17)
(i)
(ii)
(iii)
(18)
(i)
(ii)
(ii)
(19)
(i)
(ii)
(iii)
(20)
(i)
(ii)
(iii)
(iv)
(2) From subsection (c)(4) because an exemption is being claimed for subsection (d), this subsection will not be applicable.
(3) From subsection (d) because access to the records contained in this system would inform the subject of a criminal investigation of the existence of that investigation, provide the subject of the investigation with information that might enable him to avoid detection or apprehension, and would present a serious impediment to law enforcement.
(4) From subsection (e)(1) because in the course of criminal investigations information is often obtained concerning the violation of laws or civil obligations of others not relating to an active case or matter. In the interests of effective law enforcement, it is necessary that this information be retained since it can aid in establishing patterns of activity and provide valuable leads for other agencies and future cases that may be brought.
(5) From subsection (e)(2) because in a criminal investigation the requirement that information be collected to the greatest extent possible from the subject individual would present a serious impediment to law enforcement in that the subject of the investigation would be placed on notice of the existence of the investigation and would therefore be able to avoid detection.
(6) From subsection (e)(3) because the requirement that individuals supplying information be provided with a form stating the
(7) From subsections (e)(4)(G) and (H) because this system of records is exempt from individual access pursuant to subsections (j) and (k) of the Privacy Act of 1974.
(8) From subsection (e)(4)(I) because the identity of specific sources must be withheld in order to protect the confidentiality of the sources of criminal and other law enforcement information. This exemption is further necessary to protect the privacy and physical safety of witnesses and informants.
(9) From subsection (e)(5) because in the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely, and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation brings new details to light and the accuracy of such information can only be determined in a court of law. The restrictions of subsection (e)(5) would restrict the ability of trained investigators and intelligence analysts to exercise their judgment in reporting on investigations and impede the development of intelligence necessary for effective law enforcement.
(10) From subsection (e)(8) because the individual notice requirements of subsection (e)(8) could present a serious impediment to law enforcement as this could interfere with the ability to issue search authorizations and could reveal investigative techniques and procedures.
(11) From subsection (f) because this system of records has been exempted from the access provisions of subsection (d).
(12) From subsection (g) because this system of records is compiled for law enforcement purposes and has been exempted from the access provisions of subsections (d) and (f).
(13) Consistent with the legislative purpose of the Privacy Act of 1974, the Department of the Air Force will grant access to nonexempt material in the records being maintained. Disclosure will be governed by the Department of the Air Force's Privacy Regulation, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential criminal violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered, the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available. The controlling principle behind this limited access is to allow disclosures except those indicated above. The decisions to release information from these systems will be made on a case-by-case basis.
(21)
(i)
(iii)
(iv)
(2) From subsection (e)(4)(H) because this system of records is exempt from individual access pursuant to subsection (k) of the Privacy Act of 1974.
(3) From subsection (f) because this system of records has been exempted from the access provisions of subsection (d).
(4) Consistent with the legislative purpose of the Privacy Act of 1974, the Department of the Air Force will grant access to nonexempt material in the records being maintained. Disclosure will be governed by the Department of the Air Force’s Privacy Instruction, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered, the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available.
10 U.S.C. 8013.
(a) Unaltered Air Force publications and forms will be made available to the public with or without charge, subject to the requirements of this part. Base Chiefs of Information Management will set up procedures to meet these needs and will make available Master Publications Libraries for public use according to AFR 4-61. They will also advise requesters that these libraries are available, since in many cases this will satisfy their needs and reduce workloads in processing sales requests. If the item is on sale by the Superintendent of Documents, GPO, refer the request to that outlet. Refer general public requests for Air Force administrative publications and forms to the National Technical Information Service (NTIS), Defense Publication Section, US Department of Commerce, 4285 Port Royal Road, Springfield, VA 22161-0001.
(b) The Air Force does not consider these unaltered publications and forms as records, within the meaning of the Freedom of Information Act (FOIA), as outlined in 5 U.S.C. 552 and implemented by part 806 of this chapter. Refer requests that invoke the FOIA to the chief, base information management, for processing.
(c) Units will process requests under the Foreign Military Sales Program (FMS) as specified in AFR 4-71, chapter 11.
(d) Units will send requests from foreign governments, their representatives, or international organizations to the MAJCOM foreign disclosure policy office and to HQ USAF/CVAII, Washington DC 20330-5000. Also send information copies of such requests to the base public affairs office. Commands will supplement this requirement to include policies pertaining to those items for which they have authority to release.
(e) Units will return a request for non-Air Force items to the requester for submission to appropriate agency.
(a) The Air Force applies charges to all requests unless specifically excluded.
(b) The Air Force applies charges according to part 813, Schedule of Fees for Copying, Certifying, and Searching Records and Other Documentary Material. Additional guidance is in part 812, User Charges, including specific exclusion from charges as listed in § 812.5. As indicated, the list of exclusions is not all inclusive and recommendations for additional exclusions are sent to the office of primary responsibility for part 812 of this chapter.
(c) When a contractor requires publications and forms to perform a contract, the Air Force furnishes them without charge, if the government contracting officer approves these requirements.
(a)
(b)
(c)
(d)
(e) Limited (L) distribution items are not releasable outside the Department of Defense without special review according to AFR 700-6. Units receiving these requests should refer them to the SCS manager shown in the index or on the cover of the publications. Advise the requesters of the referral.
(f)
(a) Limit quantities furnished so that stock levels required for operational Air Force support are not jeopardized.
(b) If the item is not available from publishing distribution office (PDO) stock, obtain it from the Air Force Publishing Distribution Center. If the item is under revision, advise the requester that it is being revised and that no stock is available.
(c) If stocks are not available and the item is being reprinted, advise the requester that stocks are expected to be available in 90 calendar days and to resubmit at that time.
Payment is required before shipping the requested material. Payment must be by check or money order.
(a) Upon receipt of the request, determine the cost involved and request the material.
(b) Upon receipt of the item, advise the requester to resubmit the required payment and send the material after payment is received.
(c) If the material cannot be obtained, advise the requester of the reason.
Obtain instructions from the local Accounting and Finance Office regarding how checks or money orders must be prepared and required procedures for depositing them.
Sec. 8012, 70A Stat. 488; 10 U.S.C. 8012.
This part prescribes the commanders’ responsibilities for enforcing order at and in the vicinity of installations under their jurisdiction. It provides guidance for the use of Air Force resources in controlling civil disturbances and in supporting disaster relief operations. This part applies to installations in the continental United States and will be used to the maximum extent possible in the overseas commands, the States of Alaska and Hawaii, the Commonwealth of Puerto Rico, and the territories and possessions of the United States. Instructions issued by the appropriate unified commander, status of forces agreements, and other international agreements provide more definitive guidance for the overseas commands. Nothing in this part should be construed as authorizing or requiring security police units to collect and maintain information concerning persons or organizations having no affiliation with the Air Force.
(a) Air Force installation commanders are responsible for protecting personnel and property under their jurisdictions and for maintaining order on installations, to insure the uninterrupted and successful accomplishment of the Air Force mission.
(b) Each commander is authorized to grant or deny access to his installations, and to exclude or remove persons whose presence is unauthorized. In excluding or removing persons from the installation, he must not act in an arbitrary or capricious manner. His action must be reasonable in relation to his responsibility to protect and to preserve order on the installation and to safeguard persons and property thereon. As far as practicable, he should prescribe by regulation the rules and conditions governing access to his installation.
Local civil authorities are primarily responsible for maintaining order outside the perimeter of an installation. If assistance from civil authorities is insufficient, and the installation commander believes that the employment of Air Force resources is essential, he should send a request for instructions and a report of the circumstances to Hq USAF per Joint Chiefs of Staff (JCS) Pub. 6, Volume V, U.S. Air Force Reporting Instruction, June 1970. Unless an emergency involves imminent danger to personnel or property under the commander's jurisdiction, he is not authorized to act before instructions are received.
Removal of violators: If unauthorized entry occurs, the violators may be apprehended, ordered to leave, and escorted off the installation by personnel carefully selected for such duties. The complete and proper identification of violators, including the taking of photographs, must be accomplished. Violators who reenter an installation—after having been removed from it or having been ordered, by an officer or person in command or charge, not to reenter—may be prosecuted under 18 U.S.C. 1382. If prosecution for subsequent reentry is contemplated, the order not to reenter should be in writing so as to be easily susceptible of proof. Commanders are cautioned that only civil law enforcement authorities have the power to arrest and prosecute for unauthorized entry of government property.
Commanders are prohibited from authorizing demonstrations for partisan political purposes but other demonstrations may or may not be authorized only in accordance with the provisions of paragraph 3e, AFR 35-15. They are not to volunteer public statements on
(a)
(b)
(c)
(d)
This subpart contains policies on the use of Air Force military personnel in civil disturbances and disasters. The more important laws concerning military aid to civil authorities are also summarized.
(a) The Air Force gives military assistance to civil authorities in civil defense or civil disturbances and disasters only when such asistance is requested or directed. Commanders will not undertake such assistance without authority, unless the overruling demands of humanity compel immediate action to protect life and property and to restore order.
(b) The military service having available resources nearest the affected area is responsible for providing initial assistance to civil authorities in emergencies. Subsequent operations are to be according to the mutual agreement between the senior service commanders concerned.
(c) The protection of life and property and the maintenance of law and order within the territorial jurisdiction of any State is the primary responsibility of State and local authorities. It is well-established U.S. Government policy that intervention with military forces takes place only after State and local authorities have used their own forces and are unable to control the situation, or when they do not take appropriate action.
This part is not intended to extend Air Force responsibilities in emergencies to generate additional resources (manpower, materiel, facilities, etc.) requirements, or encourage participation in such operations at the expense of the Air Force primary mission. It is a guide for the employment of Air Force resources when:
(a) A disaster or disturbance occcurs in areas in which the U.S. Air Force is the executive agent of the United States.
(b) A disaster or disturbance occurs in areas that are remote from an Army installation but near an Air Force installation, thereby necessitating Air Force assumption of responsibility pending arrival of Army personnel.
(c) The overriding demand of conditions resulting from a natural disaster compels immediate action to protect life and property and to restore order.
(a) Civilians in the affected area will be informed of the rules of conduct and other restrictive measures to be enforced by the military. These will be announced by local proclamation or order, and will be given the widest publicity by all available media.
(b) Persons not normally subject to military law, who are taken into custody by military forces incident to civil disturbances, will be turned over to the civil authorities as soon as possible.
(c) Military forces will ordinarily exercise police powers previously inoperative in an affected area; restore and maintain order; maintain essential transportation and communication; and provide necessary relief measures.
(d) U.S. Air Force civilian employees may be used, in any assignments in which they are capable and willing to serve. In planning for on-base contingencies of fires, floods, hurricanes, and other natural disasters, arrangements should be made for the identification and voluntary use of individual employees to the extent that the needs for their services are anticipated.
The use of Air Force personnel in overseas areas poses unique problems inasmuch as their use is governed by national laws of the country concerned and by the terms of international pact or bilateral agreements to which the United States is signatory.
The implementation of policies relating to overseas areas must conform to the pertinent terms of the status of forces agreement under which a U.S. Force may be stationed in the foreign host country concerned. Accordingly, major commands must prepare individual supplements to this part for each country in which they have units stationed. These supplements shall contain specific policy and guidance on the use of Air Force personnel. It is essential that each commander clearly understands the status of his installation or base, including that of all sub bases, annexes, housing areas, etc.
10 U.S.C. 8013.
This part establishes policy on the release, dissemination, and sale of Air Force visual information (VI) materials. It explains how reproductions may be sold, distributed, or released. It implements 32 CFR part 288 (Department of Defense (DOD) Instruction 7230.7), DOD Directive 4000.19, DOD Directive 7290.3-M, and DOD Directive 5040.2. It is used with 32 CFR part 806 (AFR 12-30, Air Force Freedom of Information Act Program); part 812 (AFR 12-32, Schedule of Fees for Copying, Certifying, and Searching Records and Other Documentary Material); AFR 177-108
This volume does not apply to:
(a) The sale of aerial reconnaissance or cartographic type photography. Request this photography from the Defense Mapping Agency/ODS, ATTN: DDCP, Washington, DC 20315-0020.
(b) The sale of completed productions. Send requests for purchase of completed Air Force productions to the National Archives and Records Administration, National Audiovisual Center, Information Office, 8700 Edgeworth Drive, Capitol Height, MD 20722-3701.
(c) VI materials made for the Air Force Office of Special Investigations (AFOSI) for use in an investigation or a counterintelligence report. Part 806 and AFR 124-4, Requesting AFOSI Investigations and Safeguarding, Handling and Releasing Information from AFOSI Reports, show who may use these VI materials.
(d) VI materials made for aircraft and missile mishap investigators for investigations of Air Force aircraft and missile mishaps per AFR 127-4, Investigating and Reporting US Air Force Mishaps. Part 806 and AFR 124-4 show who may use these materials.
The following definitions apply to this part.
(a)
(b)
(c)
(d)
(a) According to part 837 of this chapter (AFR 190-1), the Secretary of the Air Force, Office of Public Affairs (SAF/PA), may release VI materials to:
(1) News media, commercial publications, or electronic mail.
(2) Motion picture and television entertainment companies.
(3) Industries.
(4) Nonprofit organizations.
(5) Agencies outside the Federal Government.
(6) The general public (not associated with the news media).
(b) The Secretary of the Air Force, Office of Legislative Liaison (SAF/LL), arranges for the release of VI material through SAF/PA upon request from members of Congress and provides such material for official use.
(c) The International Affairs Division (HQ USAF/CVAII) (or, in some cases, MAJCOM Foreign Disclosure Office) must authorize release of classified and unclassified materials for use by foreign governments and international organizations or their representatives.
(a)
(b)
(c)
(d)
(1) DOD VI records centers use only government-owned VI material in servicing approved requests for dissemination and sale. The use of nongovernment VI material requires written permission from the owner.
(2) Production of material for sale must not stop or slow official Air Force work or be used to justify facility expansion or additional manpower.
(e)
(1) DOD and other government agencies requesting VI materials for official activities (DOD Directive 4000.19 and DOD Directive 5040.2).
(2) Members of Congress requesting VI materials for use in official activities.
(3) VI records center materials or services furnished according to law or Executive order.
(4) Federal, state, territorial, county, or municipal governments, or their
(5) Nonprofit organizations for functions related to public health, education, or welfare.
(6) Members of the Armed Forces in a casualty status, their next of kin, or authorized representative, when the requested VI material relates to the member and does not compromise classified information or the work of an accident investigation board.
(7) The general public, to further the Armed Forces recruiting program or public understanding of the Armed Forces, when such VI materials or services are determined by SAF/PA to be in the best interest of the Air Force.
(8) Incidental or occasional requests for VI records center materials or services (including requests from residents of foreign countries) when it is determined that fees would be inappropriate. (For the distribution of VI materials to foreign nations, see AFR 190-1).
(9) Legitimate news organizations working on news-related productions, news documentaries, or print products intended to inform the public on Air Force activities.
Activities sending materials to the DOD VI records centers must make sure that any limitation on use is noted on the materials. The following restrictions on VI material disseminated or sold from the records centers must also be observed:
(a) Materials must not be used to endorse a commercial service or product.
(b) Rights to official Air Force VI material may not be claimed by any other government agency or person.
(c) The waiver of proprietary and privacy rights cannot be granted with the sale or release of VI materials unless these rights and the rights of transfer are owned by the Air Force.
(d) VI materials received from Air Force contractors may be released, disseminated, or sold if not identified as proprietary material in the applicable contract.
(e) When provisions of formal agreements between the Air Force and other government agencies on release of VI materials differ from this part, the provisions of the formal agreements apply.
(a) Informal inquiries may be made to the appropriate DOD records center on VI materials available in broad subject areas. Informal inquiries are not formal requests. Research of, or access to, materials are provided only in response to a formal request. Inquiries regarding motion picture or television materials should be sent to the DOD Motion Media Records Center (1352 AVS/DO, Norton AFB CA 92409-5996). Inquiries regarding still photo materials should be sent to the DOD Still Media Records Center, ATTN: Code SSRC, Washington, DC 20374-1681.
(b) Submit formal requests according to §§ 811.9 and 811.10. When notified of approval, the requester may communicate directly with the DOD Motion Media Records Center to select materials. Air Force still photography customers must contact the 1361st AVS/DOSC, Andrews AFB DC 20334 to select still photo materials.
(a) When appropriate, the Air Force or DOD activity making the sale collects the funds in advance. Exceptions include requirements where actual cost cannot be determined until work is completed. For example, television and motion picture services where the charge is by minute or footage.
(b) The fees due the United States must be paid by cash, United States Treasury check, certified check, cashier's check, bank draft, or postal money order.
Fees are established by DOD and are as follows:
(a)
DOD Still Records Center photographic services are not normally done in house by DOD. Charges for processing and services will be at prevailing contract or commercial rates or at government cost, whichever is higher. All prices are subject to change without notice. Fees for copies of photographs which are part of a patient's medical record should be coordinated with the Patient Affairs Officer at the medical treatment facility.
(b)
Some motion picture services are not done in house by the DOD. Charges for these types of processing and services will be at prevailing contract or commercial rates or at government cost, whichever is higher. Prices are subject to change without notice.
10 U.S.C. 8013.
This part establishes policy for the management of the Air Force visual information documentation (VIDOC) program. It implements Department of Defense (DOD) Directive 5040.2 and describes how the program is accomplished. It applies to all Air Force personnel including United States Air Force Reserve and Air National Guard units and members. The term major command (MAJCOM), when used in this part includes separate operating agencies and direct reporting units. The Air Force VIDOC program:
(a) Records, through visual information (VI) means (still photographs, motion pictures, video, audio tape, and so forth), imagery of significant Air Force events that document the employment, growth, progress, and exercise of Air Force resources during peacetime and in combat.
(b) Collects and preserves visual imagery of significant Air Force events with known or potential historical or archival value.
(c) Ensures imagery which depicts the prime mission, support activities, and significant events of key Air Force organizations is available. VIDOC imagery or products are used for many purposes, at all levels, in the Air Force. Examples are:
(1)
(2)
(a) The primary sources of VI documentation materials are:
(1) Aerospace Audiovisual Service (AAVS) documentation crews, both ground and aerial, whose primary mission is to acquire Air Force imagery in peacetime and in combat.
(2) Base VI support centers (VISC).
(3) Optical instrumentation and engineering imagery of Air Force research, development, test, and evaluation (RDT&E) projects, including that material originated by defense and aerospace contractors.
(4) Armament delivery recording (ADR) imagery.
(b) Although the imagery may not originate from a documentation requirement, when properly processed, indexed, and stored, it serves as a valuable source of VI documentation.
(a) VI materials generated or acquired by Air Force members, employees, or contractors in conducting official duties are the property of the United States Air Force. Personal use of VI material for sale or any other reason not directly related to an official Air Force activity is prohibited. Any deviation from this policy must be approved by HQ USAF/SCV. This policy also applies when Air Force members or employees, by choice or agreement, occasionally use personally owned equipment or supplies in conducting official duties.
(b) Photographs, motion picture films, transparencies, video tapes, audio recordings, and other VI products are subject to safeguards and release requirements when released outside the Department of Defense (see part 806 and part 837 of this chapter).
10 U.S.C. 8013, 15 U.S.C. 1673, 42 U.S.C. 659, 661, 662, 665.
This part is derived from Air Force Regulation 35-18.
Part 806 of this chapter states the basic policies and instructions governing the disclosure of records and tells members of the public what they must do to inspect or obtain copies of the material referenced herein.
Part 807 of this chapter states the procedures for issuing publications and forms to the public.
This part establishes Air Force policy governing alleged delinquent financial obligations. It outlines procedures for processing claims of this nature. It implements 32 CFR parts 43, 43a and 81. It applies to all active Air Force installations and members and US Air Force Reserve (USAFR) units and members. This part does not apply to Air National Guard (ANG) units and members. This part is affected by the Privacy Act of 1974. System of Records Notice F030MPCB—Indebtedness, Nonsupport, Paternity, applies.
Air Force members are expected to pay their financial obligations in a proper and timely manner. For the purpose of this part, financial obligations are divided into two categories: Personal indebtedness, and dependent support. As a general rule, the Air Force has no legal authority to require its members or their family members to pay personal financial obligations. Enforcement is a matter for civil authorities. However, the Air Force can, under certain conditions, divert part of a member's pay for debts owed to the United States or any of its instrumentalities (see § 818.11) or to satisfy delinquent child support and alimony payments (see §§ 818.15 and 818.16). Administrative or disciplinary action may be taken against Air Force members in cases of continued financial irresponsibility. Such action is taken to improve discipline and maintain the standards of conduct expected of Air Force personnel, but cannot be used to enforce private civil obligations.
(a)
(b)
(c)
(d)
(e)
(f)
Specific responsibilities for ensuring Air Force standards are met:
(a) Major commands (MAJCOM), separate operating agencies (SOA), and direct reporting units (DRU) monitor and provide guidance to subordinate units, as required, to ensure compliance with established procedures.
(b) Initial active duty indoctrination sites ensure that a comprehensive block of instruction on personal financial management is included in teaching guides or course curriculums, as appropriate. This instruction should emphasize the Air Force policy regarding personal indebtedness and dependent support (§ 818.1) and the merits and benefits of the PFMP and the BRP. (See § 818.5(b)(2) (i) and (ii).
(c) Installation commanders:
(1) Develop appropriate guidance to assure compliance with prescribed procedures.
(2) Coordinate on all responses to high-level, executive, and congressional inquiries.
(d) Chiefs, CBPO:
(1) Through the CBPO Special Actions Unit, process all complaints according to this part.
(2) Upon request, provide UIF policy guidance to the unit commander.
(3) Coordinate on all responses to high level, executive, and congressional inquiries.
(e) Unit commanders:
(1) Implement required procedures at the unit level.
(2) Review all the available facts surrounding a complaint of personal indebtedness, or of nonsupport or inadequate support of dependents, and initiate appropriate action.
(3) Ensure complainants are provided a prompt reply that explains Air Force policy. At the unit commander's discretion, the first sergeant may respond to initial complaints. Second and subsequent inquiries require a reply by the unit commander.
(4) Advise members of the requirement to meet their financial and dependent support obligations and inform them that failure to do so damages their reputation and affects the public image of all Air Force personnel. At the unit commander's discretion the first sergeant may provide initial counseling to enlisted members. Second and subsequent inquiries require counseling by the unit commander.
(5) Refer personnel who have evidenced financial irresponsibility to the local PFMP manager for counseling on a mandatory but confidential basis.
(6) Coordinate on all responses to high-level, executive, and congressional inquiries that pertain to personnel assigned to the unit.
(7) Consider administrative or disciplinary action against members in cases of continued financial irresponsibility, fraud, deceit, criminal conduct, or failure to support dependents. Consult the staff judge advocate for guidance.
(f) Air Force members:
(1) Are expected to pay their just financial obligations in a proper and timely manner.
(2) Are expected to provide regular and adequate support to their dependents.
(3) Maintain reasonable contact with their creditors and dependents to minimize Air Force involvement.
(g) PFMP managers:
(1) Establish a consultant function to assist personnel in financial management matters, or other subjects as deemed appropriate to the needs of the local base population.
(2) Advise commanders regarding Air Force policy.
(h) Staff judge advocates:
(1) Advise commanders on the application of Air Force policy on individual cases. Include advice on administrative
(2) Provide guidance concerning federal, state, and local laws (e.g., bankruptcy, garnishment, wage earner plans, the Truth in Lending Act (Pub. L. 90-321), Fair Debt Collection Practices Act (Pub. L. 95-109), The Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, etc.).
(3) Coordinate on all responses to high-level, executive, and congressional inquiries.
(i) Family support centers serve as a source of information, counseling, and referral for family members in need of support and financial management assistance.
Complaints received regarding personal indebtedness or nonsupport of dependents should first be forwarded to the consolidated base personnel office (CBPO) Special Actions Unit to ensure that they pertain to an Air Force member. Also, indebtedness complaints should be reviewed by the staff judge advocate's office to ensure that they meet the general policies and requirements for acceptance (see §§ 818.7 and 818.8).
(a) The CBPO Special Actions Unit forwards processable cases to the unit commander for action, or:
(1) If the member has been reassigned, forwards the case to the current CBPO Special Actions Unit and advises the complainant of referral.
(2) If member has separated with no further military status or has retired, advises the complainant accordingly and indicates they are unable to assist because the individual is no longer under Air Force jurisdiction.
(3) If the member has been released from active duty, forwards the case to Headquarters Air Reserve Personnel Center, Special Actions Branch (HQ ARPC/DPAS), Denver CO 80280-5000, and advises the complainant of the referral.
(b) Indebtedness complaints that do not meet processing requirements are returned to the complainant with an explanation of the reason or reasons for return.
(c) For dependent nonsupport or inadequate support cases forwarded by HQ AFMPC/DPMASC, the commander must furnish the following information in the reply to that office (if negative, so state):
(1) Requirement of court order or decree, if applicable, and degree of compliance by the member.
(2) Date, amount, and method of prior support payments.
(3) Proposed date, amount, and method (for instance, money order, personal check, allotment, and, if by allotment, the effective date of first payroll deduction, and so forth) of future support payments (primary and arrearages, if any).
(4) If drawing basic allowance for quarters (BAQ), the amount received, type (for instance, with dependents or without dependents), and basis for receipt (wife, child or children in custody of ex-wife, and so forth).
(5) Action taken or projected to be taken to comply with § 818.14, where appropriate, regarding the BAQ.
Any complaint that meets the requirements of this part will be processed. Processed means that the commander shall, within 15 calendar days of receipt of a complaint:
(a) Review all available facts surrounding the transaction or forming the basis for the complaint, including the member's legal rights and counterclaims. Assess the actions of the member as they apply to Air Force policy in these situations by reviewing the requirements of the credit agreement, court order, separation agreement, or other documents and actions taken by the member to resolve the matter, and the financial status of the member.
(b) Advise the member of Air Force policy appropriate to the complaint—that personal debts are expected to be paid in a proper and timely manner or that Air Force members are expected to provide regular and adequate support for their dependents. Also, explain what the member should do to comply with that policy.
(1) Legal counseling services are available regarding indebtedness and dependent support agreements.
(2) Financial counseling and assistance services are available through the Personal Financial Management Program (PFMP) or the Budget Restructuring Program (BRP).
(i) PFMP is designed to assist personnel in analyzing personal financial problem areas, developing budgets, formulating debt-liquidation plans, obtaining consumer protection, improving checkbook maintenance, and buying on credit. (See AFR 170-32, Personal Financial Management Program (PFMP))
(ii) BRP is a coordinated approach between the PFMP manager, Headquarters Air Force Aid Society (AFAS) and the installation commander, whereby members who are undergoing financial difficulties may obtain a loan. BRP loans are made to deserving members in selected cases where long-term debt problems are such that budget restructuring is essential if the member is to function effectively in the Air Force environment.
(iii) Counseling services may also be available from the onbase military banking facility or credit union.
(c) Advise the complainant of Air Force policy that applies to the situation. Responses to dependent support complaints will include, when appropriate, a copy of the factsheet describing the legal process procedures that may be taken against the Air Force (§ 818.20 and 818.21). Form letters are not permitted.
(1) The Air Force does not arbitrate disputed cases, admit or deny validity of the complaint, or confirm the liability of its members.
(2) Under no circumstances will the response indicate whether or not administrative or disciplinary action has been taken against the member as a result of the complaint.
(3) Replies should be courteous and responsive to the complaint. The commander is not an intermediary and that impression should not be given in the reply.
(4) Commanders must actively monitor complaints until they are resolved. The Air Force cannot tolerate financial irresponsibility, neglect, dishonesty, or evasiveness. Failure to liquidate personal financial obligations promptly and honorably or to provide regular and adequate financial support to dependents could necessitate administrative or disciplinary action. If the commander decides the complaint reflects adversely on the member, the administrative or disciplinary action should be made a part of the unfavorable information file (UIF) according to AFR 35-32 (Unfavorable Information Files, Control Rosters, Administrative Reprimands and Admonitions) or the unit assigned personnel information file (UAPIF) according to AFR 35-44 (Military Personnel Records Systems).
Replies to high-level, executive, and congressional inquiries should be coordinated through the installation commander, the staff judge advocate, director of personnel, and inspector general. As a minimum, replies should state Air Force policy (§ 818.1), and a summary of the position taken by the member, if applicable. For inquiries requiring response to HQ AFMPC Congressional Inquiries Section (DPMRPH2), include that information required by § 818.4(c), as appropriate, in addition to:
(a) Whether or not the member agrees to release of information protected by the Privacy Act of 1974. (See part 806b of this chapter)
(b) Name of unit commander, address, and base telephone number.
(a) Members are expected to pay their financial obligations in a proper and timely manner. Claims of indebtedness, including returned checks, if properly supported, are processed as prescribed in § 818.5.
(b) Inform claimants, desiring to contact a military member about indebtedness, that they may obtain the member's military address by writing to the HQ AFMPC Research, Locator Fees Section (HQ AFMPC/DPMD003), Northeast Office Place, 9504 IH 35 North, San Antonio TX 78233-6636. Usually, a research fee of $3.50 is charged for this
(c) The processing of complaints will not be extended to those:
(1) Who have not made a bona fide effort to collect the debt directly from the military member through personal contact, correspondence, or other means.
(2) Whose claims are patently false and misleading, or are in violation of state laws concerning usury and debt collection practices (§ 818.4).
(3) Whose claims are obviously exorbitant (§ 818.4).
(d) Some states have enacted laws that prohibit creditors from contacting a debtor's employer with respect to indebtedness or communicating facts concerning indebtedness to any employer unless certain conditions are met. The conditions that must be met to remove this prohibition are generally such things as reduction of a debt to judgment and obtaining written permission of the debtor.
(1) At Air Force installations in states having such laws, the processing of debt complaints will not be extended to those creditors who are not in compliance with the state law. Commanders may advise creditors that this rule has been established because it is the general policy of the Air Force to comply with state law when that law does not infringe upon military interests.
(2) This policy will govern even though the creditor is not licensed to do business in the state where the debtor is located.
(e) Under Pub. L. 95-109, contact by a debt collector with third parties for the purpose of aiding debt collection is prohibited without the prior consent of the debtor, given directly to the debt collector, or without a court order. Creditors are generally exempt from Pub. L. 95-109 when they collect on their own behalf.
(f) Denial of privileges:
(1) If a claimant, having been notified of the requirements of this part, refuses or repeatedly fails to comply with its provisions; or a claimant, regardless of the merits of the claim, clearly has shown that an attempt is being made to make unreasonable use of the processing privilege, the CBPO Special Actions Unit documents the case, provides comments and recommendations, and submits the documentation through command channels to HQ AFMPC/DPMASC.
(2) Cases involving usurious, fraudulent, misleading, or deceptive business practices are reported to the Armed Forces Disciplinary Control Board according to AFR 125-11 (Armed Forces Disciplinary Control Boards and Off-Installation Military Enforcement Services), as well as HQ AFMPC/DPMASC if it appears that Air Force-wide action is appropriate.
Requirements in this section do not apply to claims by Federal, State, or Municipal governments, including foreign, nor to those creditors not otherwise subject to Federal Reserve Board (FRB) Regulation Z (12 CFR part 226, §§ 226.3, 226.9 (1978)).
(a)
(1) In place of government requirements, state regulations apply to credit transactions if the FRB determines that the state regulations impose substantially similar requirements and provide adequate enforcement measures.
(2) Commanders should seek advice from their local staff judge advocate to determine whether federal or state laws and regulations apply.
(b)
(2) Creditors not subject to FRB Regulation Z (for example, public utility companies, grocery stores, and so
(3) Foreign-owned companies having debt complaints against a member must provide a true copy of the terms of the debt, translated into English, and certification of their subscription to the Standards of Fairness.
(c)
Every check, draft, or order for the payment of money drawn on any bank or other depository carries with it the representation of payment in full when presented. If dishonored, checks and similar instruments are considered to be evidence of personal indebtedness until redeemed or the member asserts a valid defense to payment. The procedures in § 818.5 apply, and commanders should counsel members on Air Force policy regarding personal indebtedness. Although redeemed:
(a) Administrative or disciplinary action may be appropriate where criminal conduct is evident. The commander should consult the staff judge advocate to determine whether action under the Uniform Code of Military Justice (UCMJ) or other administrative action is appropriate.
(b) Repeated cases of dishonored checks may serve as the basis for administrative action, to include letters of reprimand, UIF entries, overstamping identification cards to reflect the denial of check cashing privileges (AFR 30-20, Issue and Control of Identification (ID) Cards), or administrative separation. The commander should consult the staff judge advocate on the appropriateness of administrative action.
These provisions are not appropriate for dishonored checks issued by a military dependent unless the staff judge advocate determines that the member may be held personally liable based on a review of the circumstances.
Air Force policy is one of strict neutrality. No adverse action may be taken against a member of the Air Force for either filing a petition or because of a discharge in bankruptcy. Underlying facts may involve mismanagement of personal affairs or dishonorable failure to pay just debts and could form a basis for adverse action against a member of the Air Force, but neither filing a petition (for bankruptcy or for payments out of future earnings) nor a discharge in bankruptcy can, of themselves, be considered “mismanagement” or “dishonorable.”
(a) Commanders should consult with the servicing staff judge advocate before considering any administrative or disciplinary action against a member for conduct associated with a bankruptcy petition.
(b) Further, the staff judge advocate should be consulted when providing financial counseling for members considering bankruptcy.
(c) The Air Force recognizes and complies with decrees in bankruptcy cases.
Federal law (5 U.S.C. 5514 and 37 U.S.C. 1007(c)) authorizes the Air Force Accounting and Finance Center (AFAFC) to satisfy a military member's personal indebtedness to the Air Force and other Department of Defense (DOD) Components, federal agencies, and nonappropriated funds instrumentalities by involuntary salary offset or administrative offset (AFR 170-30, Debt Collecting). In addition, the AFAFC is authorized to garnish the wages of Air Force members to satisfy personal indebtedness for the enforcement of child support and alimony payments under certain conditions (§§ 818.15 and 818.16).
Members are expected to pay their financial obligations in a proper and timely manner. Dependent support, direct or in-kind, is a primary element of an individual's personal financial obligations. Failure to provide adequate dependent support, including the failure to make up arrears in support, is the proper subject of command consideration for disciplinary or administrative action.
(a) Air Force members are expected to comply with the financial support provisions of a court order or written support agreement. If the validity of either is questioned by the member, the issue must be resolved by the parties or through the civil courts. The Air Force does not arbitrate such disputes. Written agreements include such things as separation agreements, property settlement agreements, and correspondence in which the amount of support has been agreed to by the parties concerned.
(b) Air Force members are expected to provide adequate support for dependents in the absence of a court order or written support agreement. The amount of support is generally based on the dependent's needs (for example, food, clothing, shelter, medical care, and so forth) and the ability of the member to pay. Each Air Force member is expected to provide support in an amount, or kind, bearing a reasonable relation to the needs of the dependents and the ability of the member to meet those needs.
(1) The Air Force has no legal authority to arbitrate the amount of support to be provided or to unilaterally deduct money from a member's pay to ensure dependent support.
(2) Commanders must assess the actions of the member with respect to their ability to pay and compliance with Air Force policy.
(i) For example, an individual who purchases a new car for personal use and then claims an inability to provide dependent support because of financial constraints ordinarily would not be viewed as being in compliance with Air Force policy.
(ii) Further, an individual who acknowledges an existing obligation and initiates an allotment for future support but does not provide for past periods of nonsupport ordinarily would not be viewed as being in compliance with Air Force policy.
(3) Commanders must assess the member's compliance with Air Force policy when a family is separated either by choice or due to an assignment action (for example, member volunteers for a dependent-restricted overseas area, elects to serve an unaccompanied tour, early returns dependents from an overseas area, is absent as a result of lengthy temporary duty, and so forth).
(c) Examples of in-kind support includes such things as making the mortgage or rent payments on a home occupied by the dependents, making the payments on an automobile being used by the dependents, paying medical bills, paying for school tuition, and so forth.
(d) Dependents, including ex-spouses on behalf of a member's dependent child or children, are entitled to military legal counseling services and are encouraged to seek such advice when needed.
(e) The member's obligation to support a child or children is not affected by desertion or other misconduct on the part of the spouse or ex-spouse.
(f) Members are expected to initiate changes of address for support allotments and process appropriate applications for issue or renewal of dependent identification cards in a timely manner when requested to do so by or on behalf of dependents.
Generally, proof of dependent support is not required. However, on receipt of a complaint of nonsupport or inadequate support from, or on behalf of, a dependent for whom the member is receiving basic allowance for quarters (BAQ), proof of support is required.
Under the DOD Military Pay and Allowances Entitlements Manual (DODPM), paragraph 30236, BAQ is not payable on behalf of a dependent whom
(a) BAQ termination at the with dependents rate does not relieve a member of responsibility for providing dependent support.
(b) Commanders must assess the member's compliance with Air Force policy in those situations where the member would not otherwise be authorized the BAQ entitlement. For example, member is residing in government quarters and has no other dependents.
Federal law authorizes legal process against the Air Force only for the enforcement of child support and alimony payments according to state law. Service of legal process must be accomplished by certified or registered mail, return receipt requested, or by personal service. The Commander, Air Force Accounting and Finance Center, Attention: JA, Denver CO 80279-5000, telephone (303) 370-7524, is the agent designated to accept legal process within the Air Force for active duty, Reserve, and retired military members.
(a) Legal process is defined as any writ, order, summons, or other similar process in the nature of garnishment issued by:
(1) A court of competent jurisdiction within any state, territory, or possession of the United States; or
(2) A court of competent jurisdiction in any foreign country with which the United States has entered into an agreement that requires the United States to honor such process; or
(3) An authorized official pursuant to an order of such court of competent jurisdiction or pursuant to state or local law. (See 42 U.S.C. 659, 662.)
(b) Process directed for garnishment must demonstrate, either on its face or by accompanying documentation, that collection is sought only for child support or alimony or both. The process must also show the member's Social Security number and whether the member is active duty, Reserve, or retired.
(c) If the validity of a court's order is questioned by the member concerned, the issue must be resolved by the parties or in court by the member or his or her private attorney. The Air Force has no authority to resolve such disputes.
An active duty member's pay and allowances are subject to a mandatory allotment to satisfy child or child and spousal support obligations where payments are in arrears for at least 2 months.
(a) A statutory allotment, pursuant to federal law, may be accomplished by the Air Force Accounting and Finance Center upon their being furnished a written notice from a court or state agency with responsibility for administering child support programs under title IV-D of the Social Security Act.
(b) The notice and the following documents or information must be served on the Commander, Air Force Accounting and Finance Center, Attention: JA, Denver CO 80279-5000:
(1) A statement that the person signing is an agent or an attorney of the state having a title IV-D plan who has the duty or authority under such plan to seek to recover amounts owed by a member as child or child and spousal support or a notice from a state court or any agent of the court who has authority to issue an order against a member for the support of a child.
(2) The service member's full name and Social Security number.
(3) A recently certified copy of the order awarding support must be included with the notice and a statement that the support payments are in arrears at least 2 months.
(4) A court order showing the amount of the arrears and specifying that payments be made to liquidate such arrears.
(5) The total amount of the allotment (the amount to be paid for current support and the amount to be paid each month towards arrears must be specified), the date or dates that the current support should terminate (for each
The Air Force does not judge paternity claims against its personnel. Paternity must be established either by admission, or by judicial order or decree of paternity, or child support duly ordered by a United States or foreign court of competent jurisdiction.
(a) Allegations of paternity against active duty members will be transmitted to the member concerned through his unit commander. The unit commander will:
(1) If paternity is denied, inform the claimant accordingly and advise of Air Force policy regarding paternity claims.
(2) Once paternity is established, advise the member of his moral and legal obligations as well as his legal rights in the matter. The member will be encouraged to render the necessary financial support to the child and take any other action considered proper under the circumstances. Advise the claimant of Air Force policy as it relates to support of dependents and the position taken by the member, if the member elects to take one.
(3) On receipt of a communication from a judge of a civilian court, including a court summons or a judicial order, concerning the member's availability to appear at an adoption hearing where it is alleged that he is the father of an illegitimate child, provide a reply that:
(i) Due to military requirements, the member cannot be granted leave to attend any court hearing until (date), or
(ii) A request by the member for leave to attend an adoption hearing on
(iii) The member has stated in a sworn written statement (forward a copy with response) that he is not the natural parent of the child, and that only a court of competent jurisdiction can judge the matter, or
(iv) Due to the member's unavailability caused by a specific reason, a completely responsive answer cannot be made.
(v) Inform member of the inquiry and the response. Also, member should be urged to obtain legal assistance (including an explanation of the Soldiers’ and Sailors’ Civil Relief Act of 1940, if appropriate).
(b) If the member has been released from active duty, the unit commander forwards the inquiry to HQ ARPC/DPAS, Denver CO 80280-5000. Advise complainant of the referral.
(1) HQ ARPC/DPAS, on receipt of an allegation of paternity, provides an appropriate response to the claimant as set forth for members on active duty under paragraphs (a) (1) and (2) of this section.
(2) Communications from a judge of a civilian court, including a court summons or judicial order, concerning the availability of personnel to appear at an adoption hearing where it is alleged that the member not on active duty is the father of an illegitimate child, shall receive a reply that such person is not on active duty. A copy of the communication and the reply is forwarded to the named individual.
(3) When requested by a judge of a civilian court, the member's address may be furnished if the request is supported by a:
(i) Certified copy of either a judicial order or decree of paternity or support duly rendered against the member by a United States or foreign court of competent jurisdiction; or
(ii) Document that establishes that the member has made an official admission or statement acknowledging paternity or responsibility for support of a child before a court of competent jurisdiction, administrative or executive agency, or official authorized to receive it; or
(iii) Court summons, judicial order, or similar document of a court within the United States in a case concerning the adoption of an illegitimate child wherein the member is alleged to be the father.
(4) The address may also be furnished if the claimant, with the corroboration of a physician's affidavit, alleges and explains an unusual medical situation that makes it essential to obtain information from the alleged father to protect the physical health of either the prospective mother or the unborn child.
(c) If the member has been separated with no further military status or retired, the unit commander advises the claimant:
(1) Of the date of discharge. Indicate that you are unable to assist because the individual is no longer under Air Force jurisdiction. Also, advise that the Air Force assumes no responsibility for the whereabouts of individuals no longer under its jurisdiction.
(2) In addition, the last known address of the former member may be furnished the requester under the same conditions as set forth for members not on active duty under paragraph (b) of this section.
See 32 CFR part 43a.10.
See 32 CFR part 43a.9.
(a) This section is for general guidance. For more specific information, refer to the United States Code (42 U.S.C. 659, 661, 662; 15 U.S.C. 1673), the Code of Federal Regulations (5 CFR part 581), and applicable State law.
(b) Federal law authorizes legal process against the United States Air Force only for the enforcement of child support and alimony obligations of members and employees in accordance with State law. This includes active duty, Reserve, Air National Guard (ANG), and retired military members, and civilian employees of the United States Air Force. See 42 U.S.C. 659.
(c) Legal process is defied as any writ, order, summons, or other similar process in the nature of garnishment directed to the US Air Force which is issued by:
(1) A court of competent jurisdiction within any State, territory, or possession of the United States;
(2) A court of competent jurisdiction in any foreign country with which the United States has entered into an agreement that requires the United States to honor such process; or
(3) An authorized official pursuant to an order of such court of competent jurisdiction or pursuant to State or local law. See 42 U.S.C. 659, 662.
(d) Child support is the legal obligation of an individual to provide periodic payments of funds for the support and maintenance of a child, subject to, and in accordance with, State law.
(e) Alimony is defined as the obligation of an individual to provide periodic payments for the support and maintenance of the spouse (or former spouse) including separate maintenance, alimony pendente lite, maintenance, and spousal support. The definition of alimony expressly excludes payments or transfers of property made in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses. See 42 U.S.C. 662 (b) and (c).
(f) Attorney's fees, interest, and court costs are within the definition of child support and alimony when, and to the extent, they are recoverable pursuant to a decree, order, or judgment issued in accordance with applicable State law by a court of competent jurisdiction.
(g) State law is to be followed when processing garnishment requests (as to jurisdiction and competency of courts, procedures, exemptions, and the operation of garnishment or similar process). However, State law as it applies to service of process and exemptions from garnishment and similar process may be affected by Federal law. See 42 U.S.C. 659(b) and 15 U.S.C. 1673(b).
(h) Unless an otherwise lesser amount is specified by State law, Federal law provides a limit of 50 percent on the amount that is subject to garnishment for a person supporting a second family (a spouse or dependent child), and 60 percent for a person who is not. The percentages are increased by an additional 5 percent in each situation if there are outstanding arrearages more than 12 weeks old.
(i) A Federal employee's pay subject to garnishment includes wages, salary bonuses, incentive pay, retired pay, or disability retirement pay. (The United States will exclude debts owed to the United States; Federal, State and local income tax withholding; Social Security withholdings (FICA); deductions for health insurance premiums; normal
(j) Process directed to the Commander, AFAFC/JA, must demonstrate, either on its face or by accompanying documentation, that collection is sought only for child support or alimony or both. The process must also show the social security number and whether the member is retired, Reserve, ANG, active duty, or civilian employee. (If the employee is a civilian, the name of the base where the civilian is employed should also be provided.)
(k) In order to process the request efficiently, these documents should be provided:
(1) If the process does not reflect that it has been brought to enforce an obligation of support, a certified copy of the order, judgment, or decree that originally established the obligation to support (5 CFR 581.202(c));
(2) A copy of any pleading requesting reduction of delinquent amounts to a judgment amount, and a copy of any order resulting therefrom;
(3) Any pleading, affidavit, or application requesting garnishment process; and
(4) The supporting execution, if any.
(l) The law directs the Federal government to answer garnishment or similar process within 30 days (or within such longer period as may be prescribed by applicable State law) after date of service. See 42 U.S.C. 659(d).
(m) Service of legal process must be accomplished by certified or registered mail, return receipt requested, or by personal service. Any documents served in any other manner will be returned without action. The following agents have been designated to accept legal process within the Air Force:
(1) Active duty, reserve, Air National Guard (ANG), and retired military members, and civilian employees of appropriated fund activities: Commander, Air Force Accounting and Finance Center, Attention: JA, Denver CO 80279-5000; (303) 370-7524.
(2) Nonappropriated fund civilian employees of base exchanges: Army and Air Force Exchange Service, Attention: GC-G, Dallas TX 75222-3956; (214) 320-2641.
(3) Civilian employees of all other Air Force nonappropriated fund activities: AFMPC/JA, Attention: NAF Law Division, Randolph AFB TX 78150-6001; (512) 652-6691.
(n) See 5 CFR part 581, appendix A.
(a) On 3 September 1982, the President signed into law section 172(a) of Pub. L. 97-248 (codified at 42 U.S.C. 665, effective 1 October 1982) which allows mandatory allotments from an active duty member's pay and allowances to satisfy child or child and spousal support obligations. (Alimony or spousal support alone does not qualify under this law).
(b) A spouse or former spouse may obtain an allotment for child support or child and spousal support in cases where payments are in arrears for at least 2 months.
(c) This act provides that no more than 50 percent of a member's pay and allowances are subject to be allotted from a member who is supporting a second family and no more than 60 percent from a member who is not. The percentages are increased by 5 percent in each situation where there are outstanding arrearages which are 12 or more weeks past due. Pay and allowances and exclusions are defined in the DOD regulations.
(d) After the Air Force member is notified and given an opportunity to be counseled, the allotment will be established in the next available month following 30 days after notice is made on the Air Force member. The payments will be made at the end of the month in which the allotment was established.
(e) An allotment, pursuant to this statute, may be accomplished by furnishing the Air Force Accounting and Finance Center a written notice from a court or state agency administering child support programs under title IV-D of the Social Security Act. This notice must be signed and must contain the following information:
(1) A statement that the person signing is an agent or an attorney of the State having a IV-D plan who has the duty or authority under such plan to seek to recover amounts owed by a service member as child or child and spousal support or a notice from a state court or any agent of the court which has authority to issue an order against a service member for the support of a child.
(2) The service member's full name and social security number.
(3) A recently certified copy of the order awarding support must be included with the notice.
(4) A statement that the support payments are in arrears at least two months.
(5) A court order showing the amount of the arrears and specifying that payments be made to liquidate such arrears.
(6) The total amount of the allotment. (Specify the amount to be paid for current support and the amount to be paid each month toward arrears.)
(7) The dates that the current support should terminate (for each child).
(8) Name and address of payee.
(f) The notice and documents must be served on the following: Commander, AFAFC, Attn: JA, Denver CO 80279-5000.
10 U.S.C. 8012.
This regulation prescribes the policies, administrative requirements, procedures, terms, and conditions for licensing of rights in federally owned patents and patent applications vested in the United States of America in the custody of the Department of the Air Force. It is consistent with General Services Administration Licensing of Federally Owned Inventions, 41 CFR 101-4, which implements Pub. L. 96-517. It applies to all requests for a license under an Air Force invention.
Federally owned inventions in the custody of the Department of the Air Force normally will best serve the public interest when they are developed to the point of practical application and made available to the public in the shortest possible time. Nonexclusive, partially exclusive, or exclusive licenses for the practice of these inventions may be granted to applicants who agree to develop and/or market the inventions. All Air Force inventions normally will be made available for the granting of licenses to responsible applicants.
Nonexclusive, partially exclusive, or exclusive licenses will be executed on behalf of the Department of the Air Force by the Secretary or by anyone to whom this authority is delegated.
The administration of this part is delegated to The Judge Advocate General, who may redelegate the administration of this part to the Chief, Patents Division, Office of The Judge Advocate General. All communications received in any Air Force activity requesting information regarding the licensing of a Government invention will be acknowledged and sent without further action directly to HQ USAF/JACP, Washington DC 20324.
(a)
(b)
(c)
(d)
(a) Royalties may or may not be charged under nonexclusive licenses granted to US citizens and US corporations on Government inventions; however, the Department of the Air Force may require other considerations when a royalty is not charged.
(b) Normally, an exclusive or partially exclusive license on an Air Force invention will contain a royalty provision and/or other consideration flowing to the Government.
The following restrictions and conditions apply to all licenses granted under this part:
(a)
(2) A license granting rights to use or sell under an Air Force invention in the United States shall normally be granted only to a licensee who agrees that any product embodying the invention or produced through the use of the invention will be manufactured substantially in the United States.
(b)
(1) The duration of the license shall be for a period specified in the license agreement, unless sooner terminated according to provisions therein.
(2) The license may be granted for all or less than all fields of use of the invention or in specified geographical areas, or both.
(3) The license may extend to subsidiaries of the licensee or other parties if provided for in the license but shall be nonassignable without approval of the Air Force, except to the successor of that part of the licensee's business to which the invention pertains.
(4) The license may provide the licensee the right to grant sublicenses under the license, subject to the approval of the Air Force. Each sublicense shall make reference to the license, including the rights retained by the Government, and a copy of each sublicense shall be furnished to the Air Force.
(5) The license shall require the licensee to carry out the plan for development or marketing of the invention, or both, to bring the invention to practical application within a period specified in the license, and to continue to make the benefits of the invention reasonably accessible to the public.
(6) The license shall require the licensee to report, at least annually, on the utilization or efforts at obtaining utilization that are made by the licensee, with particular reference to the plan submitted.
(7) Licenses may be royalty-free or for royalties or other consideration.
(8) When the licensee agrees that any products embodying the invention or produced through use of the invention will be manufactured substantially in the United States, the license shall recite such agreement.
(9) The license shall provide for the right of the Air Force to terminate the license, in whole or in part, if:
(i) The Air Force determines that the licensee is not executing the plan submitted with its requests for a license and the licensee cannot otherwise demonstrate to the satisfaction of the Air Force that it has taken or can be expected to take within a reasonable time effective steps to achieve practical application of the invention;
(ii) The Air Force determines that such action is necessary to meet requirements for public use specified by Federal regulations issued after the date of the license and such requirements are not reasonably satisfied by the licensee;
(iii) The licensee has willfully made a false statement of or willfully omitted a material fact in the license application or in any report required by the license agreement; or
(iv) The licensee commits a substantial breach of a covenant or agreement contained in the license.
(10) The license may be modified or terminated consistent with this part upon mutual agreement of the Air Force and the licensee.
(11) Nothing relating to the grant of a license, nor the grant itself, shall be construed to confer upon any person, any immunity from or defense under the antitrust laws or from a charge of patent misuse, and the acquisition and use of rights pursuant to this subpart shall not be immunized from the operation of state or Federal law by reason of the source of the grant.
(12) The license shall contain a provision that the government makes no representation or warranty as to the validity of any licensed patent or patent application, or of the scope of any of the claims contained therein, or that the exercise of the license will not result in the infringement of any other patent and that the Government assumes no liability whatsoever resulting from the exercise of the license.
Each Air Force invention normally will be made available for the granting of nonexclusive licenses, subject to the provisions of any other license, including those in § 841.8, and subject to the following condition: the nonexclusive license may also provide that, after termination of a period specified in the license agreement, the Air Force may restrict the license to the fields of use or geographic areas, or both, in which the licensee has brought the invention to practical application and continues to make the benefits of the invention reasonably accessible to the public. However, such restriction shall be made only in order to grant an exclusive or partially exclusive license according to this part.
Each Government invention may be made available for the granting of an exclusive or partially exclusive license subject to the following restrictions and conditions:
(a)
(1) Three months after notice of the invention's availability has been announced in the
(2) Without such notice where the Air Force determines that expeditious granting of such a license will best serve the interest of the Federal Government and the public; and
(3) In either situation specified in paragraph (a) (1) or (2) of this section only if:
(i) Notice of a prospective license, identifying the invention and the prospective licensee, has been published in the
(ii) After expiration of the 60-day period and consideration of any written objections received during the period, the Air Force makes the determinations required by § 841.15 favorably to the applicant; and
(iii) The Air Force has given first preference to any small business firms submitting plans that are determined by the agency to be within the capabilities of the firms and as equally likely, if executed, to bring the invention to practical application as any plans submitted by applicants that are not small business firms.
(b)
(1) The license shall be subject to the irrevocable royalty-free right of the Government of the United States to practice and have practiced the invention on behalf of the United States and on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement with the United States.
(2) The license shall reserve to the Air Force the right to require the licensee to grant sublicenses to responsible applicants, on reasonable terms, when necessary to fulfill health or safety needs.
(3) The license shall be subject to any licenses in force at the time of the grant of the exclusive or partially exclusive license.
(4) The license may grant the licensee the right of enforcement of the licensed patent pursuant to the provisions of 35 U.S.C. 29, as determined appropriate in the public interest.
Nothing in this part will preclude the Air Force from granting licenses for Air Force inventions which are the result of an authorized exchange of rights in the settlement of patent disputes. The following exemplify circumstances wherein such licenses may be granted:
(a) In consideration of the settlement of an interference;
(b) In consideration of a release of a claim of infringement; or
(c) In exchange for or as part of the consideration for a license under adversely held patents.
(a) Exclusive or partially exclusive licenses may be granted on an Air Force invention covered by a foreign patent, patent application, or other form of protection, provided that:
(1) Notice of a prospective license identifying the invention and prospective licensee has been published in the
(2) The Air Force has considered whether the interests of the Federal Government or United States industry in foreign commerce will be enhanced; and
(3) The Air Force has not determined that the grant of such license will tend substantially to lessen competition or result in undue concentration in any section of the United States in any line of commerce to which the technology to be licensed relates, or to create or maintain other situations inconsistent with antitrust laws.
(b) In addition to the provisions of § 841.6, the following terms and conditions apply to foreign exclusive and partially exclusive licenses:
(1) The license shall be subject to the irrevocable, royalty-free right of the United States Government to practice and have practiced the invention on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement with the United States.
(2) The license shall be subject to any licenses in force at the time of the grant of the exclusive license.
(3) The license may grant the licensee the right to take any suitable and necessary action to protect the licensed property on behalf of the United States Government.
The Department of the Air Force will cause to be published in the
Requests for a license under an Air Force invention should be addressed to the Chief, Patents Division, HQ USAF/JACP, Washington DC 20324.
An application for a license will include:
(a) Identification of the invention for which the license is desired including the patent application serial number or
(b) Identification of the type of license for which the application is submitted;
(c) Name and address of the person, company, or organization applying for the license and the citizenship or place of incorporation of the applicant;
(d) Name, address, and telephone number of the representative of the applicant to whom correspondence should be sent;
(e) Nature and type of applicant's business, identifying products or services which the applicant has successfully commercialized, and approximate number of applicant's employees;
(f) Source of information concerning the availability of a license on the invention;
(g) A statement indicating whether the applicant is a small business firm as defined in § 841.4 of this subpart;
(h) A detailed description of the applicant's plan for development or marketing of the invention, or both, which should include:
(1) A statement of the time, nature, and amount of anticipated investment of capital and other resources which applicant believes will be required to bring the invention to practical application;
(2) A statement as to applicant's capability and intention to fulfill the plan, including information regarding manufacturing, marketing, financial, and technical resources;
(3) A statement of the fields of use for which applicant intends to practice the invention; and
(4) A statement of the geographic areas in which the applicant intends to manufacture any products embodying the invention and geographic areas where applicant intends to use or sell the invention, or both;
(i) Identification of licenses previously granted to applicant under federally owned inventions;
(j) A statement containing the applicant's best knowledge of the extent to which the invention is being practiced by private industry or Government, or both, or is otherwise available commercially; and
(k) Any other information which applicant believes will support a determination to grant the license to applicant.
A notice that the prospective exclusive or partially exclusive licensee has been selected will be published by the Department of the Air Force in the
(a) Identification of the invention;
(b) Identification of the selected licensee; and
(c) A statement that the license will be granted unless any written objection is received within 60 days.
(a) After the notice is published in the
(1) An identification of the invention, type of license desired, and name and address of the party applying for the license;
(2) The name and address of all third parties who objected to the granting of the license, if any;
(3) A brief statement of the reasons for the objections, if any;
(4) A discussion of the relative merits of the license application vs. the objections filed by third parties, if any;
(5) Determinations, and reasons supporting the determinations, whether:
(i) The interests of the Federal Government and the public will be served by the proposed license, in view of the applicant's intentions, plans, and ability to bring the invention to practical application or otherwise promote the invention's utilization by the public;
(ii) The desired practical application has not been achieved or is not likely expeditiously to be achieved under any nonexclusive license which has been granted on the invention;
(iii) Exclusive or partially exclusive licensing is a reasonable and necessary
(iv) The proposed terms and scope of exclusivity are not greater than reasonably necessary to provide the incentive for bringing the invention to practical application or otherwise promote the invention's utilization by the public;
(v) The grant of such license will tend substantially to lessen competition or result in undue concentration in any section of the country in any line of commerce to which the technology to be licensed relates, or to create or maintain other situations inconsistant with the antitrust laws; and
(vi) The interest of the United States Government or industry in foreign commerce will be enhanced, if the license request is under a foreign patent, patent application, or other form of protection.
(6) The signature of the individuals making the determinations.
(b) A record of the determinations to grant or deny an exclusive or a partially exclusive license shall be maintained by the Patents Division.
Before modifying or terminating a license, other than by mutual agreement, the Air Force shall furnish the licensee and any sublicensee of record a written notice of intention to modify or terminate the license, and the licensee and any sublicensee shall be allowed 30 days after such notice to remedy any breach of the license or show cause why the license should not be modified or terminated.
A party whose application for a license has been denied, a licensee whose license has been modified or terminated, in whole or in part, or a party who timely filed a written objection in response to the notice required in § 841.8 and § 841.10 and who can demonstrate to the satisfaction of the Air Force that such party may be damaged by the agency action, may appeal to The Judge Advocate General, any decision or determination concerning the grant, denial, interpretation, modification, or termination of a license. The appeal must be in writing and submitted within 60 days from the date the decision or determination was mailed to the party.
Under certain circumstances it may be in the best interest of the Air Force to enter into an agreement to transfer its custody of any invention to another Government agency for purposes of administration including the granting of licenses pursuant to this part. Such transfers will be made on a case-by-case basis.
Title 35 U.S.C. 209 provides that any plan submitted pursuant to § 841.13 above and any report required by § 841.6 may be treated by the Air Force as commercial and financial information obtained from a person and priviledged and confidential and not subject to disclosure under 5 U.S.C. 552.
Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013, except as otherwise noted.
Air Force Regulations are available through the National Technical Information Service (NTIS), U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.
This part is derived from Air Force Regulation 112-1, Claims and Tort Litigation.
This part establishes standard policies and procedures for administratively processing claims resulting from Air Force activities and for which the Air Force has assigned responsibility; tells how to present, process, and settle claims.
This subpart explains terms used in this part. It states basic Air Force claims policy and identifies proper claimants.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1)
(2)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(a)
(b)
File a claim at the base legal office of the unit or installation at or nearest to where the accident or incident occurred. If the accident or incident occurred in a foreign country where no Air Force unit is located, file the claim with the Defense Attache (DATT) or Military Assistance Advisory Group (MAAG) personnel authorized to receive claims (DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is unable to obtain adequate assistance in filing a claim, the claimant may contact the nearest Air Force SJA. The SJA then advises HQ USAF/JACC thorugh claims channels of action taken and states why the DATT or MAAG was unable to adequately assist the claimant.
Any signed written demand on the Air Force for a sum certain is sufficient to file a claim. The claimant should use these forms when filing a claim:
(a)
(b)
(c)
The claimant or authorized agent signs the claim form in ink using the first name, middle initial, and last name.
(a)
(2) An authorized agent signing for a claimant shows, after the signature, the title or capacity and attaches evidence of authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative; for example, John Doe by Richard Roe, Attorney in Fact. A copy of a current and valid power of attorney, court order, or other legal document is sufficient evidence of the agent's authority.
(b)
(c)
(2) If the person signing the claim is other than the corporate officer they must:
(i) Attach to the claim form a certification by a proper corporate officer that the individual is an agent of the corporation duly authorized to file and settle the claim;
(ii) Affix to the claim form the corporate seal (if any) to the certification.
(d)
(a)
(b)
(2) The duly appointed guardian of a minor child or any other person legally entitled to do so under applicable local law may file a claim for a minor's personal injury.
(3) The executor or administrator of the decedent's estate or any other person legally entitled to do so under applicable local law may file a claim based on an individual's death.
(c)
Insured claimants must make a detailed disclosure of their insurance coverage by stating:
(a) Their name and address.
(b) Kind, amount, and dates of coverage of insurance.
(c) Insurance policy number.
(d) Whether a claim was presented to the insurer and, if so, in what amount.
(e) Whether the insurer paid or is expected to pay the claim.
(f) The amount of any payment made or promised.
(a) A claim includes all damages accruing to a claimant by reason of an accident or incident. For example, when the same claimant has a claim for property damage and personal injury arising out of the same incident, each claim represents only a part of a single claim or cause of action. Even if local law permits filing a separate
(b) Filing for an advance payment, and subsequently filing a claim, does not constitute splitting a claim.
(c) Process the claim of a subrogor (insured) and subrogee (insurer) for damages arising out of the same incident as a single claim where permitted. If either claim or the combined claim exceeds, or is expected to exceed, settlement limits, send it to the next higher settlement authority. Do not split subrogated claims to avoid settlement limits.
It sets out the claims organization within the US Air Force and describes the functions and responsibilities of the various claims offices.
Air Force claims channels are:
(a) Continental United States (CONUS), Azores, Panama and Iceland:
(1) Headquarters US Air Force (HQ USAF).
(2) SJAs of bases, single base GCM authorities, stations and fixed installations, and commanders responsible for investigation and settlement of claims.
(b) Pacific Air Forces (PACAF) and US Air Forces, Europe (USAFE):
(1) HQ USAF.
(2) SJAs of PACAF and USAFE.
(3) SJAs of organizations exercising GCM authority.
(4) SJAs of bases, stations and fixed installations, and commanders responsible for investigating and settling claims.
(c) US Central Command (CENTCOM):
(1) HQ USAF.
(2) SJA of Headquarters Ninth Air Force (HQ 9AF).
(3) SJAs of bases, stations, and fixed installations, and commanders responsible for investigation and settlement of claims.
(d)
(a)
(2) Trains claims officers and paralegals.
(3) Settles certain claims.
The authority specifically delegated to the Deputy Judge Advocate General to settle certain claims in no way limits the Deputy's authority to perform the duties of TJAG when so acting pursuant to 10 U.S.C. 8072.
(4) Monitors tort litigation for and against the United States arising out of Air Force activities.
(b)
(2) Implements claims and tort litigation policies, issues instructions, and provides guidance and assistance to subordinate claims offices.
(3) Recommends settlement action on claims and tort litigation to TJAG, the Secretary of the Air Force, and the United States Attorney General.
(4) Maintains liaison with the Department of Defense (DOD), Department of Justice (DOJ), and other government agencies on claims and tort litigation.
(5) Settles certain claims.
(6) Certifies or reports claims to the General Accounting Office (GAO).
(7) Prepares budget estimates for Air Force claims activities.
(8) Monitors the collection, allocation, and expenditure of Air Force claims funds.
(9) Keeps permanent records on all claims and tort litigation for which TJAG is responsible.
(10) Conducts and supervises claims training activities.
(a)
(i) Conduct of periodic claims audits.
(ii) Support of claims teams. Members may be detailed from personnel assigned to the command to respond to natural disasters or serious incidents. If resources are not available from within the command, HQ USAF/JACC should be contacted for assistance.
(iii) Apportion claims funds allocated by HQ USAF.
(2) The PACAF, USAFE, and HQ 9AF SJA:
(i) Settles claims.
(ii) At a minimum, through assistance visits and audits, supervises claims activities of those subordinate units and organizations assigned to them for claims purposes.
(iii) Appoints members to foreign claims commissions.
(iv) Monitors international claims.
(v) Establishes and designates geographic areas of claims responsibility within the command, except for DOD designated single-service areas of responsibility.
(b)
(2) The GCM SJA exercising settlement authority:
(i) Settles certain claims.
(ii) Supervises directly the claims activities of their subordinate units. This includes at least assistance visits and audits for all but single base GCMs.
(c)
(2) Have primary investigative responsibility for incidents giving rise to claims that occur in their geographic area of responsibility.
(3) Notify HQ USAF/JACC through claims channels, if there is a question of which base can best investigate and process a particular claim.
(a)
(2) The assistant claims officer performs claims duties under the supervision of the claims officer and in the absence of the claims officer.
(b)
(2) The SJA appoints assistant claims officers in writing.
(c)
(d)
It sets out the Air Force procedures for processing Article 139, UCMJ claims.
(a)
(b)
(c)
(d)
(e)
Claims for property willfully damaged or wrongfully taken by Air Force military personnel as a result of riotous, violent, or disorderly conduct. If a claim is payable under this part and also under another part, it may be paid under this part if authorized by HQ USAF/JACC.
Claims that are not payable are:
(a) Claims resulting from simple negligence.
(b) Claims for personal injury or death.
(c) Claims resulting from acts or omissions of Air Force military personnel while acting within the scope of their duty.
(d) Claims of subrogees.
(e) Claims arising from private indebtedness.
(f) Claims for reimbursement for bad checks.
(a) Submit a complaint within 90 days of the date of the incident unless the appointing commander finds good cause for the delay. Command determination of the absence of good cause is final.
(b) Assessment of damages in excess of $5,000 against an offender's pay for a single incident requires HQ USAF/JACC approval.
(c) Payment of indirect, remote, or consequential damages is not authorized.
Claimant complains (orally or in writing) to the commander of a military organization or unit of the alleged offending member or members or to the commander of the nearest military installation. However, the complainant need not request a sum certain in writing, before settlement is made.
It explains how to settle and pay claims under the Military Personnel and Civilian Employees’ Claims Act for incident to service loss and damage of personal property. These claims are paid according to this subpart even when another subpart may also apply.
(a)
(b)
(c)
(2) Any area on a military installation designated for parking or storing vehicles.
(3) A recreation area or any real estate the Air Force or any other DOD element uses or controls.
(d)
(e)
(2) Privately owned mobile or manufactured homes parked on base in spaces the government provides.
(3) Transient housing accommodations, wherever located, such as, hotels, motels, guest houses, transient dormitories, or other lodgings the government furnishes or contracts for.
(4) Housing accommodations outside the United States which the claimant occupies according to local policies and procedures which were not assigned by or otherwise provided for by the U.S. Government. Quarters do not include housing occupied by foreign indigenous employees.
(5) Garages, carports, driveways, and parking lots assigned to quarters the government provides for the occupants of the quarters to use.
(6) Street parking:
(i) At quarters.
(ii) In the immediate vicinity of quarters.
(iii) Reserved parking assigned to offbase housing accommodations overseas.
(7) The area immediately adjacent to quarters when used for storage of items not commonly stored in living areas, for example, boats, motorcycles, motorbikes, bicycles, lawn mowers, garden equipment, and outdoor furniture.
(f)
(g)
(h)
(a)
(i) The Judge Advocate General (TJAG).
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(2) The SJAs of HQ USAFE, HQ PACAF, and 9 AF (for claims arising out of HQ CENTCOM) have delegated authority to settle claims payable, and to deny claims filed for $25,000 or less.
(3) The SJAs of single base GCMs and the SJAs of GCMs within PACAF and USAFE have delegated authority to settle claims payable, and to deny claims filed for $15,000 or less.
(4) SJAs of each Air Force Base, station, and fixed installation have been delegated the authority to settle claims payable, and deny claims filed for $10,000 or less.
(b)
(c)
(d)
(a)
(b)
(c)
Upon request of a claimant, a settlement authority may make a partial payment in advance of final settlement when a claimant experiences personal hardship due to extensive property damage or loss. Examples where partial payments are appropriate include fires and sunken transport ships. Partial payments are made in this manner:
(a) If a claim for only part of the loss is submitted and is readily provable, pay it up to the amount of the settlement authority. (The claimant may later amend the claim for the remainder of the loss.) If the total payable amount of the claim exceeds the payment limits of the settlement authority, send it with recommendations through claims channels to the proper settlement authority.
(b) When the total claim is submitted and the amount payable exceeds the settlement authority, pay a partial payment within the limits of settlement authority and send the claim, with recommendations, through claims channels to the proper settlement authority.
(a) The claimant must file the claim in writing within 2 years after it accrues. It accrues when the claimant discovered or reasonably should have discovered the full extent of the property damage or loss. For transportation losses, the claim usually accrues on the date of delivery.
(b) To compute the statutory period, the incident date is excluded and the day the claim was filed is included.
(c) Consider a claim filed after the statute has run if both of the following are present:
(1) The United States is at war or in an armed conflict when the claim accrues, or the United States enters a war or armed conflict after the claim accrues. Congress or the President establishes the beginning and end of war or armed conflict. A claimant may not file a claim more than 2 years after the war or armed conflict ends.
(2) Good cause is shown. A claimant may not file a claim more than 2 years after the good cause ceases to exist.
A claim may be filed by the:
(a) Property owner.
(b) Authorized agent with a power of attorney.
(c) Property owner's survivors, who may file in this order:
(1) Spouse.
(2) Children.
(3) Father or mother, or both.
(4) Brothers or sisters, or both.
Proper claimants are:
(a) Active duty Air Force military personnel.
(b) Civilian employees of the Air Force who are paid from appropriated funds.
(c) DOD school teachers and school administrative personnel who are provided logistic and administrative support by an Air Force installation commander.
(d) Air Force Reserve (AFRES) and Air National Guard (ANG) personnel when performing active duty, full-time National Guard duty, or inactive duty training, ANG technicians under 32 U.S.C. 709.
(e) Retired or separated Air Force military personnel who suffer damage or loss resulting from the last storage or movement of personal property, or for claims accruing before retirement or separation.
(f) AFROTC cadets while on active duty for summer training.
(g) United States Air Force Academy cadets.
The following individuals are not proper claimants:
(a) Subrogees and assignees of proper claimants, including insurance companies.
(b) Conditional vendors and lienholders.
(c) Non-Air Force personnel, including American Red Cross personnel, United Services Organization (USO) performers, employees of government contractors, and Civil Air Patrol (CAP) members.
(d) AFROTC cadets who are not on active duty for summer training.
(e) Active duty military personnel and civilian employees of a military service other than the Air Force.
(f) DOD employees who are not assigned to the Air Force.
(g) Army and Air Force Exchange Service (AAFES) employees and other employees whose salaries are paid from nonappropriated funds (see subpart O).
(h) Military personnel of foreign governments.
Payable claims must be for:
(a) Personal property which is reasonable or useful under the circumstances of military service.
(b) Loss, damage, destruction, confiscation, or forced abandonment which is incident to service.
(c) Losses that are not collectable from any other source, including insurance and carriers.
(d) Property that is owned by the claimants, their immediate families, or borrowed for their use.
(e) Losses occurring without the claimants’ negligence.
Claims may be paid for:
(a)
(i) Transportation under orders, whether it was in the possession of the government, carrier, storage warehouse, or other government contractor. This includes Do-It-Yourself (DITY) moves.
(ii) Travel under orders, including temporary duty (TDY).
(iii) Travel on a space available basis on a military aircraft, vessel, or vehicle.
(2) Pay for property essential to everyday use, if the claimant has replaced the items that he or she reported as missing. Essential items may be paid for even if someone locates the property before the claimant files the claim.
(b)
(i) Claims for damage or loss caused by other acts of god are not paid except in those instances where the geographic area has been declared to be a federal disaster area or HQ USAF/JACC has determined that payment is appropriate because the severity of the act of god was truly extraordinary.
(ii) In some areas, extreme weather, such as severe lightning storms, hail, or high winds, occur routinely. Damage claims from these storms are normally not paid. Failure to take reasonable care in protecting property from such known hazards may be negligence. These types of claims would include pitted windshields, dents, chipped paint on vehicles, and lightning damage to television sets, stereos, computer components, video recorders, and other electrical appliances.
(2)
(c)
(1) Theft of POVs or their contents, or vandalism to parked POVs:
(i) Anywhere on a military installation.
(ii) At offbase quarters overseas.
(iii) At other authorized places.
(2) Government shipment:
(i) To or from oversea areas incident to PCS.
(ii) On a space available reimbursable basis.
(iii) As a replacement vehicle under the provisions of the Joint Travel Regulations (JTR).
(3) Authorized use for government duty other than PCS moves. The owner must have specific advance permission of the appropriate supervisor or official. Adequate proof of the permission
(4) Paint spray, smokestack emission, and other similar operations by the Air Force on a military installation caused by a contractor's negligence. (Process the claim under subpart F or K, if government negligence causes such losses.) If a contractor's operation caused the damage:
(i) Refer the claim first to the contractor for settlement.
(ii) Settle the claim under this subpart if the contractor does not pay it or excessively delays payment, and assert a claim against the contractor.
(d)
(e)
(f)
(g)
(1) Enemy action.
(2) Action to prevent capture and confiscation.
(3) Combat activities.
(h)
(1) Quell a civil disturbance.
(2) Assist during a public disaster.
(3) Save human life.
(4) Save government property.
(i)
(1) A foreign government unjustly confiscates property.
(2) An unjust change or application of foreign law forces surrender or abandonmnet of property.
(j)
(k)
(1) The money was in a bona fide coin collection.
(2) The claimant can justify possession of the money for a PCS move, extended TDY, vacation, extensive shopping trip, or similar circumstances. The claimant must show a good reason why the money had not been deposited in a bank or converted into travelers checks or a money order.
(3) Local commercial facilities are not available or because US personnel do not generally use such facilities.
A claim is not payable if:
(a) It is not incident to the claimant's service.
(b) The loss or damage is caused in whole or in part by the negligence or wrongful act of the claimant, the claimant's spouse, agent, or employee.
(c) It is a subrogation or assigned claim.
(d) The loss is recovered or recoverable from an insurer or other source. When a loss is recovered or is recoverable:
(1) The amount payable by insurance should be deducted if an insurer denied a claim because a claimant failed to report the loss or to file a timely claim under the policy. The claim should be
(2) The amount which the Air Force cannot recover from a carrier because the claimant failed to give timely notice of loss or damage should be subtracted from the settlement unless the claimant shows good cause for failure to give notice.
(e) It is intangible property including bank books, promissory notes, stock certificates, bonds, baggage checks, insurance policies, checks, money orders, travelers checks and credit cards.
(f) It is government property, including issued clothing items carried on an individual issue supply account. (Clothing not carried on an individual issue supply account which is stolen or clothing lost or damaged in transit may be considered as a payable item when claimed.)
(g) It is enemy property.
(h) It is a loss within the United States at offbase quarters the government did not provide.
(i) It is damage to real property.
(j) It is an appraisal fee, unless the settlement authority requires one to adjudicate the claim. HQ USAF/JACC must authorize payment for an appraisal fee of more than $100.
(k) It is property acquired or shipped for persons other than the claimant or the claimant's immediate family; however, a claim for property acquired for bona fide gifts may be paid.
(l) It is an article held for sale, resale, or used primarily in a private business.
(m) It is an item acquired, possessed, shipped, or stored in violation of any U.S. Armed Force directive or regulation. This includes an automobile for which a member fails to comply with base registration or insurance regulations. A claim must not be paid if one or more of these factors exist:
(1) The loss was the type the regulation or directive intended to prevent.
(2) The violation was willful or in defiance of authority, rather than minor or technical in nature.
(3) The violation either undermined discipline or adversely affected command welfare.
(n) It is an item fraudulently claimed. Deny payment for an item when investigation shows the claimant has intentionally falsified the value, condition, extent of damage, or repair cost of it. The claim file must show clear intent to defraud. A mere mistake is not a fraud.
(o) It is for charges for labor performed by the owner or immediate family member.
(p) It is for financial loss due to changed or cancelled orders.
(q) It is for expenses of enroute repair of a mobile or manufactured home.
(r) It is a loss of use of personal property.
(s) It is an attorney or agent fee.
(t) It is the cost of preparing a claim, other than estimate fees.
(u) It is an inconvenience expense, such as food, lodging, and transportation costs due to delay in delivery of household goods or travel to port to deliver or pick up a vehicle.
(v) It is a loss of, or damage to POV driven during PCS.
(w) It is a personal property insurance premium.
(x) It is a claim for a thesis or other similar papers, except for the cost of materials.
(y) It is damage to, or loss of a rental vehicle which TDY or PCS orders authorized. These claims may be payable through Accounting and Finance as a travel expense.
(z) It is a cost to relocate a telephone or mobile or manufactured home due to a government ordered quarters move. The member submits such claims to the commander directing the move for payment from other Operation and Maintenance (O&M) funds.
(aa) It is for damage to or loss of property stored at the owner's expense unless the claimant's duty made storage necessary.
(bb) It is for damage to clothing and accessories caused by routine wrinkles.
(cc) It is hit-and-run damage to POVs.
(dd) It is for damage to clothing and accessories caused by contact with office furniture or getting in or out of a government vehicle unless the damage was caused by an unknown defect.
A claimant may request reconsideration of an initial settlement or denial
(a) The original settlement authority reviews the reconsideration request. The settlement authority sends the entire claim file with recommendations and supporting rationale to the next higher settlement authority if all relief the claimant requests is not granted.
(b) The decision of the higher settlement authority is the final administrative action on the claim.
The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of contribution and indemnity permitted by the law of the situs or under contract. The Air Force does not seek contribution or indemnity from US military personnel or civilian employees whose conduct in scope of employment gave rise to government liability.
The military services have jointly established the “Allowance List-Depreciation Guide” to determine values for most items and to limit payment for some categories of items.
This subpart explains how to assert and settle claims against carriers, warehousemen, and contractors for loss and damage to personal property.
(a)
(1) Carriers issue commercial bills of lading.
(2) Transportation officers issue government bills of lading (GBL). GBLs include the terms and conditions of commercial bills of lading with certain exceptions.
(3) The GBL is all of the following:
(i) A receipt for goods tendered to a carrier.
(ii) A contract.
(iii) A document authorizing collection of transportation bills the carrier presents.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(v) The SJAs of HQ PACAF, HQ USAFE, and HQ 9AF (for HQ CENTCOM).
(2) These individuals have delegated authority to settle, compromise, suspend, or terminate action on claims for $15,000 or less and to accept full payment on any claim:
(i) SJAs of GCMs in PACAF and USAFE.
(ii) SJAs of single base GCMs.
(3) SJAs of each Air Force base, station, or fixed installation have delegated authority to settle, compromise, suspend, or terminate action on claims for $10,000 or less and to accept full payment on any claim.
(b)
(c)
(a) International commercial air shipments. The government must file suit within 2 years after the delivery date. The period for notifying these carriers of loss or damage is 3 days for luggage, and 7 days for other goods. Setoff is not possible in these cases. Uncollectible claims are sent to HQ USAF/JACC within 6 months from the date of delivery.
(b)
This subpart explains how to settle claims made against the United States for property damage, personal injury, or death caused by military personnel or civilian employees of the Air Force acting in the scope of their employment or otherwise incident to the Air Force's noncombat activities.
(a)
(b)
(c)
(a)
(i) Settle claims for $100,000 or less.
(ii) Settle claims for more than $100,000, paying the first $100,000 and reporting the excess to the General Accounting Office for payment.
(iii) Deny a claim in any amount.
(2) The Judge Advocate General has delegated authority to settle claims for $100,000 or less and deny claims in any amount.
(3) The following individuals have delegated authority to settle claims for $25,000 or less and deny claims in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director of Civil Law.
(iii) The Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation Staff.
(4) The SJA of 9AF for CENTCOM, and the SJAs of PACAF and USAFE have delegated authority to settle claims payable or deny claims filed for $25,000 or less.
(5) SJAs of single base GCMs, and GCMs in PACAF and USAFE, and each Air Force base, station, or fixed installation have delegated authority to settle claims payable, or deny claims filed for $15,000 or less.
(b)
(c)
(d)
(e)
(f)
(1) Legal malpractice.
(2) On the job personal injury or death of an employee of a government contractor or subcontractor.
(3) Assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution committed by an investigative or law enforcement officer.
(4) On-base animal bite cases.
(5) Personal injury from asbestos or radon.
(6) Claims based upon an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation.
(7) Claims based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government.
(8) Claims for damage to property of a state, commonwealth, territory, or the District of Columbia caused by ANG personnel engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit maintained by that state, commonwealth, territory or the District of Columbia.
(9) Claims not payable because payment is not in the best interests of the United States, is contrary to public policy, or is otherwise contrary to the basic intent of the MCA.
(10) Claims presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or any country allied with such enemy country.
(11) Medical malpractice.
(a)
(b)
Subpart Q sets forth procedures for advance payments.
(a) A claim must be filed in writing within 2 years after it accrues. It accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. The same rules governing accrual pursuant to the Federal
(b) The statutory time period excludes the day of the incident and includes the day the claim was filed.
(c) Consider claims filed after the statute has run when:
(1) The United States is at war or in an armed conflict when the claim accrues, or
(2) The United States enters a war or armed conflict after the claim accrues, and
(3) Good cause is shown. A claim is barred by the statute of limitations if it is filed more than 2 years after the good cause ceases to exist or the war or armed conflict ends. Congress or the President establishes the beginning and end of war or armed conflict.
(a) Owners of the property or their authorized agents may file claims for property damage.
(b) Injured persons or their duly authorized agents may file claims for personal injury.
(c) Duly appointed guardians of minor children or any other persons legally entitled to do so under applicable local law may file claims for minors’ personal injuries.
(d) Executors or administrators of a decedent's estate or another person legally entitled to do so under applicable local law, may file claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid in full by them. The parties may file claims jointly or individually, to the extent of each party's interest, for losses partially paid by insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal capacity and present evidence of authority to present the claims.
(a) Citizens and inhabitants of the United States.
(b) U.S. military personnel and civilian employees.
These personnel are not proper claimants for personal injury or death incident to service.
(c) Persons in foreign countries who are not inhabitants of the foreign country.
(d) States, state agencies, counties, or municipalities, or their political subdivisions.
(e) Prisoners of war or interned enemy aliens.
These individuals are proper claimants for personal property damage but not for personal injury.
(f) Property owners, their representatives, and those with certain legal relationships with the record owner, including mortgagors, mortgagees, trustees, bailees, lessees and conditional vendees.
(g) Subrogees to the extent they have paid for the claim in question.
(a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.
(b) Agencies and departments of the U.S. Government.
(c) Nonappropriated fund instrumentalities.
(d) Subrogees of § 842.48(a), (b), and (c) of this part.
(e) Inhabitants of foreign countries.
(a) Claims arising from negligent or wrongful acts or omissions committed by United States military or civilian personnel while acting in the scope of their employment.
(b) Claims arising from noncombat activities of the United States, whether or not such injuries of damages arose out of the negligent or wrongful acts or omissions by United States military or civilian employees acting within the scope of their employment.
(c) Claims for damage to bailed property under § 842.49(a) or (b) of this part, where all of the following are present:
(1) The United States armed forces assumed the duties of a bailee.
(2) The bailor did not assume the risk of loss by express agreement.
(3) Authorized United States armed forces military or civilian personnel acting in their official capacity properly accepted the property.
(d) Claims for loss or damage to:
(1) Insured or registered mail under § 842.49(a), (b), or (c) while in the possession of the United States armed forces military or civilian personnel.
(2) Minimum fee insured mail, but only if it has an insurance number or requirement for hand-to-hand receipt while in the possession of the United States armed forces military or civilian personnel.
(3) Any mail in the possession of the US Postal Service or a Military Postal Service due to an unlawful or negligent inspection, search, or seizure conducted in an oversea military postal facility, under orders of armed forces personnel.
(e) Claims for property damage of US military personnel under conditions listed in paragraphs (a) and (b) of this section, where the damage occurred on a military installation and is not payable under the Military Personnel and Civilian Employees’ Claims Act.
(f) Claims filed by DOD military or civilian health care providers or legal personnel for their personal liability by settlement or judgment, to include reasonable costs of such litigation, for their common law tortious acts committed within the scope of their employment under circumstances described in 10 U.S.C. 1089(f) and 10 U.S.C. 1054(f).
Exclusions listed in § 842.50 (a) through (l) of this part, are based on the wording of 28 U.S.C. 2680. The remainder are based either on statute or court decisions. The interpretation of these exclusions is a Federal question decided under Federal law. Where State law differs with Federal law, Federal law prevails. A claim is not payable under this subpart if it:
(a) Is based on an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid. Do not deny claims solely on this exception without the prior approval of HQ USAF/JACC.
(b) Is based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the government, whether or not the discretion involved is abused. Do not deny claims solely on this exception without the prior approval of HQ USAF/JACC.
(c) Arises out of the loss, miscarriage, or negligent transmission of letters or postal matter, except those claims payable under § 842.49.
(d) Arises with respect to the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise, or any other law enforcement officer.
(e) Is cognizable under the Suits in Admiralty Act or under the Public Vessels Act.
(f) Arises out of an act or omission of any employee of the government in administering the provisions of the Trading With the Enemy Act.
(g) Is for damages caused by the imposition or establishment of a quarantine by the United States.
(h) Arises out of an assault or battery, unless the assault or battery arises out of the acts or omissions of investigative or law-enforcement officers of the US Government, or arises out of the performance of medical, dental or related health care functions.
(i) Arises out of false imprisonment, false arrest, malicious prosecution or abuse of process, unless such actions were committed by an investigative or law enforcement officer of the United States who is empowered by law to execute searches, seize evidence, or make arrests for violations of federal law.
(j) Arises out of libel, slander, misrepresentation, or deceit.
(k) Arises out of interference with contract rights.
(l) Arises from the fiscal operations of the Department of the Treasury or from the regulation of the monetary system.
(m) Arises out of the combat activities of the military or naval forces, or the Coast Guard, during time of war.
(n) Arises from activities of the Tennessee Valley Authority.
(o) Arises from the activities of the Panama Canal Company.
(p) Arises from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives.
(q) Is for the personal injury or death of a member of the Armed Forces of the United States, including the Coast Guard, incurred incident to service.
(r) Is for the personal injury or death of a government employee for whom benefits are provided by the FECA.
(s) Is for the personal injury or death of an employee, including nonappropriated fund employees, for whom benefits are provided by the Longshore and Harbor Workers’ Compensation Act (LHWCA).
(t) Is for the personal injury or death of any government contractor employee for whom benefits are provided under any worker's compensation law, or under any contract or agreement providing employee benefits through insurance, local law, or custom when the United States pays them either directly or as part of the consideration under the contract. Only HQ USAF/JACC may settle these claims.
(u) Is for taking of property as by technical trespass or overflight of aircraft and of a type contemplated by the Fifth Amendment to the US Constitution, or otherwise constitutes a taking.
(v) Is for damage from or by flood or flood waters at any place.
(w) Is for damage to property or for any death or personal injury occurring directly or indirectly as a result of the exercise or performance of, or failure to exercise or perform, any function or duty by any Federal agency or employee of the government to carry out the provisions of the Federal Civil Defense Act of 1950 during the existence of a civil defense emergency.
(x) Is for patent or copyright infringement.
(y) Is for damage to property of a state, commonwealth, territory, or the District of Columbia caused by ANG personnel engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit maintained by that state, commonwealth, territory, or the District of Columbia unless the express approval for payment is received from HQ USAF/JACC.
(z) Is for damage to property or for any death or personal injury arising out of the activities of any federal agency or employee of the government in carrying out the provisions of the Federal Disaster Relief Act of 1954.
(aa) Arises from activities that present a political question.
(bb) Results wholly from the negligent, or wrongful act of the claimant or agent.
(cc) Is for reimbursement for medical, hospital, or burial expenses furnished at the expense of the United States.
(dd) Arises from contractual transactions, express or implied, including rental agreements, sales agreements, leases and easements, which are payable or enforceable under such contracts or arise out of irregular procurement and implied contract.
(ee) Arises from private, as distinguished from government, transactions.
(ff) Is based solely on compassionate grounds.
(gg) Is for rent, damage, or other expenses or payments involving the regular acquisition, use, possession, or disposition of real property of interests therein by and for the Air Force.
(hh) Is not in the best interests of the United States, is contrary to public policy, or is otherwise contrary to the basic intent of the MCA; for example, claims by inhabitants of unfriendly foreign countries or by or based on injury or death of individuals considered to be unfriendly to the United States. Claims considered not payable under this paragraph are forwarded, with recommendations for disposition, through claims channels to HQ USAF/JACC.
(ii) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or any country allied with such enemy country unless the appropriate settlement authority determines that the claimant is, and at the time of the incident was, friendly to the United States. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage, loss, or destruction of personal property in the custody of the Government otherwise payable. Claims
(jj) Is for personal injury or death of military or civilian personnel of a foreign country, if their personal injury or death was suffered incident to their service.
(kk) Is for damage to or loss of bailed property when the bailor specifically assumes such risk.
(ll) Is for property damage, personal injury, or death occurring in a foreign country to an inhabitant of that country.
(mm) Is for the loss of a rental fee for personal property.
(nn) Arises out of matters which are in litigation against the United States.
(oo) Is payable under any one of the following statutes and implementing regulations:
(1) Federal Tort Claims Act.
(2) Foreign Claims Act.
(3) International Agreements Claims Act.
(4) Air Force Admiralty Claims Act and the Admiralty Extension Act.
(5) National Guard Claims Act.
(6) Military Personnel and Civilian Employees’ Claims Act.
This paragraph provides the existing law governing liability, measurement of liability and the effects of settlement upon awards.
(a)
(1) When a claim arises in the United States, the law of the place where the act or omission occurred governs liability. The settlement authority considers the local law on such issues as dangerous instrumentalities, assumption of risk, res ipsa loquitur, last clear chance, discovered peril, and comparative and contributory negligence. Absolute liability is never imposed.
(2)
(ii) The law of the foreign country governing the legal effect of contributory or comparative negligence by the claimant will be applied in determining the relative merits of the claim. In the unusual situation where foreign law governing contributory or comparative negligence does not exist, use traditional rules of contributory negligence. Foreign rules and regulations governing the operation of motor vehicles (rules of the road) are applied to the extent those rules are not specifically superseded or preempted by United States military traffic regulations.
(3) When adjudicating claims based upon negligence, the principle of absolute liability is not applicable, even though otherwise prescribed by applicable local law.
(4) The meaning and construction of the MCA is a Federal question to be determined by Federal law.
(b)
(2) Apportion damages against the United States in the same manner as they are apportioned in suites against private persons if local law applies comparative negligence.
(3) Do not deduct proceeds from private insurance policies except to the extent allowed by local law. However, proceeds are deducted if the policy was paid for by the United States.
(4) Deduct compensation and benefits from the Department of Veterans Affairs, or monetary value received from any U.S. Government associated source from the damages which may be awarded. Deduct sick and annual leave payments if local law allows.
(5) Do not approve:
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at U.S. expense.
(iii) Cost of burial expenses paid by the United States.
(c)
(1) The United States is not protected by the release executed by the claimant.
(2) The total amount received from such source is first deducted.
(a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the settlement authority within a reasonable time following the final denial. Sixty days is considered a reasonable time, but the settlement authority may waive the time limit for good cause.
(b) Upon receipt of the appeal, the original settlement authority reviews the appeal.
(c) Where the settlement authority does not reach a final agreement on an appealed claim, he or she sends the entire claim file to the next higher settlement authority, who is the appellate authority for that claim.
(d) The decision of the appellate authority is the final administrative action on the claim.
The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of contribution and indemnity permitted by the law of the situs, or under contract. Do not seek contribution or indemnity from US military personnel or civilian employees whose conduct gave rise to government liability.
In the settlement of any claim pursuant to 10 U.S.C. 2733 and this subpart, attorney fees will not exceed 20 percent of any award provided that when a claim involves payment of an award over $1,000,000, attorney fees on that part of the award exceeding $1,000,000 may be determined by the Secretary of the Air Force. For the purposes of this paragraph, an award is deemed to be the cost to the United States of any trust or structured settlement, and not its future value.
This subpart tells how to settle and pay claims against the United States presented by inhabitants of foreign countries for property damage, personal injury, or death caused by military and civilian members of the US Armed Forces in foreign countries.
(a)
(b)
(c)
(a)
(i) Settle claims for payment of $100,000 or less.
(ii) Settle claims for more than $100,000, pay the first $100,000, and report the excess to the General Accounting Office for payment.
(iii) Deny claims in any amount.
(2) The Judge Advocate General has delegated authority to:
(i) Settle claims for payment of $100,000 or less.
(ii) Deny claims in any amount.
(3) The Deputy Judge Advocate General, Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation Staff are
(i) Settle claims for payment of $50,000 or less.
(ii) Deny a claim in any amount.
(4) The SJAs of PACAF, USAFE, 9AF (for CENTCOM) and AFSPACECOM (for Greenland and Canada) are each a foreign claims commission and have delegated authority to approve claims for payment arising within their geographic area of responsibility for $50,000 or less, or deny claims of $50,000 or less.
(5) The SJAs of Numbered Air Forces in PACAF and USAFE; the SJA of HQ TUSLOG; the SJA of 12AF (for South America); and the SJAs of Lajes AB, Azores, Patrick AFB, FL, and Howard AFB, Panama are each a foreign claims commission and have delegated authority to:
(i) Recommend payment in any amount.
(ii) Settle claims for payment of $25,000 or less.
(iii) Deny claims for $50,000 or less.
(6) The SJAs of each Air Force base, station and fixed installation in PACAF, USAFE, and CENTCOM, are each a foreign claims commission and have delegated authority to:
(i) Recommend payment in any amount.
(ii) Settle claims for payment of $10,000 or less.
(iii) Deny claims for $25,000 or less.
(b)
(2) A settlement authority appointed as a FCC in paragraph (a) of this section may appoint one or more subordinate judge advocates or civilian attorneys as FCCs, and may redelegate all or part of that settlement authority to those FCCs, in writing. Every FCC must have authority to settle claims for at least $10,000.
(c)
(d)
(e) Special exceptions. Do not settle claims for medical malpractice without HQ USAF/JACC approval.
(a)
(b)
Subpart Q outlines procedures for advance payments.
(a) A claim must be filed in writing within 2 years after it accrues. It accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss or injury.
(b) In computing the statutory time period, the day of the incident is excluded and the day the claim was filed is included.
(c) War or armed conflict does not toll the statute of limitations.
(a) Owners of the property or their authorized agents for property damage.
(b) Injured persons or other authorized agents for personal injury.
(c) Executors or administrators of a decedent's estate, or any other person
(d) Authorized agents (including the claimant's attorney) must show their title or legal capacity and present evidence of authority to present the claim.
Claimants include inhabitants of a foreign country who are:
(a) Foreign nationals.
(b) US nationals, unless they reside there primarily because they are:
(1) Employed directly by the United States.
(2) Employed by a US civilian contractor to further performance of a contract with the United States.
(3) Sponsored by or accompanying someone employed as described in § 842.62(b) (1) or (2) of this part.
(c) US corporations with a place of business in the country in which the claim arose.
(d) Foreign governments and their political subdivisions, including a municipal and prefectural government.
(e) Foreign companies and business entities.
Persons who are not proper claimants include:
(a) Insurers and other subrogees.
(b) Dependents accompanying US military and US national civilian employees.
(c) Foreign military personnel suffering property damage, personal injury, or death from a joint military mission with the United States or from conduct of a US military member or employee acting in the scope of employment unless an international agreement specifically provides for recovery.
(d) Civilian employees of the United States, including local inhabitants, injured in the scope of their employment.
(e) National governments and their political subdivisions engaging in war or armed conflict with the United States or its allies.
(f) A national or nationally controlled corporation of a country engaging in war or armed conflict with the United States or its allies, unless the FCC or local military commander determines the claimant is friendly with the United States.
The following criteria is considered before determining liability.
(a) The incident causing the damage or injury must occur outside the United States. It must be caused by noncombatant activities of the US Armed Forces or by civilian employees or military members of the Armed Forces.
(b) Negligence is not a prerequisite.
(c) Scope of employment is considered in the following situations.
(1) It is a prerequisite to US responsibility if the employee causing the damage or injury is a local inhabitant, a prisoner of war, or an interned enemy alien. These persons are “employees” within the meaning of the Foreign Claims Act (FCA) only when in the service of the United States. Ordinarily, a slight deviation as to time or place does not constitute a departure from the scope of employment. The purpose of the activity and whether it furthers the general interest of the United States is considered. If the claim arose from the operation or use of a US Armed Forces vehicle or other equipment by such a person, pay it provided local law imposes liability on the owner of the vehicle or other equipment in the circumstances involved.
(2) It is immaterial when the claim arises from the acts or omissions of any US Armed Forces member or employee not listed in § 842.64(c)(1) of this part. The Act imposes responsibility on the United States when it places a US citizen or non-US citizen employee in a position to cause the injury or damage. If the cause is a criminal act clearly outside the scope of employment, ordinarily pay the claim and consider disciplinary action against the offender.
A claim is not payable when it:
(a) Has been paid or denied by a competent tribunal under the North Atlantic Treaty Organization (NATO), Status of Forces Agreement (SOFA), or any similar SOFA or treaty.
(b) Is purely contractual in nature.
(c) Is for attorney fees, punitive damages, a judgment or interest on a judgment, bail, or court costs.
(d) Accrues from a private contractual relationship between US personnel and third parties about property leases, public utilities, hiring of domestic servants, and debts of any description. This claim is sent for action to the commander of the person concerned (see 32 CFR part 818).
(e) Is based solely on compassionate grounds.
A Solatium payment is paid from O&M funds as an investigative expense.
(f) Is a bastardy claim.
(g) Is for patent or copyright infringement.
(h) Is waived under an international agreement.
(i) Is for rent, damage, or other payments involving regular acquisition, possession, and disposition of real property by or for the Air Force.
(j) Is filed by a Communist country or its inhabitants, unless authorized by HQ USAF/JACC.
(k) Is for real property taken by a continuing trespass.
(l) Is for personal injury or death of a person covered by:
(1) The Federal Employees’ Compensation Act (5 U.S.C. 8101,
(2) The Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 901,
(3) A US contract or agreement providing employee benefits through insurance, local law, or custom, where the United States pays for them either directly or as part of the consideration under the contract. (See 42 U.S.C. 1651 and 42 U.S.C. 1701.) The Judge Advocate General or Chief, Claims and Tort Litigation Staff, HQ USAF/JACC, may authorize an award where local benefits are not adequate. Local benefits are deducted from any award.
(m) Results from an action by an enemy, or directly or indirectly from an act of the armed forces of the United States in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including its airborne ordnance, indirectly related to combat, and occurring while preparing for or going to, or returning from a combat mission.
(n) Is based on negligence of a concessionaire or other independent contractor.
(o) Arises out of personal activities of dependents, guests, servants, or pets of members and employees of the US Armed Forces. (This includes situations where local law imposes strict liability or where the head of a household is held vicariously liable for their negligence.)
(p) Is the subject of litigation against the United States or its employees. This restriction does not apply to joint criminal/civil proceedings in a foreign court. Claims settlement may be authorized by HQ USAF/JACC in appropriate cases on request.
(q) Is covered under US admiralty laws, unless authorized by The Judge Advocate General or Chief, Claims and Tort Litigation Staff.
(r) Is one for which a foreign government is responsible under SOFA, treaty, or other agreement. However, HQ USAF/JACC may authorize payment of a claim where the foreign government refuses to recognize its legal responsibilities and the claimant has no other means of compensation.
This paragraph provides guidance to determine the applicable law for assessment of liability.
(a) A claim is settled under the law and standards in effect in the country where the incident occurred. In calculating the amount of any lump sum award, the present value of any periodic payment upon which the award is based, is computed, unless the law of the place of occurrence prohibits it.
(b) Contributory negligence committed by the claimant, claimant's agent, or employee is not used as a bar to recovery unless local law or custom requires it. If the comparative negligence doctrine is used, the percentage of negligence of each party is reflected in the apportionment of liability. The amount of damage sustained by both parties is apportioned according to local law.
(c) The following principles of the collateral source doctrine are applied
(1) Any sums the claimant recovers from collateral sources, including proceeds of property insurance the claimant paid for are not deducted from the claim except when those sums are from:
(i) The US Government.
(ii) A US military member or employee.
(iii) A Joint tort-feasor.
(iv) An Insurer of § 842.66(c)(1)(i), (ii), or (iii), above.
(2) Do not deduct insurance or any other payments where the US military member or employee would have to make reimbursement.
This paragraph provides the procedures used to reconsider a final denial.
(a) An FCC may reopen, reverse, or reconsider, in whole or in part, any claim it previously decided if the request for reconsideration is received in a reasonable time. Sixty days is considered a reasonable time, but the FCC may waive the time limit for good cause.
(b) An FCC reconsiders the final action on a claim when there is:
(1) New and material evidence concerning the claim.
(2) Obvious error in facts or calculation of the original settlement.
(3) Fraud or collusion in the original submission of the claim.
(c) The FCC must state the reason for reconsideration in its opinion. A court decision is not in itself sufficient basis for reconsidering a claim, but the facts that resulted in the judgment may warrant reconsideration. The amount of a court judgment is not binding on a FCC's determination of damage, but the commission may consider the judgment as evidence of the local law on the subject.
The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of indemnity and contribution permitted by the law of the situs or under contract. Contribution or indemnity should not be sought:
(a) From US military personnel or civilian employees whose conduct gave rise to government liability.
(b) Where recovery action would be harmful to international relations.
This subpart governs Air Force actions in investigating, processing, and settling claims under international agreements.
The following are general definitions. See the relevant international agreement for the specific meaning of a term to use with a specific claim.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(1) The Secretary of the Air Force.
(2) The Judge Advocate General.
(3) The Deputy Judge Advocate General.
(4) The Chief of Civil Law.
(5) Chief, Deput Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(6) The SJAs and Deputy SJAs of PACAF, USAFE, 5th Air Force, Lajes Field, and 9th Air Force (for CENTCOM).
(b)
(c)
(a)
(2) If the Air Force receives a claim, send it to the US sending State office for delivery to the receiving State.
(b)
(1) Investigates it if the foreign personnel are assigned there.
(2) Sends it to the installation where the foreign personnel are assigned.
This subpart explains how to settle and pay claims against the United States, for property damage, personal injury, or death incident to the use of a government vehicle or any other government property by Air Force military and civilian personnel which are not payable under any other statute.
(a)
(b)
(a)
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) Director of Civil Law.
(4) Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation staff.
(5) SJA of HQ 9AF for CENTCOM, and SJAs of PACAF and USAFE.
(6) SJAs of single base GCMs and GCMs in PACAF and USAFE.
(7) The SJA of each Air Force base, station and fixed installation.
(8) Any other judge advocate designated by The Judge Advocate General.
(b)
(c)
(a)
(b)
(a) A claim must be presented in writing within 2 years after it accrues. It accrues at the time the claimant discovers, or in the exercise of reasonable care should have discovered, the existence of the act causing property damage, personal injury or death for which the claim is filed.
(b) In computing time to determine whether the period of limitation has expired, exclude the incident date and include the date the claim was filed.
When all of the following are present, payment of a claim in the amount of $1,000 or less is authorized if it:
(a) Is for property damage, personal injury, or death. (Payment for a personal injury or death claim is limited to costs of reasonable medical, hospital, and burial expenses actually incurred and not otherwise furnished or paid by the United States.)
(b) Was caused by a military member or civilian employee of the Air Force, whether acting within or outside the scope of employment.
(c) Arose from the use of a government vehicle at any place or other government property on a government installation, and
(d) Is not payable under any other provision of law except Article 139, UCMJ.
A claim is not payable if it is:
(a) Payable under any other provision of the law.
(b) Caused wholly or partly by a negligent or wrongful act of the claimant, the claimant's agent, or employee.
(c) A subrogated claim.
(d) Recoverable from other sources such as an insurance policy, or recovered from action under Article 139, UCMJ.
(a) The statute does not provide for appeals. The original settlement authority may, however, reconsider any decision. There is no set format for a reconsideration but it should be submitted in writing within 60 days of the original decision.
(b) The settlement authority may either grant all or any portion of the requested relief without referral to any other office, or forward the entire file with the reasons for the action and recommendations to the next higher claims settlement authority for independent review and final action.
Do not pay a claim unless the claimant accepts the amount offered in full satisfaction of the claim and signs a settlement agreement to that effect.
It sets forth the procedure for administrative settlement of admiralty and maritime claims in favor of and against the United States.
(a)
(b)
(c)
(d)
(a) The following officials have the authority to settle a claim against the Air Force in the amounts provided:
(1) The Secretary of the Air Force has the authority to:
(i) Settle a claim for payment of more than $500,000 and to certify it to Congress for payment.
(ii) Settle and pay a claim for $500,000 or less.
(iii) Deny a claim in any amount.
(2) The following individuals have delegated authority to settle claims for $100,000 or less:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief and Deputy Chief, Claims and Tort Litigation staff.
(b) Delegation of settlement authority on claims in favor of the United States.
(1) The Secretary of the Air Force has the authority to settle claims for damage to property under the jurisdiction of the Air Force in an amount not to exceed $500,000, and to settle claims for salvage services performed by the Air Force in any amount.
(2) HQ USAF/JACC refers all claims for damage to property under the jurisdiction of the Air Force for more than $500,000 to the Department of Justice.
(3) The following individuals have delegated authority to settle claims for $100,000 or less and deny them in any amount:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief and Deputy Chief, Claims and Tort Litigation Staff.
This section provides the policy and procedures to reconsider any maritime claim made against the United States.
(a) The settlement authority may reconsider any claim previously disapproved in whole or in part when either:
(1) The claimant submits new evidence in support of the claim.
(2) There were errors or irregularities in the submission or settlement of the claim.
(b) There is no right of appeal to higher authority under this subpart.
This subpart governs claims against the United States for property damage, personal injury, or death, from the negligent or wrongful act or omission of Air Force military or civilian personnel while acting within the scope of their employment. It also covers similar tort claims generated by Air National Guard (ANG) members performing specified duty under 32 U.S.C. on or after 29 December 1981.
(a)
(b)
(c)
(d)
(e)
(a)
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(2) Subject to the prior written approval of the United States Attorney General or his designee, the Chief, Claims and Tort Litigation Staff has delegated authority to settle claims in excess of $25,000 up to a limit of $50,000, to settle claims for $25,000 or less; and to deny a claim in any amount.
(3) The Deputy Chief and Branch Chiefs, Claims and Tort Litigation Staff have delegated authority to settle claims for $25,000 or less and deny a claim in any amount.
(4) The SJA of HQ 9AF for CENTCOM, and SJAs of PACAF and USAFE have delegated authority to settle claims payable, and deny claims filed, for $25,000 or less.
(5) The following individuals have delegated authority to settle claims payable, and deny claims filed, for $15,000 or less:
(i) SJAs of single base GCMs.
(ii) SJAs of GCMs in PACAF and USAFE.
(iii) SJAs of each Air Force base, station, or fixed installation.
(b)
(c)
(d)
(e)
(1) Legal malpractice.
(2) On the job personal injury or death of an employee of a government contractor or subcontractor.
(3) Assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution committed by an investigative or law enforcement officer.
(4) Animal bites.
(5) Personal injury from asbestos or radon.
(6) Medical malpractice.
A claim must be presented in writing within 2 years after it accrues.
(a) Federal, not state law, determines the time of accrual. A claim normally accrues at the time of injury when essential operative facts are apparent. However, in other instances, especially in complex medical malpractice cases, a claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss.
(b) In computing the statutory time period, the day of the incident is excluded and the day the claim was filed is included.
(c) The Air Force has 6 months to consider a properly filed claim, after which the claimant may file suit. The claimant's right to sue ends 6 months from the date the final denial is mailed.
(d) Properly asserted third party actions, as permitted under the Federal Rules of Civil Procedure, may be brought against the United States without first filing a claim. In such instances those actions may start more than 2 years after the claim has accrued.
(a) A claimant may request a settlement authority who denied a claim to reconsider that claim. If the settlement authority denies the request, the claim file is sent to the next higher claims settlement authority for action.
(b) A request for reconsideration must be filed in writing within 6 months of the final denial and prior to initiation of a suit. A request for reconsideration starts a new 6-month period for the Air Force to consider the claim. The claimant may not sue during that period.
The claimant must sign a settlement agreement and general release before any payment is made.
This subpart describes how to assert, administer, and collect claims for damage to or loss or destruction of government property through negligence or wrongful act. It does not cover admiralty, hospital recovery, or nonappropriated fund claims.
(a)
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(2) The SJA of HQ 9AF (for CENTCOM), and the SJAs of PACAF and USAFE have delegated authority to settle, compromise, suspend, or terminate action on claims for $15,000 or less and to accept full payment on any claim.
(3) SJAs of GCMs located in PACAF and USAFE and single base GCMs located in CONUS have delegated authority to settle, compromise, suspend, or terminate action on claims for $15,000 or less and to accept full payment on any claim.
(4) SJAs of each Air Force base, station or fixed installation have delegated authority to settle, compromise, suspend, or terminate action on claims for $10,000 or less and to accept full payment on any claim.
(b)
(c)
A claim may be asserted in writing for loss of or damage to government property, against a tort-feasor when:
(a) Damage results from negligence and the claim is for:
(1) More than $100.
(2) Less than $100 but collection costs are small.
(b) The claim is based on a contract and the contracting officer does not intend to assert a claim under the contract. The contracting officer's intention not to assert a claim should be recorded in a memorandum for the record and placed in the claim file.
(c) The claim is for property damage arising from the same incident as a hospital recovery claim. (The two claims should be consolidated and processed under subpart N).
(d) The Tort-feasor or his insurer presents a claim against the government arising from the same incident. (Both claims should be processed together.)
(e) The claim is assertable as a counterclaim under an international agreement. (The claim should be processed under subpart H).
(f) The claim is based on product liability. HQ USAF/JACC approval must be obtained before asserting the claim.
A claim is not assertable under this subpart when it is for:
(a) Reimbursement for military or civilian employees for their negligence claims paid by the United States.
(b) Loss or damage to government property:
(1) Caused by a nonappropriated fund employee acting in the scope of employment.
(2) For which a person has accountability and responsibility under the Report of Survey system.
(c) Loss or damage to nonappropriated fund property assertable under other provisions.
(d) Loss or damage caused by an employee of an instrumentality of the
(e) Monies recovered against a foreign government or any of its political subdivisions. (HQ USAF/JACC may authorize this claim as an exception to the rule).
The base SJA asserts the claim against the tort-feasor by mailing, certified mail, return receipt requested, the original and one copy of a “Notice of Claim” that includes the following:
(a) Reference to the statutory right to collect.
(b) A demand for payment or restoration.
(c) A description of damage.
(d) The date and place of incident.
(e) The name, phone number, and office address of claims personnel to contact.
All claims must be authorized for referral by HQ USAF/JACC prior to being sent to either the US Attorney or the Department of Justice. All claims for demands of more than $20,000.00 which are not collected in full by a settlement authority will be referred (with HQ USAF/JACC approval) to DOJ.
The government must file suit within 3 years after the cause of action accrues. It accrues when a responsible US official knew or reasonably should have known the material facts that resulted in the claimed loss.
This section establishes the guidelines for compromise, termination, or suspension of a claim.
(a) Compromise of a claim is allowable when:
(1) The tort-feasor is unable to pay the full amount within a reasonable time. (A sworn statement showing the debtor's assets and liabilities, income, expenses, and insurance coverage should be obtained and included in the claim file).
(2) The Government is unable to collect a claim in full within a reasonable time even though the enforced collection proceedings are used for collection.
(3) The cost to collect does not justify enforced collection of the full amount.
(4) The government may have difficulty proving its case in court for the full amount claimed.
(b) Compromise is not allowable when there may be fraud, misrepresentation, or violation of antitrust laws. The Department of Justice must authorize compromise of such claims.
(c) Termination of collection is allowable when:
(1) The government is unable to collect the debt after exhausting all collection methods.
(2) The government is unable to locate the tort-feasor.
(3) The cost to collect will exceed recovery.
(4) The claim is legally without merit.
(5) The evidence does not substantiate the claim.
(d) Suspension of collection is allowable when:
(1) The government is unable to locate tort-feasor.
(2) The tort-feasor is presently unable to pay but:
(i) The statute of limitations is tolled or is running anew.
(ii) Future collection may be possible.
This subpart explains how to settle claims against the United States arising out of the noncombat activities of the Air National Guard (ANG), when its members are acting within the scope of their employment and performing duty under 32 U.S.C. Contact HQ USAF/JACC for guidance on any claim for property damage, injury or death by the ANG which accrued prior to 29 December 1981.
(a)
(b)
(c)
(d)
(2)
(3)
(e)
(f)
(g)
(h)
This paragraph outlines the levels of authority authorized to settle claims brought under the National Guard Claims Act (32 U.S.C. 715).
(a)
(i) Settle a claim for $100,000 or less.
(ii) Settle a claim for more than $100,000, paying the first $100,000 and reporting the excess to the General Accounting Office for payment.
(iii) Deny a claim in any amount.
(2) The Judge Advocate General has delegated authority to settle a claim for $100,000 or less, and deny a claim in any amount.
(3) The following individuals have delegated authority to settle a claim for $25,000 or less, and deny a claim in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director of Civil Law.
(iii) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(4) The SJA of 9AF for CENTCOM and the SJAs of USAFE and PACAF have delegated authority to settle claims payable or deny claims filed for $25,000 or less.
(5) SJAs of single base GCMs, GCMs in PACAF and USAFE and each Air Force base, station or fixed installation have delegated authority to settle claims payable, and deny claims filed, for $15,000 or less.
(b)
(c)
(d)
(e)
(f)
(1) Legal malpractice.
(2) On the job personal injury or death of an employee of a government contractor or subcontractor.
(3) Assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution committed by an investigative or law enforcement officer.
This paragraph explains how to file a claim under the National Guard Claims Act.
(a)
(b)
(1) The date, place, and nature of the incident.
(2) The names and organizations of ANG members involved, and the statutory duty status of the ANG members at the time of the incident (include copies of orders, if applicable).
(3) A scope of employment statement from the supervisors of the ANG members involved.
(4) The names of the claimants.
(5) A brief description of any damage to private property, personal injuries, or death.
(c)
(i) It is investigated by claims office personnel responsible for the geographic area where the incident causing the claim occurred.
(ii) The investigative report includes a scope of employment statement and a copy of the orders authorizing the performance of duty by the ANG member.
(2) The State Adjutants General designate an official or office as point of contact for Air Force claims personnel and furnish necessary personnel to assist the Air Force investigation, subject to the availability of funds and personnel.
(d)
Subpart Q of this part sets forth procedures for such payments.
A claim must be filed in writing within 2 years after it accrues.
(a) Federal, not state law, determines the time of accrual. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss.
(b) In computing the statutory time period, the day of the incident is excluded and the day the claim was filed is included.
(c) A claim filed after the statute has run is considered if the United States is at war or in an armed conflict when the claim accrues; or if the United States enters a war or armed conflict after the claim accrues, and good cause is shown. No claimant may file a claim
The following individuals may file a claim under this subpart.
(a) Owners of the property or their authorized agents may file a claim for property damage.
(b) Injured persons or their authorized agents may file a claim for personal injury.
(c) Executors or administrators of a decedent's estate or any other person legally entitled to do so under applicable local law may file a claim based on:
(i) An individual's death.
(ii) A cause of action surviving an individual's death.
(d) Insurers with subrogation rights may file a claim for losses paid in full by them. The parties may file a claim jointly or individually, to the extent of each party's interest, for losses partially paid by insurers with subrogation rights.
(e) Authorized agents signing a claim must show their title or legal capacity and present evidence of such authority to file the claim.
Only certain individuals are proper claimants under this subpart. Proper claimants include:
(a) Citizens and inhabitants of the United States.
(b) States or territories and their agencies, unless it is the state of the ANG member who caused the injury or property damage.
(c) Counties, municipalities, or units of local government, unless they are in the state of the ANG member who caused the injury or property damage.
(d) Persons in foreign countries who are not inhabitants of a foreign country.
(e) Property owners, their representatives, and those with certain legal relationships with the record owner, including mortgagors, mortgagees, trustees, bailees, lessees and conditional vendees.
(f) Subrogees, to the extent they have paid the claim.
The following individuals are not proper claimants:
(a) ANG members performing duty under 32 U.S.C. when the personal injury or death claim arises incident to service.
(b) Agencies and departments of the U.S. Government including the District of Columbia government.
(c) Federal nonappropriated fund instrumentalities.
(d) Governments of foreign nations, their agencies, political subdivisions, and municipalities.
(e) The state territory, local government unit, or their agencies, whose ANG member caused the injury or property damage.
(f) Subrogees of all the above.
(a) Claims arising from noncombat activities of ANG members performing duty under 32 U.S.C and acting within the scope of their employment, whether or not such injuries or damages arose out of their negligent or wrongful acts or omissions.
(b) Claims are payable if they are for damage to bailed property under § 842.109(a) of this part where:
(1) The ANG assumed the duties of a bailee.
(2) The bailor did not assume the risk of loss by express agreement.
(3) Authorized ANG members acting in their official capacity properly accepted the property.
(c) Claims are payable if they are for loss or damage to:
(1) Insured or registered mail, under § 842.109 (a) or (b) of this part while in the possession of the ANG.
(2) Minimum fee insured mail but only if it has an insurance number or requirement for hand-to-hand receipt and was lost or damaged while in the possession of the ANG.
(3) Any mail in the possession of the United States Postal Service or a Military Postal Service due to an unlawful or negligent inspection, search, or seizure in an oversea military postal facility, which was ordered by ANG members.
(d) Claims filed by ANG military or civilian health care providers or legal
The following are not payable:
(a) Claims payable under any one of the following statutes and implementing regulations:
(1) The Federal Tort Claims Act (FTCA).
(2) The Foreign Claims Act (FCA).
(3) The International Agreements Claims Act.
(4) The Air Force Admiralty Claims Act and the Admiralty Extensions Act.
(5) The Military Claims Act (MCA).
(6) The Military Personnel and Civilian Employees’ Claims Act.
(b) Claims from the combat activities of the armed forces during war or armed conflict.
(c) Claims for personal injury or death of ANG members performing duty under 32 U.S.C. incident to their service.
(d) Claims for damage to or loss of bailed property when the bailor specifically assumed such risk.
(e) Claims for personal injury or death of a person covered by:
(1) The Federal Employees’ Compensation Act.
(2) The Longshore and Harbor Workers’ Compensation Act.
(3) A United States contract or agreement providing employee benefits through insurance, local law, or custom and the United States pays for such benefits either directly or as a part of the consideration under the contract.
(f) Claims for property damage, personal injury or death occurring in a foreign country to an inhabitant of that country.
(g) Claims caused by the negligent or wrongful acts or omissions of members of the District of Columbia ANG.
(h) Claims arising from a private rather than a government transaction.
(i) Claims for patent or copyright infringement.
(j) Claims for damage, use, or other expenses involving the regular acquisition, possession, and disposition of real property by or for the ANG.
(k) Claims for the taking of private real property by a continuing trespass or by a technical trespass such as overflights of aircraft.
(l) Claims for loss of rental fee for personal property.
(m) Claims in litigation against the United States.
(n) Claims for a maritime occurrence covered under U.S. admiralty laws.
(o) Claims for:
(1) Any tax or customs duty.
(2) The detention of any goods or merchandise by any officer of customs, excise, or law enforcement officer.
(p) Claims from an act or omission of any employee of the Government while administering the provisions of the Trading With the Enemy Act.
(q) Claims for damages caused by the United States’ imposition or establishment of a quarantine.
(r) Claims for libel, slander, misrepresentation, deceit or interference with contract rights.
(s) Claims that result wholly from the negligent or wrongful act of the claimant or the claimant's agent.
(t) Claims for reimbursement of medical, hospital, or burial expenses furnished at the expense of the United States, any state, the District of Columbia, or Puerto Rico.
(u) Claims for damage from floods or flood waters.
(v) Claims for damages caused by the fiscal operations of the Treasury or by regulation of the monetary system.
(w) Claims caused by the negligent or wrongful acts or omissions of ANG members acting within the scope of their employment, while performing duty under 32 U.S.C., on or after 29 December 1981.
(x) Claims caused by the negligent or wrongful acts or omissions of ANG technicians employed under 32 U.S.C. 709.
(a)
(1)
(2)
ANG personnel ordered to foreign countries proceed under title 10, U.S.C.; consequently, the National Guard Claims Act would not apply. However, there may be cases where ANG personnel are inadvertently in a foreign country while on title 32, U.S.C. orders.
(b)
(1) Normally, the law of the place where the act or omission occurs is applied. In claims arising in foreign countries, the measure of damages is determined in accordance with general principles of American tort law.
(2) Damages in suits against private persons are apportioned if local law applies comparative negligence.
(3) Proceeds from private insurance policies are not deducted except to the extent the policy was paid by the Government or is allowed by local law.
(4) Compensation and benefits from any U.S. Government associated source are deducted. However, sick and annual leave payments are deducted only if allowed by local law.
(5) The following are not payable:
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at U.S. expense.
(iii) Cost of burial expenses paid by the United States, any territory or possession, any state, or the District of Columbia.
(c)
(1) The United States is not protected by the release executed by the claimant.
(2) The total amount received from such source is first deducted.
This paragraph explains the steps to take when a denial is appealed.
(a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the initial settlement authority within a reasonable time following the final denial. Sixty days is considered a reasonable time, but the time limit may be waived for good cause.
(b) The initial settlement authority reviews the appeal.
(c) Where the settlement authority does not reach a final agreement with the claimant on an appealed claim, the entire claim file is sent to the next higher settlement authority, who is the appellate authority for that claim.
(d) The decision of the appellate authority is the final administrative action on the claim.
The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of contribution and indemnity permitted by the law of the situs or under contract. Contribution or indemnity is not sought from ANG members whose conduct gave rise to Government liability.
In the settlement of any claim pursuant to 32 U.S.C. 715 and this subpart, attorney fees will not exceed 20 percent of any award. For the purposes of this paragraph, an award is deemed to be the cost to the United States at the time of purchase of a structured settlement, and not its future value.
This subpart explains how the United States asserts and settles claims for costs of medical care, against third parties under the Federal Medical Care Recovery Act (FMCRA) and various other laws.
This paragraph defines terms which are used within this subpart.
(a)
(b)
(c)
(d)
(e)
(1) An amount determined by reference to rates set by the Director of the Office of Management and Budget for the value of necessary medical care in US medical facilities.
(2) The actual cost of necessary care from other sources which was reimbursed by the United States.
(f)
(g)
(a)
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(2) The SJA of HQ 9AF for CENTCOM, and SJAs of PACAF and USAFE have delegated authority to compromise or waive claims for $30,000 or less and to accept full payment on any claim.
(3) SJAs of single base GCMs, the SJAs of GMCs in PACAF and USAFE, and the SJAs of each Air Force base, station, or fixed installation have delegated authority to compromise or waive claims for $15,000 or less and to accept full payment on any claim.
(b)
(c)
(d)
(e)
Telephonic approvals, in the discretion of the higher settlement authority, are authorized.
(f)
(1) Compromise or waiver of a claim for more than $40,000.
(2) Settlement previously referred to DOJ.
(3) Settlement where a third party files suit against the US or the injured party arising out of the same incident.
A claim should be asserted when the Air Force has furnished or will furnish medical care in military health care facilities or when the Air Force is responsible for reimbursement to a private care provider and either of the following conditions are met:
(a) Third party liability in tort exists for causing an injury or disease.
(b) Local or foreign law permits the United States to recover or the United States is a third party beneficiary under uninsured motorist coverage, medical pay insurance coverage, worker's compensation, no-fault statutes, or other statutes.
A claim should only be asserted if the base SJA determines it merits assertion. Claims for $150 or less need not be asserted; they should be asserted only if the base SJA or designee determines the collection will not exceed the cost to collect, the third party offers payment and demands a release from the United States before paying damages to the injured party, or the United States asserts a property damage claim under subpart L arising out of the same incident.
(a) The following are considered nonassertable claims and should not be asserted:
(1)
(2)
(3)
(b) Claims should not be asserted without HQ USAF/JACC's approval against:
(1)
(2)
(3)
(4)
When asserting the claim, the base SJA will:
(a) Assert it against the third parties whose liability is based in tort using an SF 96, Notice of Claim. Mail the original and one copy to each of the third parties and a copy to the third parties’ insurers, if known.
(b) Assert it against third parties or insurers whose liability is not based in tort using a formal letter written on Air Force stationery. The letter will include the facts and legal basis for liability. Bases for liability could include local foreign law, US status as a third party beneficiary under uninsured or underinsured motorist coverage, workers’ compensation laws, and
(c) Mail all copies of the SF 96, or claim notice on Air Force letterhead:
(1) By certified mail with return receipt requested in all claims in which the amount claimed is $5,000.00 or more or in which there is a substantial likelihood that the final amount claimed will be $5,000.00 or more.
(2) By regular or certified mail with return receipt requested at the SJA's discretion in cases in which the final amount claimed is less than $5,000.00, unless there is no response to the initial notice of claim within a reasonable period of time and a second notice of claim is required to be mailed. All second notices of claim and copies will be mailed by certified mail, return receipt requested.
(d) Notify the injured parties promptly in writing that the United States will attempt to recover from the third parties the reasonable value of medical care furnished or to be furnished and that they:
(1) Should seek advice from a legal assistance officer or civilian counsel and furnish the civilian counsel's name to the claims officer.
(2) Must cooperate in the prosecution of all actions of the United States against third parties.
(3) Must furnish a complete statement regarding the facts and circumstances surrounding the incident which caused the injury.
(4) Must not execute a release or settle any claim which exists as a result of the injury without prior notice to the SJA.
(5) Should read the enclosed Privacy Act statement.
Only HQ USAF/JACC authorizes referral of a claim to the US Attorney. The base SJA ensures review of all claims not later than 2 years after the date of the incident. These unsettled claims are forwarded, with the base SJA's disposition recommendation, to HQ USAF/JACC.
On a case-by-case basis, HQ USAF/JACC will authorize referral of a case to the US Attorney by telephone.
The United States or the injured party on behalf of the United States must file suit within 3 years after an action accrues. This is usually 3 years after the initial treatment is provided in a federal medical facility or after the initial payment is made by CHAMPUS, whichever is first.
The
Waivers and compromises of government claims can be made. This paragraph lists the basic guidance for each action. (See § 842.117(e) for claims involving waiver and compromise of amounts in excess of settlement authorities’ delegated amounts.)
(a) Waiver for the convenience of the government can be made when the tort-feasor:
(1) Cannot be located.
(2) Is judgment proof.
(3) Has refused to pay and the case is too weak for litigation.
(b) Waiver can be made when collection causes undue hardhsip to the injured party. Ordinarily, factors such as the following should be considered:
(1) Permanent disability or disfigurement.
(2) Decreased earning power.
(3) Out of pocket losses.
(4) Financial status of injured party.
(5) Pension rights.
(6) Other government benefits to the injured party.
(7) An offer of settlement from a third party which includes virtually all the thirty party's assets, although the amount is considerably less than the calculation of the injured party's damages.
(c) A compromise can be made upon written request from the injured party or the injured party's legal representative when liability is questionable, the
(1) The injured party accepts less than the jury verdict expectancy. When this occurs, the Air Force should consider settling its claim in a ratio similar to that which the total sttlement bears to the jury verdict expectancy.
(2) The government's claim is almost as large as, or is larger than, the assets available for settlement.
A settlement authority may reconsider its disapproval of a waiver or compromise, when either:
(a) The injured party submits new evidence.
(b) Errors exist in claim submission or settlement.
This subpart describes how to settle claims for and against the United States for property damage, personal injury, or death arising out of the operation of Nonappropriated Fund Instrumentalities (NAFIs).
(a)
(b)
(c)
(d)
(a)
(2) The Judge Advocate General, in addition, has delegated authority to settle subparts F, G, and J type claims in any amount without referral to the Secretary of the Air Force or the General Accounting Office.
(3) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff, in addition, have delegated authority to settle subparts F, G, and J type claims for $100,000 or less without referral to the Secretary of the Air Force or the General Accounting Office.
(b)
(c)
(d)
(e)
(a) This subpart does not establish legal theories for adjudication of claims. Refer to the appropriate subpart to decide whether a claim is payable (e.g., subpart D for personnel claims; subpart K for tort claims), then use the rules in this subpart to decide the appropriate funds for payment of any approved claim.
(b) Claims arising from property damage to or loss from vehicles or loss of personal items stored in base MWR facilities will be evaluated under the normal rules applied by the appropriate subpart of this part, and paid using the rules in those subparts. Examples include recreational vehicles stored in authorized lots and used cars parked in onbase sales lots. One exception to this rule is the exclusion of personal items stolen from onbase gym lockers (discussed below).
(1) If a NAF fee has been charged in connection with the use of the storage location, a determination must be made on the nature of the fee charged. If the fee does no more than reimburse NAF costs in administering or maintaining the storage location, subpart O of this part applies in addition to other appropriate subparts. If the fee is set to generate a profit for the NAFI involved or if it is collected in accordance with the terms of an agreement, express or implied, under which the NAFI represents that it will provide some degree of security or safeguarding of the property, the claim will be paid with NAF funds.
(2) Normally, theft of items from gym lockers will be paid out of appropriated funds providing there is affirmative evidence of theft. Mysterious loss of property will not be paid and, in no case, will a claim be paid in excess of $250.
Substantiated claims against NAFIs must not be paid solely from appropriated funds. Claims are sent for payment as set out in this subpart. Do not delay paying a claimant because doubt exists whether to use appropriated funds or NAFs. Pay the claim initially from appropriated funds and decide the correct funding source later.
(a)
(1) Civilian employees paid by a NAFI acting in the scope of their employment.
(2) Military personnel or appropriated fund civilian employees performing part-time duties for a NAFI for which a NAFI is paying.
(3) Negligent operation or condition of premises for which a NAFI is responsible.
(4) Members or authorized users of NAFI property. Such claims are subject to this subpart if the individual is a member of an MWR membership association or an authorized user of NAFI property and the use is in accord with applicable rules.
(b)
(1) Military personnel or appropriated fund civilian employees performing assigned Air Force duties, even though they benefit a NAFI.
(2) Negligent operation or condition of premises for which a NAFI is not responsible.
Claims made by NAFI employees should be settled within the guidelines of this paragraph.
(a)
(1) Longshore and Harbor Workers’ Compensation Act. This Act applies to NAFI civilian employees in the United States, its territories and possessions, and US citizen and resident NAFI civilian employees abroad.
(2) Local benefits for foreign national employees abroad.
(3) Military benefits because the injury is incident to service for offduty military personnel.
(b)
(a)
(b)
(a)
(b)
(c)
(d)
The procedures set out in subpart Q should be used for advance payments. Do not delay paying a claimant because doubt exists whether to use appropriated funds or NAFIs. Pay the claim initially from appropriated claim funds and decide the correct funding source later.
Unless otherwise specified in this subpart, claims for payment (in two copies), collected funds for deposit, and international agreement bills for reimbursement should be sent as follows:
(a)
(2) Claims payable for $2500 or less: AAFES Operations Center (OSC-AC),
(b)
(2) For $100 or less: The local NAFI giving rise to the claim.
(c)
(2) For $50 or less: The local NAFI giving rise to the claim.
(d)
This subpart explains how to process certain administrative claims:
(a) Against the United States for property damage, personal injury, or death, arising out of Air Force noncombat missions performed by the Civil Air Patrol (CAP), as well as certain other Air Force authorized missions performed by the CAP in support of the Federal government.
(b) In favor of the United States for damage to US Government property caused by CAP members or third parties.
(a)
(b)
(1) Have a special Air Force mission order assigned, and, the Air Force must exercise operational control over the mission.
(2) Involve a peacetime mission the Air Force is tasked to perform by higher authority which requires the expenditure of Air Force resources to accomplish, and the Air Force specifically approves the mission as a noncombat mission, and assigns the mission to the Civil Air Patrol to perform.
(c)
(1)
(2)
(d)
The appropriate subpart of this part under which the claim is being considered prescribes the authority to settle it.
(a) Anyone suffering property damage, personal injury, or death arising from an Air Force noncombat mission or other specified Air Force authorized mission performed by CAP, who is also a proper claimant under the appropriate subpart of this part.
(b) The United States, for claims arising out of activities of CAP caused by negligent acts or omissions of CAP members or third parties.
CAP members, 18 years of age or older, whose personal injury or death claim is subject to the Federal Employees’ Compensation Act, are improper claimants. FECA is their exclusive remedy.
A claim is payable if all of the following are present:
(a) It is for property damage, personal injury, or death.
(b) It is proximately caused by a CAP member.
(c) It arises from an Air Force noncombat mission performed by the CAP, or arises from an authorized mission performed by the CAP for which specific coverage under this subpart is granted by HQ USAF/JACC.
(d) It is otherwise payable because it meets the provisions of an appropriate subpart of this part.
A claim is not payable if it:
(a) Is for use or depreciation of privately owned property, operated by CAP or its members on an Air Force noncombat mission, or other specified Air Force authorized mission.
(b) Is for personal services or expenses incurred by CAP or its members while engaged in an Air Force noncombat mission, or other specified Air Force authorized mission.
(c) Arises out of a CAP incident based solely on government ownership of property on loan to CAP.
(d) Arises from a CAP activity not performed as a noncombat mission of the Air Force or as a specified Air Force authorized mission. These claims are sent to HQ CAP-USAF/JA for referral to CAP's private insurer, with a copy of the transmittal letter to HQ USAF/JACC.
It tells how to make an advance payment before a claim is filed or finalized under the Military Claims, Foreign Claims and National Guard Claims Acts.
(a) The Secretary of the Air Force has authority to make an advance payment of $100,000 or less.
(b) The Judge Advocate General has delegated authority to make an advance payment of $100,000 or less.
(c) The following individuals have delegated authority to make an advance payment of $25,000 or less:
(1) The Deputy Judge Advocate General.
(2) The Director of Civil Law.
(3) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff.
(4) SJA of 9AF for CENTCOM, and the SJAs of PACAF and USAFE.
(d) This authority may be redelegated either orally or in writing. Oral redelegations should be confirmed in writing as soon as practical.
A proper claimant or authorized agent may request an advance payment.
Make advance payments only where all of the following exist:
(a) The potential claimant could file a valid claim for property damage or personal injury under the Military Claims, Foreign Claims, or National Guard Claims Acts.
(b) The potential claimant has an immediate need amounting to a hardship for food, shelter, medical or burial expenses, or other necessities. In the case of a commercial enterprise, severe financial loss or backruptcy will result if the Air Force does not make an advance payment.
(c) Other resources for such needs are not reasonably available.
(d) The potential claim equals or exceeds the amount of the advance payment.
(e) The recipient signs as advance payment agreement.
Do not make an advance payment if the claim is payable under the:
(a) Federal Tort Claims Act.
(b) International Agreement Claims Act.
(c) Military Personnel and Civilian Employees’ Claims Act. (Separate regulations issued under the Act provide for partial payments.)
Every person suffering injury or property loss may submit a separate request for an advance payment. For example, where the Air Force destroys a house containing a family of four, each family member may submit a separate request for and receive an advance payment of $100,000 or less.
The claimant is liable for repayment. Deduct the advance payment from any award or judgment given to a claimant. Reimbursement from the claimant will be sought if the claimant does not file a claim or lawsuit.
Sec. 8012, 70A Stat. 488, sec. 1037, 72 Stat. 1445; 10 U.S.C. 8012, 1037.
This part is derived from chapter 2 of Air Force Regulation 110-12, December 1, 1978.
Part 806 of this chapter states the basic policies and instructions governing the disclosure of records and tells members of the public what they must do to inspect or obtain copies of the material referenced herein.
This part establishes criteria and assigns responsibility for the provision of counsel, for the provision of bail, and for the payment of court costs and other necessary and reasonable expenses incident to representation in civil and criminal proceedings, including appellate proceedings, before foreign courts and foreign administrative agencies, which involve members of the Armed Forces, civilian personnel and dependents. Payment of fines is not authorized hereunder.
10 U.S.C. 1037 provides authority for employment of counsel, and payment of counsel fees, court costs, bail, and other expenses incident to representation of persons subject to the Uniform Code of Military Justice before foreign tribunals. For personnel not subject to the Uniform Code of Military Justice, funds for similar expenses may be made available in cases of exceptional interest to the service concerned, upon prior application through the Judge Advocate General of the service concerned, to the appropriate service secretary.
(a) Requests for provision of counsel, provision of bail, or payment of expenses will ordinarily be made by the defendant or accused through appropriate channels to the officer exercising general court-martial jurisdiction over him. This officer shall determine whether the request meets the criteria prescribed herein and, based upon such determination, shall take final action approving or disapproving the request. Within their geographical areas of responsibility, major commands in the interest of obtaining prompt and effective legal service may appoint as approval authority, instead
(b) Notwithstanding the criteria prescribed below, an officer exercising approved authority may, in his discretion, deny a request for the provision of counsel, provision of bail or payment of expenses, where the otherwise eligible requestor is in an absent without leave or deserter status at the time of the request, or otherwise is not then subject to United States military control, and there is no reasonable basis for the belief that the requestor will return to United States military control at the conclusion of the proceedings of service of an adjudged sentence, if any.
Requests for the provision of counsel and payment of expenses in criminal cases may be approved in pretrial, trial, appellate and posttrial proceedings in any one of the following criminal cases:
(a) Where the act complained of occurred in the performance of official duty; or
(b) Where the sentence which is normally imposed includes confinement, whether or not such sentence is suspended; or
(c) Where capital punishment might be imposed; or
(d) Where an appeal is made from any proceeding in which there appears to have been a denial of the substantial rights of the accused; or
(e) Where conviction of the offense alleged could later form the basis for administrative discharge proceedings for misconduct as a result of civil court disposition; or
(f) Where the case, although not within the criteria established in paragraphs (a), (b), (c), (d), or (e) of this section, is considered to have significant impact upon the relations of US forces with the host country or is considered to involve any other particular US interest.
Funds for the posting of bail or bond to secure the release of personnel from confinement by foreign authorities before, during, or after trial may be furnished in all criminal cases. Safeguards should be imposed to assure that at the conclusion of the proceedings or on the appearance of the defendant in court, the bail or bond will be refunded to the military authorities. Bail will be provided only to guarantee the presence of the defendant and will not be provided to guarantee the payment of fines or civil damages. Local US military authorities are expected to provide bail, in any case, only after other reasonable efforts have been made to secure release of pretrial custody to the US.
Requests for provision of counsel and payment of expenses in civil cases may be granted in trial and appellate proceedings in either of the following civil cases:
(a) Where the act complained of occurred in the performance of official duty; or
(b) Where the case is considered to have a significant impact upon the relations of US forces with the host country or is considered to involve any other particular US interest. No funds shall be provided under this part in cases where the United States of America is in legal effect the defendant, without prior authorization of the Judge Advocate General.
(a) The selection of individual trial or appellate counsel will be made by the defendant. Such counsel shall represent the individual defendant and not the US Government. Selection shall be made from approved lists of attorneys who are qualified, competent and experienced in trial practice, and admitted for full practice, on their own account, before the courts of the foreign country involved. Normally, these lists will be coordinated with the local court or bar association, if any, and the appropriate US Diplomatic or Consular Mission and
(b) Whenever possible, the officer responsible under § 845.3 (or his designee), acting on behalf of the United States of America, shall enter into a written contract with the selected counsel. The contract will cover counsel fees, and, when appropriate, may cover other costs arising in defense of the case only in the court of first instance and will not include fees for representation on appeal. If the case is appealed to higher tribunals, supplemental agreements shall be executed for each appeal. A copy of the contractual agreement shall serve as the obligating document.
(c) If, for example, because of unusual circumstances or local customs, it is not practicable to enter into a written contract as in paragraph (b) of this section, action will be taken to record the agreement reached between the officer responsible under § 845.3 (or his designee) and the selected counsel. This requirement may be met by a letter of commission or letter of understanding, executed between the officer responsible under § 845.3 (or his designee) and the selected counsel, or by a written request for legal services expressly or impliedly accepted by the selected counsel. Any such document shall contain, if possible, an agreed estimate of counsel fees and reasonable expenses and a statement that both fees and expenses will conform to those paid by local nationals under similar circumstances and will not exceed local fee schedules, if any. If this document does not include an agreed estimate of counsel fees and other reasonable expenses, an estimate will be provided by the contracting officer. A copy of the document, together with the estimate, will be furnished the accounting component and will serve as the commitment document for the reservation of funds.
(d) The provision of counsel and payment of expenses under this part is not subject to the provisions of the Defense Acquisition Regulation (subchapter A, chapter I of this title). However, the contract clauses set forth in part 5, section VII, Defense Acquisition Regulation, may be used as a guide in contracting.
(e) Because of the desirability of timely procedural action, it is suggested that there be designated, from among the judge advocates on the staffs of officers responsible under § 845.3, contracting officers with contracting authority limited to agreements described in this section. The effect of this designation would be to combine within one office the duties of contracting officer and judge advocate.
(f) Nothing in this part shall be construed as prohibiting the selection of qualified local counsel employed by the United States Government, if the serviceman freely selects such counsel.
Payment of bills submitted by the selected counsel and other costs shall be made in accordance with the general provision of AFM 177-102 (Commercial Transactions at Base Level), relating to payment of contractual obligations and pertinent disbursing regulations. All payments under these procedures will be in local currency. Acceptance of services procured under these procedures shall be certified to by the officer responsible under § 845.3 (or his designee). Payments of bail may be made when authorized by such officers. Such authorization shall be in the form of a
Authorized expenses incurred incident to implementation of the policies set forth in this part, including transportation and per diem expenses of trial observers, interpreters, and local counsel employees, shall be paid from appropriated funds of the service to which the defendant belongs. Payments shall be made from the appropriation current at time of payment, unless obligations for authorized costs have previously been established. Refunds shall be processed as appropriation refund. Such funds are chargeable to the base for operation and maintenance purposes (O&M or R&D, as applicable).
No reimbursement will ordinarily be required from individuals with respect to payments made in their behalf under this part. However, prior to the posting of bail on behalf of a defendant, a signed agreement shall be secured from him wherein he agrees to remit the amount of such bail or permit the application of so much of his pay as may be necessary to reimburse the Government in the event that he willfully causes forfeiture of bail. In the event of such forfeiture, bail provided under this part shall be recovered from the defendant in accordance with that agreement. The agreement should include a statement that it does not prejudice the defendant's right to appeal to the Comptroller General of the United States and the courts after such payment or deduction has been made, if he considers the amount erroneous.
Judge advocates who advise officers responsible under § 845.3 are authorized to correspond directly with each other and with the Judge Advocate General of the service concerned for advice with regard to payment of counsel fees and other expenses.
49 U.S.C. 44502 and 47103.
The Air Force establishes and uses its airfields to support the scope and level of operations necessary to carry out missions worldwide. The Congress funds airfields in response to Air Force requirements, but also specifies that civil aviation access is a national priority to be accommodated when it does not jeopardize an installation's military utility. The Air Force engages in dialogue with the civil aviation community and the Federal Aviation Administration to ensure mutual understanding of long-term needs for the national air transportation system and programmed military force structure requirements. To implement the national policy and to respond to requests for access, the Air Force must have policies that balance such requests with military needs. Civil aircraft access to Air Force airfields on foreign territory requires host nation approval.
(a) The Air Force will manage two programs that are generally used to grant civil aircraft access to its airfields: civil aircraft landing permits and joint-use agreements. Other arrangements for access will be negotiated as required for specific purposes.
(1) Normally, landing permits will be issued only for civil aircraft operating in support of official Government business. Other types of use may be authorized if justified by exceptional circumstances. Access will be granted on an equitable basis.
(2) The Air Force will consider only proposals for joint use that do not compromise operations, security, readiness, safety, environment, and quality of life. Further, only proposals submitted by authorized local Government representatives eligible to sponsor a public airport will be given the comprehensive evaluation required to conclude a joint-use agreement.
(3) Any aircraft operator with an inflight emergency may land at any
(b) Air Force requirements will take precedence on Air Force airfields over all civil aircraft operations, whether they were previously authorized or not.
(c) Civil aircraft use of Air Force airfields in the United States will be subject to Federal laws and regulations. Civil aircraft use of Air Force airfields in foreign countries will be subject to US Federal laws and regulations that have extraterritorial effect and to applicable international agreements with the country in which the Air Force installation is located.
(a) As the program manager for joint use, the Civil Aviation Branch, Bases and Units Division, Directorate of Operations (HQ USAF/XOOBC), ensures that all impacts have been considered and addressed before forwarding a joint-use proposal or agreement to the Deputy Assistant Secretary for Installations (SAF/MII), who holds decision authority. All decisions are subject to the environmental impact analysis process as directed by the Environmental Planning Division, Directorate of Environment (HQ USAF/CEVP), and the Deputy Assistant Secretary for Environment, Safety, and Occupational Health (SAF/MIQ). The Air Force Real Estate Agency (AFREA/MI) handles the leases for Air Force-owned land or facilities that may be included in an agreement for joint use.
(b) HQ USAF/XOOBC determines the level of decision authority for landing permits. It delegates decision authority for certain types of use to major commands and installation commanders.
(c) HQ USAF/XOOBC makes the decisions on all requests for exceptions or waivers to this part and related Air Force instructions. The decision process includes consultation with other affected functional area managers when required. Potential impacts on current and future Air Force policies and operations strongly influence such decisions.
(d) Major commands, direct reporting units, and field operating agencies may issue supplements to establish command-unique procedures permitted by and consistent with this part.
This part applies to all regular United States Air Force (USAF), Air National Guard (ANG), and United States Air Force Reserve (USAFR) installations with airfields. This part also applies to civil aircraft use of Air Force ramps at civil airports hosting USAF, ANG, and USAFR units.
Air Force airfields are available for use by civil aircraft so far as such use does not interfere with military operations or jeopardize the military utility of the installation. Access will be granted on an equitable basis. Air Force requirements take precedence over authorized civil aircraft use. This part carries the force of US law, and exceptions are not authorized without prior approval from the Civil Aviation Branch, Bases and Units Division, Directorate of Operations, (HQ USAF/XOOBC), 1480 Air Force Pentagon, Washington DC 20330-1480. Proposed exceptions or waivers are evaluated as to current and future impact on Air Force policy and operations.
(a) The Air Force:
(1) Determines whether civil aircraft use of Air Force airfields is compatible with current and planned military activities.
(2) Normally authorizes civil aircraft use of Air Force airfields only in support of official Government business. If exceptional circumstances warrant, use for other purposes may be authorized.
(3) Acts as clearing authority for civil aircraft use of Air Force airfields, subject to the laws and regulations of the US, or to applicable international agreements (e.g., status of forces agreements) with the country in which the Air Force installation is located.
(4) Reserves the right to suspend any operation that is inconsistent with national defense interests or deemed not in the best interests of the Air Force.
(5) Will terminate authority to use an Air Force airfield if the:
(i) User's liability insurance is canceled.
(ii) User lands for other than the approved purpose of use or is otherwise in violation of this part or clearances and directives hereunder.
(6) Will not authorize use of Air Force airfields:
(i) In competition with civil airports by providing services or facilities that are already available in the private sector.
Use to conduct business with or for the US Government is not considered as competition with civil airports.
(ii) Solely for the convenience of passengers or aircraft operator.
(iii) Solely for transient aircraft servicing.
(iv) By civil aircraft that do not meet US Department of Transportation operating and airworthiness standards.
(v) That selectively promotes, benefits, or favors a specific commercial venture unless equitable consideration is available to all potential users in like circumstances.
(vi) For unsolicited proposals in procuring Government business or contracts.
(vii) Solely for customs-handling purposes.
(viii) When the air traffic control tower and base operations are closed or when a runway is restricted from use by all aircraft.
Requests for waiver of this provision must address liability responsibility, emergency response, and security.
(7) Will not authorize civil aircraft use of Air Force ramps located on civil airfields.
This section does not apply to use of aero club facilities located on Air Force land at civil airports, or civil aircraft chartered by US military departments and authorized use of terminal facilities and ground handling services on the Air Force ramp. Only the DD Form 2400, Civil Aircraft Certificate of Insurance, and DD Form 2402, Civil Aircraft Hold Harmless Agreement, are required for use of Air Force ramps on civil airfields.
(b) Civil aircraft operators must:
(1) Have an approved DD Form 2401, Civil Aircraft Landing Permit, before operating at Air Force airfields, except for emergency use and as indicated in paragraphs (d)(2) and (d)(2)(iii)(E) of this section, and , and § 855.13(b)(1)(ii).
(2) Ensure that pavement load-bearing capacity will support the aircraft to be operated at the Air Force airfield.
(3) Ensure that aircraft to be operated at Air Force airfields are equipped with an operating two-way radio capable of communicating with the air traffic control tower.
(4) Obtain final approval for landing from the installation commander or a designated representative (normally base operations) at least 24 hours prior to arrival.
(5) Not assume that the landing clearance granted by an air traffic control tower facility is a substitute for either the approved civil aircraft landing permit or approval from the installation commander or a designated representative (normally base operations).
(6) Obtain required diplomatic or overflight clearance before operating in foreign airspace.
(7) Pay applicable costs and fees.
(8) File a flight plan before departing the Air Force airfield.
(c) The installation commander or a designated representative:
(1) Exercises administrative and security control over both the aircraft and passengers while on the installation.
(2) May require civil users to delay, reschedule, or reroute aircraft arrivals or departures to preclude interference with military activities.
(3) Cooperates with customs, immigration, health, and other public authorities in connection with civil aircraft arrival and departure.
(d) Decision Authority: The authority to grant civil aircraft use of Air Force airfields is vested in:
(1) Directorate of Operations, Bases and Units Division, Civil Aviation Branch (HQ USAF/XOOBC). HQ USAF/XOOBC may act on any request for civil aircraft use of an Air Force airfield. Decision authority for the following will not be delegated below HQ USAF:
(i) Use of multiple Air Force airfields except as designated in paragraph (d)(2) of this section.
(ii) Those designated as 2 under Approval Authority in Table 1 to this part.
(iii) Any unusual or unique purpose of use not specifically addressed in this part.
(2) Major Command, Field Operating Agency, Direct Reporting Unit, or Installation Commander. With the exception of those uses specifically delegated to another decision authority, major commands (MAJCOMs), field operating agencies (FOAs), direct reporting units (DRUs) and installation commanders or designated representatives have the authority to approve or disapprove civil aircraft landing permit applications (DD Forms 2400, Civil Aircraft Certificate of Insurance; 2401; Civil Aircraft Landing Permit, and 2402, Civil Aircraft Hold Harmless Agreement) at airfields for which they hold oversight responsibilities. Additionally, for expeditious handling of short notice requests, they may grant requests for one-time, official Government business flights that are in the best interest of the US Government and do not violate other provisions of this part. As a minimum, for one-time flights authorized under this section, the aircraft owner or operator must provide the decision authority with insurance verification and a completed DD Form 2402 before the aircraft operates into the Air Force airfield. Air Force authority to approve civil aircraft use of Air Force airfields on foreign soil may be limited. Commanders outside the US must be familiar with base rights agreements or other international agreements that may render inapplicable, in part or in whole, provisions of this part. Decision authority is delegated for specific purposes of use and or locations as follows:
(i) Commander, 611th Air Operations Group (AOG). The Commander, 611th AOG or a designated representative may approve commercial charters, on a case-by-case basis, at all Air Force airfields in Alaska, except Eielson and Elmendorf AFBs, if the purpose of the charter is to transport goods and or materials, such as an electric generator or construction materials for a community center, for the benefit of remote communities that do not have adequate civil airports.
(ii) Commander, Air Mobility Command (AMC). The Commander, AMC or a designated representative may approve permits that grant landing rights at Air Force airfields worldwide in support of AMC contracts.
(iii) US Defense Attache Office (USDAO). The USDAO, acting on behalf of HQ USAF/XOOBC, may grant a request for one-time landing rights at an Air Force airfield provided:
(A) The request is for official Government business of either the US or the country to which the USDAO is accredited.
(B) The Air Force airfield is located within the country to which the USDAO is accredited.
(C) Approval will not violate any agreement with the host country.
(D) The installation commander concurs.
(E) The USDAO has a properly completed DD Form 2402 on file and has verified that the insurance coverage meets the requirements of Table 2 to this part, before the aircraft operates into the Air Force airfield.
(a) Any aircraft owned by:
(1) Any other US Government agency.
(2) US Air Force aero clubs established as prescribed in AFI 34-117, Air Force Aero Club Program, and AFMAN 3-132, Air Force Aero Club Operations
This includes aircraft owned by individuals but leased by an Air Force aero club.
(3) Aero clubs of other US military services.
This includes aircraft owned by individuals but leased by Army or Navy aero clubs.
(4) A US State, County, Municipality, or other political subdivision, when operating to support official business at any level of Government.
(b) Any civil aircraft under:
(1) Lease or contractual agreement for exclusive US Government use on a
The Government must hold liability responsibility for all damages or injury associated with operation of the aircraft.
(2) Lease or contractual agreement to the Air Force for Air Force Civil Air Patrol (CAP) liaison purposes and operated by an Air Force CAP liaison officer on official Air Force business.
(3) CAP control for a specific mission directed by the Air Force.
(4) Coast Guard control for a specific mission directed by the Coast Guard.
For identification purposes, the aircraft will be marked with a sticker near the port side door identifying it as a Coast Guard Auxiliary aircraft. The pilot will always be in uniform and normally have a copy of a Coast Guard Auxiliary Patrol Order. If the aircraft is operating under “verbal orders of the commander,” the pilot can provide the telephone number of the cognizant Coast Guard commander.
(5) Contractual agreement to any US, State, or local Government agency in support of operations involving safety of life or property as a result of a disaster.
(6) Government furnished property or bailment contract for use by a contractor, provided the Federal, State, or local Government has retained liability responsibilities.
(7) Civil aircraft transporting critically ill or injured individuals or transplant organs to or from an Air Force installation.
(8) Historic aircraft being delivered for Air Force museum exhibits under the provisions of AFI 84-103, Museum System.
The Air Force authorizes use of its airfields for a specific purpose by a named individual or company. The authorization cannot be transferred to a second or third party and does not extend to use for other purposes. An approved landing permit does not obligate the Air Force to provide supplies, equipment, or facilities other than the landing, taxiing, and parking areas. The aircraft crew and passengers are only authorized activities at the installation directly related to the purpose for which use is granted. All users are expected to submit their application (DD Forms 2400, 2401, and 2402) at least 30 days before intended use and, except for use as a weather alternate, CRAF alternate, or emergency landing site, must contact the appropriate installation commander or a designated representative for final landing approval at least 24 hours before arrival. Failure to comply with either time limit may result in denied landing rights.
To allow time for processing, the application (DD Forms 2400, 2401, and 2402) and a self-addressed, stamped envelope should be submitted at least 30 days before the date of the first intended landing. The verification required for each purpose of use must be included with the application. The name of the user must be the same on all forms. Original, hand scribed signatures, not facsimile elements, are required on all forms. Landing Permit Application Instructions are at attachment 3 to this part. The user is responsible for reviewing this part and accurately completing the forms before submitting them to the approving authority.
When a landing permit expires, DD Forms 2401 and 2400 must be resubmitted for continued use of Air Force airfields.
Corporations must resubmit the DD Form 2402 every five years.
The purposes of use normally associated with civil aircraft operations at Air Force airfields are listed in Table 1. Requests for use for purposes other than those listed will be considered and may be approved if warranted by unique circumstances. A separate DD Form 2401 is required for each purpose of use. (Users can have multiple DD Forms 2401 that are covered by a single DD Form 2400 and DD Form 2402.)
Applicants must provide proof of third-party liability insurance on a DD Form 2400, with the amounts stated in US dollars. The policy number, effective date, and expiration date are required. The statement “until canceled” may be used in lieu of a specific expiration date. The geographic coverage must include the area where the Air Force airfield of proposed use is located. If several aircraft or aircraft types are included under the same policy, a statement such as “all aircraft owned,” “all aircraft owned and or operated,” “all non-owned aircraft,” or “all aircraft operated,” may be used in lieu of aircraft registration numbers. To meet the insurance requirements, either split limit coverage for bodily injury (individuals outside the aircraft), property damage, and passengers, or a single limit coverage is required. The coverage will be at the expense of the user with an insurance company acceptable to the Air Force. Coverage must be current during the period the Air Force airfield will be used. The liability required is computed on the basis of aircraft maximum gross takeoff weight (MGTOW) and passenger or cargo configuration. Minimum coverage will not be less than the amount indicated in Table 2 to this part.
(a) Any insurance presented as a single limit of liability or a combination of primary and excess coverage will be an amount equal to or greater than the each accident minimums indicated in Table 2 to this part for bodily injury (individuals outside the aircraft), property damage, and passengers.
(b) The policy will specifically provide that:
(1) The insurer waives any right of subrogation it may have against the US by reason of any payment made under the policy for injury, death, or property damage that might arise, out of or in connection with the insured's use of any Air Force airfield.
(2) The insurance afforded by the policy applies to the liability assumed by the insured under DD Form 2402.
(3) If the insurer or the insured cancels or reduces the amount of insurance afforded under the listed policy before the expiration date indicated on DD Form 2400, the insurer will send written notice of policy cancellation or coverage reduction to the Air Force approving authority at least 30 days before the effective date of the cancellation or reduction. The policy must state that any cancellation or reduction will not be effective until at least 30 days after such notice is sent.
Upon receipt of an application (DD Forms 2400, 2401, and 2402) for use of an Air Force airfield, the decision authority:
(a) Determines the availability of the airfield and its capability to accommodate the purpose of use requested.
(b) Determines the validity of the request and ensures all entries on DD Forms 2400, 2401, and 2402 are in conformance with this part.
(c) Approves DD Form 2401 (with conditions or limitations noted) by completing all items in Section II—For Use by Approving Authority as follows:
(1) Period of Use (Block 7): The “From” date will be either the first day of approved use or the first day of insurance coverage. The “From” date cannot precede the first day of insurance coverage shown on the DD Form 2400. The “Thru” date is determined by the insurance expiration date and or the purpose of use. For example, the period of use for participants in an Air Force open house will be determined by both insurance coverage and open house dates. The permit would be issued only for the duration of the open house but must not precede or exceed the dates of insurance coverage. Many insurance policies terminate at noon on the expiration date. Therefore, if the insurance expiration is used to determine the permit expiration date, the landing permit will expire one day before the insurance expiration date shown on the DD Form 2400. If the insurance expiration date either exceeds 2 years or is indefinite (for example, “until canceled”), the landing permit will expire 2 years from the issue date or first day of coverage.
(2) Frequency of Use (Block 8) is normally “as required” but may be more specific, such as “one time.”
(3) Identification Number (Block 9): Installation commanders or a designated representative assign a permit number comprised of the last three letters of the installation's International Civil Aviation Organization identifier code, the last two digits of the calendar year, a number sequentially assigned, and the letter suffix that indicates the purpose of use (Table 1); for example, ADW 95-01C. MAJCOMs, FOAs, DRUs, and USDAOs use a three position organization abbreviation; such as AMC 95-02K.
(4) DD Form 2400 (Dated and Filed) (Block 11a): This block should contain the date from block 1 (Date Issued) on the DD Form 2400 and the identification of the unit or base where the form was approved; i.e., 30 March 1995, HQ USAF/XOOBC.
(5) DD Form 2402 (Dated and Filed) (Block 11b): This block should contain the date from block 4 (Date Signed) on the DD Form 2402 and the identification of the unit or base where the form was approved; i.e., 30 March 1995, HQ USAF/XOOBC.
(6) SA-ALC/SFR, 1014 Andrews Road, Building 1621, Kelly AFB TX 78241-5603 publishes the list of companies authorized to purchase Air Force fuel on credit. Block 12 should be marked “yes” only if the permit holder's name appears on the SA-ALC list.
(7) Landing Fees, Block 13, should be marked as indicated in Table 1 to this part.
(8) Permit Amendments: New entries or revisions to an approved DD Form 2401 may be made only by or with the consent of the approving authority.
(d) Provides the applicant with written disapproval if:
(1) Use will interfere with operations, security, or safety.
(2) Adequate civil facilities are collocated.
(3) Purpose of use is not official Government business and adequate civil facilities are available in the proximity of the requested Air Force airfield.
(4) Use will constitute competition with civil airports or air carriers.
(5) Applicant has not fully complied with this part.
(e) Distributes the approved DD Form 2401 before the first intended landing, when possible, as follows:
(1) Retains original.
(2) Returns two copies to the user.
(3) Provides a copy to HQ USAF/XOOBC.
HQ USAF/XOOBC will provide a computer report of current landing permits to the MAJCOMs, FOAs, DRUs, and installations.
(a) Civil aircraft operators may be invited to a specified Air Force airfield for:
(1) A base open house to perform or provide a static display.
(2) A flying safety seminar.
(b) Civil fly-in procedures:
(1) The installation commander or a designated representative:
(i) Requests approval from the MAJCOM, FOA, or DRU with an information copy to HQ USAF/XOOBC/XOOO and SAF/PAC.
(ii) Ensures that DD Form 2402 is completed by each user.
DD Forms 2400 and 2401 are not required for fly-in participants if flying activity consists of a single landing and takeoff with no spectators other than flightline or other personnel required to support the aircraft operations.
(2) The MAJCOM, FOA, or DRU ensures HQ USAF/XOOBC/XOOO and SAF/PAC are advised of the approval or disapproval for the fly-in.
(3) Aerial performance by civil aircraft at an Air Force open house requires MAJCOM or FOA approval and an approved landing permit as specified in AFI 35-201, Community Relations
(a)
(1) Informs the operator of Subpart B procedures and the requirement for notifying the Federal Aviation Administration (FAA) as specified in section 6 of the FAA Airman's Information Manual.
(2) Notifies the Federal Aviation Flight Standards District Office (FSDO) by telephone or telefax, followed by written notification using FAA Form 8020-9, 8020-11, or 8020-17, as appropriate. A copy of the written notification must be provided to HQ USAF/XOOBC.
(3) Ensures the operator completes a DD Form 2402, and collects applicable charges. (In some instances, it may be necessary to arrange to bill the user for the appropriate charges.) DD Form 2402 need not be completed for commercial carriers if it is known that the form is already on file at HQ USAF/XOOBC.
(4) In a foreign country, notifies the local US Defense Attache Office (USDAO) by telephone or telefax and, where applicable, the appropriate USDAO in the country of aircraft registry, followed by written notification with an information copy to HQ USAF/XOOBC and the civil aviation authority of the country or countries concerned.
(b)
(1) The Air Force will use any method or means to clear an aircraft or wreckage from the runway to preclude interference with essential military operations after coordinating with the FSDO and National Transportation Safety Board. Removal efforts will minimize damage to the aircraft or wreckage; however, military or other operational factors may be overriding.
(2) An operator making an emergency landing:
(i) Is not charged a landing fee.
(ii) Pays all costs for labor, material, parts, use of equipment and tools, and so forth, to include, but not limited to:
(A) Spreading foam on the runway.
(B) Damage to runway, lighting, and navigation aids.
(C) Rescue, crash, and fire control services.
(D) Movement and storage of aircraft.
(E) Performance of minor maintenance.
(F) Fuel or oil (AFM 67-1, vol 1, part three, chapter 1, Air Force Stock Fund and DPSC Assigned Item Procedures
(c)
(i) Landed due to flight disorientation.
(ii) Mistook the Air Force airfield for a civil airport.
(2) Normal landing fees must be charged and an unauthorized landing fee may be assessed to compensate the Government for the added time, effort, and risk involved in the inadvertent landing. Only the unauthorized landing fee may be waived by the installation commander or a designated representative if, after interviewing the pilot-in-command and appropriate Government personnel, it is determined that flying safety was not significantly impaired. The pilot-in-command may appeal the imposition of an unauthorized landing fee for an inadvertent landing to the MAJCOM, FOA, or DRU whose decision will be final. A subsequent inadvertent landing will be processed as an intentional unauthorized landing.
(d)
(i) Landed without an approved DD Form 2401 on board the aircraft.
(ii) Landed for a purpose not approved on the DD Form 2401.
(iii) Operated an aircraft not of a model or registration number on the approved DD Form 2401.
(iv) Did not request or obtain the required final approval from the installation commander or a designated representative at least 24 hours before aircraft arrival.
(v) Did not obtain landing clearance from the air traffic control tower.
(vi) Landed with an expired DD Form 2401.
(vii) Obtained landing authorization through fraudulent methods, or
(viii) Landed after having been denied a request to land from any Air Force authority, including the control tower.
(2) Normal landing fees and an unauthorized landing fee must be charged. Intentional unauthorized landings increase reporting, processing, and staffing costs; therefore, the unauthorized landing fee for paragraph (d)(1)(i) through (d)(1)(vi) of this section will be increased by 100 percent. The unauthorized landing fee will be increased 200 percent for paragraph (d)(1)(vii) and (d)(1)(viii) of this section.
(3) Intentional unauthorized landings may be prosecuted as a criminal trespass, especially if a debarment letter has been issued. Repeated intentional unauthorized landings prejudice the user's FAA operating authority and jeopardize future use of Air Force airfields.
(a) An installation commander in the United States, its territories, or its possessions may choose to detain an aircraft for an intentional unauthorized landing until:
(1) The unauthorized landing has been reported to the FAA, HQ USAF/XOOBC, and the appropriate US Attorney.
(2) All applicable charges have been paid.
(b) If the installation commander wishes to release the aircraft before the investigation is completed, he or she must obtain bond, promissory note, or other security for payment of the highest charge that may be assessed.
(c) The pilot and passengers will not be detained longer than is necessary for identification, although they may be permitted to remain in a lounge or other waiting area on the base at their request for such period as the installation commander may determine (normally not to exceed close of business hours at the home office of the entity owning the aircraft, if the operator does not own the aircraft). No person, solely due to an intentional unauthorized landing, will be detained involuntarily after identification is complete without coordination from the appropriate US Attorney, the MAJCOM, FOA, or DRU, and HQ USAF/XOOBC.
The time that an aircraft spends on an installation is at the discretion of the installation commander or a designated representative but should be linked to the purpose of use authorized. Parking and storage may be permitted on a nonexclusive, temporary, or intermittent basis, when compatible with military requirements. At those locations where there are Air Force aero clubs, parking and storage privileges may be permitted in the area designated for aero club use without regard for the purpose of use authorized, if consistent with aero club policies. Any such permission may be revoked upon notice, based on military needs and the installation commander's discretion.
(a) Landing, parking, and storage fees (Tables 3 and 4 to this part) are determined by aircraft maximum gross takeoff weight (MGTOW). All fees are normally due and collectable at the time of use of the Air Force airfield. DD Form 1131, Cash Collection Voucher, is used to deposit the fees with the base accounting and finance officer. In some instances, it may be necessary to bill the user for charges incurred.
(b) Landing fees are not charged when the aircraft is operating in support of official Government business or for any purpose, the cost of which is subject to reimbursement by the US
When a user qualifies under the provisions of AFM 67-1, vol. 1, part three, chapter 1, Air Force Stock Fund and DPSC Assigned Item Procedures,
Supplies and services furnished to a user will be charged for as prescribed in AFM 67-1, volume 1, part one, chapter 10, section N, Basic Air Force Supply Procedures, and AFR 177-102, paragraph 28.24, Commercial Transactions at Base Level.
An agreement between the Air Force and a local Government agency is required before a community can establish a public airport on an Air Force airfield.
(a) Joint use of an Air Force airfield will be considered only if there will be no cost to the Air Force and no compromise of mission capability, security, readiness, safety, or quality of life. Further, only proposals submitted by authorized representatives of local Government agencies eligible to sponsor a public airport will be given the comprehensive evaluation required to conclude a joint use agreement. All reviewing levels will consider and evaluate such requests on an individual basis.
(b) Generally, the Air Force is willing to consider joint use at an airfield if it does not have pilot training, nuclear storage, or a primary mission that requires a high level of security. Civil operations must begin within 5 years of the effective date of an agreement. Operational considerations will be based on the premise that military aircraft will receive priority handling (except in emergencies), if traffic must be adjusted or resequenced. The Air Force normally will not consider personnel increases solely to support civil operations but, if accommodated, all costs must be fully reimbursed by the joint-use sponsor. The Air Force will not provide personnel to install, operate, maintain, alter, or relocate navigation equipment or aircraft arresting systems for the sole use of civil aviation. Changes in equipment or systems to support the civil operations must be funded by the joint-use sponsor. The Air Force must approve siting, design, and construction of the civil facilities.
To initiate consideration for joint use of an Air Force airfield, a formal proposal must be submitted to the installation commander by a local Government agency eligible to sponsor a public airport. The proposal must include:
(a) Type of operation.
(b) Type and number of aircraft to be located on or operating at the airfield.
(c) An estimate of the number of annual operations for the first 5 years.
(a) Upon receipt of a joint-use proposal, the installation commander, without precommitment or comment, will send the documents to the Air Force Representative (AFREP) at the Federal Aviation Administration (FAA) Regional Office within the geographical area where the installation is located. AFI 13-201, Air Force Airspace
(b) The AFREP provides comments to the installation commander on airspace, air traffic control, and other related areas, and informs local FAA personnel of the proposal for joint use.
(c) The installation, the numbered Air Force, and the major command (MAJCOM) will then evaluate the proposal. The MAJCOM will send the comments and recommendations from all reviewing officials to HQ USAF/XOOBC.
(d) Factors considered in evaluating joint use include, but are not limited to:
(1) Impact on current and programmed military activities at the installation.
(2) Compatibility of proposed civil aviation operations with present and planned military operations.
(3) Compatibility of communications systems.
(4) Instrument capability of crew and aircraft.
(5) Runway and taxiway configuration. (Installations with single runways normally will not be considered for joint use.)
(6) Security. The possibility for sabotage, terrorism, and vandalism increases with joint use; therefore, joint use will not be considered:
(i) If military and civil aircraft would be collocated in hangars or on ramps.
(ii) If access to the civil aviation facilities would require routine transit through the base.
(7) Fire, crash, and rescue requirements.
(8) Availability of public airports to accommodate the current and future air transportation needs of the community through construction or expansion.
(9) Availability of land for civil airport complex.
The majority of land required for a terminal and other support facilities must be located outside the installation perimeter or at a site that will allow maximum separation of military and civil activities. If the community does not already own the needed land, it must be acquired at no expense to the Air Force. The Air Force may make real property that is not presently needed, but not excess, available by lease under 10 U.S.C 2667. An application for lease of Air Force real property must be processed through the chain of command to the Air Force Real Estate Agency, 172 Luke Avenue, Suite 104, Building 5683, Bolling AFB DC 20332-5113, as prescribed in AFI 32-9003, Granting Temporary Use of Air Force Real Property
(10) Sponsor's resources to pay a proportionate share of costs for runway operation and maintenance and other jointly used facilities or otherwise provide compensation that is of direct benefit to the Government.
(e) When the Air Force determines that joint use may be compatible with its defense mission, the environmental impact analysis process must be completed before a final decision can be made. The Air Force will act as lead agency for the preparation of the environmental analysis (32 CFR part 989, Environmental Impact Analysis Process). The local Government agency representatives, working in coordination with Air Force personnel at the installation and other concerned local or Federal officials, must identify the proposed action, develop conceptual alternatives, and provide planning, socioeconomic, and environmental information as specified by the appropriate MAJCOM and HQ USAF/CEVP. The information must be complete and accurate in order to serve as a basis for the preparation of the Air Force environmental documents. All costs associated with the environmental studies required to complete the environmental impact analysis process must be paid by the joint use sponsor. Information on environmental analysis requirements is available from HQ USAF/CEVP, 1260 Air Force Pentagon, Washington DC 20330-1260.
(f) HQ USAF/XOOBC can begin negotiating a joint-use agreement after the environmental impact analysis process is completed. The agreement must be concluded on behalf of the Air Force by SAF/MII as the approval authority for use of Air Force real property for periods exceeding 5 years. The joint-use agreement will state the extent to which the provisions of subpart B of this part, Civil Aircraft Landing Permits, apply to civil aircraft operations.
(1) Joint-use agreements are tailored to accommodate the needs of the community and minimize the impact on the defense mission. Although each agreement is unique, attachment 4 to this part provides basic terms that are frequently included in such agreements.
(2) Agreements for joint use at Air Force airfields on foreign soil are subject to the requirements of AFI 51-701, Negotiating, Concluding, Reporting, and Maintaining International Agreements
(g) HQ USAF/XOOBC and SAF/MII approval is required to amend existing joint use agreements. The evaluation and decision processes followed in concluding an initial joint-use proposal must be used to amend existing joint-use agreements.
(a) Temporary use of Air Force runways occasionally is needed for extended periods when a local civil airport is unavailable or to accommodate special events or projects. Such use requires agreement between the Air Force and the local airport authority or other equivalent responsible entity.
(b) The local proponent and Air Force personnel should draft and submit an agreement to the MAJCOM Director for Operations, or equivalent level, for review and comment. The agreement must address all responsibilities for handling aircraft, cargo, and passengers, and hold the Air Force harmless of all liabilities. The agreement will not exceed 3 years. Although each agreement will be unique, attachment 5 of this part provides one example. The draft agreement, with all comments and recommendations, must be sent to HQ USAF/XOOBC for final approval.
* Formerly Shemya AFB.
A3.1. DD Form 2400, Civil Aircraft Certificate of Insurance: The insurance company or its authorized agent must complete and sign the DD Form 2400. Corrections to the form made using a different typewriter, pen, or whiteout must be initialed by the signatory. THE FORM CANNOT BE COMPLETED BY THE AIRCRAFT OWNER OR OPERATOR. Upon expiration, the DD Form 2400 must be resubmitted along with DD Form 2401 for continued use of Air Force airfields. The DD Form 2400 may be submitted to the decision authority by either the user or insurer. (Approved by the Office of Management and Budget under control number 0701-0050).
A3.1.1. Block 1, Date Issued. The date the DD Form 2400 is completed by the signatory.
A3.1.2. Block 2a and 2b, Insurer Name, Address. The name and address of the insurance company.
A3.1.3. Block 3a and 3b. Insured Name, Address. The name and address of the aircraft owner and or operator. (The name of the user must be the same on all the forms.)
A3.1.4. Block 4a, Policy Number(s). The policy number must be provided. Binder numbers or other assigned numbers will not be accepted in lieu of the policy number.
A3.1.5. Block 4b, Effective Date. The first day of current insurance coverage.
A3.1.6. Block 4c, Expiration Date. The last day of current insurance coverage. The DD Form 2400 is valid until one day before the insurance expiration date. A DD Form 2400 with the statement “until canceled,” in lieu of a specific expiration date, is valid for two years from the issue date.
A3.1.7. Block 5, Aircraft Liability Coverage. The amount of split limit coverage. All boxes in block 5 must be completed to specify the coverage for: each person (top line, left to right) outside the aircraft (bodily injury) and each passenger; and the total coverage per accident (second line, left to right) for: persons outside the aircraft (bodily injury), property damage, and passengers. IF BLOCK 5 IS USED, BLOCK 6 SHOULD NOT BE USED. All coverages must be stated in US dollars. ALL SEATS THAT CAN BE USED FOR PASSENGERS MUST BE INSURED. See Table 2 for required minimum coverage.
A3.1.8. Block 6, Single Limit. The maximum amount of coverage per accident. IF BLOCK 6 IS USED, BLOCK 5 SHOULD NOT BE USED. The minimum coverage required for a combined single limit is determined by adding the minimums specified in the “each accident” line of Table 2. All coverages must be stated in US dollars. ALL SEATS THAT CAN BE USED FOR PASSENGERS MUST BE INSURED.
A3.1.9. Block 7, Excess Liability. The amount of coverage which exceeds primary coverage. All coverages must be stated in US dollars.
A3.1.10. Block 8, Provisions of Amendments or Endorsements of Listed Policy(ies). Any
A3.1.11. Block 9a, Typed Name of Insurer's Authorized Representative. Individual must be an employee of the insurance company, an agent of the insurance company, or an employee of an insurance broker.
A3.1.12. Block 9b, Signature. The form must be signed in blue ink so that hand scribed, original signatures are easy to identify. Signature stamps or any type of facsimile signature cannot be accepted.
A3.1.13. Block 9c, Title. Self-explanatory.
A3.1.14. Block 9d, Telephone Number. Self-explanatory.
A3.1.15. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS REQUIRED.
A3.2. DD Form 2401, Civil Aircraft Landing Permit. A separate DD Form 2401 must be submitted for each purpose of use (Table 1). (Approved by the Office of Management and Budget under control number 0701-0050).
A3.2.1. Block 1a. The name of the owner or operator. (The name of the user must be the same on all the forms.)
A3.2.2. Block 1b. This block should only be completed if the applicant is a subsidiary, division, etc, of another company.
A3.2.3. Block 1c. Business or home address, whichever is applicable, of applicant.
A3.2.4. Block 2. List the airfields where the aircraft will be operating. The statement “Any US Air Force Installation Worldwide” is acceptable for users performing AMC and White House Press Corps charters. “All Air Force airfields in the CONUS” is acceptable, if warranted by official Government business, for all users.
A3.2.5. Block 3. Self-explanatory. (Users will not necessarily be denied landing rights if pilots are not instrument rated and current.)
A3.2.6. Block 4. Provide a brief explanation of purpose for use. The purposes normally associated with use of Air Force airfields are listed in Table 1. If use for other purposes is requested, it may be approved if warranted by unique circumstances. (The verification specified for each purpose of use must be included with the application.)
A3.2.7. Block 5. EXCEPT AS NOTED FOR BLOCK 5C, ALL ITEMS MUST BE COMPLETED.
A3.2.8. Block 5a and Block 5b. Self-explanatory.
A3.2.9. Block 5c. If the DD Form 2400, Certificate of Insurance, indicates coverage for “any aircraft of the listed model owned and or operated,” the same statement can be used in block 5c in lieu of specific registration numbers.
A3.2.10. Block 5d. The capacity provided must reflect only the number of crew required to operate the aircraft. The remaining seats are considered passenger seats.
A3.2.11. Block 5e. Self-explanatory.
A3.2.12. Block 5d. A two-way radio is required. Landing rights will not necessarily be denied for lack of strobe lights, a transponder, or IFR capabilities.
A3.2.13. Block 6a. Self-explanatory.
A3.2.14. Block 6b. If the applicant is an individual, this block should not be completed.
A3.2.15. Block 6c. This block should contain a daytime telephone number.
A3.2.16. Block 6d. The form must be signed in blue ink so that hand scribed, original signatures are easy to identify. Signature stamps or any type of facsimile signature cannot be accepted.
A3.2.17. Block 6e. Self-explanatory.
A3.2.18. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS REQUIRED.
BLOCKS 7A THROUGH 14C ARE NOT COMPLETED BY THE APPLICANT.
A3.2.19. Blocks 7a and 7b. The expiration date of a permit is determined by the insurance expiration date or the purpose of use. For example, the dates of an air show will determine the expiration date of a permit approved for participation in the air show. If the insurance expiration is used to determine the permit expiration date, the landing permit will expire one day before the insurance expiration date shown on the DD Form 2400, or 2 years from the date the permit is issued when the insurance expiration date either exceeds 2 years or is indefinite (for example, “until canceled”).
A3.2.20. APPROVED PERMITS CANNOT BE CHANGED WITHOUT THE CONSENT OF THE APPROVING AUTHORITY.
A3.2.21. DD FORMS 2400 AND 2401 MUST BE RESUBMITTED TO RENEW A LANDING PERMIT. (Corporations must resubmit the DD Form 2402 every five years.)
A3.3. DD Form 2402, Civil Aircraft Hold Harmless Agreement. A form submitted and accepted by an approving authority for an individual remains valid and need not be resubmitted to the same approving authority, unless canceled for cause. Forms submitted by companies, organizations, associations, etc, must be resubmitted at least every five years. (Approved by the Office of Management and Budget under control number 0701-0050).
A3.3.1. Block 2a(1). This block should contain the user's name if the applicant is a company. If the hold harmless agreement is intended to cover other entities of a parent company, their names must also be included in this block.
A3.3.2. Block 2a(2). This block should contain the user's address if the applicant is a company.
A3.3.3. Block 2b(1). This block should contain the name of the individual applying for a landing permit or the name of a corporate officer that is authorized to legally bind the corporation from litigation against the Air Force.
A3.3.4. Block 2b(2). This block should contain the address of the individual applying for a landing permit. A company address is only required if it is different from the address in block 2a(2).
A3.3.5. Block 2b(3). The form must be signed in blue ink so that hand scribed, original signatures are easy to identify. Signature stamps or any type of facsimile signature cannot be accepted.
A3.3.6. Block 2b(4). This block should only be completed when the applicant is a company, organization, association, etc.
A3.3.7. Block 3a(1). If the applicant is a company, organization, association, etc, the form must be completed and signed by the corporate secretary or a second corporate officer (other than the officer executing DD Form 2402) to certify the signature of the first officer. As necessary, the US Air Force also may require that the form be authenticated by an appropriately designated third official.
A3.3.8. Block 3a(2). The form must be signed in blue ink so that hand scribed, original signatures are easy to identify. Signature stamps or any type of facsimile signature cannot be accepted.
A3.3.9. Block 3a(3). Self-explanatory.
A3.3.10. Block 4. Self-explanatory.
This Joint Use Agreement is made and entered into this
WHEREAS, the Air Force owns and operates the runways and associated flight facilities (collectively “flying facilities”) located at Warbucks Air Force Base, USA (“WAFB”); and
WHEREAS, Sponsor desires to use the flying facilities at WAFB to permit operations by general aviation aircraft and commercial air carriers (scheduled and nonscheduled) jointly with military aircraft; and
WHEREAS, the Air Force considers that this Agreement will be in the public interest, and is agreeable to joint use of the flying facilities at WAFB; and
WHEREAS, this Agreement neither addresses nor commits any Air Force real property or other facilities that may be required for exclusive use by Sponsor to support either present or future civil aviation operations and activities in connection with joint use; and
WHEREAS, the real property and other facilities needed to support civil aviation operations are either already available to or will be diligently pursued by Sponsor;
NOW, THEREFORE, it is agreed:
a. The Air Force hereby authorizes Sponsor to permit aircraft equipped with two-way radios capable of communicating with the WAFB Control Tower to use the flying facilities at WAFB, subject to the terms and conditions set forth in this Agreement and those Federal Aviation Regulations (FAR) applicable to civil aircraft operations. Civil aircraft operations are limited to 20,000 per calendar year. An operation is a landing or a takeoff. Civil aircraft using the flying facilities of WAFB on official Government business as provided in Air Force Instruction (AFI) 10-1001, Civil Aircraft Landing Permits, are not subject to this Agreement.
b. Aircraft using the flying facilities of WAFB under the authority granted to Sponsor by this Agreement shall be entitled to use those for landings, takeoffs, and movement of aircraft and will normally park only in the area made available to Sponsor and designated by them for that purpose.
c. Government aircraft taking off and landing at WAFB will have priority over all civil aircraft at all times.
d. All ground and air movements of civil aircraft using the flying facilities of WAFB under this Agreement, and movements of all other vehicles across Air Force taxiways, will be controlled by the WAFB Control Tower. Civil aircraft activity will coincide with the WAFB Control Tower hours of operation. Any additional hours of the WAFB Control Tower or other essential airfield management, or operational requirements beyond those needed by the Air Force, shall be arranged and funded (or reimbursed) by Sponsor. These charges, if any, shall be in addition to the annual charge in paragraph 2 and payable not less frequently than quarterly.
e. No civil aircraft may use the flying facilities for training.
f. Air Force-owned airfield pavements made available for use under this Agreement shall be for use on an “as is, where is” basis. The Air Force will be responsible for snow removal only as required for Government mission accomplishment.
g. Dust or any other erosion or nuisance that is created by, or arises out of, activities or operations by civil aircraft authorized use of the flying facilities under this Agreement will be corrected by Sponsor at no expense to the Air Force, using standard engineering methods and procedures.
h. All phases of planning and construction of new runways and primary taxiways on Sponsor property must be coordinated with the WAFB Base Civil Engineer. Those intended to be jointly used by Air Force aircraft will be designed to support the type of
i. Coordination with the WAFB Base Civil Engineer is required for planning and construction of new structures or exterior alteration of existing structures that are owned or leased by Sponsor.
j. Sponsor shall comply with the procedural and substantive requirements established by the Air Force, and Federal, State, interstate, and local laws, for the flying facilities of WAFB and any runway and flight facilities on Sponsor property with respect to the control of air and water pollution; noise; hazardous and solid waste management and disposal; and hazardous materials management.
k. Sponsor shall implement civil aircraft noise mitigation plans and controls at no expense to and as directed by the Air Force, pursuant to the requirements of the WAFB Air Installation Compatible Use Zone (AICUZ) study; the FAA Part 150 study; and environmental impact statements and environmental assessments, including supplements, applicable to aircraft operations at WAFB.
l. Sponsor shall comply, at no expense to the Air Force, with all applicable FAA security measures and procedures as described in the Airport Security Program for WAFB.
m. Sponsor shall not post any notices or erect any billboards or signs, nor authorize the posting of any notices or the erection of any billboards or signs at the airfield of any nature whatsoever, other than identification signs attached to buildings, without prior written approval from the WAFB Base Civil Engineer.
n. Sponsor shall neither transfer nor assign this Agreement without the prior written consent of the Air Force.
a. For the purpose of reimbursing the Air Force for Sponsor's share of the cost of maintaining and operating the flying facilities of WAFB as provided in this Agreement, Sponsor shall pay, with respect to civil aircraft authorized to use those facilities under this Agreement, the sum of (specify sum) annually. Payment shall be made quarterly, in equal installments.
b. All payments due pursuant to this Agreement shall be payable to the order of the Treasurer of the United States of America, and shall be made to the Accounting and Finance Officer, WAFB, within thirty (30) days after each quarter. Quarters are deemed to end on December 31, March 31, June 30, and September 30. Payment shall be made promptly when due, without any deduction or setoff. Interest at the rate prescribed by the Secretary of the Treasury of the United States shall be due and payable on any payment required to be made under this Agreement that is not paid within ten (10) days after the date on which such payment is due and end on the day payment is received by the Air Force.
Sponsor shall be responsible for providing services, maintenance, and emergency repairs for civil aircraft authorized to use the flying facilities of WAFB under this Agreement at no cost to the Air Force. If Air Force assistance is required to repair an aircraft, Sponsor shall reimburse the Air Force for all expenses of such services. Any required reimbursement shall be paid not less frequently than quarterly. These charges are in addition to the annual charge specified in paragraph 2.
a. The Air Force maintains the level of fire fighting, crash, and rescue capability required to support the military mission at WAFB. The Air Force agrees to respond to fire, crash, and rescue emergencies involving civil aircraft outside the hangars or other structures within the limits of its existing capabilities, equipment, and available personnel, only at the request of Sponsor, and subject to subparagraphs b, c, and d below. Air Force fire fighting, crash, and rescue equipment and personnel shall not be routinely located in the airfield movement area during nonemergency landings by civil aircraft.
b. Sponsor shall be responsible for installing, operating, and maintaining, at no cost to the Air Force, the equipment and safety devices required for all aspects of handling and support for aircraft on the ground as specified in the FARs and National Fire Protection Association procedures and standards.
c. Sponsor agrees to release, acquit, and forever discharge the Air Force, its officers, agents, and employees from all liability arising out of or connected with the use of or failure to supply in individual cases, Air Force fire fighting and or crash and rescue equipment or personnel for fire control and crash and rescue activities pursuant to this Agreement. Sponsor further agrees to indemnify, defend, and hold harmless the Air Force, its officers, agents, and employees against any and all claims, of whatever description, arising out of or connected with such use of, or failure to supply Air Force fire fighting and or crash and rescue equipment or personnel.
d. Sponsor will reimburse the Air Force for expenses incurred by the Air Force for fire fighting and or crash and rescue materials expended in connection with providing such service to civil aircraft. The Air Force may, at its option, with concurrence of the National Transportation Safety Board, remove crashed civil aircraft from Air Force-owned
e. Failure to comply with the above conditions upon reasonable notice to cure or termination of this Agreement under the provisions of paragraph 7 may result in termination of fire protection and crash and rescue response by the Air Force.
f. The Air Force commitment to assist Sponsor with fire protection shall continue only so long as a fire fighting and crash and rescue organization is authorized for military operations at WAFB. The Air Force shall have no obligation to maintain or provide a fire fighting, and crash and rescue organization or fire fighting and crash and rescue equipment; or to provide any increase in fire fighting and crash and rescue equipment or personnel; or to conduct training or inspections for purposes of assisting Sponsor with fire protection.
a. Sponsor will assume all risk of loss and or damage to property or injury to or death of persons by reason of civil aviation use of the flying facilities of WAFB under this Agreement, including, but not limited to, risks connected with the provision of services or goods by the Air Force to Sponsor or to any user under this Agreement. Sponsor further agrees to indemnify and hold harmless the Air Force against, and to defend at Sponsor expense, all claims for loss, damage, injury, or death sustained by any individual or corporation or other entity and arising out of the use of the flying facilities of WAFB and or the provision of services or goods by the Air Force to Sponsor or to any user, whether the claims be based in whole, or in part, on the negligence or fault of the Air Force or its contractors or any of their officers, agents, and employees, or based on any concept of strict or absolute liability, or otherwise.
b. Sponsor will carry a policy of liability and indemnity insurance satisfactory to the Air Force, naming the United States of America as an additional insured party, to protect the Government against any of the aforesaid losses and or liability, in the sum of not less than (specify sum) bodily injury and property damage combined for any one accident. Sponsor shall provide the Air Force with a certificate of insurance evidencing such coverage. A new certificate must be provided on the occasion of policy renewal or change in coverage. All policies shall provide that: (1) No cancellation, reduction in amount, or material change in coverage thereof shall be effective until at least thirty (30) days after receipt of notice of such cancellation, reduction, or change by the installation commander at WAFB, (2) any losses shall be payable notwithstanding any act or failure to act or negligence of Sponsor or the Air Force or any other person, and (3) the insurer shall have no right of subrogation against the United States.
This Agreement shall become effective immediately and shall remain in force and effect for a term of 25 years, unless otherwise renegotiated or terminated under the provisions of paragraph 7, but in no event shall the Agreement survive the termination or expiration of Sponsor's right to use, by license, lease, or transfer of ownership, of the land areas used in connection with joint use of the flying facilities of WAFB.
7. Renegotiation and Termination
a. If significant change in circumstances or conditions relevant to this Agreement should occur, the Air Force and Sponsor may enter into negotiations to revise the provisions of this Agreement, including financial and insurance provisions, upon sixty (60) days written notice to the other party. Any such revision or modification of this Agreement shall require the written mutual agreement and signatures of both parties. Unless such agreement is reached, the existing agreement shall continue in full force and effect, subject to termination or suspension under this section.
b. Notwithstanding any other provision of this Agreement, the Air Force may terminate this Agreement: (1) At any time by the Secretary of the Air Force, giving ninety (90) days written notice to Sponsor, provided that the Secretary of the Air Force determines, in writing, that paramount military necessity requires that joint use be terminated, or (2) at any time during any national emergency, present or future, declared by the President or the Congress of the United States, or (3) in the event that Sponsor ceases operation of the civil activities at WAFB for a period of one (1) year, or (4) in the event Sponsor violates any of the terms and conditions of this Agreement and continues and persists therein for thirty (30) days after written notification to cure such violation. In addition to the above rights, the Air Force may at any time suspend this agreement if violations of its terms and conditions by Sponsor create a significant danger to safety, public health, or the environment at WAFB.
c. The failure of either the Air Force or Sponsor to insist, in any one or more instances, upon the strict performance of any of the terms, conditions, or provisions of this Agreement shall not be construed as a waiver or relinquishment of the right to the future performance of any such terms, conditions, or provisions. No provision of this Agreement shall be deemed to have been waived by either party unless such waiver be in writing signed by such party.
a. No notice, order, direction, determination, requirement, consent, or approval under this Agreement shall be of any effect unless it is in writing and addressed as provided herein.
b. Written communication to Sponsor shall be delivered or mailed to Sponsor addressed: The Sponsor, 9000 Airport Blvd, USA.
c. Written communication to the Air Force shall be delivered or mailed to the Air Force addressed: Commander, WAFB, USA.
This Agreement does not affect the WAFB-Sponsor Fire Mutual Aid Agreement.
IN WITNESS WHEREOF, the respective duly authorized representatives of the parties hereto have executed this Agreement on the date set forth below opposite their respective signatures.
This letter of agreement establishes policies, responsibilities, and procedures for commercial air carrier operations at Warbucks AFB, USA, (WAFB) for the period (date)through(date) Military requirements will take precedence over civil aircraft operations. Should a conflict arise between air carrier and Air Force operational procedures, Air Force procedures will apply.
The following air carriers are authorized use, provided they have a civil aircraft landing permit approved at HQ USAF/XOOBC for such use:
The Bunker International Airport (BIA) manager or air carrier station managers will ensure that the WAFB Airfield Manager is provided current airline schedules during the approved period of use. Every effort will be made to avoid disruption of the air carriers’ schedules; however, it is understood that the installation commander will suspend or change flight plans when required to preclude interference with military activities or operations.
The BIA terminal will be used for passenger loading and unloading. Security checks will be performed at the terminal before loading passengers on buses. Luggage on arriving aircraft will be directly offloaded onto vehicles and delivered to the BIA terminal. Each arriving and departing bus or vehicle caravan will be accompanied by a credentialed representative of the airline or BIA to ensure its integrity enroute. Buses or vehicles transporting passengers to board an aircraft will not depart WAFB until the passengers are airborne. Unless an emergency exists, arriving passengers will not deplane until the buses are available for transportation to the BIA terminal. All checked luggage will be picked up at BIA and delivered directly to the departing aircraft. Buses will proceed directly to the aircraft at WAFB alert ramp. Luggage on arriving aircraft will be directly offloaded onto a vehicle parked on the WAFB alert ramp. WAFB will be notified, in advance, if a local funeral home requires access for pickup or delivery of deceased persons.
Air Force-owned fuel will not be provided. The air carriers will provide their own ground support equipment. Refueling equipment from BIA will be prepositioned at WAFB on the alert ramp. The Air Force shall not be responsible for any damage or loss to such equipment, and BIA expressly assumes all risks of any such loss or damage and agrees to indemnify and hold the United States harmless against any such damage or loss. No routine aircraft maintenance will be accomplished at WAFB. Emergency repairs and or maintenance are only authorized to avoid extended parking and storage of civil aircraft at WAFB.
The installation commander will exercise administrative and security control over both the aircraft and passengers on WAFB. Customs officials will be transported to and from the base by air carrier representatives. The installation commander will cooperate with customer, health, and other public officials to expedite arrival and departure of the aircraft. Air carrier representatives will notify the WAFB Airfield Manager, in advance, of armed security or law enforcement officers arriving or departing on a flight. BIA officials and air carrier representatives must provide the WAFB Airfield Manager a list of employees, contractors, and vehicles requiring flightline access. Temporary passes will
BIA will provide technical information and training for WAFB Fire Department personnel prior to(date). Fire, Crash, and Rescue Services will be provided in an emergency, but fire trucks will not routinely park on the flightline for aircraft arrivals and departures. BIA will reimburse WAFB for all such services.
The Air Force shall not be responsible for damages to property or injuries to persons which may arise from or be incident to the use of WAFB by BIA under this Agreement, or for damages to the property of BIA or injuries to the person of BIA's officers, agents, servants, employees, or invitees. BIA agrees to assume all risks of loss or damage to property and injury or death to persons by reason of or incident to the use of WAFB under this Agreement and expressly waives any and all claims against the United States for any such loss, damage, personal injury, or death caused by or occurring as a consequence of such use. BIA further agrees to indemnify, save, and hold the United States, its officers, agents, and employees harmless from and against all claims, demands, or actions, liabilities, judgments, costs, and attorneys fees, arising out of, claimed on account of, or in any manner predicated upon personal injury, death or property damage resulting from, related to, caused by, or arising out of the use of WAFB under this Agreement.
Landing and parking fees will be charged in accordance with to AFI 10-1001, Civil Aircraft Landing Permits. Charges will be made in accordance with the appropriate Air Force Instructions for any services or supplies required from WAFB. The WAFB Airfield Manager will be responsible for consolidating all charges which will be billed to BIA not later than(date)by the Accounting and Finance Office.
IN WITNESS WHEREOF, the respective duly authorized representatives of the parties hereto have executed this Agreement on the date set forth below opposite their respective signatures.
10 U.S.C. 8013; 10 U.S.C. 2640.
(a) Section 1204, Public Law 99-661; 10 U.S.C. 2640, Charter Air Transportation of Members of the Armed Forces.
(b) DOD Directive 4500.53, Commercial Passenger Airlift Management and Quality Control.
(c) AMCR 76-8, Contract Airlift Management, Civil Air Carriers.
(d) MTMCR 15-1, Procedure for Disqualifying and Placing Carriers in Nonuse.
Department of Defense Directive 4500.53, Commercial Passenger Airlift Management and Quality Control, charges the Commander, Air Mobility Command (AMC), with establishing safety standards and criteria for commercial passenger airlift service used by the Department of Defense. It also charges the Commander, AMC, jointly with the Commander, Military Traffic Management Command (MTMC), with establishing the Commercial Airlift Review Board and providing policy guidance and direction for its operation. This part establishes Department of Defense (DOD) quality and safety criteria for commercial air carriers providing or seeking to provide airlift services to the DOD. Included are the operating procedures of the Commercial Airlift Review Board (CARB). The CARB has the authority to suspend air carriers from DOD use or take other action when issues of air safety arise.
(a) DOD, as a customer of airlift services, expects an air carrier or operator soliciting for or doing business with the DOD to engage in quality programs and business practices that not only ensure good service but enhance the safety, operational, and maintenance standards established by the applicable Civil Aviation Agency Regulations (CARs). Accordingly, and as required by U.S. Public Law 99-661, the DOD has established a set of air carrier quality and safety requirements that reflect the type programs and practices the DOD seeks from air carriers or operators airlifting DOD resources.
(b) A DOD survey team will use the following requirements, the specifics of the applicable DOD contract or agreement, the CARs, and the experienced judgment of DOD personnel to evaluate an air carrier's capability to perform for the DOD. The survey will also include, with the carrier's coordination, observation of cockpit crew performance, as well as ramp inspections of selected company aircraft. A satisfactory on-site survey (audit) conducted by DOD personnel is prerequisite to participation in the DOD air transportation program. Surveys are conducted prior to an air carrier's acceptance into the program; thereafter, surveys will be completed on a biennial basis and when otherwise required to validate adherence to DOD quality and safety requirements. DOD personnel will also assess these quality and safety requirements when conducting periodic commercial air carrier table-top performance evaluations.
(c) The size of an air carrier, along with the type and scope of operations, will be considered during the on-site survey. For example, while an air taxi/FAA part 135 air carrier may not have a formal flight control function, such as a 24-hour dispatch organization, that same air taxi is expected to demonstrate some kind of effective flight following capability. On the other hand, a major carrier/FAA part 121 air carrier is expected to have a formal flight control or dispatch function. Both, however, will be evaluated based on the effectiveness and quality of whatever flight following function they do maintain.
(d) The air carrier requirements stated in this part provide the criteria against which would-be DOD air carrier contractors may be subjectively evaluated by the DOD. These requirements are neither all-inclusive nor are they inflexible in nature. They are not replacements for the certification criteria and other regulations established by civil aviation agencies; rather, these requirements are customer-developed and describe enhanced air carrier activities sought by the DOD.
The term “Civil Aviation Agency (CAA)” is used throughout this part since these requirements are applicable to U.S. and international air carriers doing business with DOD. CAA includes the United States Federal Aviation Administration.
(1)
(2)
(3)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(5)
(6)
(a) This part establishes the procedures to be used by the United States Air Force Air Mobility Command (AMC) and the United States Army Military Traffic Management Command (MTMC) when, in accordance with references § 861.1 (a) through (d):
(1) A commercial air carrier is subject to review or other action by the DOD Commercial Airlift Review Board (hereinafter referred to as the CARB),
(2) A warning, suspension, temporary nonuse, or reinstatement action is taken against a carrier by the CARB, or
(3) Review or other CARB action is escalated to a higher authority.
These procedures apply to all commercial air carriers providing DOD passenger or cargo airlift through charter, individual ticket movements, contracts, or other transportation agreements. They also apply to carriers providing air transportation purchased by DOD individuals for which government reimbursement will be made in whole or in part.
(b) Safety or airworthiness issues, per reference § 861.1(b) must be referred to the CARB. AMC and MTMC may each take independent corrective action in accordance with their respective procedures on standards of service issues when safety and airworthiness issues are not involved. The DOD Air Carrier Survey and Analysis Directorate will be informed of all actions taken independently by AMC or MTMC.
(c) Except as otherwise provided herein, the rights and remedies of the government and commercial air carriers outlined in these procedures are not exclusive and are in addition to any other rights and remedies provided for by law, regulation, contract, or agreement.
(d)
(2) Temporary nonuse is the immediate exclusion of a carrier from any flight activities in the DOD airlift transportation program, pending a decision on suspension, taken under the conditions outlined in paragraph (h)(1) of this section. By mutual agreement of the CARB and the air carrier involved, a suspension hearing or decision may be delayed and the air carrier
(3) Suspension is the exclusion of an air carrier from participating in the DOD airlift transportation program. The period of suspension will normally:
(i) Remain in effect until the carrier furnishes satisfactory evidence that the conditions causing the suspension have been remedied or
(ii) Be for a fixed period of time as determined at the discretion of the CARB.
(4) The procedures for commercial airlift safety review include five possible levels with increasing authority:
(i) DOD Air Carrier Survey and Analysis Directorate.
(ii) DOD Commercial Airlift Review Committee.
(iii) DOD Commercial Airlift Review Board.
(iv) Commanders MTMC and AMC.
(v) DOD Commercial Airlift Review Authority.
These levels are described in reference § 861.1(b), with the exception of the DOD Commercial Airlift Review Committee, which is described in reference § 861.1(c). The Committee provides multifunctional review of the efforts of the DOD Air Carrier Survey and Analysis Directorate, including approval or disapproval of carriers initially seeking DOD business, and offers advice to the higher authorities when appropriate.
(e)
(i) Failing to comply with generally accepted standards of airmanship, training, and maintenance practices and procedures.
(ii) Failing to satisfy DOD quality and safety requirements as described in § 861.3.
(iii) Failing to comply with all provisions of applicable statutes, agreements, and contract terms, as such may affect flight safety, as well as with all applicable Federal Aviation Administration regulations, airworthiness directives, orders, rules, and standards promulgated under the Federal Aviation Act of 1958 as amended.
(iv) Involvement of one of the carrier's aircraft in a serious or fatal accident, incident, or operational occurrence (regardless of whether or not such aircraft is being used in the performance of government procured transportation).
(v) Any other condition which affects the safe operation of the carrier's flights hereunder.
(vi) Compliance with published standards does not, standing alone, constitute compliance with generally accepted standards or airmanship, training, or maintenance practices.
(f)
(g)
(2) The HQ AMC senior member will act as the CARB chairperson. A voting member who will not be present at any meeting of the CARB, may be represented by a knowledgeable alternate empowered with the voting responsibilities of the voting member. Three voting members (or their alternate) shall constitute a quorum. Decisions shall be by majority vote. In the case of a tie vote, the chairperson will have the deciding vote.
(3) The meeting date, time, and site of the CARB will be determined at the time of the decision to convene the CARB. Teleconferencing, if utilized, will be specified in the notice to the carrier.
(4) Minutes of CARB hearings may be recorded or summarized and will be maintained with all other records pertaining to the CARB proceeding.
(5) The CARB recorder shall ensure that the air carrier and appropriate
(h)
(ii) Such determination shall include consideration of the advice of the DOD Commercial Airlift Review Committee, if reasonably available, but will not await such advice.
(iii) The carrier shall be promptly notified of the temporary nonuse determination and the basis therefore.
(iv) Temporary nonuse status terminates automatically if suspension proceedings are not commenced, as set out in paragraph (h)(2)(ii) of this section, within 30 days of inception, unless otherwise agreed to per paragraph (d)(2) of this section.
(2)
(ii) If the CARB determines that suspension may be appropriate, it shall notify the carrier that suspension action is under consideration and of the basis for such consideration and offer the carrier a hearing thereon within 15 days of the date of the notice, or such other period as granted by the CARB, at which the carrier may be present and may offer evidence. The presiding member of the CARB shall establish procedures for such hearing as may be appropriate which shall be as informal as practicable, consistent with administrative due process.
(iii) Types of evidence which may be considered, if appropriate, shall include, but not be limited to, the following:
(A) Information and analysis provided by the DOD Air Carrier Survey and Analysis Directorate.
(B) Carrier's written/oral evidence.
(C) Corrective actions that may have been taken by the carrier to:
(
(
(D) Such other matters as the CARB deems relevant.
(E) The CARB's decisions on the reception or exclusion of evidence shall be final.
(iv) Carriers shall have the burden of proving their suitability to safely perform DOD airlift services by clear and convincing evidence.
(v) After the conclusion of such hearing, or if no hearing is requested and attended by the carrier within the time specified by the CARB, the CARB shall consider the matter and make a final decision whether or not to suspend the carrier or to impose such lesser sanction as is appropriate. The carrier shall be notified of the CARB's decision.
(3)
(ii) The carrier has the burden of proving by clear and convincing evidence that the reinstatement considerations in paragraph (f) of this section have been satisfied.
(iii) Carrier evidence in support of reinstatement will be provided in a timely manner to the CARB for its review. The CARB may independently corroborate the carrier-provided evidence and may, at its option, convene a hearing and request the participation of the carrier.
(i)
(j)
(2) An appeal will be in writing only and carriers shall not be entitled to a de novo hearing before the administrative appellate authorities.
(3) The following administrative appellate authorities will review and make decisions on appeals:
(i) When the decision being appealed was made by the CARB, the appellate authorities are Commander, AMC, and Commander, MTMC. They will jointly decide the appeal.
(ii) When Commander, AMC, and Commander, MTMC, are unable to jointly agree on an appeal, they shall refer the matter to the DOD Commercial Airlift Review Authority (CARA) for its decision.
(iii) When the decision being appealed was made by Commander, AMC, and Commander, MTMC, the appellate authority is the DOD CARA.
10 U.S.C. 1034, 1552.
This subpart sets up procedures for correction of military records to remedy error or injustice. It tells how to apply for correction of military records and how the Air Force Board for Correction of Military Records (AFBCMR, or the Board) considers applications. It defines the Board's authority to act on applications. It directs collecting and maintaining information subject to the Privacy Act of 1974 authorized by 10 U.S.C. 1034 and 1552. System of Records notice F035 SAFCB A, Military Records Processed by the Air Force Correction Board, applies.
The AFBCMR operates within the Office of the Secretary of the Air Force according to 10 U.S.C. 1552. The Board consists of civilians in the executive part of the Department of the Air Force who are appointed and serve at the pleasure of the Secretary of the Air Force. Three members constitute a quorum of the Board.
(a)
(b)
(c)
(a)
(2) An applicant with a proper interest may request correction of another person's military records when that person is incapable of acting on his or her own behalf, is missing, or is deceased. Depending on the circumstances, a child, spouse, parent or other close relative, an heir, or a legal representative (such as a guardian or executor) of the member or former member may be able to show a proper interest. Applicants will send proof of proper interest with the application when requesting correction of another person's military records.
(b)
(1) Any Air Force Military Personnel Flight (MPF) or publications distribution office.
(2) Most veterans’ service organizations.
(3) The Air Force Review Boards Office, SAF/MIBR, 550 C Street West, Suite 40, Randolph AFB TX 78150-4742.
(4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB MD 20331-7002.
(c)
(1) Review Air Force Pamphlet 36-2607.
(2) Discuss their concerns with MPF, finance office, or other appropriate officials. Errors can often be corrected administratively without resort to the Board.
(3) Exhaust other available administrative remedies (otherwise the Board may return the request without considering it).
(d)
(1) The name under which the member served.
(2) The member's social security number or Air Force service number.
(3) The applicant's current mailing address.
(4) The specific records correction being requested.
(5) Proof of proper interest if requesting correction of another person's records.
(6) The applicant's signature.
(e) Applicants should mail the original signed DD Form 149 and any supporting documents to the Air Force address on the back of the form.
(f)
(1) The Board may excuse untimely filing in the interest of justice.
(2) If the application is filed late, applicants should explain why it would be in the interest of justice for the Board to waive the time limits.
(g)
(h)
(1) The term “counsel” includes members in good standing of the bar of any state, accredited representatives of veterans’ organizations recognized under 38 U.S.C. 3402, and other persons determined by the Executive Director of the Board to be competent to represent the interests of the applicant.
(2) See Department of Defense Directive (DoDD) 7050.6, Whistleblower Protection Act, 3 September 1992,
(i)
(1) May not exceed twenty-five double-spaced typewritten pages.
(2) Must be typed on one side of a page only with not more than twelve characters per inch.
(3) Must be assembled in a manner that permits easy reproduction.
(j) Responses to advisory opinions must not exceed ten double-spaced typewritten pages and meet the other requirements for briefs.
(k) These limitations do not apply to supporting documentary evidence.
(l) In complex cases and upon request, the Executive Director of the Board may waive these limitations.
(m)
(a)
(1) May get additional information and advisory opinions on an application from any Air Force organization or official.
(2) May require the applicant to furnish additional information necessary to decide the case.
(b) Applicants will normally be given an opportunity to review and comment on advisory opinions and additional information obtained by the Board.
(c)
(d) The panel may decide the case in executive session or authorize a hearing. When a hearing is authorized, the procedures in paragraph (f) of this section apply.
(e)
(f)
(g) The Executive Director will notify the applicant or counsel, if any, of the time and place of the hearing. Written notice will be mailed thirty days in advance of the hearing unless the notice period is waived by the applicant. The applicant will respond not later than fifteen days before the hearing date, accepting or declining the offer of a hearing and, if accepting, provide information pertaining to counsel and witnesses. The Board will decide the case in executive session if the applicant declines the hearing or fails to appear.
(h) When granted a hearing, the applicant may appear before the Board in person, represented by counsel, or in person with counsel and may present witnesses. It is the applicant's responsibility to notify witnesses, arrange for their attendance at the hearing, and pay any associated costs.
(i) The panel chair conducts the hearing, maintains order, and ensures the applicant receives a full and fair opportunity to be heard. Formal rules of evidence do not apply, but the panel observes reasonable bounds of competency, relevancy, and materiality. Witnesses other than the applicant will not be present except when testifying. Witnesses will testify under oath or affirmation. A recorder will record the proceedings verbatim. The chair will normally limit hearings to two hours but may allow more time if necessary to ensure a full and fair hearing.
(j) Additional provisions apply to cases processed under 10 U.S.C. 1034. See DoDD 7050.6.
(k) The Board will not deny or recommend denial of an application on the sole ground that the issue already has been decided by the Secretary of the Air Force or the President of the United States in another proceeding.
(l)
(1) Whether the provisions of the Military Whistleblowers Protection
(2) Whether the application was timely filed and, if not, whether the applicant has demonstrated that it would be in the interest of justice to excuse the untimely filing. When the Board determines that an application is not timely, and does not excuse its untimeliness, the application will be denied on that basis.
(3) Whether the applicant has exhausted all available and effective administrative remedies. If the applicant has not, the application will be denied on that basis.
(4) Whether the applicant has demonstrated the existence of a material error or injustice that can be remedied effectively through correction of the applicant's military record and, if so, what corrections are needed to provide full and effective relief.
(5) In Military Whistleblowers Protection Act cases only, whether to recommend to the Secretary of the Air Force that disciplinary or administrative action be taken against any Air Force official whom the Board finds to have committed an act of reprisal against the applicant. Any determination on this issue will not be made a part of the Board's record of proceedings and will not be given to the applicant, but will be provided directly to the Secretary of the Air Force under separate cover (§ 865.2(b)).
(m)
(1) The name and vote of each Board member.
(2) The application.
(3) Briefs and written arguments.
(4) Documentary evidence.
(5) A hearing transcript if a hearing was held.
(6) Advisory opinions and the applicant's related comments.
(7) The findings, conclusions, and recommendations of the Board.
(8) Minority reports, if any.
(9) Other information necessary to show a true and complete history of the proceedings.
(n)
(o)
(p)
(1) Denies any application (except under 10 U.S.C. 1034).
(2) Grants any application in whole or part when the relief was recommended by the official preparing the advisory opinion, was unanimously agreed to by the panel, and does not involve an appointment or promotion requiring confirmation by the Senate.
(q) The Board sends the record of proceedings on all other applications to the Secretary of the Air Force or his or her designee for final decision.
(a) The Secretary may direct such action as he or she deems appropriate on each case, including returning the case to the Board for further consideration. Cases returned to the Board for further reconsideration will be accompanied by a brief statement of the reasons for such action. If the Secretary does not accept the Board's recommendation, the decision will be in writing and will include a brief statement of the grounds for denial.
(b) Decisions in cases under the Military Whistleblowers Protection Act. The Secretary will issue decisions on such cases within 180 days after receipt
(1) Of the name and address of the official to whom the request for review must be submitted.
(2) That the request for review must be submitted within ninety days after receipt of the decision by the Secretary of the Air Force.
(3) That the request for review must be in writing and include the applicant's name, address, and telephone number; a copy of the application to the AFBCMR and the final decision of the Secretary of the Air Force; and a statement of the specific reasons the applicant is not satisfied with the decision of the Secretary of the Air Force.
(4) That the request must be based on the Board record; requests for review based on factual allegations or evidence not previously presented to the Board will not be considered under this section but may be the basis for reconsideration by the Board under § 865.6.
(c) Decisions in cases filed under Section 507, Public Law 103-160. The Secretary will issue a decision within 60 days of receipt of the case of an officer who:
(1) Was offered the opportunity to be discharged or separated from active duty under the Voluntary Separation Incentive (VSI) or Special Separation Benefit (SSB) programs,
(2) Elected not to accept such discharge or separation,
(3) Was thereafter discharged or separated from active duty, after September 30, 1990, as a result of selection by a board convened to select officers for early separation (a “RIF board”),
(4) Files an application with the Board within two years of the date of separation or discharge, or one year after March 1, 1996, whichever is later, alleging that the officer was not effectively counseled, before electing not to accept discharge or separation under the VSI/SSB programs, concerning the officer's vulnerability to selection for involuntary discharge or separation (“RIF”), and
(5) Requests expedited consideration under this section.
(d) Upon finding of ineffective counseling, the Secretary will provide the officer with an opportunity to participate, at the officer's option, in the VSI or SSB programs or, if eligible, in an early retirement program.
(e) In cases under §§ 865.5(b) and 865.5(c) which involve additional issues not cognizable under those sections, the additional issues may be considered separately by the Board under §§ 865.3 and 865.4. The special time limits in §§ 865.5(b) and 865.5(c) do not apply to the decision concerning these additional issues.
The Board may reconsider an application if the applicant submits newly discovered relevant evidence that was not available when the application was previously considered. The Executive Director will screen each request for reconsideration to determine whether it contains new evidence.
(a) If the request contains new evidence, the Executive Director will refer it to a panel of the Board for a decision. The Board will decide the relevance and weight of any new evidence, whether it was reasonably available to the applicant when the application was previously considered, and whether it was submitted in a timely manner. The Board may deny reconsideration if the request does not meet the criteria for reconsideration. Otherwise the Board will reconsider the application and decide the case either on timeliness or merit as appropriate.
(b) If the request does not contain new evidence, the Executive Director will return it to the applicant without referral to the Board.
(a)
(b)
(c) The Executive Director will furnish the Defense Finance and Accounting Service (DFAS) with AFBCMR decisions potentially affecting monetary entitlement or benefits. DFAS will treat such decisions as claims for payment by or on behalf of the applicant.
(d) DFAS settles claims on the basis of the corrected military record. Computation of the amount due, if any, is a function of DFAS. Applicants may be required to furnish additional information to DFAS to establish their status as proper parties to the claim and to aid in deciding amounts due.
(e)
(a) At the request of the Board, all Air Force activities and officials will furnish the Board with:
(1) All available military records pertinent to an application.
(2) An advisory opinion concerning an application. The advisory opinion will include an analysis of the facts of the case and of the applicant's contentions, a statement of whether or not the requested relief can be done administratively, and a recommendation on the timeliness and merit of the request. Regardless of the recommendation, the advisory opinion will include instructions on specific corrective action to be taken if the Board grants the application.
(b)
(c)
Sec. 8012, 70A Stat. 488; sec. 1553, 72 Stat. 1267, 10 U.S.C. 8012, 1553.
This subpart establishes policies for the review of discharges and dismissals under 32 CFR part 70, “Discharge Review Boards Procedures and Standards,” 47 FR 37770, August 26, 1982. 1982, and explains the jurisdiction, authority, and actions of the Air Force Discharge Review Board. It applies to all Air Force activities. This subpart is affected by the Privacy Act of 1974. The system of records cited in this subpart is authorized by 10 U.S.C. 1553 and 8012. Each data gathering form or format which is required by this subpart contains a Privacy Act Statement, either incorporated in the body of the document or in a separate statement accompanying each such document.
(a) Title 10 U.S.C., section 1553.
(b) Title 38 U.S.C., sections 101 and 3103, as amended by Pub. L. 95-126, October 8, 1977.
(c) DOD Directive 5000.19, “Policies for the Management and Control of Information Requirements,” March 12, 1976.
(d) DOD Directive 5000.11, “Data Elements and Data Codes Standardization Program,” December 7, 1964.
(e) DOD Directive 5000.12-M “DOD Manual for Standard Data Elements,” December 1981.
(f) DOD Directive 1332.14, “Enlisted Administrative Separations,” January 28, 1982.
(g) DOD Directive 5400.7, “DOD Freedom of Information Act Program,” March 24, 1980; title 5 U.S.C., section 552.
(h) DOD Directive 5400.11, “Department of Defense Privacy Program,” June 9, 1982; title 5 U.S.C., section 552a.
(i) Title 10 U.S.C., chapter 47, Uniform Code of Military Justice.
(j) Wood v. Secretary of Defense, Civ. No. 77-0684 (D.D.C.) (Order, December 3, 1981).
(k) Urban Law Institute of Antioch College, Inc. v. Secretary of Defense, Civ. No. 76-0530, (D.D.C.) (Stipulation of Dismissal, January 31, 1977) (Order and Settlement Agreement, July 30, 1982).
(l) Air Force Regulation 35-41, Vol III, Separation Procedures for USAFR Members, dated October 30, 1975.
(m) Air Force Regulation 36-2, Officer Personnel, Administrative Discharge Procedures, August 2, 1976.
(n) Air Force Regulation 36-3, Officer Personnel, Administrative Discharge Procedures, August 2, 1976.
(o) Air Force Regulation 36-12, Officer Personnel, Administrative Separation of Commissioned Officers and Warrant Officers, July 15, 1977.
(p) Air Force Regulation 39-10, Separation Upon Expiration of Term of Service, for Convenience of Government, Minority, Dependency and Hardship, January 3, 1977.
(q) Air Force Manual 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, September 1, 1966.
(r) Air National Guard Regulation 39-10, Enlisted Personnel-Separation, December 30, 1971.
The Air Force Discharge Review Board (DRB) was established within the Department of the Air Force under section 301 of the Serviceman's Readjustment Act of 1944, as amended (now 10 U.S.C. 1553) and further amended by Pub. L. 95-126 dated October 8, 1977.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
The Secretary of the Air Force is responsible for the overall operation of the Discharge Review program within the Department of the Air Force. The following delegation of authority have been made:
(a) To the Office of the Assistant Secretary of the Air Force (Manpower, Reserve Affairs and Installations) to act for the Secretary of the Air Force in all discharge review actions subject to review by the Secretary as specified in § 865.113 of this subpart.
(b) To the Director, Air Force Personnel Council, for operation of all phases of the discharge review function and authority to take action in the name of the Secretary of the Air Force in all discharge review actions except those specified in § 865.113 of this subpart.
The DRB has jurisdiction and authority in cases of former military personnel who, at the time of their separation from the Service, were members of the US Army Aviation components (Aviation Section, Signal Corps; Air Service; Air Corps; or Air Forces) prior to September 17, 1947, or the US Air Force. The DRB does not have jurisdiction and authority concerning personnel of other armed services who at the time of their separation, were assigned to duty with the Army Air Forces or the US Air Force.
(a) The DRB's review is based on the former member's available military records, issues submitted by the former member, or his counsel and on any other evidence that is presented to the DRB. The DRB determines whether the type of discharge or dismissal the former member received is equitable and proper; if not, the DRB instructs the USAF Manpower and Personnel Center (AFMPC) to change the discharge reason or to issue a new character of discharge according to the DRB's findings.
(b) The DRB is not authorized to revoke any discharge, to reinstate any person who has been separated from the military service, or to recall any person to active duty.
(c) The DRB, on its own motion, may review a case that appears likely to result in a decision favorable to the former military member, without the member's knowledge or presence. In this case, if the decision is:
(1) Favorable, the DRB directs AFMPC to notify the former member accordingly at the member's last known address.
(2) Unfavorable, the DRB returns the case to the files without any record of formal action; the DRB then reconsiders the case without prejudice in accordance with normal procedures.
(a)
(b)
(c)
(1)
(2)
(3) The applicant must ensure that issues submitted to the DRB are consistent with the request for change in discharge set forth in “Board Action Requested” of the DD Form 293. If an ambiguity is created by a difference between an applicant's issue and the requested action, the DRB will respond to the issue in the context of the action requested in “Board Action Requested.” In the case of a Personal Appearance hearing, the DRB will attempt to resolve the ambiguity.
(d) If the member is deceased or mentally incompetent, the spouse, next-of-kin, or legal representative may, as agent for the member, submit the application for the review along with proof of the member's death or mental incompetency.
(e) Applicants forward their requests for review to the USAF Manpower and Personnel Center-mailing address: AFMPC/MPCDOA1, Randolph AFB TX 78150. AFMPC will obtain all available military records of the former members from the National Personnel Records Center.
(f)
(g)
(1)
(2)
(3)
(i) Provides a means for an applicant to set forth clearly and specifically those matters that, in the opinion of the applicant, provide a basis for changing the discharge;
(ii) Assists the DRB in focusing on those matters considered to be important by an applicant;
(iii) Assists the DRB in distinguishing between a matter submitted by an applicant in the expectation that it will be treated as a decisional issue under § 865.112, and those matters submitted simply as background or supporting materials;
(iv) Provides the applicant with greater rights in the event that the applicant later submits a complaint under § 865.121 of this subpart concerning the decisional document.
(v) Reduces the potential for disagreement as to the content of an applicant's issue.
(4)
(5)
(h)
(i)
(j)
(1) The issue must be set forth or expressly incorporated in the “Applicant's Issue” portion of DD Form 293.
(2) If an applicant's issue cites a prior decision (of the DRB, another Board, an agency, or a court), the applicant shall describe the specific principles and facts that are contained in the prior decision and explain the relevance of cited matter to the applicant's case.
(3) To insure timely consideration of principles cited from unpublished opinions (including decisions maintained by the Armed Forces Discharge Review Board/Correction Board Reading Room), the applicant must provide the DRB with copies of such decisions or of the relevant portion of treatise, manual, or similar source in which the principles were discussed. At the applicant's request, such materials will be returned.
(4) If the applicant fails to comply with the requirements above, the decisional document shall note the defect, and shall respond to the issue without regard to the citation.
(k)
(1)
(2)
(i) Limit by DRB's authority to question an applicant as to the meaning of such matter;
(ii) Preclude the DRB from developing decisional issues based upon such questions:
(iii) Prevent the applicant from amending or withdrawing such matter any time before the DRB closes the review process for deliberation; or
(iv) Prevent the DRB from presenting an applicant with a list of proposed decisional issues and written information concerning the right of the applicant to add to, amend, or withdraw the applicant's submission. The written information will state that the applicant's decision to take such action (or decline to do so) will not be used against the applicant in the consideration of the case.
(3) Additional Issues Identified During a Hearing. The following additional procedure shall be used during a hearing in order to promote the DRB's understanding of an applicant's presentation. If before closing the hearing for deliberation, the DRB believes that an applicant has presented an issue not listed on DD Form 293, the FRB may so inform the applicant, and the applicant may submit the issue in writing or add additional written issues at that time. This does not preclude the DRB from developing its own decisional issues.
(l)
(1) Such absence must have been included as part of the basis for the applicant's discharge under other than honorable conditions.
(2) Such absence is computed without regard to the applicant's normal or adjusted expiration of term of service.
(a) The DRB consists of five members, with the senior line officer acting as the presiding officer. The presiding officer convenes, recesses and adjourns the Board.
(b) In addition to holding hearings in Washington, DC, the DRB, as a convenience to applicants, periodically conducts hearings at selected locations throughout the Continental United States. Reviews are conducted at locations central to those areas with the greatest number of applicants. A continuing review and appraisal is conducted to ensure the selected hearing locations are responsive to a majority of applicants. Administrative details
(a) Before applying for discharge review, potential applicants or their designated resentatives may, and are encouraged to obtain copies of their military personnel records by submitting a General Services Administration Standard Form 180, Request Pertaining to Military Records, to the National Personnel Records Center (NPRC) 9700 Page Boulevard, St. Louis, Mo 63132; thus avoiding any lengthy delays in the processing of the application (DD Form 293) and the scheduling of reviews.
(1) Once the application for discharge review (DD Form 293) is submitted, an applicant's military records are forwarded to the DRB where they cannot be reproduced. Submission of a request for an applicant's military records, including a request under the Freedom of Information Act or Privacy Act after the DD Form 293 has been submitted, shall result automatically in the termporary suspension of processing of the application for discharge review until the requested records are sent to an appropriate location for copying, are copied, and returned to the headquarters of the DRB. Processing of the application shall then be resumed at whatever stage of the discharge review process is practicable.
(2) Applicants and their designated representatives also may examine their military personnel records at the site of their scheduled review before the hearing. The DRB shall notify applicants and their designated representatives of the dates the records are available for examination in their standard scheduling information.
(b) The DRB is not authorized to provide copies of documents that are under the cognizance of another government department, office, or activity. Applications for such information must be made by the applicant to the cognizant authority. The DRB shall advise the applicant of the mailing address of the government department, office, or activity to which the request should be submitted.
(c) If the official records relevant to the discharge review are not available at the agency having custody of the records, the applicant shall be so notified and requested to provide such information and documents as may be desired in support of the request for discharge review. A period of not less than 30 days shall be allowed for such documents to be submitted. At the expiration of this period, the review may be conducted with information available to the DRB.
(d) The DRB may take steps to obtain additional evidence that is relevant to the discharge under consideration beyond that found in the official military records or submitted by the applicant, if a review of available evidence suggests that it would be incomplete without the additional information, or when the applicant presents testimony or documents that require additional information to evaluate properly. Such information shall be made available to the applicant, upon request, with appropriate modifications regarding classified material.
(1) In any case heard on the request of an applicant, the DRB shall provide the applicant and counsel or representative, if any, at a reasonable time before initiating the decision process, a notice of the availability of all regulations and documents to be considered in the discharge review, except for documents in the official personnel or medical records and any documents submitted by the applicant. The DRB shall also notify the applicant or counsel or representative (i) of the right to examine such documents or to be provided with copies of documents upon request; (ii) of the date by which such request must be received; and (iii) of the opportunity to respond within a reasonable period of time to be set be the DRB.
(2) When necessary to acquaint the applicant with the substance of a classified document, the classifying authority, on the request of the DRB, shall prepare a summary of or an extract from the document, deleting all reference to source of information and other matters, the disclosure of which, in the opinion of the classifying authority, would be detrimental to the national security interest of the United
(e) Current Air Force numbered publications may be obtained from the Chief, Central Base Administration at any major Air Force installation or by writing:
(a) The applicant is entitled, by law, to appear in person at his or her request before the DRB in open session and to be represented by counsel of his or her own selection. The applicant also may present such witnesses as he or she may desire.
(b) There are two types of reviews. They are:
(1)
(2)
(c) The Government does not compensate or pay the expenses of the applicant, applicant's witnesses, or counsel.
(d) A summary of the available military records of the applicant is prepared for use by the DRB in the review process. A copy of the summary is available to the applicant and/or his or her counsel, upon request.
(e) When an applicant has requested a personal appearance and/or representation by counsel on the DD Form 293, the DRB sends written notice of the hearing time and place to the applicant and designated counsel. Evidence of such notification will be placed in the applicant's record.
(f) Personal appearance hearings shall be conducted with recognition of the rights of the individual to privacy. Accordingly, presence at hearings of individuals other than those whose presence is required will be limited to persons authorized by the presiding officer and/or expressly requested by the applicant, subject to reasonable limitations based upon available space.
(g) Formal rules of evidence shall not be applied in DRB proceedings. The presiding officer shall rule on matters of procedure and shall ensure that reasonable bounds of relevancy and materiality are maintained in the taking of evidence and presentation of witnesses. Applicants and witnesses may present evidence to the DRB panel either in person or by affidavit or through counsel. If an applicant or witness testifies under oath or affirmation, he or she is subject to questioning by Board members.
(h) There is a presumption of regularity in the conduct of governmental affairs. This presumption can be applied in any review unless there is substantial credible evidence to rebut the presumption.
(i)
(i) When the applicant and/or a designated counsel or representative has been sent a letter containing the date and location of a proposed hearing and fails to make a timely response; or
(ii) When the applicant and/or a designated representative, after being notified by letter of the time and place of the hearing, fails to appear at the appointed time, either in person or by representative, without having made a prior, timely request for a postponement or withdrawal.
(2) In such cases, the applicant shall be deemed to have waived his/her right to a hearing, and the DRB shall complete its review of the discharge. Further request for a hearing shall not be granted unless the applicant can demonstrate that the failure to appear or respond was due to circumstances beyond the applicant's control.
(j)
(2) Postponements of scheduled reviews normally shall not be permitted other than for demonstrated good and sufficient reason set forth by the applicant in a timely manner, or for the convenience of the government.
(k)
(1) Where the only previous consideration of the case was on the motion of the DRB;
(2) When the original discharge review did not involve a personal appearance hearing and a personal appearance is now desired, and the provisions of § 865.109(j) do not apply;
(3) Where changes in discharge policy are announced subsequent to an earlier review of an applicant's discharge, and the new policy is made expressly retroactive;
(4) Where the DRB determines that policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration, provided that such changes in policies or procedures represent a substantial enhancement of the rights afforded an applicant in such proceeding;
(5) Where an individual is to be represented by a counsel/representative, and was not so represented in any previous consideration of the case.
(6) Where the case was not previously considered under the uniform standards published pursuant to Pub. L. 95-126 and application is made for such consideration within 15 years after the date of discharge; or
(7) On the basis of presentation of new, substantial, relevant evidence not available to the applicant at the time of the original review. The decision as to whether evidence offered by an applicant in support of a request for reconsideration is in fact new, substantial, relevant, and was not available to the applicant at the time of the original review will be based on a comparison of such evidence with the evidence considered in the previous discharge review. If this comparison shows that the evidence submitted would have had a probable effect on matters concerning the propriety or equity of the discharge, the request for reconsideration shall be granted.
(a) The DRB shall meet in plenary session to review discharges and exercise its discretion on a case-by-case basis in applying the standards set forth in this regulation.
(b) The presiding officer is responsible for the conduct of the discharge review. The presiding officer shall convene, recess, and adjourn the DRB as appropriate, and shall maintain an atmosphere of dignity and decorum at all times.
(c) Each board member shall act under oath or affirmation requiring careful, objective consideration of the application. They shall consider all relevant material and competent information presented to them by the applicant. In addition, they shall consider all available military records, together with such other records as may be in the files and relevant to the issues before the DRB.
(d) The DRB shall identify and address issues after a review of the following material obtained and presented in accordance with this subpart and 32 CFR part 70: available official military records, documentary evidence submitted by or on behalf of the applicant, presentation of testimony by or on behalf of the applicant, oral or written arguments presented by or on behalf of the applicant, and any other relevant evidence.
(e) Application of Standards:
(1) When the DRB determines that an applicant's discharge was improper, the DRB will determine which reason for discharge should have been assigned based upon the facts and circumstances properly before the discharge authority in view of the regulations governing reasons for discharge at the time the applicant was discharged.
(2) When the board determines that an applicant's discharge was inequitable, any change will be based on the
(f) Voting shall be conducted in closed session, a majority of the five members’ votes constituting the DRB's decision.
(g) Details of closed session deliberations of a DRB are privileged information and shall not be divulged.
(h) A formal minority opinion may be submitted in instances of disagreement between members of a board. The opinion must cite findings, conclusions and reasons which are the basis for the opinion. The complete case with the majority and minority recommendations will be submitted to the Director, Air Force Personnel Council.
(i) The DRB may request advisory opinions from staff offices of the Air Force. These opinions are advisory in nature and are not binding on the DRB in its decision making process.
(a) If an issue submitted by an applicant contains two or more clearly separate issues, the DRB should respond to each issue under the guidance of this section as if it had been set forth separately by the applicant.
(b) If an applicant uses a “building block” approach (that is, setting forth a series of conclusions on issues that lead to a single conclusion purportedly warranting a change in the applicant's discharge), normally there should be a separate response to each issue.
(c) This section does not preclude the DRB from making a single response to multiple issues when such action would enhance the clarity of the decisional document, but such response must reflect an adequate response to each separate issue.
(d) An item submitted as an issue by an applicant in accordance with this regulation shall be addressed as a decisional issue under § 865.112 of this subpart in the following circumstances:
(1) When the DRB decides that a change in discharge should be granted, and the DRB bases its decision in whole or in part on the applicant's issue; or
(2) When the DRB does not provide the applicant with the full change in discharge requested, and the decision is based in whole or in part on the DRB's disagreement with the merits of an issue submitted by the applicant.
(e) If the applicant receives the full change in discharge requested (or a more favorable change), that fact shall be noted and the basis shall be addressed as a decisional issue even if that basis is not addressed as an issue by the applicant. No further response is required to other issues submitted by the applicant.
(f) If the applicant does not receive the full change in discharge requested with respect to either the character of or reason for discharge (or both), the DRB shall address the items submitted by the applicant unless one of the following responses is applicable:
(1)
(2)
(3)
(4)
(a) The decisional document shall discuss the issues that provide a basis for the decision whether there should be a change in the character of or reason for discharge. In order to enhance clarity, the DRB should not address matters other than issues relied upon in the decision or raised by the applicant.
(b)
(c)
(d)
(2) If an applicant identifies an issue as pertaining to the propriety of the discharge (for example, by citing a propriety standard or otherwise claiming that a change in discharge is required as a matter of law), the DRB shall consider the issue solely as a matter of propriety. Except as provided in § 865.112(d)(4), the DRB is not required to consider such an issue under the equity standards.
(3) If the applicant's issue contends that the DRB is required as a matter of law to follow a prior decision by setting forth an issue of propriety from the prior decision and decribing its relationship to the applicant's case, the issue shall be considered under the propriety standards and addressed under § 865.112(e) or § 865.112(f).
(4) If the applicant's issue sets forth principles of equity contained in a prior DRB decision, describes the relationship to the applicant's case, and contends that the DRB is required as a matter of law to follow the prior case, the decisional document shall note that the DRB is not bound by its discretionary decisions in prior cases under the standards in § 865.120 of this subpart. However, the principles cited by the applicant, and the description of the relationship of the principles to the applicant's case, shall be considered under the equity standards and addressed under § 865.112(h) or § 865.112(i).
(5) If the applicant's issue cannot be identified as a matter of propriety or equity, the DRB shall address it as an issue of equity.
(e)
(f)
(1) If a reason is based in whole or in part upon a part, statute, constitutional provision, judicial determination, or other source of law, the DRB shall cite the pertinent source of law and the facts in the record that demonstrate the relevance of the source of law to the particular circumstances in the case.
(2) If a reason is based in whole or in part on a determination as to the occurrence or nonoccurrence of an event or circumstance, including a factor required by applicable Air Force regulations to be considered for determination of the character of and reason for the applicant's discharge, the DRB shall make a finding of fact for each such event or circumstance.
(i) For each such finding, the decisional document shall list the specific source of the information relied upon. This may include the presumption of regularity in appropriate cases. If the information is listed in the service record section of the decisional document, a citation is not required.
(ii) If a finding of fact is made after consideration of contradictory evidence in the record (including information cited by the applicant or otherwise identified by members of the DRB), the decisional document shall set forth the conflicting evidence, and explain why the information relied upon was more persuasive than the information that was rejected. If the presumption of regularity is cited as the basis for rejecting such information, the decisional document shall explain why the contradictory evidence was insufficient to overcome the presumption. In an appropriate case, the explanation as to why the contradictory evidence was insufficient to overcome the presumption of regularity may consist of a statement that the applicant failed to provide sufficient corroborating evidence, or that the DRB did not find the applicant's testimony to be sufficiently credible to overcome the presumption.
(3) If the DRB disagrees with the position of the applicant on an issue of propriety, the following guidance applies in addition to the guidance in § 842.112(f) (1) and (2).
(i) The DRB may reject the applicant's position by explaining why it disagrees with the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant).
(ii) The DRB may reject the applicant's position by explaining why the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant) are not relevant to the applicant's case.
(iii) The DRB may reject an applicant's position by stating that the applicant's issue of propriety is not a matter upon which the DRB grants a change in discharge, and by providing an explanation for this position. When the applicant indicates that the issue is to be considered in conjunction with one or more other specified issues, the explanation will address all such specified issues.
(iv) The DRB may reject the applicant's position on the grounds that other specified factors in the case preclude granting relief, regardless of whether the DRB agreed with the applicant's position.
(v) If the applicant takes the position that the discharge must be changed because of an alleged error in a record associated with the discharge, and the record has not been corrected by the organization with primary responsibility for corrective action, respond that it will presume the validity of the record in the absence of such corrective action. If the organization empowered to correct the record is within the Department of the Air Force, the DRB should provide the applicant with a brief description of the procedures for requesting correction of the record. If the DRB on its own motion cites this issue as a decisional issue on the basis of equity, it shall address the issue as such.
(vi) When an applicant's issue contains a general allegation that a certain course of action violated his or her constitutional rights, respond in appropriate cases by noting that the action was consistent with statutory or regulatory authority, and by citing the presumption of constitutionality that attaches to statutes and regulations. If, on the other hand, the applicant makes a specific challenge to the constitutionality of the action by challenging
(g)
(h)
(i)
(1) If a reason is based in whole or in part upon a part, statute, constitutional provision, judicial determination, or other source of law, the DRB shall cite the pertinent source of law and the facts in the record that demonstrate the relevance of the source of law to the exercise of discretion on the issue of equity in the applicant's case.
(2) If a reason is based in whole or in part on a determination as to the occurrence or nonoccurrence of an event or circumstance, including a factor required by applicable Air Force regulations to be considered for determination of the character of and reason for the applicant's discharge, the DRB shall make a finding of fact for each such event or circumstance.
(i) For each such finding, the decisional document shall list the specific source of the information relied upon. This may include the presumption of regularity in appropriate cases. If the information is listed in the service record section of the decisional document, a citation is not required.
(ii) If a finding of fact is made after consideration of contradictory evidence in the record (including information cited by the applicant or otherwise identified by members of the DRB), the decisional document shall set forth the conflicting evidence, and explain why the information relied upon was more persuasive than the information that was rejected. If the presumption of regularity is cited as the basis for rejecting such information, the decisional document shall explain why the contradictory evidence was insufficient to overcome the presumption. In an appropriate case, the explanation as to why the contradictory evidence was insufficient to overcome the presumption of regularity may consist of a statement that the applicant failed to provide sufficient corroborating evidence, or that the DRB did not find the applicant's testimony to be sufficiently credible to overcome the presumption.
(3) If the DRB disagrees with the position of the applicant on an issue of equity, the following guidance applies in addition to the guidance in § 865.112(i) (1) and (2):
(i) The DRB may reject the applicant's position by explaining why it disagrees with the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant).
(ii) The DRB may reject the applicant's position by explaining why the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant) are not relevant to the applicant's case.
(iii) The DRB may reject an applicant's position by explaining why the applicant's issue is not a matter upon which the DRB grants a change in discharge as a matter of equity. When the
(iv) The DRB may reject the applicant's position on the grounds that other specified factors in the case preclude granting relief, regardless of whether the DRB agreed with the applicant's position.
(v) If the applicant takes the position that the discharge should be changed as a matter of equity because of an alleged error in a record associated with the discharge, and the record has not been corrected by the organization with primary responsibility for corrective action, the DRB may respond that it will presume the validity of the record in the absence of such corrective action. However, the DRB will consider whether it should exercise its equitable powers to change the discharge on the basis of the alleged error. If it declines to do so, the DRB shall explain why the applicant's position did not provide a sufficient basis for the change in the discharge requested by the applicant.
(4) When the DRB concludes that aggravating factors outweigh mitigating factors, the DRB must set forth reasons such as the seriousness of the offense, specific circumstances surrounding the offense, number of offenses, lack of mitigating circumstances, or similar factors. The DRB is not required, however, to explain why it relied on any such factors unless the applicability or weight of such factors are expressly raised as an issue by the applicant.
(5) If the applicant has not submitted any issues and the DRB has not otherwise relied upon an issue of equity for a change in discharge, the decisional document shall contain a statement to that effect, and shall note that the major factors upon which the discharge was based are set forth in the service record portion of the decisional document.
(a) The Director of the Personnel Council may forward cases for consideration by the Secretarial Reviewing Authority (SRA) under rules established by the Secretary of the Air Force.
(b) The following categories of dicharge review requests are subject to the review of the Secretary of the Air Force or the Secretary's designee.
(1) Cases in which a minority of the DRB panel requests their submitted opinions be forwarded for consideration (refer to § 865.110(h)).
(2) Cases when required in order to provide information to the Secretary on specific aspects of the discharge review function which are of interest to the Secretary.
(3) Any case which the Director, Air Force Personnel Council believes is of significant interest to the Secretary.
(c) The Secretarial Reviewing Authority is the Secretary of the Air Force or the official to whom he has delegated this authority. The SRA may review the types of cases described above before issuance of the final notification of a decision. Those cases forwarded for review by the SRA shall be considered under the standards set forth in § 865.121 and DOD Directive 1332.28.
(d) There is no requirement that the Director of the Personnel Council submit a recommendation when a case is forwarded to the SRA. If a recommendation is submitted, however, it should be in accordance with the guidelines described below.
(e) Format for Recommendation. If a recommendation is provided, it shall contain the Director's views whether there should be a change in the character of or reason for discharge (or both). If the Director recommends such a change, the particular change to be made shall be specified. The recommendation shall set forth the Director's position on decisional issues submitted by the applicant in accordance with the following:
(1) Adoption of the DRB's Decisional document. The recommendation may state that the Director has adopted the decisional document prepared by the majority. The Director shall ensure that the decisional document meets the requirements of this regulation.
(2) Adoption of the Specific Statements From the Majority. If the Director adopts the views of the majority only in part, the recommendation shall
(3) Response To Issues Not Included in Matter Adopted From the Majority. The recommendation shall set forth the following if not adopted in whole or in part from the majority:
(i) The issues on which the Director's recommendation is based. Each such decisional issue shall be addressed by the Director in accordance with § 865.112 of this subpart.
(ii) The Director's response to items submitted as issues by the applicant under § 865.111 of this subpart.
(iii) Reasons for rejecting the conclusions of the majority with respect to decisional issues which, if resolved in the applicant's favor, would have resulted in greater relief for the applicant than that afforded by the Director's recommendation. Each issue shall be addressed in accordance with § 865.112 of this subpart.
(f) Copies of the proposed decisional document on cases that have been forwarded to the SRA (except for cases reviewed on the DRB's own motion without the participation of the applicant or the applicant's counsel) shall be provided to the applicant and counsel or representative, if any. The document will include the Director's recommendation to the SRA, if any. Classified information shall be summarized.
(g) The applicant shall be provided with a reasonable period of time, but not less than 25 days, to submit a rebuttal to the SRA. An issue in rebuttal consists of a clear and specific statement by the applicant in support of or in opposition to the statements of the DRB or Director on decisional issues and other clear and specific issues that were submitted by the applicant. The rebuttal shall be based solely on matters in the record when the DRB closed the case for deliberation or in the Director's recommendation.
(h)
(i)
(1)
(2)
(i) The SRA has adopted the Director's recommendation.
(ii) The SRA has adopted the proposed decisional document prepared by the DRB.
(iii) If the SRA adopts the views of the DRB or the Director only in part, the addendum shall cite the specific statements adopted. If the SRA modifies a statement submitted by the DRB or the Director, the addendum shall set forth the modification.
(3)
(i) A list of the issues on which the SRA's decision is based. Each such decisional issue shall be addressed by the SRA. This includes reasons for rejecting the conclusion of the DRB or the Director with respect to decisional issues which, if resolved in the applicant's favor, would have resulted in change to the discharge more favorable to the applicant than that afforded by the SRA's decision.
(ii) The SRA's response to items submitted as issues by the applicant will be in accordance with § 865.111 of this subpart.
(4)
(ii) If the SRA does not grant the full change in discharge requested by the applicant (or a more favorable change), the addendum shall list each issue in rebuttal submitted by an applicant and shall set forth the response of the SRA under the following:
(A) If the SRA rejects an issue in rebuttal, the SRA may respond in accordance with the principles in § 865.112 of this subpart.
(B) If the matter adopted by the SRA provides a basis for the SRA's rejection of the rebuttal material, the SRA may note that fact and cite the specific matter adopted that responds to the issue in rebuttal.
(C) If the matter submitted by the applicant does not meet the requirements for rebuttal material in paragraph (g) of this section, that fact shall be noted.
(j)
(a) A decisional document shall be prepared for each review conducted by the DRB.
(b) At a minimum, the decisional decument shall contain:
(1) The date, character of, and reason for discharge or dismissal certificate issued to the applicant upon separation from the military service, including the specific regulatory authority under which the discharge or dismissal certificate was issued.
(2) The circumstances and character of the applicant's service as extracted from military records and information provided by other government authority or the applicant, such as, but not limited to:
(i) Date of enlistment (YYMMDD).
(ii) Period of enlistment.
(iii) Age at enlistment.
(iv) Length of service.
(v) Periods of unauthorized absence.
(vi) Conduct and efficiency ratings (numerical or narrative).
(vii) Highest rank achieved.
(viii) Awards and decorations.
(ix) Educational level.
(x) Aptitude test scores.
(xi) Incidents of punishment pursuant to Article 15, Uniform Code of Military Justice (including nature and date of offense or punishment).
(xii) Conviction by court-martial.
(xiii) Prior military service and type of discharge received.
(3) A list of the type of documents submitted by or on behalf of the applicant (including a written brief, letters of recommendation, affidavits concerning the circumstances of the discharge, or other documentary evidence), if any.
(4) A statement whether the applicant testified, and a list of the type of witnesses, if any, who testified on behalf of the applicant.
(5) A notation whether the application pertained to the character of discharge, the reason for discharge, or both.
(6) The DRB's conclusions on the following:
(i) Whether the character of or the reason for discharge should be changed.
(ii) The specific changes to be made, if any.
(7) A list of the items submitted as issues on DD Form 293 or expressly incorporated therein and such other items submitted as issues by the applicant that are identified as inadvertently omitted under § 865.106(g)(4). If the issues are listed verbatim on DD Form 293, a copy of the relevant portion of the form may be attached. Issues that have been withdrawn or modified with the consent of the applicant need not be listed.
(8) The response to items submitted as issues by the applicant under the guidance in § 865.111.
(9) A list of decisional issues and a discussion of such issues under the guidance of § 865.112.
(10) Minority views, if any, when authorized under the rules of the Secretary of the Air Force.
(11) The recommendation of the Director when required by § 865.113.
(12) Any addendum of the SRA when required by § 865.113.
(13) Advisory opinions, including those containing factual information, when such opinions have been relied upon for final decision or have been accepted as a basis for rejecting any of the applicant's issues. Such advisory opinions or relevant portions thereof that are not fully set forth in the discussion of decisional issues or otherwise in response to items submitted as issues by the application shall be incorporated by reference. A copy of the opinions incorporated by reference shall be appended to the decision and included in the record of proceedings.
(14) A record of the DRB member's names and votes.
(15) Index entries for each decisional issue under appropriate categories listed in the Subject/Category listing.
(16) An authentication of the document by an appropriate official.
(a) The applicant and counsel or representative, if any, shall be provided with a copy of the decisional document and of any further action in review. The applicant (and counsel, if any) shall be notified of the availability of the complaint process in accordance with § 865.121 of this subpart and of the right to appeal to the Board for the Correction of Military Records. Final notification of decisions shall be issued to the applicant with a copy to the counsel or representative, if any.
(b) Notification to applicants with copies to counsel or representatives, shall normally be made through the U.S. Postal Service. Such notification shall consist of a notification of the decision, together with a copy of the decisional document.
(c) Notification of HQ AFMPC/MPCDOAl shall be for the purpose of appropriate action and inclusion of review matter in the military records. Such notification shall bear appropriate certification of completeness and accuracy.
(d) Actions on review by Secretarial Reviewing Authority, when occurring, shall be provided to the applicant and counsel or representative in the same manner as the notification of the review decision.
(a) When the proceedings in any review have been concluded, a record thereof will be prepared. Records may include written records, electromagnetic records, or a combination thereof.
(b) At a minimum, the record will include the following:
(1) The application for review (DD Form 293).
(2) A record of the testimony in verbatim, summarized, or recorded form at the option of the DRB.
(3) Documentary evidence or copies thereof considered by the DRB other than the military record.
(4) Brief/arguments submitted by or on behalf of the applicant.
(5) Advisory opinions considered by the DRB, if any.
(6) The findings, conclusions, and reasons developed by the DRB.
(7) Notification of the DRB's decision to the cognizant custodian of the applicant's records, or reference to the notification document.
(8) Minority reports, if any.
(9) A copy of the decisional document.
The original record of proceedings and all appendices thereto shall in all cases be incorporated in the military record of the applicant and returned to the custody of the National Personnel Records Center (NPRC), St. Louis, Missouri. If a portion of the original record cannot be stored with the service record, the service record shall contain a notation as to the place where the record is stored.
(a) A copy of the decisional document prepared in accordance with § 865.114 of this subpart, shall be made available for public inspection and copying promptly after a notice of final decision is sent to the applicant.
(b) To the extent required to prevent a clearly unwarranted invasion of personal privacy, identifying details of the applicant and other persons will be deleted from documents made available for public inspection and copying. Names, addresses, social security numbers, and military service numbers must be deleted. Written justification shall be made for all other deletions and shall be available for public inspection.
(c) The DRB shall ensure that there is a means for relating a decisional document number to the name of the applicant to permit retrieval of the applicant's records when required in processing a complaint in accordance with § 865.121 of this subpart.
(d) Any other privileged or classified material contained in or appended to any documents required to be furnished the applicant and counsel/representative or made available for public inspection and copying may be deleted therefrom only if a written statement of the basis for the deletions is provided the applicant and counsel/representative and made available for public inspection. It is not intended that the statement be so detailed as to reveal the nature of the withheld material.
(e) DRB documents made available for public inspection and copying shall be located in the Armed Forces Discharge Review/Correction Boards Reading Room. The documents shall be indexed in usable and concise form so as to enable the public and those who represent applicants before the DRB to isolate from all these decisions that are indexed those cases that may be similar to an applicant's case and that indicate the circumstances under and/or reasons for which the DRB or the Secretary of the Air Force granted or denied relief.
(1) The reading file index shall include, in addition to any other items determined by the DRB, the case number, the date, character of, reason for, and authority for the discharge. It shall further include the decisions of the DRB and reviewing authority, if any, and the issues addressed in the statement of findings, conclusions and reasons.
(2) The index shall be maintained at selected permanent locations throughout the United States. This ensures reasonable availability to applicants at least 30 days before a regional board review. The index shall also be made available at sites selected for regional Boards for such periods as the DRB is present and in operation. An applicant who has requested a regional board review shall be advised in the notice of scheduled hearings.
(3) The Armed Forces Discharge Review/Correction Board Reading Room shall publish indexes quarterly for the DRB. The DRB shall be responsible for timely submission to the Reading Room of individual case information required for update of indexes. These indexes shall be available for public inspection or purchase (or both) at the Reading Room. This information will be provided to applicants in the notice of acceptance of the application.
(4) Correspondence relating to matters under the cognizance of the Reading Room (including request for purchase of indexes) shall be addressed to:
Information protected under the Privacy Act is involved in discharge review functions. The provisions of 32 CFR part 286a will be observed throughout the processing of a request for review of discharge or dismissal.
(a)
(b)
(1) There exists an error of fact, law, procedures, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error, if there is substantial doubt that the discharge would have remained the same if the error had not been made); or
(2) A change in policy by the Air Force made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.
(c) When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the DRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.
(d) The primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the DRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not blind the DRB in its review of subsequent cases because no two cases present the same issues of equity.
(e) The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the DRB shall either recharacterize the discharge to honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court's Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:
(1) An Under Other Than Honorable (formerly Undesirable) Discharge for an inactive reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;
(2) A General Discharge for an inactive reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.
(f) The following applies to applicants who received less than fully honorable administrative discharges (between June 21, 1971 and March 2, 1982) because evidence developed by or as a direct result of complusory urinalysis testing was introduced in the discharge proceedings. Applicants who believe they are members of the above category will so indicate this by writing “CATEGORY W” in block 7 of their DD Form 293. AFMPC/MPCDOA1 will expedite processing these applications to the designated “CATEGORY W” reviewer. For class members the designated reviewer shall either recharacterize the discharge to honorable without any additional proceedings or complete a review to determine whether proper ground exists for the issuance of a less than honorable discharge. If the applicant is determined not to be a class member, the application is returned to normal review procedure channels. If new administrative proceedings are initiated, the former service member must be notified of:
(1) The basis of separation other than drug abuse or use or possession of drugs based upon compelled urinalysis that was specified in the commander's report and upon which the Air Force now seeks to base a less than honorable discharge.
(2) The full complement of procedural protections that are required by current regulations.
(3) Name, address and telephone number of an Area Defense Counsel with
(4) The right to participate in the new proceedings to be conducted at the Air Force base nearest the former service member's current address, or to elect to maintain his or her present character of discharge.
(g)
(1) In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration provided that:
(i) Current policies or procedures represent a substantial enhancement of the rights afforded an applicant in such proceedings; and
(ii) There is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.
(2) At the time of issuance, the discharge was inconsistent with standards of discipline in the Air Force; or
(3) In the course of a discharge review, it is determined that a change is warranted based upon consideration of the applicant's military record and other evidence presented to the DRB viewed in conjunction with the factors listed in this section and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:
(i) Quality of Service, as evidenced by factors such as:
(A) Service History, including date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings (numerical or narrative).
(B) Awards and decorations.
(C) Letters of commendation or reprimand.
(D) Combat service.
(E) Wounds received in action.
(F) Record of promotions and demotions.
(G) Level of responsibility at which the applicant served.
(H) Other acts of merit that may not have resulted in a formal recognition through an award or commendation.
(I) Length of service during the period which is the subject of the discharge review.
(J) Prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review.
(K) Convictions by court-martial.
(L) Record of non-judicial punishment.
(M) Convictions by civil authorities while a member of the Air Force, reflected in the discharge proceedings or otherwise noted in military records.
(N) Record of periods of unauthorized absence.
(O) Records relating to a discharge in lieu of court-martial.
(ii) Capability to Serve, as evidenced by factors such as:
(A)
(B)
(C)
(D)
Former members of the Air Force or their counsel or representative may submit complaints with respect to the decisional document issued in the former member's case.
(a) All complaints should be processed in accordance with 32 CFR part 70 and should be forwarded to:
(b) The Air Force Discharge Review Board will respond to all complaints in accordance with 32 CFR part 70.
The Air Force Discharge Review Board shall prepare and provide to the Deputy Assistant Secretary of Defense (Military Personnel and Force Management) DASD(MP&FM), Office of the ASD(MRA&L), a semiannual report of discharge review actions in accordance with § 865.125.
Only the Secretary of the Air Force may authorize or approve a waiver of, or exception to, any part of this subpart.
Composition of the board for these hearings consists of three members from Washington with augmentation by two members from nearby local Air Force resources. The nearest Air Force installation or Air Force Reserve Unit is tasked to provide two officers to serve as members of the DRB. Active duty members will serve on the board as an additional duty. Reserve members will be on a temporary tour of active duty (TTAD) for the duration of the hearings. Detailed information must be provided to the individuals selected to serve before each hearing date. The administrative staff in Washington processes all cases for regional hearings, establishes hearing dates, and returns the records to the Manpower and Personnel Center at Randolph AFB, Texas, when the case is finalized.
Semi-annual reports will be submitted by the 20th day of April and October for the preceding 6-month reporting period (1 October through 31 March and 1 April through 30 September). The reporting period will be inclusive from the first through the last days of each reporting period. The report will contain four parts:
(a) Part 1—Regular Cases are all those that are not included in part 2 below.
(b) Part 2—Other cases include the following:
(1) Reconsideration of President Ford's memorandum of 19 January 1977.
(2) Special Discharge Review Program cases.
(3) Statutes of Limitation Cases—those heard under Pub. L. 95-126 by waiver of 10 U.S.C. 1553.
(c) Part 3—Total—combine parts 1 and 2.
(d) Part 4—Cases outstanding include all those eligible cases in which a DD Form 293 has been received but has not been heard by the Discharge Review Board as the reporting date for this report. Reports will be prepared by the Air Force Discharge Review Board and submitted to the Army Discharge Review Board (executive agent for DRB matters).
38 U.S.C. 106.
(a) Who may apply.
(1) You may apply for discharge if you were a member of a recognized group. A spouse, next of kin, or legal representative may apply on behalf of a deceased or mentally incompetent person. Proof of death or mental incompetency must accompany such an application.
(b) Where to apply.
(1) Send your application for discharge to the Directorate of Personnel Program Management, Separations Branch, HQ AFPC/DPPRS, 550 C Street West, Suite 11, Randolph AFB, TX 78150-4713.
(c) How to apply.
(1) Fill out DD Form 2168,
(2) Obtain DD Form 2168 from HQ AFPC/DPRS, 550 C Street West, Suite 11, Randolph AFB, TX 78150-4713 or the National Personnel Records Center (NPRC), 9700 Page Boulevard, St. Louis, MO 63132.
(3) Make your application as complete as possible; the burden of proof is on you. Provide all available evidence to document your membership in the group and what services you performed.
(d) Documentation may include:
(1) Flight logbooks.
(2) Separation or discharge certificates.
(3) Mission orders.
(4) Identification cards.
(5) Contracts.
(6) Personnel action forms.
(7) Employment records.
(8) Education certificates and diplomas.
(9) Pay vouchers.
(10) Certificates of awards.
(11) Casualty information.
(e) The Air Force will not under any circumstances provide or pay for legal representation for you.
(a) HQ AFPC/DPPRS reviews your application and does one of the following:
(1) Refers your application to another military department and sends you a written notice or a copy of the referral letter.
(2) Returns your application without prejudice if the Secretary of the Air Force has not determined whether members of your group are certified for discharge. You may resubmit the application after the Secretary determines that your group is certified.
(3) Refers applications made by a group (or individuals on behalf of a group) to the Secretary of the Air Force, Manpower, Reserve Affairs and installations, Personnel Council (AFPC), The Pentagon, Washington, DC 20330 for further review. This Part does not cover such applications.
(4) Returns the application to you if it is complete.
(5) Refers all complete applications to the Individual Service Review Board for further consideration.
(a) The Commander, Headquarters Air Force Personnel Center (HQ AFPC/CC) establishes the Individual Service Review Board as necessary.
(b) The Board consists of military members in grade Lieutenant Colonel or higher, and civilian members, grade GS-12 or higher, appointed by the HQ AFPC/CC. Three members constitute a quorum. The senior member acts as Board chairperson. A nonvoting member keeps a record of the Board's actions on an application.
(c) The Directorate of Personnel Program Management, Separations Branch, HQ AFPC/DPPRS, 550 C Street West, Suite 11, Randolph AFB, TX 78150-4713, provides administrative support to the Board.
(a) Individual Service Review Board meets in closed session to consider the application, the evidence submitted, and other relevant information. Applicants or their representatives do not have the right to appear before the Board.
(b) The Board:
(1) Evaluates the evidence.
(2) Decides whether the applicant was a member of a recognized group during dates of its qualification.
(3) Decides whether to approve the application for discharge.
(4) Determines the period and character of the applicant's service.
(a) If the Board approves an application for discharge and determines that it should be honorable, HQ AFPC/DPPRSO issues the applicant a DD Form 256AF, Honorable Discharge, and a DD Form 214,
(b) Enter a military grade on the DD Form 214 only if the Administrator of Veterans’ Affairs requests it.
(c) Enter a pay grade on the DD Form 214 only for individuals who were killed or received service-related injuries or disease during the approved period of service. For proof of grade criteria, see DoD 1000.20,
(d) If the Board approves an application for discharge but determines that it should be “under honorable conditions” (general discharge), it forwards the case to the Air Force Personnel Council (AFPC) for final decision. HQ AFPC/DPPRSO, 550 C Street West, Suite 20, Randolph AFB, TX 78150-4722, then issues the appropriate discharge certificate and a DD Form 214 to the applicant.
(e) To appeal the characterization of a discharge, submit DD Form 149,
(f) If the member dies or is declared missing during the period of equivalent active military duty, the Directorate of Casualty Matters (HQ AFPC/DPW) issues DD Form 1300,
(a) Once the Board has decided your case, HQ AFPC/DPPRS notifies you:
(1) If the Board denied your application for discharge because there is insufficient evidence to show that you belonged to a qualifying group.
(2) If the Board determines that your service cannot be characterized as “under honorable conditions.”
(b) You have 60 days from the date of this notice to submit additional evidence or information to HQ AFPC/DPPRS, 550 C Street West, Suite 11, Randolph AFB, TX 78150-4713.
(c) If after 60 days you have submitted new evidence, the Board reviews the case again. If the Board determines that your application now merits approval, it proceeds according to paragraph (e).
(d) If you do not submit additional evidence or if, after review, the Board determines that your application should be denied, it forwards the case to the AFPC for final decision.
(e) HQ AFPC/DPPRS notifies you of the final decision.
(f) If your application is denied, the Board returns it to you without prejudicing any later consideration.
If you are approved for a General Discharge, you may apply to the Air Force Discharge Review Board for discharge upgrade under AFI 36-3201,
(a) File a copy of the application, supporting evidence, and DD Form 214 in the Master Personnel Records Groups maintained at the National Personnel Records Center, St. Louis, MO 63132, for approved cases. Send copies of DD Form 214 to:
(1) The applicant.
(2) The Veterans' Administration.
(3) HQ AFPC/DPPRS, 550 C Street West, Suite 11, Randolph AFB, TX 78150-4713.
The following form, DD Form 2168,
10 U.S.C. 814; 10 U.S.C. 8013; Sec. 721(a), Pub. L. 100-456, 102 Stat. 2001.
This part sets forth the authority, policy, and procedures for making Air Force military and civilian personnel as well as dependents available to U.S. civil authorities for trial, or specified court appearances. It implements 32 CFR part 146. It applies to all Air Force military personnel, including Reserve members while on active or inactive duty training, and Air National Guard members while in federal status under title 10, United States Code (U.S.C.), all Department of the Air Force (DAF) civilian employees (including nonappropriated fund (NAF) employees), and all dependents. This part establishes the policy that Air Force members, civilian employees, and dependents are expected to comply with valid orders of federal or state courts of competent jurisdiction. It is not applicable where a state, having jurisdiction for the purpose of executing criminal process, proceeds by service of process to take custody of a military member, employee or dependent without making a formal request for the individual's delivery. This part is not intended to confer any rights, benefits, privileges or form of due process procedure upon any individuals.
Under Uniform Code of Military Justice, Article 14 (10 U.S.C. 814); Pub. L. 100-456, section 721(a); and the policy expressed in 32 CFR part 146 (DOD Directive 5525.9), a commander exercising general court-martial jurisdiction, or an installation or support group commander when authorized by the officer exercising general court-martial jurisdiction, may authorize delivery of a member of his or her command to the civil authorities of the United States or of a state of the United States under the conditions prescribed in this part. An installation commander given authority to approve requests made pursuant to this part may delegate such approval authority to a commander of a combat support group, air base group, mission support squadron, or equivalent.
The Interstate Agreement on Detainers Act (Act), 18 U.S.C. App. section 1
The civil authority to whom a military member is delivered under this part may release the member on bail or on the member's own recognizance before final disposition of the charges. In the event of such a release, the commander authorized to deliver the member, or his or her designee, must, before delivery, direct the member in writing to report to a designated Air Force unit, activity or recruiting office for further instructions (see § 884.18). If the civil authorities to whom delivery was authorized are in the immediate vicinity of the member's base, the activity designated ordinarily will be the member's unit. The Air Force unit, activity, or recruiting office designated will be advised of this action by the commander taking this action. The authority to whom the member reports must communicate, by the fastest practicable means, the member's name,
A member may be placed under restraint (see Manual for Courts-Martial (MCM) 1984, Rule for Court-Martial (R.C.M.) 304, as to types of restraint available) by military authorities pending delivery to state or federal authorities. Such restraint may be imposed upon receipt of information establishing probable cause to believe that the member committed an offense, and upon reasonable belief such restraint is necessary. Such restraint may continue only for such time as is reasonably necessary to effect the delivery to civilian authorities. As to the type of analysis to be undertaken in determining whether probable cause exists and whether a reasonable belief exists that restraint is necessary, see MCM 1984, R.C.M. 305(h)(2)(B), and its following discussion. There is no requirement for the formal review of restraint provided in MCM 1984, R.C.M. 305, Air Force Regulation 111-1.
Persons overseas who are wanted by state or federal authorities are expected to make themselves available to those authorities for proper disposition. If this does not occur, 32 CFR part 146, which implements 10 U.S.C. 814 and Pub. L. 100-456, section 721(a), authorizes and requires commanders to respond promptly to request from civil authorities for assistance in returning members, civilian employees, and dependents from overseas (subpart C of this part).
When such authorities request the delivery of service members, it is Air Force policy normally to deliver service members when the request is accompanied by a warrant issued pursuant to the Federal Rules of Criminal Procedure, Rule 4, or when the appropriately identified federal officer represents that such a warrant has been issued (MCM 1984, appendix 3).
Persons desired by the Federal authorities for trial will be called for, and taken into custody by, a U.S. marshal, deputy marshal, or other officer authorized by law. The officer taking custody must execute a statement in substantially the following form:
A warrant for the arrest of (name, grade, and social security number), hereinafter referred to as the “member,” who is charged with (offense), has been issued by (name of issuer), and in execution thereof, I accept his or her custody.
The commander (Unit), will be advised of the disposition of the charges. The member will be immediately returned to the custody of the Air Force at (Air Force activity or recruiting office nearest place of trial) upon completion of the trial if acquitted, upon satisfying the sentence imposed if convicted, or upon other disposition of the case. The member's return will not be required if the member's commander has indicated that return is not appropriate. Pending disposition of the charges, the member will remain in the custody of (name of agency and location), unless released on bail or the member's own recognizance, in which event (Air Force unit, activity or recruiting office nearest place of trial) will be notified.
(a)
(b)
In consideration of the delivery at (location) of (name, grade, and social security number), hereinafter referred to as the “member,” to me (name and capacity), for trial upon the charge of (offense), I, pursuant to the authority vested in me as (position), hereby agree to the following:
The commander, (unit), will be advised of the disposition of the charges. The member will be immediately returned to the custody of the military upon completion of the trial if acquitted, upon satisfying the sentence imposed if convicted, or upon other disposition of the case. The member's return will be to the aforesaid place of delivery, or to such other place as may be designated by the Department of the Air Force. The member's return will not be required if the member's commander has indicated that return is not appropriate. Instead of actual delivery, transportation for the member may be arranged so long as it is without expense to the United States or to the member. Pending dispositon of the charges, the member will remain in the custody of (name of agency and location), unless released on bail or the member's own recognizance, in which event (Air Force unit, activity, or recruiting office nearest place of trial) will be notified.
This section applies to requested members who are not located overseas. With respect to the extradition process, Air Force ed Force personnel have the same status as persons not in the Armed Forces. Accordingly, if the delivery of a military member is requested by a state other than the state in which the member is located, the requesting state will be required, in the absence of a waiver of extradition process by the member concerned, to use its extradition procedures and to make arrangements to take the individual into custody in the state where he or she is located. It is contrary to Air Force policy to transfer a military member from a base within one state to a base within another state for the purpose of making him or her amenable to prosecution by civil authorities.
(a) Air Force members are expected to comply with orders issued by a federal or state court of competent jurisdiction unless noncompliance is legally justified. Air Force members who persist in noncompliance are subject to adverse administrative action, including separation for cause under AFRs 36-2 and 39-1.
(b) Air Force officials will ensure that members do not use assignments or officially sponsored residence outside the United States to avoid complying with valid orders of a federal or state court of competent jurisdiction.
(c) Noncompliance with a court order may be legally justified when the individual can adequately demonstrate that the conduct, which is the subject of the complaint or request, was sanctioned by supplemental court orders, equally valid court orders of other jurisdictions, good faith legal efforts to resist the request, or other reasons. HQ USAF/JACM and JACA, and Air Force legal offices in the jurisdiction concerned will provide legal support to servicing staff judge advocates who request assistance in reviewing these issues.
(d) When federal, state or local authorities request delivery of an Air Force member who is stationed outside the United States and who is convicted of or is charged by such authorities with a felony or other serious offense punishable by confinement for more than one year under the laws of the requesting jurisdiction, or who is sought by such authorities in connection with the unlawful or contemptuous taking of a child from the jurisdiction of a court or from the lawful custody of another, the member normally will be expeditiously returned to the United States for delivery to the requesting authorities. Delivery of the member is not required if the controversy can be resolved without returning the member to the United States, or the request for delivery of the member is denied in accordance with this subpart.
(e) An Air Force member stationed outside the United States ordinarily will not be returned to the United States for delivery to civilian authorities in connection with an offense not enumerated in paragraph (d) of this section, but The Judge Advocate General (TJAG) may direct return in such cases when TJAG determines that the best interests of the Air Force require it.
(f) Before action is taken under this subpart, the member will be afforded the opportunity to provide evidence of legal efforts to resist the court order or process sought to be enforced, or otherwise to show legitimate cause for noncompliance.
(a) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) is the denial authority for all requests for return of members to the United States for delivery to civilian authorities when the request falls under § 884.10(d) of this subpart.
(b) The Judge Advocate General (TJAG) of the Air Force may approve requests which fall under § 884.10(d) of this subpart, or recommend denial of such requests. TJAG or his designee may approve or deny:
(1) Requests for return of members to the United States for delivery to civilian authorities when the request falls under § 884.10(e) of this subpart.
(2) Requests for delays of up to 90 days in completing action on requests for return of members to the United States for delivery to civilian authorities.
(c) The Military Justice Division (HQ USAF/JAJM) is responsible for the timely processing of requests for return of members to the United States for delivery to civilian authorities, and for notifying requesting authorities of decisions on requests. Action on a request will be completed within 30 days after receipt of the request by HQ USAF/JAJM, unless a delay is granted. HQ USAF/JAJM also is responsible for all reports and notifications to ASD (FM&P) and General Counsel, DOD (DOD/GC), as required by this part. HQ USAF/JAJM will conduct all communications with requesters.
(a) A request for return of an Air Force member to the United States for delivery to civilian authorities shall:
(1) Fully identify the member sought. Requesting agencies shall provide the members’ name, grade, social security number (SSN), and unit of assignment, to the extent that information is known.
(2) Specify the offense for which the member is sought. If the member is charged with a crime, the request shall specify the maximum punishment under the laws of the requesting jurisdiction. If the member is sought in connection with the unlawful or contemptuous taking of a child from the jurisdiction of a court or the lawful custody
(3) Include copies of all relevant indictments, informations, or other instruments used to bring charges, all relevant court orders or decrees, and all arrest warrants, writs of attachment or capias, or other process directing or authorizing the requesting authorities to take the member into custody. Reports of investigation and other material concerning the background of the case shall be included, if reasonably available.
(4) State that the requesting authorities will initiate appropriate action to secure the member's lawful delivery or extradition from the port of entry to the requesting jurisdiction, at the expense of the requesting authorities, and that they will notify HQ USAF/JAJM of the member's release from custody and the ultimate disposition of the matter.
(5) Be signed by a United States Attorney or Assistant U.S. Attorney, by the Governor or other duly authorized officer of a requesting state or local jurisdiction, or by the judge, magistrate or clerk of a court of competent jurisdiction.
(b) Requests for return of members to the United States for delivery to civilian authorities shall be directed to HQ USAF/JAJM, Bolling AFB, DC 20332-6128. Requests received by any other Air Force agency or official must be sent to HQ USAF/JAJM by the most expeditious available means.
(c) Upon receipt of a request, HQ USAF/JAJM will promptly notify the members’ commander, who will consult with his or her servicing staff judge advocate and provide to HQ USAF/JAJM, through command channels, a report of relevant facts and circumstances and recommended disposition of the request. If the commander recommends denial of the request, or a delay in processing or approving it, he or she will provide the information specified in § 884.13 or § 884.14 of this subpart.
(d) When a request for return of a member to the United States for delivery to civilian authorities has been approved, HQ USAF/JAJM will notify AFMPC of the decision to return a member to the United States under this subpart. AFMPC will issue permanent change of station (PCS) orders assigning the member to an installation as close to the requesting jurisdiction as possible, in light of the needs of the Air Force for personnel in the member's grade and AFSC.
(e) The requesting authorities will be notified concerning the member's new assignment, port of entry into the United States, and estimated time of arrival. Absent unusual circumstances, this notification will be made at least 10 days before the member's return.
(a) A delay of not more than 90 days in completing action on a request to return a member to the United States for delivery to civilian authorities may be granted when:
(1) Efforts are in progress to resolve the controversy to the satisfaction of the requesting authorities without the member's return to the United States.
(2) Additional time is required to permit the member to provide satisfactory evidence of legal efforts to resist the request or show legitimate cause for noncompliance.
(3) Additional time is required to permit the commander to determine and present the specific effect of the loss of the member on command mission and readiness, or pertinent facts and circumstances relating to any international agreement, foreign judicial proceeding, DOD, Air Force, or other military department, investigation, or court-martial affecting the member.
(4) Other unusual facts or circumstances warrant delay.
(b) HQ USAF/JAJM will promptly report all delays in cases falling under § 884.10(d) of this subpart, through SAF/GC and SAF/MI ASD(FM&P), and to DOD/GC.
(c) Delays in excess of 90 days are not authorized in cases falling under § 884.10(d) of this subpart, unless approved by ASD (FM&P).
(a) Denial of a request for return of a member to the United States for delivery to civilian authorities may be justified when:
(1) The member's return would have an adverse impact on operational readiness or mission requirements.
(2) The member's return is precluded by an applicable international agreement.
(3) The member is the subject of foreign judicial proceedings, court-martial, or a DOD, Air Force, or other military department investigation.
(4) The member has shown satisfactory evidence of legal efforts to resist the request or other legitimate cause for noncompliance.
(5) Other unusual facts or circumstances warrant a denial.
(b) Commanders shall promptly send to HQ USAF/JAJM information suggesting that denial may be appropriate. In cases warranting denial, TJAG will promptly send a recommendation and supporting documentation, through SAF/GC and SAF/MI, to ASD(FM&P) for decision.
(c) The fact that a recommendation for denial is pending does not by itself authorize noncompliance, or a delay in compliance, with any provision of this part, but TJAG may consider a pending request for denial in determining whether to grant a delay.
(a) Air Force civilian employees and dependents are expected to comply with orders issued by a federal or state court of competent jurisdiction unless noncompliance is legally justified. Air Force civilian employees who persist in noncompliance are subject to adverse administrative action, including separation for cause, as provided in AFRs 40-7, 40-735, 40-750, and 147-15.
(b) Air Force officials will ensure that civilian personnel and dependents do not use assignments or officially sponsored residence outside the United States to avoid complying with valid orders of a federal or state court of competent jurisdiction.
(c) Noncompliance with a court order may be legally justified when the individual can adequately demonstrate that the conduct, which is the subject of the complaint or request, was sanctioned by supplemental court orders, equally valid court orders of other jurisdictions, good faith legal efforts to resist the request, or other reasons. HQ USAF/JACM, and JACA, and Air Force legal offices in the jurisdiction concerned will provide legal support to servicing staff judge advocates who request assistance in reviewing these issues.
(a) The procedures of this subpart apply to the following persons:
(1) Civilian employees, including nonappropriated fund instrumentality (NAFI) employees, who are assigned outside the United States.
(2) Dependents residing outside the United States.
(b) This subpart applies only when Air Force authorities receive a request for assistance (see § 884.12 of this part) from federal, state or local authorities involving noncompliance with a court order and noncompliance is the subject of any of the following: an arrest warrant; an indictment, information, or other document used in the jurisdiction to prefer charges; or a contempt citation involving the unlawful or contemptuous removal of a child from the jurisdiction of the court or the lawful custody of a parent or third party.
(c) Commanders will comply with requests to the maximum extent possible consistent with operational readiness, mission requirements, provisions of international agreements and foreign court orders, DOD and military department investigations, and courts-martial. If, after all reasonable efforts have been exhausted (see § 884.13 of this part), the matter cannot be resolved without the employee or dependent returning to the United States, then the commander shall:
(1) Strongly encourage the individual to comply; and,
(2) Consider imposing disciplinary action (including removal) against the employee or withdrawing command sponsorship of the dependent, as appropriate, for failure to comply.
The commander or designee will report promptly by message each request for assistance and intended action. Send reports to HQ USAF/JAJM, who in turn will submit required reports through channels to ASD(FM&P). HQ USAF/JAJM will conduct all communication with requesters.
1. You are being released to the custody of civil authorities under the provisions of AFR 111-11. This action does not constitute a discharge from the Air Force. If you are released from civil custody on bail or on your own recognizance, report immediately in person or by telephone to the (Air Force unit, activity, or recruiting office) for further instructions. Advise the commander of your name, grade, SSN, organization, the circumstances of your release from custody, and the contents of this letter, including the Note below.
2. Certain restrictions may be placed upon you by the civil authorities in connection with your temporary release from custody. Be certain to include in your report what these limitations are.
10 U.S.C. 1041.
This part tells who may apply for a certificate in lieu of a lost or destroyed certificate of separation. It explains where and how to apply. It implements 10 U.S.C. 1041 and DOD Instruction 1332.13, December 23, 1968. This publication applies to ANG and USAFR members. It authorizes collection of information protected by the Privacy Act of 1974. The authority to collect the information is title 10, U.S.C. 8912 and Executive Order 9397. Each form used to collect personal information has an associated Privacy Act Statement that will be given to the individual before information is collected. System of records notice F035 AF MP C, Military Personnel Records System, applies.
(a)
(b)
(1) Is currently serving as a member of the Air Force; or
(2) Formerly served in the active military service as a member of the Air Force and all military affiliation was terminated after September 25, 1947.
(c)
(d)
Certificates of separation are important personal documents. Processing applications for CILs is costly to the Air Force. To keep requests for CILs at a minimum:
(a) Personnel officers will tell members of the importance of safeguarding the original certificates.
(b) Persons who issue CILs will type or stamp across the lower margin “THIS IS AN IMPORTANT RECORD—SAFEGUARD IT” (if it is not printed on the certificate).
Do not show this legend on DD Form 363AF, Certificate of Retirement.
CILs may be issued only to:
(a) A service member whose character of service was honorable or under honorable conditions.
(b) A surviving spouse.
(c) A guardian, when a duly certified or otherwise authenticated copy of the court order of appointment is sent with the application.
(a) Standard Form 180 (SF 180), Request Pertaining to Military Records, should be used by persons who had service as shown in § 887.3(a). However, a letter request, with sufficient identifying data and proof that the original certificate of separation was lost or destroyed, may be used. Members on active duty will forward their applications through their unit commander.
(b) SF 180, or any similar form used by agencies outside the Department of Defense, will be used by persons shown in § 887.3(b), (c), and § 887.7.
Persons authorized CILs may be assisted in their request by the Customer Service Unit (DPMAC) in the consolidated base personnel office.
The issuing authority makes sure that the proper CIL form is issued, particularly if the service member has had service in both the Army and Air Force. The assignment status as of September 26, 1947 determines if the person was in the Army or Air Force at the time of discharge or release from active duty. Separations that took place on or before September 25, 1947 are considered Army separations. Those that took place on or after September 26, 1947 are considered Air Force separations, unless the records clearly show the person actually served as a member of the Army during the period of service for which the CIL is requested. Individuals indicated in § 887.3 may be issued CILs prepared on one of the following forms:
(a) DD Form 303AF, Certificate in Lieu of Lost or Destroyed Discharge, is used to replace any lost or destroyed certificate of discharge from the Air Force.
(b) DD Form 363AF, Certificate of Retirement, is used to replace any lost or destroyed certificate of retirement from the Air Force (issued only to service members).
(c) AF Form 386, Certificate in Lieu of Lost or Destroyed Discharge (AUS), is used to replace any lost or destroyed certificate of discharge from the Army.
(d) AF Form 681, Certificate in Lieu of Lost or Destroyed Certificate of Service (AUS), is used to replace any lost or destroyed certificate of service, or like form, issued on release from extended active duty (EAD) in the Army.
(e) AF Form 682, Certificate in Lieu of Lost or Destroyed Certificate of Service (USAF), is used to replace any lost or destroyed certificate of service, or like form, issued on release from EAD in the Air Force.
(a) DD Form 363AF must be signed by a general officer or colonel.
(b) All other CILs must be signed by a commissioned officer, NCO in grade of master sergeant or above, or a civilian in grade GS-7 or above.
Those persons whose character of service was under other than honorable conditions or dishonorable are not eligible for CILs. However, an official photocopy of the report of separation or certificate of discharge (DD Form 214, Certificate of Release or Discharge From Active Duty, or equivalent form), if available, may be sent on written request of the member.
(a) On the DD Forms 214 issued before October 1, 1979, the following items will be masked out before a photocopy is sent out:
(1) Specific authority for separation.
(2) Narrative reason for separation.
(3) Reenlistment eligibility code.
(4) SPD or separation designation number (SDN).
(b) For DD Forms 214 issued after October 1, 1979, send one copy with the Special Additional Information Section, and one copy without it.
(c) If a report of separation is not available, furnish a brief official statement of military service. Use the letterhead stationery of the issuing records custodian. File copy of the statement in the master personnel record (MPerR).
(d) If (obsolete form) DD Form 258AF, Undesirable Discharge Certificate, has been issued, it may be replaced with DD Form 794AF, Discharge Under Other Than Honorable Conditions.
(e) A $4.25 fee may be charged for issuing a document under this section, with the exception of paragraph (d) of this section.
(a) For DD Form 363AF: Headquarters, Air Force Military Personnel Center, Officer Actions Branch (HQ AFMPC/DPMD00), Randolph AFB TX 78150-6001, for officers; and Headquarters, Air Force Military Personnel Center, Analysis and Certification Section (HQ AFMPC/DPMD0A2), Randolph AFB TX 78150-6001, for enlisted members. Applicants must attach a copy of the retirement order to SF 180 or letter.
(b) All other certificates:
(1) HQ AFMPC/DPMD00 for officers, and HQ AFMPC/DPMD0A2, for enlisted members, Randolph AFB TX 78150-6001 for:
(i) Members on EAD or on the temporary disability retired list (TDRL).
(ii) General officers in retired pay status.
(2) National Personnel Records Center, Military Personnel Records—Air Force (NPRC/MPR-AF), 9700 Page Boulevard, St. Louis MO 63132, for officers and enlisted members:
(i) Completely separated from the Air Force or Air National Guard.
(ii) In a retired pay status, except general officers.
(iii) In the retired Reserve who cannot become eligible for retired pay.
(3) Headquarters, Air Reserve Personnel Center, Reference Services Branch (HQ ARPC/DSMR), Denver CO 80280-5000, for Air National Guard and Air Force Reserve officers and enlisted members not on EAD, including retired Reserve who will be eligible for retired pay at age 60.
This part does not prohibit authorities (see § 887.8) from supplying photocopies of certificates of service, reports of separation, or similar documents. Agencies that provide copies of DD Form 214 (or their equivalent) will conspicuously affix an “official” seal or stamp on them to indicate that these documents are copies made from official United States Air Force military personnel records.
10 U.S.C., Chapter 903, and 10 U.S.C. 8012, except as otherwise noted.
This part is derived from Air Force Regulation 53-10, October 22, 1985.
Part 806 of this chapter states the basic policies and instructions governing the disclosure of records and tells members of the public what they must do to inspect or obtain copies of the material referenced herein.
This part tells civilian and enlisted personnel (including Air Force Reserve and National Guard) the methods of applying and the requirements and procedures for appointing young men and women to the United States Air Force Academy.
This part is affected by the Privacy Act of 1974. The systems of records prescribed in this part are authorized by 10 U.S.C., chapter 903; and 10 U.S.C. 8012. Each form that is subject to the provisions of part 806b.5 of this chapter, and is required by this part, contains a Privacy Act Statement either incorporated in the body of the document or in a separate statement accompanying each such document.
Appointments as U.S. Air Force Academy cadets are offered to those candidates having the strongest potential to become successful career officers. Offers of appointment are made according to the law and guidance provided by HQ USAF to most effectively accomplish the Academy's mission. All candidates are appointed as cadets under the authority of the President; however, an appointment is conditional until the candidate is admitted.
Appointments and nominations are based on statutory authority contained in 10 U.S.C., chapter 903. Specific authorities may nominate eligible applicants for appointment vacancies at the Academy. Each applicant must obtain a nomination to receive an appointment. Applicants may apply for a nomination in each category in which they are eligible.
All appointees must have a nomination in at least one of the following categories:
(a) Congressional and U.S. Possessions categories include the following nominating authorities:
(1) U.S. Senators and Representatives.
(2) Delegates in Congress from the District of Columbia, Guam, Virgin Islands, and American Samoa.
(3) Resident Commissioner of Puerto Rico.
(4) Governor of Puerto Rico.
(5) Administrator of the Panama Canal Commission.
(b) Vice-Presidential category.
(c) Presidential competitive category.
(d) Children of deceased or disabled veterans and children of military or civilian personnel in missing status competitive category.
(e) Honor military and honor Naval schools, Air Force Reserve Officers’ Training Corps (AFROTC), and Air Force Junior Reserve Officers’ Training Corps (AFJROTC) competitive category.
(f) Children of Medal of Honor recipients category.
(g) Air Force enlisted regular competitive category.
(h) Air Force enlisted reserve competitive category.
(i) Superintendent competitive category.
(j) Foreign students competitive category (40 foreign persons designated to receive instruction under 10 U.S.C 9344).
Each applicant must meet the following eligibility requirements:
(a)
(b)
(1) For American-born citizens, certified birth certificate presented to the Director of Admissions (USAFA/RRS), U.S. Air Force Academy, Colorado Springs CO 80840-5651 before administration of oath of appointment.
(2) Foreign cadets must present certified copies of certificates of arrival and nationalization or citizenship to USAFA/RRS before administration of oath of appointment.
Facsimiles, copies, photographs or otherwise of birth certificate or certificate of citizenship will not be accepted unless properly certified by the raised seal of the issuing authority.
(c)
(d)
(1) Applicant is or has been a conscientious objector. In this case, an affidavit is required stating that such beliefs and principles have been abandoned so far as they pertain to willingness to bear arms and give full and unqualified military service to the United States.
(2) Any facts that indicate the applicant's appointment may not be consistent with the interests of national security.
(3) Conviction by court-martial of other than a “minor offense” (MCM, 1984, part V, paragraph 1e, page V-1) or conviction of a felony in a civilian court.
(4) Elimination from any officer training program or any preparatory school of the Army, Navy, or Air Force Academies for military inaptitude, indifference, or undesirable traits of character. This includes any person who resigned in lieu of impending charges or who was eliminated by official action.
(5) Habitual alcohol misuse or drug abuse which exceeds the standards of AFR 30-2 is disqualifying.
(6) Any behavior, activity, or association showing the applicant's conduct is incompatible with exemplary standards of personal conduct, moral character, and integrity.
(e)
(f)
For the purpose of this regulation, children are defined as the natural children of a parent and adopted children whose adoption proceedings were initiated before their 15th birthday.
(g)
Before being offered an appointment, candidates must take either the College Board Admission Testing Program (ATP) or the American College Testing Program (ACT) test.
(a)
(b)
Before being offered an appointment, candidates must take a Candidate Fitness Test (CFT) which consists of exercises designed to measure muscular strength, coordination, and aerobic power. Waivers to the CFT requirement may be granted by the Air Force Academy Director of Athletics if a candidate's participation in high school athletics conflicts with test administration dates and the candidate clearly demonstrates an acceptable level of physical fitness.
The Air Force Academy conducts a precandidate evaluation program as an initial step in the admissions process and as an aid to Members of Congress in screening their applicants for nomination.
(a) Applicants normally are sent a precandidate packet, including USAFA Form 149, Precandidate Questionnaire, with a request for the applicant to provide academic, athletic, leadership, and medical information.
(b) The Academy evaluates the precandidate information and provides an analysis to appropriate congressional offices. Such information gives the nominating authorities an indication of the applicant's potential to qualify for admission and the applicant's self-reported medical status; it does not, however, reflect the applicant's final admission status. It is intended only to aid in selecting the best-qualified applicants for nomination.
(c) Applicants whose evaluation indicates they are fully qualified will be notified and advised to seek a nomination. Individuals whose evaluations reflect areas needing improvement are informed and encouraged to submit additional test scores or information in an effort to meet the qualifying levels.
Individuals who meet the basic eligibility requirements of § 901.4 may apply for a nomination according to their domicile (permanent legal residence).
(a) U.S. Senators, U.S. Representatives, the District of Columbia Delegate to the House of Representatives, and the Resident Commissioner of Puerto Rico are each authorized a quota of five cadets attending the Academy at any one time. If a vacancy
(b) Delegates in Congress from Guam and from the Virgin Islands are each authorized a quota of two cadets attending the Academy at any one time. If a vacancy occurs in their quota, each may make ten nominations. Eligible residents may apply for a nomination directly to their Delegate.
(c) The Governor of Puerto Rico, the Delegate from American Samoa, and the Panama Canal Commission Administrator may each have one cadet attending the Academy and each may nominate ten candidates to fill their vacancy.
(1) Applicants domiciled in and natives of Puerto Rico may apply to the Governor of Puero Rico in addition to the Resident Commissioner.
(2) Applicants domiciled in American Samoa may apply to their Delegate.
(3) Children of civilian personnel of the U.S. Government residing in the Republic of Panama who are citizens of the United States may apply to the Panama Canal Commission Administrator.
(d) Nominating authorities in these categories normally submit their nominations by January 31 for the class entering the following summer.
(1) These nominating authorities may nominate only if a vacancy occurs from their authorized quota of cadets attending the Academy. Vacancies normally occur from graduation or separation of cadets from the Academy. Failure of a member of a graduating class to complete the Academy program with his class does not delay the admission of his or her successor. HQ USAF/DPPA maintains the master records of cadets nominated and appointed, determines vacancies in each nominating authority's quota, and validates nominations submitted by each nominating authority.
(2) These nominating authorities forward their nominations on DD Form 1870, Nomination for Appointment to the U.S. Military Academy, Naval Academy, or Air Force Academy, for each Air Force Academy nominee through HQ USAF/DPPA, Washington, DC 20330-5060, to USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651.
The Vice President of the United States nominates from the United States at large, and is authorized a quota of five cadets attending the Academy at any one time. For each vacancy occurring in the quota, ten individuals may be nominated to fill the vacancy. Requests for a nomination are submitted directly to the Vice President no later than October 31. Any individual who meets the basic eligibility requirements of § 901.4 may apply to the Vice President for a nomination. The Vice President forwards nominations on DD Form 1870 for each Air Force Academy nominee through HQ USAF/DPPA, Washington, DC 20330-5060, to USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651.
Appointments to fill vacancies from this category are made from candidates in order of merit. One hundred appointments are authorized each year.
(a) The child of a Regular or Reserve member of the Armed Forces of the United States is eligible for nomination if:
(1) The parent is on active duty and has completed 8 years of continuous active duty service (other than for training) by July 1 of the year that the candidate would enter the U.S. Air Force Academy; or
(2) The parent was retired with pay or was granted retired or retainer pay (children of reservists retired and receiving pay pursuant to 10 U.S.C., chapter 67, are ineligible); or
(3) The parent died after retiring with pay or died after being granted retired or retainer pay (children of such reservists who were retired and receiving pay pursuant to 10 U.S.C., chapter 67, are ineligible); and
(4) The applicant does not meet the eligibility requirements for the Children of Deceased or Disabled Veterans (CODDV) nomination category. (By law, a person eligible for appointment consideration under the DOCCV category is not a candidate in the Presidential category.)
(b) An eligible individual applies to USAFA/RRS, U.S. Air Force Academy, Colorado Springs, CO 80840-5651. A suggested letter format is included in the precandidate packet. The nominating period opens on May 1 and closes January 31. Applicants do not write directly to the President of the United States, since the applications are processed by the Air Force Academy.
For the purpose of this category, children are defined as the natural children of a parent and adopted children whose adoption proceedings were initiated before their 15th birthday.
Appointments to fill vacancies from this competitive category are made from candidates in order of merit. Appointments authorized in this category are limited to 65 cadets at the Academy at any one time.
(a) The child of a deceased or disabled member of the Armed Forces of the United States is eligible for nomination if:
(1) The parent was killed in action or died of wounds or injuries received or diseases contracted while in active service or of preexisting injury or disease aggravated by active service; or
(2) The parent has a permanent service-connected disability rated at not less than 100 percent resulting from wounds or injuries received or diseases contracted while in active service, or of preexisting injury or disease aggravated by active service.
(b) The child of a parent who is in “missing status” is eligible if the parent is a member of the Armed Services or a civilian employee in active government service who is officially carried or determined to be absent in a status of missing; missing in action; interned in a foreign country; captured, beleaguered, or beseiged by a hostile force; or detained in a foreign country against the person's will.
(c) To request a nomination in this category, an individual submits an application to USAFA/RRS between May 1 and January 31. A suggested letter format is included in the precandidate packet.
For the purpose of this category, children are defined as the natural children of a parent and adopted children whose adoption proceedings were initiated before the 15th birthday.
Appointments to fill vacancies from this competitive category are made from candidates in order of merit. Twenty appointments are authorized each year.
(a) Honor military and honor Naval schools:
(1) Five honor graduates, or prospective honor graduates, from each designated honor military and honor naval school may be nominated to fill the vacancies allocated to this category. School authorities must certify that each nominee is a prospective honor graduate or an honor graduate, and meets the basic eligibility requirements.
(2) School authorities submit nominees directly to the Academy (USAFA/RRS) using specific nomination forms. Such nominations are submitted no later than January 31 of the entry year. Nominations are not limited to honor graduates of the current year. An individual eligible for nomination in this category applies to the administrative authority of the school involved.
(b) AFROTC and AFJROTC:
(1) Five students from each college or university AFROTC detachment may be nominated to compete for the vacancies allocated in this category.
(i) Students must apply for nomination to the Professor of Aerospace Studies (PAS) who must certify that the applicants meet the basic eligibility requirements and have or will have satisfactorily completed at least 1 year of scholastic work at the time the class for which they are applying enters the Academy.
(ii) The PAS uses the forms provided by the Academy to recommend for nomination the five best-qualified applicants to the president of the educational institution in which the AFROTC detachment is established.
(iii) Nominations from the president of the institution are submitted directly to the Academy (USAFA/RRS) by January 31 of the entry year.
(2) Five students from each high school AFJROTC detachment may be nominated to compete for the vacancies allocated to this category.
(i) Students must apply for nomination to the Aerospace Science Instructor, who must certify that the applicants meet the basic eligibility requirements and have or will have successfully completed the prescribed AFJROTC program by the end of the school year.
(ii) The Aerospace Science Instructor uses the nomination forms provided by the Academy to recommend for nomination the five best-qualified applicants to the principal of the high school in which the AFJROTC detachment is established.
(iii) Nominations from the principal of the high school are submitted directly to the Academy by January 31 of the entry year.
(a) The child of any Medal of Honor recipient who served in any branch of the Armed Forces may apply for nomination. If applicants meet the eligibility criteria and qualify on the entrance examinations, they are admitted to the Academy. Appointments from this category are not limited.
(b) The applicant applies directly to the Academy requesting a nomination in this category. The nominating period opens on May 1 and closes January 31. A suggested letter format is included in the precandidate packet.
For the purpose of this category, children are defined as the natural children of a parent and adopted children whose adoption proceedings were initiated before their 15th birthday.
Appointments to fill vacancies from this competitive category are made from candidates in order of merit. A total of 85 appointments are authorized from this category each year. Applications must be submitted no later than January 31 of the entry year.
(a) Any enlisted member of the Regular component of the Air Force may apply for nomination. Selectees must be in active duty enlisted status when appointed as cadets.
(b) Regular category applicants must arrange to have their high school transcripts submitted to USAFA/RRS. They must also complete AF Form 1786, “Application for Appointment to the United States Air Force Academy Under Quota Allotted to Enlisted Members of the Regular and Reserve Components of the Air Force,” and submit it to their organization commander who:
(1) Determines if the applicant meets the basic eligibility requirements shown in § 901.4 of this part. If disqualified, the application is returned and the applicant is informed of the reason.
(2) Advises the Consolidated Base Personnel Office (CBPO) to hold any reassignment action of the airman pending selection for an appointment. The CBPO places the airman in assignment availability code (AAC) 05 and coordinates on AF Form 1786. Applicants not selected are reassigned on Academy notification to the CBPO. Applicants to technical school follow-on training (if there is any) or PCS to their end assignment also are reassigned. The initial application package from the technical training center CBPO to USAFA/RRS includes the following information on all pipe-line students: name, SSN, AFSC, course graduation date, follow-on training, and end assignment.
(3) Completes an indorsement and forwards AF Form 1786 through the CBPO to USAFA/RRS, USAF Academy, Colorado Springs CO 80840-5651. The commander's indorsement must include a comprehensive statement of the applicant's character, ability, and motivation to become a career officer. Statements in the application regarding component, length of service, and date of birth must be verified from official records.
Appointments to fill vacancies from this competitive category are made from candidates in order of merit. A total of 85 appointments are authorized from this category each year. Applications must be submitted no later than January 31 of the entry year.
(a) Any enlisted member of the Air Force Reserve or the Air National Guard of the United States (ANGUS) may apply for nomination.
(b) A Reserve commissioned officer who satisfactorily completes 1 year of service in an active Reserve assignment by July 1 of the year in which admission is sought may apply for vacancies in this category. (Reserve commissioned officer on extended active duty (EAD) may apply for vacancies in the Regular competitive category.) If selected, such candidates must have commissioned officer status terminated and be in the enlisted Air Force Reserve before appointment as Air Force Academy cadets. Cadets in this category who are separated from the Air Force Academy without prejudice and under honorable conditions may apply for reappointment as Reserve commissioned officers.
(c) Reserve category applicants must arrange to have their high school transcripts submitted to USAFA/RRS, complete AF Form 1786, and submit it to their organization commander. The organization commander processes the application as outlined in § 901.14(b). A Reserve applicant is not placed on active duty to be processed for nomination or appointment to the Air Force Academy.
(d) Reserve airmen on EAD as a result of an honor suspension from the Air Force Academy Cadet Wing must reapply for admission under the procedures specified in § 901.14(b). Additionally, the AF Form 1786 which they submit must be endorsed by their wing commander, as well as their squadron commander, and must make specific recommendations about their potential to conform to Cadet Honor Code standards.
Fifty eligible applicants who have not secured a nomination to the Academy from any other nominating authority may be nominated by the Superintendent. Highly qualified applicants are selected for nomination from the nationwide precandidate program by the Academy. Appointments from this category are made in order of merit from the nationwide pool of qualified alternates to fill the class.
(a) The Academy is authorized to provide instruction to as many as 40 foreign persons at any one time. Foreign citizens must apply to the government of their own country. Coordination with the U.S. Embassy is necessary to ensure all admission and appointment requirements are met. HQ USAF/DPPA effects necessary consultation before nomination invitations are forwarded to each country.
(b) The application must contain complete particulars about the applicant's background and must be submitted as early as possible. Nominations from this category must be received by the Academy by December 31 before their desired summer admission. Applicants in these categories must meet the eligibility and admissions requirements established for all Academy candidates, except the requirement to be a U.S. citizen, and they must be able to read, write, and speak English proficiently.
To fill a vacancy in the Vice-Presidential quota or in the quota of a nominating authority in the congressional and U.S. Possessions categories, selections for appointment offers are made according to the following nomination methods.
(a)
(b)
(c)
Fully qualified candidates not offered appointments in their nominating category are placed in a nationwide pool of qualified alternates. To bring the Cadet Wing up to full strength, additional appointments are selected from this pool in order of merit. The first 150 additional appointments are of individuals having nominations from Members of Congress. Thereafter, three of every four additional appointments are of individuals having nominations from the Vice President, Members of Congress, Delegates to Congress (from the District of Columbia, Virgin Islands, and Guam), Governor of Puerto Rico, Resident Commissioner of Puerto Rico, or Administrator of Panama Canal Commission.
The Director of Admissions (USAFA/RRS) acknowledges receipt of all applicants’ nominations. If not previously received, USAFA/RRS forwards a precandidate questionnaire for completion. If the precandidate questionnaire indicates the potential to qualify for admission to the Academy or the Preparatory School, USAFA/RRS sends the individual a candidate kit which includes: USAFA Form 146, AFA Candidate Personal Data Record; USAFA Form 147, AFA Candidate Activities Record; and USAFA Form 148, AFA Request for Secondary School Transcript; AF Form 2030, Drug Abuse Certificate; and complete processing instructions.
(a) Notification of candidates selected for appointment are furnished by USAFA/RRS to HQ USAF/DPPA. HQ USAF/DPPA notifies Members of Congress and the Vice President of offers of appointment. After HQ USAF/DPPA notifies the nominating sources and advises USAFA/RRS that notification has been completed, USAFA/RRS notifies each appointee (civilian, Regular or Reserve service member) by letter, enclosing an acceptance or declination statement form. On receipt of an acceptance statement for each unconditional offer of appointment, USAFA/RRS forwards the completed candidate file to Cadet Examinations and Records (USAFA/RR). Conditional offers of appointment that have been accepted are held by USAFA/RRS until the conditional factor is resolved—medical status cleared, satisfactory preparatory school or college transcript received, proof of citizenship provided, etc. HQ USAF/DPPA is notified of removal of conditional status from offer of appointment in order to notify nominating sources as stated above. USAFA/RR completes admissions in-processing by:
(1) Forwarding an appointment kit which includes detailed reporting instructions to each appointee.
(2) Issuing invitation to travel orders.
(3) Notifying the Directorate of Cadet Personnel (USAFA/DPYC) of Regular airmen appointees. Regular airmen in technical school completes all phases of training, if time permits, before reporting to the Academy. On graduation, the airmen remain at the technical school in casual status (unless otherwise directed by HQ AFMPC/MPCRAC1) until earliest reporting date for the Academy.
(b) The Department of Defense Medical Examination Review Board (DODMERB) notifies applicants of their medical status. USAFA/RRS informs HQ USAF/DPPA of changes in medical status of candidates offered conditional appointments.
(c) USAFA/RRS notifies each unsuccessful candidate by May 1. For active duty Air Force personnel, the servicing CBPO also is notified and cancels the airman's Assignment Availability Code 05.
The applicant or nominee is personally responsible for notifying USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651, of every change of address or station assignment. Notifications from military personnel must include complete name, grade, SSN, and new organization or unit to which assigned.
If any of the annual quotas of cadets authorized in the Regular airman, Reserve airman, or Presidential nomination categories are not filled, then candidates from the other two categories may fill the vacancies on a best-qualified basis.
USAFA Forms 146, 147, 148 and 149 are stocked and issued by USAFA/RRS, USAF Academy, Colorado Springs, CO 80840-5651. DD Form 1870 is stocked and issued by the Air Force Academy Activities Group, HQ USAF/DPPA, Washington, DC 20330-5060.
(a) A cadet who enters the Air Force Academy directly from civilian status and takes an oath of allegiance as a cadet normally assumes a military service obligation of not less than 6 years nor more than 8 years under 10 U.S.C. 651.
(b) A cadet who enters the Air Force Academy from the Regular or Reserve component of the Air Force and fails to complete the Academy course of instruction reverts to enlisted status to complete any prior service obligation under 10 U.S.C. 516.
(c) If they are minors, cadets are required to sign an agreement with the parent's or guardian's consent that they will fulfill the following obligations:
(1) Complete the Academy course of instruction unless disenrolled from the Academy by competent authority.
(2) Accept an appointment and on graduation serve as a commissioned officer in a Regular component of one of the armed services for 5 years.
(3) Serve as a commissioned officer in the Reserve component until the 8th anniversary if authorized to resign from the Regular component before the 8th anniversary of their graduation.
(4) Be subject to the separation policies in AFR 53-3 and, perhaps, be required to serve on active duty in enlisted status if disenrolled from the Academy before graduation.
(5) Reimburse the U.S. Air Force under regulations prescribed by the Secretary of the Air Force for the costs of Academy education if the recipient, voluntarily or because of misconduct, fails to complete the period of active duty incurred.
On admission, each appointee (except foreign cadets) will be required to take the following oath of allegiance:
I (name), having been appointed an Air Force cadet in the United States Air Force, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office of which I am about to enter. So Help Me God.
Appointment of candidates is according to § 901.18. Selecting of the charged cadets from the nominees for each vacancy is accomplished as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
The information collection requirements in this part 901 have been approved by the Office of Management and Budget under control numbers 0701-0026, 0701-0063, 0701-0064, 0701-0066 and 0701-0087.
10 U.S.C. 8012, except as otherwise noted.
This part is derived from Air Force Regulation 53-14, May 22, 1979.
Part 806 of this chapter states the basic policies and instructions governing the disclosure of records and tells members of the public what they must do to inspect or obtain copies of the material referenced herein.
This part tells how to apply for the Air Force Academy Preparatory School Program. It also explains the procedures for selection, disenrollment, and assignment.
This part is affected by the Privacy Act of 1974. The systems of records prescribed here are authorized by Headquarters USAF (AFOMO 126) letter, April 11, 1969; and 10 U.S.C. 8012. Each form that is subject to AFR 12-35, paragraph 30, and is required by this part has a Privacy Act Statement, either incorporated in the body of the document or in a separate statement accompanying the document.
The mission of the United States Air Force Academy Preparatory School (USAFAPS) is to prepare and evaluate selected personnel for entrance into the Cadet Wing of the United States Air Force Academy. It provides indepth instruction in mathematics, English,
Classes are conducted each year from July to early May. A limited number of Regular and Reserve airmen may be enrolled at appropriate times after the July starting date.
The USAFAPS is located at the United States Air Force Academy near Colorado Springs, Colorado.
To be eligible, USAFAPS candidates must:
(a) Be at least 17 years old and not have passed their 21st birthday by July 1 of the year to be admitted.
(b) Be a citizen of the United States.
(c) Be unmarried and have no dependent children.
(d) Be on extended active duty. Air Force Reserve or Air National Guard members may apply while not on extended active duty but must agree to a call to active duty if selected to attend. Air National Guard members selected to attend will be transferred to the Air Force Reserve prior to being called to active duty.
(e) Agree, if a Regular member of the Armed Forces, to extend his or her current enlistment, if the obligated tour of duty or enlistment contract expires prior to the date of preparatory school graduation.
(f) Be medically qualified for an appointment to the Air Force Academy.
(g) Achieve a satisfactory score on the Scholastic Aptitude Test (SAT) offered by the Educational Testing Service, or on the American College Testing (ACT) program tests, or on the Air Force Academy Selection Test.
(h) Have an acceptable academic record as determined by the Air Force Academy Director of Cadet Admissions.
(i) Not have previously attended a service academy preparatory school.
(j) Have received a nomination to the Air Force Academy, if a Regular member of the Army, Navy, or Marine Corps.
(k) Have completed Basic Training, if a Reserve airman entering after normal July entry date.
(a) Regular and Reserve members of the Air Force must send a complete application to the Air Force Academy Director of Cadet Admissions not later than May 1.
(b) Regular members of the Army, Navy, or Marine Corps who are nominated for an appointment to the Air Force Academy must establish their eligibility for nomination by May 1.
(a) Regular and Reserve members of the Air Force must send the following through their organization commander and servicing CBPO (active duty only) to the Air Force Academy Director of Cadet Admissions.
(1) AF Form 1786, Application for Appointment to the United States Air Force Academy Under Quota Allotted to Enlisted Members of the Regular and Reserve Components of the Air Force.
(2) A certified transcript from each high school, civilian preparatory school, or college that the applicant attended.
(b) Regular members of the Army, Navy or Marine Corps must request enrollment by sending a letter as shown in § 903.14 to the Air Force Academy Director of Cadet Admissions through their organization commander.
(c) The organization commander is responsible for:
(1) Sending the following to the Air Force Academy Director of Cadet Admissions (for active duty Air Force personnel, the commander will send the completed application to the servicing CBPO):
(i) An AF Form 1786 for a Regular or Reserve member of the Air Force, or a letter requesting enrollment by a Regular member of the Army, Navy, or Marine Corps.
(ii) Certified transcripts from each high school, civilian preparatory school, or college attended by the applicant.
(iii) One copy of the applicant's most recent Airman Performance Report (AF Form 909 or 910, as applicable).
(iv) One copy of the applicant's Report of Individual Report (RIP).
(v) A recommendation for selection or nonselection which gives a full description of the applicant's character and suitability for the Preparatory School program and includes the following statement:
Information regarding component, length of service, and date of birth have been verified from official records.
(d) The servicing CBPO (for active duty personnel) is responsible for:
(1) Making sure that the applicant is assigned an Assignment Availability Code “05” IAW table 3-3, AFR 39-11.
(2) Sending the application to the Air Force Academy Director of Cadet Admissions.
Applicants are selected for enrollment by the Air Force Academy on the basis of test scores, medical examination, prior academic record, recommendation of the organization commander, and other reports and records which indicate the applicant's aptitude, achievement, or ability to complete the program successfully.
(a) When applicable, the Air Force Academy Director of Cadet Admissions will send a notice of nonselection for Air Force personnel, to the applicant and the servicing CBPO.
(b) Upon receipt of a notice of nonselection, the servicing CBPO for Regular members of the Air Force will cancel the applicant's Assignment Availability Code 05.
(c) Upon selection of Air Force personnel to attend the USAFAPS, the Air Force Academy Director of Cadet Admissions will notify the Air Force Academy CBPO/DPMUM of the selectee's name, grade, SSAN, AFSC, and unit of assignment. The Air Force Academy CBPO will insure that the selectee is assigned to the USAFAPS, USAF Academy CO 80840.
(d) The Department of Defense Medical Examination Review Board (DODMERB) will notify applicants of their medical status.
(e) Air Force personnel entering the USAF Academy Preparatory School will enter in the highest active duty grade they held as of the date of entrance without change to DOR or effective date. Future promotions will be in accordance with AFR 39-29.
Students may be disenrolled when the Commander of the Prep School determines that one or more of the following conditions exist:
(a) The student has failed to meet and maintain academic standards.
(b) The student has failed to demonstrate adaptability and suitability for the Air Force Academy academic, military, or physical training programs.
(c) The student's conduct is unsatisfactory.
(d) The student's retention in the program is not in the best interests of the government.
(e) The student marries.
(f) The student becomes medically disqualified for an appointment to the Air Force Academy.
(g) The student request disenrollment.
These students will be reported by USAFA/PL to USAFA/DPMU.
(a) Regular Air Force members will be reported by USAFA/DPMU to AFMPC/MPCRAC 3 for reassignment as follows:
(1) Name, grade, and SSAN.
(2) CAFSC, PAFSC, and any additional AFSCs.
(3) Former unit, base, and command of assignment.
(4) DOS.
(5) ODSD/STRD and last area of oversea assignment.
(6) Oversea volunteer status.
(7) Assignment preferences.
(8) Assignment deferment status.
(9) Reason for reassignment action.
(10) Statement as to the airman's possible appointment to another service academy.
(b) Air Force reservists are reassigned as follows:
(1) Reserve Air Force members called to active duty solely to attend the school will be discharged from the United States Air Force under the authority of this part and AFR 39-10.
(2) Reserve Air Force members previously assigned to a Reserve Unit will be released from active duty and reassigned to the Air Reserve Personnel Center under the authority of this part and AFR 39-10.
(3) Air National Guard members previously assigned to an ANG unit will be released from active duty and reassigned to the appropriate State Adjutant General under the authority of this part and AFR 39-10.
(c) Regular members of the other services will be reported as follows:
(1) Members of the Navy will be reported to the Officer-in-Charge, NAVUN Lowry, Colorado Springs Detachment, 801 Prospect Lake Drive, Colorado Springs CO 80901.
(2) Members of the Army will be reported as currently specified in AR 600-635.
(3) Members of the Marine Corps will be reported to MARTU, MARTC, Denver CO 80240.
(a) Regular and Reserve Airmen will be released from enlisted active duty and will be reassigned as active duty Air Force Academy cadets, to be effective on the date of entry into the Academy in accordance with:
(1) DAF Letter, “Members of the Armed Forces Appointed to a Service Academy,” July 8, 1957.
(2) 10 U.S.C. 516, 8201, 8203, 8205, and 8214.
(3) AFR 39-10.
(b) Records for Regular and Reserve members of the Air Force who enter the Air Force Academy will be retained by the Academy until the airman is commissioned or disenrolled. These members will not be issued DD Form 214, Report of Separation from Active Duty.
(c) Records for Regular Airmen who enter one of the other academies will be forwarded to AFMPC/MPCDOB for processing.
(d) Regular airmen who enter any of the three service academies will be required to sign the statement shown at § 903.15.
(e) Regular members of the Army, Navy, or Marine Corps who enter the Air Force Academy will be reported to the appropriate service as shown in § 903.11(c).
(f) HQ USAFA/DPMQS will publish relieved from active duty orders for USAF Academy Preparatory School students who are regular and reserve airmen and who, upon completion of the USAF Academy Preparatory School, accept appointments to a service academy.
The enlistment into the Air Force Reserve of civilian selectees for the USAF Academy Preparatory School will be accomplished as follows:
(a) The Office of Cadet Admissions and Registrar (RRS), USAF Academy, CO, will send to each selectee a DD Form 1966, Application for Enlistment-Armed Forces of the United States, with instructions for its completion. The selectee will be instructed to send the completed DD form 1966 to HQ ARPC/DPRPP, Denver CO 80280. A preaddressed envelope will be provided for this purpose.
(b) Upon receipt of the completed DD Form 1966, HQ ARPC/DPRPP will review the form for completion and acceptance of the applicant for enlistment.
(c) If the applicant is acceptable for enlistment, HQ ARPC/DPRPP will complete a DD Form 4, Enlistment or Reenlistment Agreement—Armed Forces of the United States, for each applicant.
(d) HQ ARPC/DPRPP and the USAF Academy Preparatory School will be responsible for administering the oath of enlistment for each applicant. This oath is administered on the date of inprocessing at the USAF Academy Preparatory School, and the effective date of enlistment is the date the applicant took the oath.
(e) HQ ARPC/DPRPP will publish Reserve Orders placing the applicant on
a. I have been nominated by (indicate name of Senator/Representative) for appointment to the Air Force Academy.
b. I have applied for candidacy to the Air Force Academy under the following competition(s) (list those that apply)
Presidential.
Sons or Daughters of Deceased or Disabled Veterans.
Sons or Daughters of Medal of Honor Recipients.
3. (Use appropriate sentence(s) listed below):
a. My academic transcripts are attached.
b. My academic transcripts are being requested from the appropriate school officials. They will mail them to the Director of Cadet Admissions, USAFA/RRS. I last attended (name of high school, college, or preparatory school), (address of school).
4. I was born on (day) (month) (year). My present enlistment expires (day) (month) (year).
NAME, Grade, Branch of Service.
SSAN.
Organization.
Location.
Telephone No.
To be used only by military nominee—see § 903.7(b) (Army, Navy, and Marine Corps only) (Regular and Reserve Air Force applicants must use AF Form 1786).
Upon acceptance as a Cadet in the
Sec. 48, Act of 12 July 1960; 74 Stat. 424; Pub. L. 86-624; E.O. 11048, Sept. 1, 1962, 27 FR 8851 and agreement between the Department of Interior and Department of the Air Force dated 19 June 1972, 37 FR 12255.
(a) The local civil and criminal laws of Wake Island consist of this part and applicable provisions of the laws of the United States.
(b) For the purposes of this part, Wake Island includes Wake, Peale, and Wilkes Islands, and the appurtenant reefs, shoals, shores, bays, lagoons, keys, territorial waters, and superadjacent airspace of them.
The purpose of this part is to provide—
(a) For the civil administration of Wake Island;
(b) Civil laws for Wake Island not otherwise provided for;
(c) Criminal laws for Wake Island not otherwise provided for;
(d) A judicial system for Wake Island not otherwise provided for.
In this part—
(a)
(b)
(c)
(d)
This part is effective at 0000 June 25, 1972.
The executive authority at Wake Island is vested in the Secretary of the Air Force. This authority is hereby delegated to the General Counsel of the Air Force with authority to redelegate all or any part of his functions, powers, and duties under this part to such officers and employees of the Air Force as he may designate. The Commander, Wake Island Air Force Base is the agent of the Secretary, his delegate and designees in carrying out any function, power or duty under this part.
Permits in effect on the effective date of this part continue in effect until revoked or rescinded by the Commander. The Commander may issue island permits or registration for:
(a) Businesses, including any trade, profession, calling, or occupation, and any establishment where food or beverages are prepared, offered, or sold for human consumption.
(b) Self-propelled motor vehicles, except aircraft; including attached trailers.
(c) Vehicle operators.
(d) Boats.
(e) Dogs.
(f) Food handlers.
(g) Explosives and guns and pistols (including those operated by air, gas, or spring).
(h) Drugs, narcotics, and poisons.
(i) Construction.
(j) Burials.
(k) Any permit or registration issued pursuant to Air Force regulations or directives as applicable to Wake Island Air Force Base shall constitute a permit or registration under this section, and no other permit or registration shall be required.
The Commander may:
(a) Appoint Peace Officers;
(b) Direct the abatement of any public nuisance upon failure of any person to comply with a notice of removal;
(c) Direct sanitation and fire prevention inspections;
(d) Establish records of vital statistics;
(e) Direct the registration and inspections of motor vehicles, boats, and aircraft;
(f) Deputize any person to serve as a Peace Officer;
(g) Impose quarantines;
(h) Direct the impoundment and destruction of unsanitary food, fish, or beverages;
(i) Direct the evacuation of any person from a hazardous area;
(j) Commission notaries public;
(k) Establish and maintain a facility for the restraint or confinement of persons and provide for their care;
(l) Direct the removal of any person from Wake Island for cause;
(m) Issue traffic regulations that are not inconsistent with this part, and post traffic signs;
(n) Prohibit the posting, distribution, or public display of advertisements, signs, circulars, petitions, or similar materials, soliciting, picketing, or parading in any public place or area if he determines it would interfere with public business or endanger the health and safety of persons and property on Wake Island;
(o) Perform or direct any other acts, not inconsistent with this part or applicable laws and regulations if he considers it necessary for protection of the health or safety of persons and property on Wake Island; and
(p) Issue any order or notice necessary to implement this section. Any order or notice issued pursuant to Air Force regulations and directives as applicable to Wake Island Air Force Base shall constitute an order or notice issued pursuant to this section.
(a) The Commander may revoke or suspend any island permit or registration for cause, with or without notice.
(b) The holder of any revoked or suspended permit or registration may demand personal hearing before the Commander within 30 days after the effective date of the revocation or suspension.
(c) If a hearing is demanded, it shall be granted by the Commander within 30 days of the date of demand. The applicant may appear in person and present such documentary evidence as is pertinent. The Commander shall render a decision, in writing, setting forth his reasons, within 30 days thereafter.
(d) If a hearing is not granted within 30 days, a written decision is not rendered within 30 days after a hearing, or the applicant desires to appeal a decision, he may, within 30 days after the latest of any of the foregoing dates appeal in writing to the General Counsel, whose decision shall be final.
The medical officer on Wake Island, or any other qualified person under his supervision may perform autopsies upon authorization of the Commander or a judge of the Wake Island Court.
(a) The Commander may commission one or more residents of Wake Island as notaries public.
(b) Persons applying for commission as a notary public shall file an application, together with evidence of good character and a proposed seal in such form as the Commander requires, with a fee of $10 which shall be deposited in the Treasury as a miscellaneous receipt.
(c) Upon such investigation as he considers necessary, the Commander may commission an applicant as a notary public. Commissions shall expire 3 years after the date thereof, and may be renewed upon application upon payment of a fee of $3.
During the imminence and duration of any emergency declared by him, the Commander may perform or direct any acts necessary to protect life and property.
Civil acts and deeds taking place on Wake Island shall be determined and adjudicated as provided in this part; and otherwise, as provided in the Act
In any case in which the civil rights, powers, and duties of any person on Wake Island are not otherwise prescribed by the laws of the United States or this part, the civil rights, powers, and duties as they obtain under the laws of Hawaii apply to persons on Wake Island.
In addition to any act made criminal in this part, any act committed on Wake Island that would be criminal if committed on board a merchant vessel or other vessel belonging to the United States is a criminal offense and shall be adjudged and punished according to the laws applicable on board those vessels on the high seas.
No person may on Wake Island—
(a) Sell or give an alcoholic beverage manufactured for consumption (including beer, ale, or wine) to any person who is not at least 18 years of age, without the permission of that person's parent or guardian;
(b) Procure for, engage in, aid or abet in, or solicit for prostitution;
(c) Use any building, structure, vehicle, or public lands for the purpose of lewdness, assignation, or prostitution;
(d) Possess or display (publicly or privately) any pornographic literature, film, device, or any matter containing obscene language, that tends to corrupt morals;
(e) Make any obscene or indecent exposure of his person;
(f) Commit any disorderly, obscene, or indecent act;
(g) Commit any act of voyeurism (Peeping Tom);
(h) Enter upon any assigned residential quarters or areas immediately adjacent thereto, without permission of the assigned occupant;
(i) Discard or place any paper, debris, refuse, garbage, litter, bottle, can, human or animal waste, trash or junk in any public place, except into a receptacle or place designated or used for that purpose.
(j) Commit any act of nuisance;
(k) With intent to provoke a breach of the peace or under such circumstances that a breach of the peace may be occasioned thereby, act in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to any other person;
(l) Be drunk in any public place;
(m) Use any profane or vulgar language in a public place;
(n) Loiter or roam about Wake Island, without any lawful purpose, at late and unusual hours of the night;
(o) Lodge or sleep in any place without the consent of the person in legal possession of that place;
(p) Grossly waste any potable water; or
(q) Being a male, knowingly enter any area building or quarters reserved for women, except in accordance with established visiting procedures.
(r) Smoke or ignite any fire in any designated and posted “No Smoking” area, or in the immediate proximity of any aircraft or fueling pit;
(s) Enter any airplane parking area or ramp, unless he is on duty therein, is a passenger under appropriate supervision, or is authorized by the Commander to enter that place;
(t) Interfere or tamper with any aircraft or servicing equipment or facility, or put in motion the engine of any aircraft without the permission of its operator;
(u) Post, distribute, or publicly display advertisements, signs, circulars, petitions, or similar materials, solicit, picket, or parade in any public place or area where prohibited by the Commander pursuant to § 935.15.
Whoever is found guilty of a violation of any provision of subpart E of
Whoever is found guilty of a violation of subpart N of this part is subject to a fine of not more than $100, imprisonment of not more than 30 days, or suspension or revocation of his motor vehicle operator's permit, or any combination or all of these punishments.
(a) Whoever is found guilty of a violation of subpart O or P of this part is subject to a fine of not more than $100, or imprisonment of not more than 30 days, or both.
(b) The penalties prescribed in paragraph (a) of this section are in addition to and do not take the place of any criminal penalty otherwise applicable and currently provided by the laws of the United States.
Judges of the Wake Island Court may, in any civil or criminal case or proceeding, punish any person for disobedience of any order of the court, or for any contempt committed in the presence of the court, by a fine of not more than $100, or imprisonment of not more than 30 days, or both.
(a) The judicial authority at Wake Island is vested in the Wake Island Court.
(b) The Wake Island Court consists of a Chief Judge and four Associate Judges, appointed by the General Counsel, for a term of 1 year. The Chief Judge assigns matters to judges, determines whenever the Court sits individually or en banc, and prescribes rules of the Court not otherwise provided for in this Code.
(c) Sessions of the Court are held on Wake Island at times and places designated by the Chief Judge.
There is an Island Attorney, appointed by the General Counsel for a term of 1 year. The Island Attorney represents the United States in the Wake Island Court and in the Wake Island Court of Appeals.
There is a Public Defender, appointed by the General Counsel for a term of 1 year. The Public Defender represents any person charged with an offense under this Code who requests representation.
There is a Clerk of the Court, who is appointed by the Chief Judge. The Clerk maintains a public docket containing such information as the Chief Judge may prescribe, and performs such other duties as the Court may direct.
(a) The Wake Island Court has jurisdiction over all offenses under this Code and all actions of a civil nature, cognizable at law or in equity, where the amount in issue is not more than $1,000, exclusive of interests and costs, change of name or domestic relations matters;
(b) The United States is not subject to suit in the Court;
(c) The United States may intervene in any matter in which the Island Attorney determines it has an interest.
(a) The appellate judicial authority for Wake Island is vested in the Wake Island Court of Appeals.
(b) The Wake Island Court of Appeals consists of a Chief Judge and one Associate Judge, appointed by the General Counsel for a term of 1 year. The Chief Judge assigns matters to judges, determines whether the Court sits individually or en banc, and prescribes rules of the Court not otherwise provided for in this Code.
(c) Sessions of the Court of Appeals are held in Washington, DC, at times and places designated by the Chief Judge.
There is a Clerk of the Court of Appeals, who is appointed by the Chief Judge. The Clerk maintains a public docket containing such information as the Chief Judge may prescribe, and performs such other duties as the Court directs.
The Court of Appeals has jurisdiction over all appeals from the Wake Island Court. Decisions of the Court are final.
(a) No person may be appointed a judge, Island Attorney or Public Defender under this part who is not a member of the bar of a State, District, or Territory.
(b) Civilian officers and employees of the Department of the Air Force may be appointed as a judge, Island Attorney, Public Defender, or Clerk, to serve without additional compensation.
(a) No civil action may be filed more than 1 year after the cause of action arose.
(b) No person is liable to be tried under this Code for any offense if the offense was committed more than 1 year before the date the information or citation is filed with the Clerk of the Wake Island Court.
(a) The Clerk of the Court shall issue subpoenas for the attendance of witnesses. The subpoena must include the name of the Court and the title, if any, of the proceeding; and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The Clerk shall issue a subpoena to a party requesting it, setting forth the name of the witness subpoenaed.
(b) The Clerk may also issue a subpoena commanding the person to whom it is directed to produce the books, papers, documents, or other objects designated therein. The Court may direct that books, papers, and documents designated in the subpoena be produced before the Court at a time before the trial or before the time when they are to be offered in evidence. It may, upon their production, allow the books, papers, documents, or objects or portions thereof to be inspected by the parties and their representatives.
(c) Any Peace Officer or any other person who is not a party and who is at least 18 years of age may serve a subpoena. Service of a subpoena shall be made by delivering a copy thereof to the person named.
(d) The Clerk of the Court shall assess and collect a witness fee of $3 for each subpoena requested by any party other than the United States, which shall be tendered to the witness as his witness fee together with service of the subpoena. Witnesses subpoenaed by the Island Attorney shall be entitled to a fee of $3 upon presentment of a proper claim therefor on the United States. No duly summoned witness may refuse, decline, or fail to appear or disobey a subpoena on the ground that the witness fee was not tendered or received.
(e) Upon a showing that the evidence is necessary to meet the ends of justice and that the defendant is indigent, the Public Defender may request the Court to direct the Island Attorney to obtain the issuance of a subpoena on behalf of a defendant in a criminal case. Witnesses so called on behalf of the defendant shall be entitled to the same witness fees as witnesses requested by the Island Attorney.
(f) Subpoenas may be credited only to persons or things on Wake Island.
(a) The Federal Rules of Civil Procedure apply to civil actions in the Court to the extent the Presiding Judge considers applicable under the circumstances.
(b) There is one form of action called the “Civil Action.”
(c) Except as otherwise provided in this part, there is not trial by jury.
(d) A civil action begins with the filing of a complaint with the Court. The form of the complaint is as follows except as it may be modified to conform as appropriate to the particular action:
——————————— plaintiff alleges that the defendant is indebted to plaintiff in the sum of $———; that plaintiff has demanded payment of said sum; that defendant has refused to pay; that defendant resides at ———— on Wake Island; that plaintiff resides at ————.
Upon the filing of a complaint, a Judge or Clerk of the Court shall issue a summons in the following form and deliver it for service to a peace officer or other person specifically designated by the Court to serve it:
To the above-named defendant:
You are hereby directed to appear and answer the attached cause at ———— on ———— day of ————, 19—, at —— p.m. and to have with you all books, papers, and witnesses needed by you to establish any defense you have to said claim.
You are further notified that in case you do not appear, judgment will be given against you, for the amount of said claim, together with cost of this suit and the service of this order.
Dated: ————, 19—.
(a) A peace officer or other person designated by the Court to make service shall serve the summons and a copy of the complaint at Wake Island upon the defendant personally, or by leaving them at his usual place of abode with any adult residing or employed there.
(b) In the case of a corporation, partnership, joint stock company, trading association, or other unincorporated association, service may be made at Wake Island by delivering a copy of the summons and complaint to any of its officers, a managing or general agent, or any other agent authorized by appointment or by law to receive service.
The Clerk of the Court shall promptly provide a copy of the summons to the plaintiff, together with notice that if the plaintiff fails to appear at the Court at the time set for the trial, the case will be dismissed. The trial shall be set at a date that will allow each party at least 7 days, after the pleadings are closed, to prepare.
(a) The defendant may, at his election, file an answer to the complaint.
(b) The defendant may file a counterclaim, setoff, or any reasonable affirmative defense.
(c) If the defendant elects to file a counterclaim, setoff, or affirmative defense, the Court shall promptly send a copy of it to the plaintiff and shall allow him enough time to prepare his position with regard thereto.
(a) The presiding Judge is responsible for the making of an appropriate record of each civil action.
(b) All persons shall give their testimony under oath or affirmation. The Senior Judge shall prescribe the oath and affirmation that may be administered by any Judge or the Clerk of the Court.
(c) Each party may present witnesses and other forms of evidence. In addition, the presiding Judge may informally investigate any controversy, in or out of the Court, if the evidence obtained as a result is adequately disclosed to all parties. Witnesses, books, papers, documents, or other objects may be subpoenaed as provided in § 935.80 for criminal cases.
(d) The Court may issue its judgment in writing or orally from the bench. However, if an appeal is taken from the judgment, the presiding Judge shall, within 10 days after it is filed, file a memorandum of decision as a part of the record. The Judge shall place in the memorandum findings of fact, conclusions of law, and any comments that he considers will be helpful to a thorough understanding and just determination of the case on appeal.
(a) If, after 60 days after the date of entry of judgment (or such other period as the court may prescribe), the judgment debtor has not satisfied the judgment, the judgment creditor may apply to the court for grant of execution on the property of the judgment debtor.
(b) Upon a writ issued by the court, any peace officer may levy execution on any property of the judgment debtor except—
(1) His wearing apparel up to $300 in value;
(2) His beds, bedding, household furniture, and furnishings, stoves, and cooking utensils, up to $300 in value; and
(3) Mechanics tools and implements of the debtor's trade up to $200 in value.
(c) Within 60 days after levy of execution, a peace officer shall sell the seized property at public sale and shall pay the proceeds to the Clerk of the court. The Clerk shall apply the proceeds as follows:
(1) First, to the reasonable costs of execution and sale and court costs.
(2) Second, to the judgment.
(3) Third, the residue (if any) to the debtor.
(d) In any case in which property has been seized under a writ of execution, but not yet sold, the property seized shall be released upon payment of the judgment, court costs, and the costs of execution.
(a) If a judgment debtor fails to satisfy a judgment in full within 60 days after the entry of judgment (or such other period as the court may prescribe), the court may, upon the application of the judgment creditor issue a writ of garnishment directed to any person having money or property in his possession belonging to the judgment debtor or owing money to the judgment debtor. The following are exempt from judgment:
(1) Ninety percent of so much of the gross wages as does not exceed $200 due to the judgment debtor from his employer.
(2) Eighty percent of so much of the gross wages as exceeds $200 but does not exceed $500 due to the judgment debtor from his employer;
(3) Fifty percent of so much of the gross wages as exceeds $500 due to the judgment debtor from his employer.
(b) The writ of garnishment shall be served on the judgment debtor and the garnishee and shall direct the garnishee to pay or deliver from the money or property owing to the judgment debtor such money or property as the court may prescribe.
(c) The garnished amount shall be paid to the Clerk of the Court, who shall apply it as follows:
(1) First, to satisfy the costs of garnishment and court costs.
(2) Second, to satisfy the judgment.
(3) Third, the residue (if any) to the judgment debtor.
(d) Funds of the debtor held by the United States are not subject to garnishment.
(a) A person who is arrested on Wake Island for any violation of this part is entitled to be released on bail in an amount set by a Judge or Clerk of the Court, which may not exceed the maximum fine for the offense charged. If the defendant fails to appear for arraignment, trial or sentence, or otherwise breaches any condition of bail, the Court may direct a forfeiture of the whole or part of the bail and may on motion after notice to the surety or sureties, if any, enter a judgment for the amount of the forfeiture.
(b) The Chief Judge may prescribe a schedule of bail for any offense under this Code which the defendant may elect to post and forfeit without trial, in which case the Court shall enter a
(c) Bail will be deposited in cash with the Clerk of the Court.
Any property seized in connection with an alleged offense (unless the property is perishable) is retained pending trial in accordance with the orders of the Court. The property must be produced in Court, if practicable. At the termination of the trial, the Court shall restore the property or the funds resulting from the sale of the property to the owner, or make such other proper order as may be required and incorporate its order in the record of the case.
(a) Any offense may be prosecuted by a written information signed by the Island Attorney. However, if the offense is one for which issue of a citation is authorized by this part and a citation for the offense has been issued, the citation serves as an information.
(b) A copy of the information shall be delivered to the accused, or his counsel, as soon as practicable after it is filed.
(c) Each count of an information may charge one offense only and must be particularized sufficiently to identify the place, the time, and the subject matter of the alleged offense. It shall refer to the provision of law under which the offense is charged, but any error in this reference or its omission may be corrected by leave of Court at any time before sentence and is not grounds for reversal of a conviction if the error or omission did not mislead the accused to his prejudice.
(a) Upon motion of the accused at any time after filing of the information or copy of citation, the Court may order the prosecutor to allow the accused to inspect and copy or photograph designated books, papers, documents, or tangible objects obtained from or belonging to the accused, or obtain from others by seizure or process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.
(b) When the Court is satisfied that it has jurisdiction to try the accused as charged, it shall require the accused to identify himself and state whether or not he has counsel. If he has no counsel, but desires counsel, the Court shall give him a reasonable opportunity to procure counsel.
(c) When both sides are ready for arraignment, or when the Court determines that both sides have had adequate opportunities to prepare for arraignment, the Court shall read the charges to the accused, explain them (if necessary), and, after the reading or stating of each charge in Court, ask the accused whether he pleads “guilty” or “not guilty.” The Court shall enter in the record of the case the plea made to each charge.
(d) The accused may plead “guilty” to any or all of the charges against him, except that the Court may at its discretion refuse to accept a plea of guilty, and may not accept a plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.
(e) The accused may plead “not guilty” to any or all of the charges against him. The Court shall enter a plea of not guilty if the answer of the accused to any charge is such that it does not clearly amount to a plea of guilty or not guilty.
(f) The accused may, at any stage of the trial, with the consent of the Court, change a plea of not guilty to one of guilty. The Court shall then proceed as if the accused had originally pleaded guilty.
If the Court accepts a plea of guilty to any charge or charges, it shall make a finding of guilty on that charge. Before imposing sentence, the Court shall hear such statements for the prosecution and defense, if any, as it requires to enable it to determine the sentence to be imposed. The accused or his counsel may make any reasonable statement he wishes in mitigation or of previous good character. The prosecution
(a) If the accused pleads not guilty, he is entitled to a trial on the charges in accordance with procedures prescribed in the Rules of Criminal Procedure for the U.S. District Courts, except as otherwise provided in this part, to the extent the Presiding Justice considers practicable and necessary to the ends of justice. There is no trial by jury.
(b) All persons shall give their testimony under oath or affirmation. The Senior Judge shall prescribe the oath and affirmation that may be administered by any Judge or the Clerk of the Court.
(c) Upon completion of the trial, the Court shall enter a judgment consisting of a finding or findings and sentence or sentences, or discharge of the accused.
(d) The Court may suspend any sentence imposed, may order the revocation of any Island automobile permit in motor vehicle cases, and may place the accused on probation. It may delay sentencing pending the receipt of any presentencing report ordered by it.
(a) Any party to an action may, within 15 days after judgment, appeal an interlocutory order, issue of law or judgment, except that an acquittal may not be appealed, by filing a notice of appeal with the Clerk of the Wake Island Court and serving a copy on the opposing party. Judgment is stayed while the appeal is pending.
(b) Upon receiving a notice of appeal with proof of service on the opposing party, the Clerk shall forward the record of the action to the Wake Island Court of Appeals.
(c) The appellant shall serve on the opposing party and file a memorandum setting forth his grounds of appeal with the Wake Island Court of Appeals within 15 days after the date of the judgment. The appellee may serve and file a reply memorandum within 15 days thereafter. An appeal and the reply shall be deemed to be filed when deposited in the U.S. mail with proper postage affixed, addressed to the Clerk, Wake Island Court of Appeals, at his address in Washington, DC. The period for filing of an appeal may be waived by the Court of Appeals when the interests of justice so require.
(d) The Court may proceed to judgment on the record, or, if the Court considers that the interests of justice so require, grant a hearing.
(e) The decision of the Court of Appeals shall be in writing and based on the record prepared by the Wake Island Court, on the proceedings before the Court of Appeals, if any be had, and on any memoranda that are filed. If the Court of Appeals considers the record incomplete, the case may be remanded to the Wake Island Court for further proceedings.
(f) The decision of the Court of Appeals is final.
A Judge of the Wake Island Court may order a new trial as required in the interest of justice, or vacate any judgment and enter a new one, on motion made within a reasonable time after discovery by the moving party of matters constituting the grounds upon which the motion for new trial or vacation of judgment is made.
Peace officers—
(a) Have the authority of a sheriff at common law;
(b) May serve any process on Wake Island that is allowed to be served under a Federal or State law. The officer serving the process shall execute any required affidavit of service;
(c) May conduct sanitation or fire prevention inspections;
(d) Inspect motor vehicles, boats and aircraft;
(e) May confiscate property used in the commission of a crime;
(f) May deputize any person to serve as a peace officer;
(g) May investigate accidents and suspected crimes;
(h) May direct vehicular or pedestrian traffic;
(i) May remove and impound abandoned or unlawfully parked vehicles, boats or aircraft, or vehicles, boats or aircraft interfering with fire control apparatus or ambulances;
(j) May take possession of property lost, abandoned, or of unknown ownership;
(k) Enforce quarantines;
(l) May impound and destroy food, fish, or beverages found unsanitary;
(m) May be armed;
(n) May exercise custody over persons in arrest or confinement;
(o) May issue citations; and
(p) May make arrests, as provided in § 935.122.
(a) Any person may make an arrest on Wake Island, without a warrant, for any crime (including a petty offense) that is committed in his presence.
(b) Any peace officer may, without a warrant, arrest any person on Wake Island who violates any provision of this part or commits a crime that is not a violation of this part, in his presence, or that he reasonably believes that person to have committed.
(c) In making an arrest, a peace officer must display a warrant, if he has one, or otherwise clearly advise the person arrested of the violation alleged, and thereafter require him to submit and be taken before the appropriate official on Wake Island.
(d) In making an arrest, a peace officer may use only the degree of force needed to effect submission, and may remove any weapon in the possession of the person arrested.
(e) A peace officer may, whenever necessary to enter any building, vehicle, or aircraft to execute a warrant of arrest, force an entry after verbal warning.
(f) A peace officer may force an entry into any building, vehicle, or aircraft whenever—
(1) It appears necessary to prevent serious injury to persons or damage to property and time does not permit the obtaining of a warrant;
(2) To effect an arrest when in hot pursuit; or
(3) To prevent the commission of a crime which he reasonably believes is being committed or is about to be committed.
Any judge of the Wake Island Court may issue or direct the Clerk to issue a warrant for arrest if, upon complaint, it appears that there is probable cause to believe an offense has been committed and that the person named in the warrant has committed it. If a judge is not available, the warrant may be issued by the Clerk and executed, but any such warrant shall be thereafter approved or quashed by the first available judge. The issuing officer shall—
(a) Place the name of the person charged with the offense in the warrant, or if his name is not known, any name or description by which he can be identified with reasonable certainty;
(b) Sign the warrant;
(c) Describe in the warrant the offense charged;
(d) Issue the warrant to a peace officer for execution; and
(e) Place in the warrant a command that the person charged with the offense be arrested and brought before the Court.
The Chief Judge may authorize the Clerk to issue pro forma orders of the Court discharging any person from custody, with or without bail, pending trial, whenever further restraint is not required for protection of persons or property on Wake Island. Persons not so discharged shall be brought before a Judge or U.S. Magistrate as soon as a Judge or Magistrate is available. Judges may discharge defendants from custody, with or without bail or upon recognizance, or continue custody pending trial as the interests of justice, in their discretion, require.
In any case in which a peace officer may make an arrest without a warrant, he may issue and serve a citation if he considers that the public interest does not require an arrest. The citation must briefly describe the offense charged and direct the accused to appear before the Wake Island Court at a designated time and place.
This subpart applies to self-propelled motor vehicles (except aircraft), including attached trailers.
Each person driving a motor vehicle on Wake Island shall drive on the right-hand side of the road, except where necessary to pass or where a sign declaring one-way traffic is posted.
Each person operating a motor vehicle on Wake Island shall operate it at a speed—
(a) That is reasonable, safe, and proper, considering road and weather conditions, the kind of motor vehicle, and the proximity to persons or buildings, or both; and
(b) That does not exceed 40 miles an hour or such lesser speed limit as may be posted.
(a) A pedestrian has the right-of-way over vehicular traffic when in the vicinity of a building, school, or residential area.
(b) In any case in which two motor vehicles have entered an intersection at the same time, the vehicle on the right has the right-of-way.
(c) If the driver of a motor vehicle enters an intersection with the intent of making a left turn, he shall yield the right-of-way to any other motor vehicle that has previously entered the intersection or is within hazardous proximity.
(d) When being overtaken by another motor vehicle, the driver of the slower vehicle shall move it to the right to allow safe passing.
(e) Each driver of a motor vehicle shall yield the right-of-way to an emergency vehicle on an emergency run.
(a) A signal for a turn or stop is made by fully extending the left arm as follows:
(1) Left turn—extend left arm horizontally.
(2) Right turn—extend left arm upward.
(3) Stop or decrease speed—extend left arm downward.
(b) A signal light or other device may be used in place of an arm signal prescribed in paragraph (a) of this section if it is visible and intelligible.
(a) Each person making a right turn in a motor vehicle shall make the approach and turn as close as practicable to the right-hand curb or road edge.
(b) Each person making a left turn in a motor vehicle shall make the approach and turn immediately to the right of the center of the road, except that on multi-lane roads of one-way traffic flow he may make the turn only from the left lane.
(c) No person may make a U-turn in a motor vehicle if he cannot be seen by the driver of each approaching vehicle within a distance of 500 feet.
(d) No person may place a vehicle in motion from a stopped position, or change from or merge into a lane of traffic, until he can safely make that movement.
No person may, while on Wake Island—
(a) Operate a motor vehicle in a careless or reckless manner;
(b) Operate or occupy a motor vehicle while he is under the influence of a drug or intoxicant;
(c) Consume an alcoholic beverage (including beer, ale, or wine) while he is in a motor vehicle;
(d) Operate a motor vehicle that is overloaded or is carrying more passengers than it was designed to carry;
(e) Ride on the running board, step, or outside of the body of a moving motor vehicle;
(f) Ride a moving motor vehicle with his arm or leg protruding;
(g) Operate a motor vehicle in a speed contest or drag race; except in areas designated for the purpose by the Commander and under safety precautions approved by him;
(h) Park a motor vehicle for a period longer than the posted time limit;
(i) Stop, park, or operate a motor vehicle in a manner that impedes or blocks traffic;
(j) Park a motor vehicle in an unposted area, except adjacent to the right-hand curb or edge of the road;
(k) Park a motor vehicle in a reserved or restricted parking area that is not assigned to him;
(l) Sound the horn of a motor vehicle, except as a warning signal;
(m) Operate a tracked or cleated vehicle in a manner that damages a paved or compacted surface;
(n) Operate any motor vehicle contrary to a posted traffic sign;
(o) Operate a motor vehicle as to follow any other vehicle closer than is safe under the circumstances;
(p) Operate a motor vehicle off of established roads, or in a cross-country manner, except when necessary in conducting buisiness; or
(q) Operate a motor vehicle at night on the traveled part of a street or road, without using operating headlights.
(a) Each person operating a motor vehicle on Wake Island shall—
(1) Dim the headlights of his vehicle when approaching an oncoming vehicle at night; and
(2) Comply with any special traffic instruction given by an authorized person.
Each person operating a motor bus on Wake Island shall—
(a) Keep its doors closed while the bus is moving with passengers on board; and
(b) Refuse to allow any person to board or alight the bus while it is moving.
(a) No person may operate a privately owned motor vehicle on Wake Island unless he has an island operator's permit.
(b) The Commander may issue—
(1) A student operator's permit to any person who is at least 14 years of age, to be exercised only when the holder is accompanied by a qualified operator who assumes full responsibility for operating the vehicle; and
(2) An unlimited operator's permit to any person who is at least 16 years of age and satisfactorily demonstrates safe-driving knowledge, ability, and physical fitness.
(c) No person may operate, on Wake Island, a motor vehicle owned by the United States unless he holds a current operator's permit issued by the United States.
(d) Each person operating a motor vehicle on Wake Island shall present his operator's permit to any peace officer, for inspection, upon request.
(a) Each person who has custody of a motor vehicle on Wake Island shall present that vehicle for periodic safety inspection, as required by the Commander.
(b) No person may operate a motor vehicle on Wake Island unless it is in a condition that the Commander considers to be safe and operable.
(c) No person may operate a motor vehicle on Wake Island unless it is equipped with an adequate and properly functioning—
(1) Horn;
(2) Wiper, for any windshield;
(3) Rear vision mirror;
(4) Headlights and taillights;
(5) Muffler; and
(6) Spark or ignition noise suppressors.
(d) No person may operate a motor vehicle on Wake Island if that vehicle is equipped with a straight exhaust or muffler cutoff, except as may be authorized pursuant to § 935.136(g).
(a) Each person who has custody of any of the following on Wake Island shall register it with the Commander.
(1) A privately owned motor vehicle.
(2) A privately owned boat.
(3) An animal.
(4) Any device or instrument primarily designed for inflicting bodily injury, including a gun, pistol, or other firearm operated by air, gas, spring, or otherwise.
(5) A narcotic or dangerous drug or any poison.
(6) Any explosive.
(b) Each person who obtains custody of an article described in paragraph (a) (4), (5), or (6) of this section shall register it immediately upon obtaining custody. Each person who obtains custody of any other article described in paragraph (a) of this section shall register it within 10 days after obtaining custody.
(a) No person may use a privately owned motor vehicle, boat, or a firearm, gun, or pistol operated by air, gas, or spring, or otherwise, on Wake Island unless he has an island permit for it.
(b) The operator of a motor vehicle shall display its registration number on the vehicle in a place and manner prescribed by the Commander.
No person may engage in any of the following on Wake Island unless he has an island permit:
(a) Any business, commercial, or recreational activity conducted for profit, including a trade, profession, calling, or occupation, or an establishment where food or beverage is prepared, offered, or sold for human consumption (except for personal or family use).
(b) The practice of any medical profession, including dentistry, surgery, osteopathy, and chiropractic.
(c) The erection of any structure or sign, including a major alteration or enlargement of an existing structure.
(d) The discharge of explosives or fireworks or of firearms, guns, or pistols operated by air, gas, spring, or otherwise.
(e) The burial of any human or animal remains, except that fish and bait scrap may be buried at beaches where fishing is permitted, without obtaining a permit.
(f) Keeping or maintaining an animal.
In the event of any fire, crash, search, and rescue, natural disaster, national peril, radiological hazard, or other calamitous emergency—
(a) No person may impede or hamper any officer or employee of the United States or any other person who has emergency authority;
(b) No unauthorized persons may congregate at the scene of the emergency; and
(c) Each person present shall promptly obey the instructions, signals, or alarms of any peace officer, fire or crash crew, or other authorized person, and any orders of the Commander.
(a) Each person engaged in a business or other activity on Wake Island shall, at his expense, provide and maintain (in an accessible location) fire extinguishers of the type, capacity, and quantity satisfactory for protecting life and property in the areas under that person's control.
(b) To minimize fire hazards, no person may store any waste or inflammable fluids or materials except in a manner and at a place prescribed by the Commander.
The Commander may regulate the use of designated or posted areas on Wake Island, as follows:
(a) Restricted areas—which no person may enter without permission.
(b) Prohibited activities areas—in which no person may engage in any activity that is specifically prohibited.
(c) Special purpose areas—in which no person may engage in any activity
Any person who discovers any unexploded ordnance material on Wake Island shall refrain from tampering with it and shall immediately report its site to the Commander.
The operator of each boat used at Wake Island shall conform to the limitations on its operations as the Commander may prescribe in the public interest.
No person may anchor, moor, or beach any boat, barge, or other floating object on Wake Island in any location or manner other than as prescribed by the Commander.
10 U.S.C. 8013.
(a) This part implements the Air Force Environmental Impact Analysis Process (EIAP) and provides procedures for environmental impact analysis both within the United States and abroad. Because the authority for, and rules governing, each aspect of the EIAP differ depending on whether the action takes place in the United States or outside the United States, this part provides largely separate procedures for each type of action. Consequently, the main body of this part deals primarily with environmental impact analysis under the authority of the National Environmental Policy Act of 1969 (NEPA) (Public Law 91-190, 42 United States Code (U.S.C.) Sections 4321 through 4347), while the primary procedures for environmental impact analysis of actions outside the United States in accordance with Executive Order (E.O.) 12114, Environmental Effects Abroad of Major Federal Actions, are contained in §§ 989.32 and 989.33.
(b) The procedures in this part are essential to achieve and maintain compliance with NEPA and the Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of the NEPA (40 CFR Parts 1500 through 1508, referred to as the “CEQ Regulations”). Further requirements are contained in Department of Defense Directive (DoDD) 4715.1, Environmental Security, Department of Defense Instruction (DoDI) 4715.9, Environmental Planning and Analysis, DoDD 5000.1, Defense Acquisition, and Department of Defense Regulation 5000.2-R, Mandatory Procedures for Major Defense Acquisition Programs and Major Automated Information Systems.
(c) Air Force activities abroad will comply with this part, E. O. 12114, and 32 CFR Part 187 (DoDD 6050.7, Environmental Effects Abroad of Major Department of Defense Actions, March 31, 1979). To comply with E.O. 12114 and complete the EIAP, the Executive Order, 32 CFR Part 187, and this part must be used together.
(d) Appendix A is a glossary of references, abbreviations, acronyms, and terms. Refer to 40 CFR 1508 for definitions of other terminology used in this part.
(a) This part provides a framework on how to comply with NEPA and E.O. 12114 according to Air Force Policy Directive (AFPD) 32-70
(b) Major commands (MAJCOM) provide additional implementing guidance in their supplemental publications to this part. MAJCOM supplements must identify the specific offices that have implementation responsibility and include any guidance needed to comply with this part. All references to MAJCOMs in this part include the Air National Guard Readiness Center (ANGRC) and other agencies designated as “MAJCOM equivalent” by HQ USAF.
(a)
(1) The Deputy Assistant Secretary of the Air Force for Environment, Safety and Occupational Health (SAF/MIQ):
(i) Develops environmental planning policy and provides oversight of the EIAP program.
(ii) Determines the level of environmental analysis required for especially important, visible, or controversial Air Force proposals and approves selected Environmental Assessments (EAs) and all Environmental Impact Statements (EISs) prepared for Air Force actions, whether classified or unclassified, except as specified in paragraph (c)(3) of this section.
(iii) Is the liaison on environmental matters with Federal agencies and national level public interest organizations.
(iv) Ensures appropriate offices in the Office of the Secretary of Defense are kept informed on EIAP matters of Defense-wide interest.
(2) The General Counsel (SAF/GC). Provides final legal advice to SAF/MI, HQ USAF, and HQ USAF Environment, Safety and Occupational Health Committee (ESOHC) on EIAP issues.
(3)
(i) Assists with narrowing and defining key issues by arranging consultations with congressional delegations on potentially sensitive actions.
(ii) Distributes draft and final EISs to congressional delegations.
(iii) Reviews and provides the Office of the Secretary of Defense (OSD) with analyses of the Air Force position on proposed and enrolled legislation and executive department testimony dealing with EIAP issues.
(4)
(i) Reviews and clears environmental documents in accordance with Air Force Instruction (AFI) 35-205, Air Force Security and Policy Review
(ii) Assists the environmental planning function and the Air Force Legal Services Agency, Trial Judiciary Division (AFLSA/JAJT), in planning and conducting public scoping meetings and hearings.
(iii) Ensures that public affairs aspects of all EIAP actions are conducted in accordance with this part and AFI 35-202, Environmental Community Involvement.
(iv) The National Guard Bureau, Office of Public Affairs (NGB-PA), will assume the responsibilities of SAF/PA for the EIAP involving the National Guard Bureau, Air Directorate.
(b) Headquarters U.S. Air Force (HQ USAF). The Civil Engineer (HQ USAF/ILE) is responsible for execution of the EIAP program. The National Guard Bureau Air Directorate (NGB-CF) oversees the EIAP for Air National Guard actions.
(c) MAJCOMs, the Air National Guard, Field Operating Agencies (FOAs), and Single Manager Programs. These organizations establish procedures that comply with this part wherever they are the host unit for preparing and using required environmental documentation in making decisions about proposed actions and programs within their commands or areas of responsibility.
(1) Air Force Center for Environmental Excellence (AFCEE). The AFCEE Environmental Conservation and Planning Directorate (AFCEE/EC) is available to provide technical assistance and has the capability to provide contract support to the proponent, EPF, and MAJCOMs in developing EIAP documents.
(2) Air Force Regional Environmental Offices (REOs). REOs review non-Air Force environmental documents that may have an impact on the Air Force. Requests for review of such documents should be directed to the proper REO (Atlanta, Dallas, or San Francisco) along with any relevant comments. The REO:
(i) Notifies the proponent, after receipt, that the REO is the single point of contact for the Air Force review of the document.
(ii) Requests comments from potentially affected installations, MAJCOMs, the ANG, and HQ USAF, as appropriate.
(iii) Consolidates comments into the Air Force official response and submits the final response to the proponent.
(iv) Provides to HQ USAF/ILEVP and the appropriate MAJCOMs and installations a copy of the final response and a complete set of all review comments.
(3) Single Manager Acquisition Programs (system-related NEPA). The proponent Single Manager (i.e., System Program Director, Materiel Group Managers, and Product Group Managers) for all programs, regardless of acquisition category, shall comply with DoD Regulation 5000.2-R. SAF/AQR, as the Air Force Acquisition Executive Office, is the final approval authority for all system-related NEPA documents. SAF/AQR is responsible for accomplishing appropriate Headquarters EPC/ESOHC review. The Single Manager will obtain appropriate Product Center EPC approval prior to forwarding necessary EIAP documents (i.e., Notices of Intent (NOIs) and preliminary draft and final EAs and EISs) to SAF/AQR. The Single Manager will allow for concurrent review of EIAP documents by HQ AFMC/CEV and the Operational Command (HQ ACC, HQ AMC, HQ AFSPC, etc.) The Single Manager is responsible for budgeting and funding EIAP efforts, including EIAP for research, development, testing, and evaluation activities.
(4)
(d)
(1) Complying with the EIAP and shall ensure integration of the EIAP during the initial planning stages of proposed actions so that planning and decisions reflect environmental values, delays are avoided later in the process, and potential conflicts are precluded.
(2) Notifying the EPF of a pending action and completing Section I of AF Form 813, Request for Environmental Impact Analysis. Prepare the Description of Proposed Action and Alternatives (DOPAA) through an interdisciplinary team approach including the EPF and other key Air Force participants.
(3) Identifying key decision points and coordinating with the EPF on
(4) Determining, with the EPF, as early as possible whether to prepare an EIS. The proponent and the EPF will conduct an early internal scoping process as part of the EIAP process. The internal scoping process should involve key Air Force environmental participants (see § 989.3(c)(4)) and other Air Force offices as needed and conclude with preparation of a DOPAA. For complex or detailed EAs or EISs, an outside facilitator trained in EIAP may be used to focus and guide the discussion. Department of the Air Force personnel, rather than contractors, should generally be used to prepare the DOPAA.
(5) Presenting the DOPAA to the EPC for review and comment.
(6) Coordinating with the EPF, Public Affairs, and Staff Judge Advocate prior to organizing public or interagency meetings which deal with EIAP elements of a proposed action and involving persons or agencies outside the Air Force.
(7) Subsequent to the decision to prepare an EIS, assisting the EPF and Public Affairs Office in preparing a draft NOI to prepare an EIS. All NOIs must be forwarded through the MAJCOM EPF to HQ USAF/ILEV for review and publication in the
(8) Ensuring that proposed actions are implemented as described in the final EIAP decision documents.
(e)
(1) Supports the EIAP by bringing key participants in at the beginning of a proposed action and involving them throughout the EIAP. Key participants play an important role in defining and focusing key issues at the initial stage.
(2) At the request of the proponent, prepares environmental documents using an interdisciplinary approach, or obtains technical assistance through Air Force channels or contract support. Assists the proponent in obtaining review of environmental documents.
(3) Assists the proponent in preparing a DOPAA and actively supports the proponent during all phases of the EIAP.
(4) Evaluates proposed actions and completes Sections II and III of AF Form 813, subsequent to submission by the proponent and determines whether a Categorical Exclusion (CATEX) applies. The responsible EPF member signs the AF Form 813 certification.
(5) Identifies and documents, with technical advice from the Bioenvironmental Engineer and other staff members, environmental quality standards that relate to the action under evaluation.
(6) Supports the proponent in preparing environmental documents, or obtains technical assistance through Air Force channels or contract support and adopts the documents as official Air Force papers when completed and approved.
(7) Ensures the EIAP is conducted on base-level and MAJCOM-level plans, including contingency plans for the training, movement, and operations of Air Force personnel and equipment.
(8) Prepares the NOI to prepare an EIS with assistance from the proponent and the Public Affairs Office.
(9) Prepares applicable portions of the Certificate of Compliance for each military construction project according to AFI 32-1021, Planning and Programming of Facility Construction Projects.
(10) Submits one hard copy and one electronic copy of the final EA/Finding of No Significant Impact (FONSI) and EIS/Record of Decision (ROD) to the Defense Technical Information Center.
(f)
(g)
(1) Advises the proponent, EPF, and EPC on CATEX determinations and the legal sufficiency of environmental documents.
(2) Advises the EPF during the scoping process of issues that should be addressed in EISs and on procedures for the conduct of public hearings.
(3) Coordinates the appointment of the independent hearing officer with AFLSA/JAJT and provides support for the hearing officer in cases of public hearings on the draft EIS. The proponent pays administrative and Temporary Duty (TDY) costs. The hearing officer presides at hearings and makes final decisions regarding hearing procedures.
(4) Promptly refers all matters causing or likely to cause substantial public controversy or litigation through channels to AFLSA/JACE (or NGB-JA).
(h)
(1) Advises the EPF, the EPC, and the proponent on public affairs activities on proposed actions and reviews environmental documents for public involvement issues.
(2) Advises the EPF of issues and competing interests that should be addressed in the EIS or EA.
(3) Assists in preparation of and attends public meetings or media sessions on environmental issues.
(4) Prepares, coordinates, and distributes news releases and other public information materials related to the proposal and associated EIAP documents.
(5) Notifies the media (television, radio, newspaper) and purchases advertisements when newspapers will not run notices free of charge. The EPF will fund the required advertisements.
(6) Determines and ensures Security Review requirements are met for all information proposed for public release.
(7) For more comprehensive instructions about public affairs activities in environmental matters, see AFI 35-202.
(i)
(j)
Air Force personnel will:
(a) Consider and document environmental effects of proposed Air Force actions through AF Forms 813, EAs, FONSIs, EISs, RODs, and documents prepared according to E.O. 12114.
(b) Evaluate proposed actions for possible CATEX from environmental impact analysis (appendix B).
(c) Make environmental documents, comments, and responses, including those of other federal agencies, state, Tribal, and local governments, and the public, part of the record available for review and use at all levels of decisionmaking.
(d) Review the specific alternatives analyzed in the EIAP when evaluating the proposal prior to decisionmaking.
(e) Ensure that alternatives to be considered by the decisionmaker are both reasonable and within the range of alternatives analyzed in the environmental documents.
(f) Pursue the objective of furthering foreign policy and national security interests while at the same time considering important environmental factors.
(g) Consider the environmental effects of actions that affect the global commons.
(h) Determine whether any foreign government should be informed of the
(a) The host EPF manages the EIAP using an interdisciplinary team approach. This is especially important for tenant-proposed actions, because the host command is responsible for the EIAP for actions related to the host command's installations.
(b) The host command prepares environmental documents internally or directs the host base to prepare the environmental documents. Environmental document preparation may be by contract (requiring the tenant to fund the EIAP), by the tenant unit, or by the host. Regardless of the preparation method, the host command will ensure the required environmental analysis is accomplished before a decision is made on the proposal and an action is undertaken. Support agreements should provide specific procedures to ensure host oversight of tenant compliance, tenant funding or reimbursement of host EIAP costs, and tenant compliance with the EIAP regardless of the tenant not being an Air Force organization.
(c) For aircraft beddown and unit realignment actions, program elements are identified in the Program Objective Memorandum. Subsequent Program Change Requests must include AF Form 813.
(d) To ensure timely initiation of the EIAP, SAF/AQ forwards information copies of all Mission Need Statements and System Operational Requirements Documents to SAF/MIQ, HQ USAF/ILEV (or ANGRC/CEV), the Air Force Medical Operations Agency, Aerospace Medicine Office (AFMOA/SG), and the affected MAJCOM EPFs.
(e) The MAJCOM of the scheduling unit managing affected airspace is responsible for preparing and approving environmental analyses.
Contract EIAP efforts are proponent MAJCOM responsibilities. Each year, the EPF programs for anticipated out-year EIAP workloads based on inputs from command proponents. If proponent offices exceed the budget in a given year or identify unforeseen requirements, the proponent offices must provide the remaining funding.
(a) Non-Air Force agencies or entities may request the Air Force to undertake an action, such as issuing a permit or outleasing Air Force property, that may primarily benefit the requester or an agency other than the Air Force. The EPF and other Air Force staff elements must identify such requests and coordinate with the proponent of the non-Air Force proposal, as well as with concerned state, Tribal, and local governments.
(b) Air Force decisions on such proposals must take into consideration the potential environmental impacts of the applicant's proposed activity (as described in an Air Force environmental document), insofar as the proposed action involves Air Force property or programs, or requires Air Force approval.
(c) The Air Force may require the requester to prepare, at the requester's expense, an analysis of environmental impacts (40 CFR 1506.5), or the requester may be required to pay for an EA or EIS to be prepared by a contractor selected and supervised by the Air Force. The EPF may permit requesters to submit draft EAs for their proposed actions, except for actions described in § 989.16(a) and (b), or for actions the EPF has reason to believe will ultimately require an EIS. For EISs, the EPF has the responsibility to prepare the environmental document, although responsibility for funding remains with the requester. The fact that the requester has prepared environmental documents at its own expense does not commit the Air Force to allow
(d) In no event is the requester who prepares or funds an environmental analysis entitled to reimbursement from the Air Force. When requesters prepare environmental documents outside the Air Force, the Air Force must independently evaluate and approve the scope and content of the environmental analyses before using the analyses to fulfill EIAP requirements. Any outside environmental analysis must evaluate reasonable alternatives as defined in § 989.8.
(a) The Air Force must analyze reasonable alternatives to the proposed action and the “no action” alternative in all EAs and EISs, as fully as the proposed action alternative.
(b) “Reasonable” alternatives are those that meet the underlying purpose and need for the proposed action and that would cause a reasonable person to inquire further before choosing a particular course of action. Reasonable alternatives are not limited to those directly within the power of the Air Force to implement. They may involve another government agency or military service to assist in the project or even to become the lead agency. The Air Force must also consider reasonable alternatives raised during the scoping process (see § 989.18) or suggested by others, as well as combinations of alternatives. The Air Force need not analyze highly speculative alternatives, such as those requiring a major, unlikely change in law or governmental policy. If the Air Force identifies a large number of reasonable alternatives, it may limit alternatives selected for detailed environmental analysis to a reasonable range or to a reasonable number of examples covering the full spectrum of alternatives.
(c) The Air Force may expressly eliminate alternatives from detailed analysis, based on reasonable selection standards (for example, operational, technical, or environmental standards suitable to a particular project). In consultation with the EPF, the appropriate Air Force organization may develop written selection standards to firmly establish what is a “reasonable” alternative for a particular project, but they must not so narrowly define these standards that they unnecessarily limit consideration to the proposal initially favored by proponents. This discussion of reasonable alternatives applies equally to EAs and EISs.
(d) Except in those rare instances where excused by law, the Air Force must always consider and assess the environmental impacts of the “no action” alternative. “No action” may mean either that current management practice will not change or that the proposed action will not take place. If no action would result in other predictable actions, those actions should be discussed within the no action alternative section. The discussion of the no action alternative and the other alternatives should be comparable in detail to that of the proposed action.
(a)
(b)
The Air Force should use tiered (40 CFR 1502.20) environmental documents, and environmental documents prepared by other agencies, to eliminate repetitive discussions of the same issues and to focus on the issues relating to specific actions. If the Air Force adopts another Federal agency's environmental document, subsequent Air Force environmental documents may also be tiered.
(a) The EPF combines environmental analysis with other related documentation when practicable (40 CFR 1506.4) following the procedures prescribed by the CEQ regulations and this part.
(b) The EPF must integrate comprehensive planning (AFI 32-7062, Air Force Comprehensive Planning
The Air Force uses AF Form 813 to document the need for environmental analysis or for certain CATEX determinations for proposed actions. The form helps narrow and focus the issues to potential environmental impacts. AF Form 813 must be retained with the EA or EIS to record the focusing of environmental issues. The rationale for not addressing environmental issues must also be recorded in the EA or EIS.
(a) CATEXs define those categories of actions that do not individually or cumulatively have potential for significant effect on the environment and do not, therefore, require further environmental analysis in an EA or an EIS. The list of Air Force-approved CATEXs is in Appendix B. Supplements to this part may not add CATEXs or expand the scope of the CATEXs in Appendix B.
(b) Characteristics of categories of actions that usually do not require either an EIS or an EA (in the absence of extraordinary circumstances) include:
(1) Minimal adverse effect on environmental quality.
(2) No significant change to existing environmental conditions.
(3) No significant cumulative environmental impact.
(4) Socioeconomic effects only.
(5) Similarity to actions previously assessed and found to have no significant environmental impacts.
(c) CATEXs apply to actions in the United States and abroad. General exemptions specific to actions abroad are in 32 CFR part 187. The EPF or other decision-maker forwards requests for additional exemption determinations for actions abroad to HQ USAF/ILEV with a justification letter.
(d) Normally, any decision-making level may determine the applicability of a CATEX and need not formally record the determination on AF Form 813 or elsewhere, except as noted in the CATEX list.
(e) Application of a CATEX to an action does not eliminate the need to meet air conformity requirements (see § 989.30).
(a) When a proposed action is one not usually requiring an EIS but is not categorically excluded, the EPF supports the proponent in preparing an EA (40 CFR 1508.9). Every EA must lead to either a FONSI, a decision to prepare an EIS, or no action on the proposal.
(b) Whenever a proposed action usually requires an EIS, the EPF responsible for the EIAP may prepare an EA to definitively determine if an EIS is required based on the analysis of environmental impacts. Alternatively, the
(c) An EA is a written analysis that:
(1) Provides analysis sufficient to determine whether to prepare an EIS or a FONSI.
(2) Aids the Air Force in complying with the NEPA when no EIS is required.
(d) The length of an EA should be as short and concise as possible, while matching the magnitude of the proposal. An EA briefly discusses the need for the proposed action, reasonable alternatives to the proposed action, the affected environment, the environmental impacts of the proposed action and alternatives (including the “no action” alternative), and a listing of agencies and persons consulted during preparation. The EA should not contain long descriptions or lengthy, detailed data. Rather, incorporate by reference background data to support the concise discussion of the proposal and relevant issues.
(e) The format for the EA may be the same as the EIS. The alternatives section of an EA and an EIS are similar and should follow the alternatives analysis guidance outlined in § 989.8.
(f) The EPF should design the EA to facilitate rapidly transforming the document into an EIS if the environmental analysis reveals a significant impact.
(g) EAs for actions where the Air Force has wetlands or floodplains compliance responsibilities (E.O. 11988 and E.O. 11990) require SAF/MIQ approval. As a finding contained in the draft FONSI, a Finding of No Practicable Alternative (FONPA) must be submitted (five hard copies and an electronic version) through the MAJCOM EPF to HQ USAF/ILEVP when the alternative selected is located in wetlands or floodplains, and must discuss why no other practicable alternative exists to avoid impacts. See AFI 32-7064, Integrated Natural Resources Management.
(h) EAs and accompanying FONSIs that require the Air Force to make Clean Air Act General Conformity Determinations shall be submitted (five hard copies and an electronic version) through the MAJCOM EPF to HQ USAF/ILEVP for SAF/MIQ approval. SAF/MIQ signs all General Conformity Determinations and will also sign the companion FONSIs, when requested by the MAJCOM (see § 989.30).
(i) In cases potentially involving a high degree of controversy or Air Force-wide concern, the MAJCOM, after consultation with HQ USAF/ILEVP, may request HQ USAF ESOHC review and approval of an EA, or HQ USAF may direct the MAJCOM to forward an EA (five hard copies and an electronic version) for HQ USAF ESOHC review and approval.
(j) As a minimum, the following EAs require MAJCOM approval because they involve topics of special importance or interest. Unless directed otherwise by HQ USAF/ILEVP, the installation EPF must forward the following types of EAs to the MAJCOM EPF, along with an unsigned draft FONSI: (MAJCOMs can require other EAs to receive MAJCOM approval in addition to those types specified here.)
(1) All EAs on non-Air Force proposals that require an Air Force decision, such as use of Air Force property for highways, space ports, and joint-use proposals.
(2) EAs where mitigation to insignificance is accomplished in lieu of initiating an EIS (§ 989.22(c)).
(k) A few examples of actions that normally require preparation of an EA (except as indicated in the CATEX list) include:
(1) Public land withdrawals of less than 5,000 acres.
(2) Minor mission realignments and aircraft beddowns.
(3) New building construction on base within developed areas.
(4) Minor modifications to Military Operating Areas (MOAs), air-to-ground weapons ranges, and military training routes.
(l) The Air Force will involve other federal agencies, state, Tribal, and local governments, and the public in the preparation of EAs (40 CFR 1501.4(b) and 1506.6). The extent of involvement usually coincides with the magnitude and complexity of the proposed action and its potential environmental effect on the area. For proposed actions described in § 989.15(e)(2), use either the scoping process described in § 989.18 or the public notice process in § 989.24.
(a) The FONSI (40 CFR 1508.13) briefly describes why an action would not have a significant effect on the environment and thus will not be the subject of an EIS. The FONSI must summarize the EA or, preferably, have it attached and incorporated by reference, and must note any other environmental documents related to the action.
(b) If the EA is not incorporated by reference, the FONSI must include:
(1) Name of the action.
(2) Brief description of the action (including alternatives considered and the chosen alternative).
(3) Brief discussion of anticipated environmental effects.
(4) Conclusions leading to the FONSI.
(5) All mitigation actions that will be adopted with implementation of the proposal (see § 989.22).
(c) Keep FONSIs as brief as possible. Only rarely should FONSIs exceed two typewritten pages. Stand-alone FONSIs without an attached EA may be longer.
(d) For actions of regional or local interest, disseminate the FONSI according to § 989.24. The MAJCOM and NGB are responsible for release of FONSIs to regional offices of Federal agencies, the state single point of contact (SPOC), and state agencies concurrent with local release by the installations.
(e) The EPF must make the EA and unsigned FONSI available to the affected public and provide the EA and unsigned FONSI to organizations and individuals requesting them and to whomever the proponent or the EPF has reason to believe is interested in the action, unless disclosure is precluded for security classification reasons. Draft EAs and unsigned draft FONSIs will be clearly identified as drafts and distributed via cover letter which will explain their purpose and need. The EPF provides a copy of the documents without cost to organizations and individuals requesting them. The FONSI transmittal date (date of letter of transmittal) to the state SPOC or other equivalent agency is the official notification date.
(1) Before the FONSI is signed and the action is implemented, the EPF should allow sufficient time to receive comments from the public. The time period will reflect the magnitude of the proposed action and its potential for controversy. The greater the magnitude of the proposed action or its potential for controversy, the longer the time that must be allowed for public review. Mandatory review periods for certain defined actions are contained in § 989.15(e)(2). These are not all inclusive but merely specific examples. In every case where an EA and FONSI are prepared, the proponent and EPF must determine how much time will be allowed for public review. In all cases, other than classified actions, a public review period should be the norm unless clearly unnecessary due to the lack of potential controversy.
(2) In the following circumstances, the EA and unsigned FONSI are made available for public review for at least 30 days before FONSI approval and implementing the action (40 CFR 1501.4(e)(2)):
(i) When the proposed action is, or is closely similar to, one that usually requires preparation of an EIS (see § 989.16).
(ii) If it is an unusual case, a new kind of action, or a precedent-setting case in terms of its potential environmental impacts.
(iii) If the proposed action would be located in a floodplain or wetland.
(iv) If the action is mitigated to insignificance in the FONSI, in lieu of an EIS (§ 989.22(c)).
(v) If the proposed action is a change to airspace use or designation.
(vi) If the proposed action would have a disproportionately high and adverse environmental effect on minority populations and low-income populations.
(f) As a general rule, the same organizational level that prepares the EA also reviews and recommends the FONSI for approval by the EPC. MAJCOMs may decide the level of EA approval and FONSI signature, except as provided in § 989.14(g), (h), (i), and (j).
(a) Certain classes of environmental impacts normally require preparation of an EIS (40 CFR 1501.4). These include, but are not limited to:
(1) Potential for significant degradation of the environment.
(2) Potential for significant threat or hazard to public health or safety.
(3) Substantial environmental controversy concerning the significance or nature of the environmental impact of a proposed action.
(b) Certain other actions normally, but not always, require an EIS. These include, but are not limited to:
(1) Public land withdrawals of over 5,000 acres (Engle Act, 43 U.S.C. 155 through 158).
(2) Establishment of new air-to-ground weapons ranges.
(3) Site selection of new airfields.
(4) Site selection of major installations.
(5) Development of major new weapons systems (at decision points that involve demonstration, validation, production, deployment, and area or site selection for deployment).
(6) Establishing or expanding supersonic training areas over land below 30,000 feet MSL (mean sea level).
(7) Disposal and reuse of closing installations.
The EPF must furnish, through the MAJCOM, to HQ USAF/ILEV the NOI (40 CFR 1508.22) describing the proposed action for congressional notification and publication in the
(a) After publication of the NOI for an EIS, the EPF must initiate the public scoping process (40 CFR 1501.7) to determine the scope of issues to be addressed and to help identify significant environmental issues to be analyzed in depth. Methods of scoping range from soliciting written comments to conducting public scoping meetings (see 40 CFR 1501.7 and 1506.6(e)). The scoping process is an iterative, pro-active process of communicating with individual citizens, neighborhood, community, and local leaders, public interest groups, congressional delegations, state, Tribal, and local governments, and federal agencies. The scoping process must start prior to official public scoping meetings and continue through to preparation of the draft EIS. The purpose of this process is to de-emphasize insignificant issues and focus the scope of the environmental analysis on significant issues (40 CFR 1500.4(g)). Additionally, scoping allows early and more meaningful participation by the public. The result of scoping is that the proponent and EPF determine the range of actions, alternatives, and impacts to be considered in the EIS (40 CFR 1508.25). The EPF must send scripts for scoping meetings to AF/ILEV (or ANGRC/CEV) no later than 30 days before the first scoping meeting. Scoping meeting plans are similar in content to public hearing plans (see Appendix C). Public scoping meetings should generally be held at locations not on the installation.
(b) Where it is anticipated the proposed action and its alternatives will have disproportionately high and adverse human health or environmental effects on minority populations or low-income populations, special efforts shall be made to reach these populations. This might include special informational meetings or notices in minority and low-income areas concerning the regular scoping process.
(a)
(b)
(c)
(2) The EPF sponsors public hearings on the draft EIS according to the procedures in Attachment 3. Hearings take place no sooner than 15 days after the
(3) Where analyses indicate that a proposed action will potentially have disproportionately high and adverse human health or environmental effects on minority populations or low-income populations, the EPF should make special efforts to ensure that these potentially impacted populations are brought into the review process.
(d)
(e)
(a) If changes in the draft EIS are minor or limited to factual corrections and responses to comments, the proponent and EPF may, with the prior approval of HQ USAF/ILEV and SAF/MIQ, prepare a document containing only comments on the Draft EIS, Air Force responses, and errata sheets of
(b) The EPF processes all necessary supplements to EISs (40 CFR 1502.9) in the same way as the original Draft and Final EIS, except that a new scoping process is not required.
(c) If major steps to advance the proposal have not occurred within 5 years from the date of the Final EIS approval, reevaluation of the documentation should be accomplished to ensure its continued validity.
(a) The proponent and the EPF prepare a draft ROD, formally staff it through the MAJCOM EPC, to HQ USAF/ILEV for verification of adequacy, and forwards it to either SAF/MIQ or SAF/AQR, as the case may be, for approval and designation of the signator. A ROD (40 CFR 1505.2) is a concise public document stating what an agency's decision is on a specific action. The ROD may be integrated into any other document required to implement the agency's decision. A decision on a course of action may not be made until the later of the following dates:
(1) 90 days after publication of the DEIS; or
(2) 30 days after publication of the NOA of the Final EIS in the
(b) The Air Force must announce the ROD to the affected public as specified in § 989.23, except for classified portions. The ROD should be concise and should explain the conclusion, the reason for the selection, and the alternatives considered. The ROD must identify the course of action, whether it is the proposed action or an alternative, that is considered environmentally preferable regardless of whether it is the alternative selected for implementation. The ROD should summarize all the major factors the agency weighed in making its decision, including essential considerations of national policy.
(c) The ROD must state whether the selected alternative employs all practicable means to avoid, minimize, or mitigate environmental impacts and, if not, explain why.
(a) When preparing EIAP documents, indicate clearly whether mitigation measures (40 CFR 1508.20) must be implemented for the alternative selected. Discuss mitigation measures in terms of “will” and “would” when such measures have already been incorporated into the proposal. Use terms like “may” and “could” when proposing or suggesting mitigation measures. Both the public and the Air Force community need to know what commitments are being considered and selected, and who will be responsible for implementing, funding, and monitoring the mitigation measures.
(b) The proponent funds and implements mitigation measures in the mitigation plan that is approved by the decision-maker. Where possible and appropriate because of amount, the proponent should include the cost of mitigation as a line item in the budget for a proposed project. The proponent must ensure compliance with mitigation requirements, monitoring their effectiveness, and must keep the EPF informed of the mitigation status. The EPF reports its status, through the
(c) The proponent may “mitigate to insignificance” potentially significant environmental impacts found during preparation of an EA, in lieu of preparing an EIS. The FONSI for the EA must include these mitigation measures. Such mitigations are legally binding and must be carried out as the proponent implements the project. If, for any reason, the project proponent later abandons or revises in environmentally adverse ways the mitigation commitments made in the FONSI, the proponent must prepare a supplemental EIAP document before continuing the project. If potentially significant environmental impacts would result from any project revisions, the proponent must prepare an EIS.
(d) For each FONSI or ROD containing mitigation measures, the proponent prepares a plan specifically identifying each mitigation, discussing how the proponent will execute the mitigations, identifying who will fund and implement the mitigations, and stating when the proponent will complete the mitigation. The mitigation plan will be forwarded, through the MAJCOM EPF to HQ USAF/ILEV for review within 90 days from the date of signature of the FONSI or ROD.
All Air Force EIAP documents belong to and are the responsibility of the Air Force. EIAP correspondence and documents distributed outside of the Air Force should generally be signed out by Air Force personnel and documents should reflect on the cover sheet they are an Air Force document. Contractor preparation information should be contained within the document's list of preparers.
(a) Except as provided in § 989.26, public notification is required for various aspects of the EIAP.
(b) Activities that require public notification include:
(c) For actions of local concern, the list of possible notification methods in 40 CFR 1506.6(b)(3) is only illustrative. The EPF may use other equally effective means of notification as a substitute for any of the methods listed. Because many Air Force actions are of limited interest to persons or organizations outside the Air Force, the EPF may limit local notification to the SPOC, local government representatives, and local news media. For all actions covered under § 989.15(e)(2), and for all EIS notices, the public affairs office must purchase with EPF funds an advertisement in a prominent section of the local newspaper(s) of general circulation (not “legal” newspapers or “legal section” of general newspapers).
(d) For the purpose of EIAP, the EPF begins the time period of local notification when it sends written notification to the state SPOC or other equivalent agency (date of letter of notification).
Base closure or realignment may entail special requirements for environmental analysis. The permanent base closure and realignment law, 10 U.S.C. 2687, requires a report to the Congress when an installation where at least 300 DoD civilian personnel are authorized to be employed is closed, or when a realignment reduces such an installation by at least 50 percent or 1,000 of such personnel, whichever is less. In addition, other base closure laws may be in effect during particular periods. Such nonpermanent closure laws frequently contain provisions limiting the extent of environmental analysis required for actions taken under them. Such provisions may also add requirements for studies not necessarily required by NEPA.
(a) Classification of an action for national defense or foreign policy purposes does not relieve the requirement of complying with NEPA. In classified matters, the Air Force must prepare and make available normal NEPA environmental analysis documents to aid in the decision-making process; however, Air Force staff must prepare, safeguard, and disseminate these documents according to established procedures for protecting classified documents. If an EIAP document must be classified, the Air Force may modify or eliminate associated requirements for public notice (including publication in the
(b) Where the proposed action is classified and unavailable to the public, the Air Force may keep the entire NEPA process classified and protected under the applicable procedures for the classification level pertinent to the particular information. At times (for example, during weapons system development and base closures and realignments), certain but not all aspects of NEPA documents may later be declassified. In those cases, the EPF should organize the EIAP documents, to the extent practicable, in a way that keeps the most sensitive classified information (which is not expected to be released at any early date) in a separate annex that can remain classified; the rest of the EIAP documents, when declassified, will then be comprehensible as a unit and suitable for release to the public. Thus, the documents will reflect, as much as possible, the nature of the action and its environmental impacts, as well as Air Force compliance with NEPA requirements.
(c) Where the proposed action is not classified, but certain aspects of it need to be protected by security classification, the EPF should tailor the EIAP for a proposed action to permit as normal a level of public involvement as possible, but also fully protect the classified part of the action and environmental analysis. In some instances, the EPF can do this by keeping the classified sections of the EIAP documents in a separate, classified annex.
(d) For § 989.26(b) actions, an NOI or NOA will not be published in the
(e) The EPF similarly protects classified aspects of FONSIs, RODs, or other environmental documents that are part of the EIAP for a proposed action, such as by preparing separate classified annexes to unclassified documents, as necessary.
(f) Whenever a proponent believes that EIAP documents should be kept classified, the EPF must make a report of the matter to SAF/MIQ, including proposed modifications of the normal EIAP to protect classified information. The EPF may make such submissions at whatever level of security classification is needed to provide a comprehensive understanding of the issues. SAF/MIQ, with support from SAF/GC and other staff elements as necessary, makes final decisions on EIAP procedures for classified actions.
Assess direct and indirect impacts of proposed actions on the safety and health of Air Force employees and others at a work site. The EIAP document does not need to specify compliance procedures. However, the EIAP documents should discuss impacts that require a change in work practices to achieve an adequate level of health and safety.
(a)
(b)
Unless directed otherwise, the MAJCOM plans and programs proponent will forward a copy of all EAs for force structure and unit moves to HQ USAF/ILXB for information only at the preliminary draft and preliminary final stages.
Section 176(c) of the Clean Air Act Amendments of 1990, 42 U.S.C. 7506(c), establishes a conformity requirement for Federal agencies which has been implemented by regulation, 40 CFR 93, Subpart B. All EIAP documents must address applicable conformity requirements and the status of compliance. Conformity applicability analyses and determinations are developed in parallel with EIAP documents, but are separate and distinct requirements and should be documented separately. To increase the utility of a conformity determination in performing the EIAP, the conformity determination should be completed prior to the completion of the EIAP so as to allow incorporation of the information from the conformity determination into the EIAP. See AFI 32-7040, Air Quality Compliance.\10\
\10\ See footnote 1 to § 989.1.
The Pollution Prevention Act of 1990, 42 U.S.C. 13101(b), established a national policy to prevent or reduce pollution at the source, whenever feasible. Pollution prevention approaches should be applied to all pollution-generating activities. The environmental document should analyze potential pollution that may result from the proposed action and alternatives and must discuss potential pollution prevention measures when such measures are feasible for incorporation into the proposal or alternatives. Where pollution cannot be prevented, the environmental analysis and proposed mitigation measures should include, wherever possible, recycling, energy recovery, treatment, and environmentally safe disposal actions (see AFI 32-7080, Pollution Prevention Program \11\
\11\ See footnote 1 to § 989.1.
Aircraft noise data files used for analysis during EIAP will be submitted to HQ AFCEE for review and validation prior to public release, and upon completion of the EIAP for database entry. Utilize the current NOISEMAP computer program for air installations and the Assessment System for Aircraft Noise for military training routes and military operating areas. Guidance on standardized Air Force noise data development and analysis procedures is available from HQ AFCEE/EC. Develop EIAP land use analysis relating to aircraft noise impacts originating from air installations following procedures
During the preparation of environmental analyses under this instruction, the EPF should ensure compliance with the provisions of E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and Executive Memorandum of February 11, 1994, regarding E.O. 12898.
(a)
(b)
(a) EAs, EISs, and mitigation measures will be tracked at bases and MAJCOMs through an appropriate environmental management system.
(b) Proponents, EPFs, and public affairs offices may utilize the World Wide Web, in addition to more traditional means, to notify the public of availability of EAs and EISs. When possible, allow distribution of documents electronically. Public review comments should be required in writing, rather than by electronic mail.
(c) All documentation will be disposed of according to AFMAN 37-139, Records Disposition—Standards.\12\
\12\ See footnote 1 to § 989.1.
In order to deal with unusual circumstances and to allow growth in the NEPA process, SAF/MIQ may grant waivers to those procedures contained in this instruction not required by NEPA or the CEQ Regulations. Such waivers shall not be used to limit compliance with NEPA or the CEQ Regulations but only to substitute other, more suitable procedures relative to the context of the particular action. Such waivers may also be granted on occasion to allow experimentation in procedures in order to allow growth in the EIAP. This authority may not be delegated.
Procedures for analysis of environmental actions abroad are contained in 32 CFR Part 187. That directive provides comprehensive policies, definitions, and procedures for implementing E.O. 12114. For analysis of Air Force actions abroad, 32 CFR Part 187 will be followed.
(a) The EPF will generally perform the same functions for analysis of actions abroad that it performs in the United States. In addition to the requirements of 32 CFR Part 187, the following Air Force specific rules apply:
(b) For EAs dealing with global commons (geographic areas beyond the jurisdiction of the United States or any foreign nation), HQ USAF/ILEV will review actions that are above the
(c) For EISs dealing with the global commons, the EPF provides sufficient copies to HQ USAF/ILEV for the HQ USAF ESOHC review and AFCEE/EC technical review. After ESOHC review, the EPF makes a recommendation as to whether the proposed draft EIS will be released as a draft EIS.
(d) For environmental studies and environmental reviews, forward, when appropriate, environmental studies and reviews to HQ USAF/ILEV for coordination among appropriate federal agencies. HQ USAF/ILEV makes environmental studies and reviews available to the Department of State and other interested federal agencies, and, on request, to the United States public, in accordance with 32 CFR Part 187. HQ USAF/ILEV also may inform interested foreign governments or furnish copies of studies, in accordance with 32 CFR Part 187.
All definitions in the CEQ Regulations, 40 CFR part 1508, apply to this part. In addition, the following definitions apply:
Although a proposed action may qualify for a categorical exclusion from the requirements for environmental impact analysis under NEPA, this exclusion does not relieve the EPF or the proponent of responsibility for complying with all other environmental requirements related to the proposal, including requirements for permits, state regulatory agency review of plans, and so on.
Circumstances may arise in which usually categorically excluded actions may have a significant environmental impact and, therefore, may generate a requirement for further environmental analysis. Examples of situations where such unique circumstances may be present include:
A2.2.1. Actions of greater scope or size than generally experienced for a particular category of action.
A2.2.2. Potential for degradation (even though slight) of already marginal or poor environmental conditions.
A2.2.3. Initiating a degrading influence, activity, or effect in areas not already significantly modified from their natural condition.
A2.2.4. Use of unproved technology.
A2.2.5. Use of hazardous or toxic substances that may come in contact with the surrounding environment.
A2.2.6. Presence of threatened or endangered species, archaeological remains, historical sites, or other protected resources.
A2.2.7. Proposals adversely affecting areas of critical environmental concern, such as prime or unique agricultural lands, wetlands, coastal zones, wilderness areas, floodplains, or wild and scenic river areas.
A2.2.8. Proposals with disproportionately high and adverse human health or environmental effects on minority populations or low-income populations.
Actions that are categorically excluded in the absence of unique circumstances are:
A2.3.1. Routine procurement of goods and services.
A2.3.2. Routine Commissary and Exchange operations.
A2.3.3. Routine recreational and welfare activities.
A2.3.4. Normal personnel, fiscal or budgeting, and administrative activities and decisions including those involving military and civilian personnel (for example, recruiting, processing, paying, and records keeping).
A2.3.5. Preparing, revising, or adopting regulations, instructions, directives, or guidance documents that do not, themselves, result in an action being taken.
A2.3.6. Preparing, revising, or adopting regulations, instructions, directives, or guidance documents that implement (without substantial change) the regulations, instructions, directives, or guidance documents from higher headquarters or other Federal agencies with superior subject matter jurisdiction.
A2.3.7. Continuation or resumption of pre-existing actions, where there is no substantial change in existing conditions or existing land uses and where the actions were originally evaluated in accordance with applicable law and regulations, and surrounding circumstances have not changed.
A2.3.8. Performing interior and exterior construction within the 5-foot line of a building without changing the land use of the existing building.
A2.3.9. Repairing and replacing real property installed equipment.
A2.3.10. Routine facility maintenance and repair that does not involve disturbing significant quantities of hazardous materials such as asbestos and lead-based paint.
A2.3.11. Actions similar to other actions which have been determined to have an insignificant impact in a similar setting as established in an EIS or an EA resulting in a FONSI. The EPF must document application of this CATEX on AF Form 813, specifically identifying the previous Air Force approved environmental document which provides the basis for this determination.
A2.3.12. Installing, operating, modifying, and routinely repairing and replacing utility and communications systems, data processing cable, and similar electronic equipment that use existing rights of way, easements, distribution systems, or facilities.
A2.3.13. Installing or modifying airfield operational equipment (such as runway visual range equipment, visual glide path systems, and remote transmitter or receiver facilities) on airfield property and usually accessible only to maintenance personnel.
A2.3.14. Installing on previously developed land, equipment that does not substantially alter land use (i.e., land use of more than one acre). This includes outgrants to private lessees for similar construction. The EPF must document application of this CATEX on AF Form 813.
A2.3.15. Laying-away or mothballing a production facility or adopting a reduced maintenance level at a closing installation when (1) agreement on any required historic preservation effort has been reached with the state historic preservation officer and the Advisory Council on Historic Preservation, and (2) no degradation in the environmental restoration program will occur.
A2.3.16. Acquiring land and ingrants (50 acres or less) for activities otherwise subject to CATEX. The EPF must document application of this CATEX on AF Form 813.
A2.3.17. Transferring land, facilities, and personal property for which the General Services Administration (GSA) is the action agency. Such transfers are excluded only if there is no change in land use and GSA complies with its NEPA requirements.
A2.3.18. Transferring administrative control of real property within the Air Force or to another military department or to another Federal agency, not including GSA, including returning public domain lands to the Department of the Interior.
A2.3.19. Granting easements, leases, licenses, rights of entry, and permits to use Air Force controlled property for activities that, if conducted by the Air Force, could be categorically excluded in accordance with this attachment. The EPF must document application of this CATEX on AF Form 813.
A2.3.20. Converting in-house services to contract services.
A2.3.21. Routine personnel decreases and increases, including work force conversion to either on-base contractor operation or to military operation from contractor operation (excluding base closure and realignment actions which are subject to congressional reporting under 10 U.S.C. 2687).
A2.3.22. Routine, temporary movement of personnel, including deployments of personnel on a TDY basis where existing facilities are used.
A2.3.23. Personnel reductions resulting from workload adjustments, reduced personnel funding levels, skill imbalances, or other similar causes.
A2.3.24. Study efforts that involve no commitment of resources other than personnel and funding allocations.
A2.3.25. The analysis and assessment of the natural environment without altering it (inspections, audits, surveys, investigations). This CATEX includes the granting of any permits necessary for such surveys, provided that the technology or procedure involved is well understood and there are no adverse environmental impacts anticipated from it. The EPF must document application of this CATEX on AF Form 813.
A2.3.26. Undertaking specific investigatory activities to support remedial action activities for purposes of cleanup of Defense Environmental Restoration Program (DERP) and Resource Conservation and Recovery Act (RCRA) corrective action sites. These activities include soil borings and sampling, installation, and operation of test or monitoring wells. This CATEX applies to studies that assist in determining final cleanup actions when they are conducted in accordance with legal agreements, administrative orders, or work plans previously agreed to by EPA or state regulators.
A2.3.27. Normal or routine basic and applied scientific research confined to the laboratory and in compliance with all applicable safety, environmental, and natural resource conservation laws.
A2.3.28. Routine transporting of hazardous materials and wastes in accordance with applicable Federal, state, interstate, and local laws.
A2.3.29. Emergency handling and transporting of small quantities of chemical surety material or suspected chemical surety material, whether or not classified as hazardous or toxic waste, from a discovery site to a permitted storage, treatment, or disposal facility.
A2.3.30. Immediate responses to the release or discharge of oil or hazardous materials in accordance with an approved Spill Prevention and Response Plan or Spill Contingency Plan or that are otherwise consistent with the requirements of the National Contingency Plan.
A2.3.31. Relocating a small number of aircraft to an installation with similar aircraft
A2.3.32. Temporary (for less than 30 days) increases in air operations up to 50 percent of the typical installation aircraft operation rate or increases of 50 operations a day, whichever is greater. Repetitive use of this CATEX at an installation requires further analysis to determine there are no cumulative impacts.
A2.3.33. Flying activities that comply with the Federal aviation regulations, that are dispersed over a wide area and that do not frequently (more than once a day) pass near the same ground points. This CATEX does not cover regular activity on established routes or within special use airspace.
A2.3.34. Supersonic flying operations over land and above 30,000 feet MSL, or over water and above 10,000 feet MSL and more than 15 nautical miles from land.
A2.3.35. Formal requests to the FAA, or host-nation equivalent agency, to establish or modify special use airspace (for example, restricted areas, warning areas, military operating areas) and military training routes for subsonic operations that have a base altitude of 3,000 feet above ground level or higher. The EPF must document application of this CATEX on AF Form 813, which must accompany the request to the FAA.
A2.3.36. Adopting airfield approach, departure, and en route procedures that are less than 3,000 feet above ground level, and that also do not route air traffic over noise-sensitive areas, including residential neighborhoods or cultural, historical, and outdoor recreational areas. The EPF may categorically exclude such air traffic patterns at or greater than 3,000 feet above ground level regardless of underlying land use.
A2.3.37. Participating in “air shows” and fly-overs by Air Force aircraft at non-Air Force public events after obtaining FAA coordination and approval.
A2.3.38. Conducting Air Force “open houses” and similar events, including air shows, golf tournaments, home shows, and the like, where crowds gather at an Air Force installation, so long as crowd and traffic control, etc., have not in the past presented significant safety or environmental impacts.
A3.1.1. The Office of the Judge Advocate General, through the Air Force Legal Services Agency/Trial Judiciary Division (AFLSA/JAJT) and its field organization, is responsible for conducting public hearings and assuring verbatim transcripts are accomplished.
A3.1.2. The EPF, with proponent, AFLSA/JAJT, and Public Affairs support, establishes the date and location, arranges for hiring the court reporter, funds temporary duty costs for the hearing officer, makes logistical arrangements (for example, publishing notices, arranging for press coverage, obtaining tables and chairs, etc.).
A3.1.3. The procedures outlined below have proven themselves through many prior applications. However, there may be rare instances when circumstances warrant conducting public hearings under a different format, e.g., public/town meeting, information booths, third party moderator, etc. In these cases, forward a request with justification to deviate from these procedures to USAF/ILEVP for SAF/MIQ approval.
A3.2.1. Public Affairs officers:
A3.2.1.1. Announce public hearings and assemble a mailing list of individuals to be invited.
A3.2.1.2. Distribute announcements of a hearing to all interested individuals and agencies, including the print and electronic media.
A3.2.1.3. Place a newspaper display advertisement announcing the time and place of the hearing as well as other pertinent particulars.
A3.2.1.4. Distribute the notice in a timely manner so it will reach recipients or be published at least 15 days before the hearing date. Distribute notices fewer than 15 days before the hearing date when you have substantial justification and if the justification for a shortened notice period appears in the notice.
A3.2.1.5. Develop and distribute news release.
A3.2.2. If an action has effects of national concern, publish notices in the
A3.2.2.1. Because of the longer lead time required by the
A3.2.3. The notice should include:
A3.2.3.1. Date, time, place, and subject of the hearing.
A3.2.3.2. A description of the general format of the hearing.
A3.2.3.3. The name and telephone number of a person to contact for more information.
A3.2.3.4. A suggestion that speakers submit (in writing or by return call) their intention to participate, with an indication of which environmental impact (or impacts) they wish to address.
A3.2.3.5. Any limitation on the length of oral statements.
A3.2.3.6. A suggestion that speakers submit statements of considerable length in writing.
A3.2.3.7. A summary of the proposed action.
A3.2.3.8. The location where the draft EIS and any appendices are available for examination.
The EPF makes copies of the Draft EIS available to the public at an Air Force installation and other reasonably accessible place in the vicinity of the proposed action and public hearing (e.g., public library).
The EPF arranges to hold the hearing at a time and place and in an area readily accessible to military and civilian organizations and individuals interested in the proposed action. Generally, the EPF should arrange to hold the hearing in an off-base civilian facility, which is more accessible to the public.
A3.5.1. The AFLSA/JAJT selects a military trial judge to preside over hearings. The hearing officer does not need to have personal knowledge of the project, other than familiarity with the Draft EIS. In no event should the hearing officer be a judge advocate from the proponent or subordinate command, be assigned to the same installation with which the hearing is concerned, or have participated personally in the development of the project, or have rendered legal advice or assistance with respect to it (or be expected to do so in the future). The principal qualification of the hearing officer should be the ability to conduct a hearing as an impartial participant.
A3.5.2. The primary duties of the hearing officer are to make sure that the hearing is orderly, is recorded, and that interested parties have a reasonable opportunity to speak. The presiding officer should direct the speakers’ attention to the purpose of the hearing, which is to consider the environmental impacts of the proposed project. Speakers should have a time limit to ensure maximum public input to the decision-maker.
The EIS preparation team must make sure a verbatim transcribed record of the hearing is prepared, including all stated positions, all questions, and all responses. The EIS preparation team should append all written submissions that parties provide to the hearing officer during the hearing to the record as attachments. The EIS preparation team should also append a list of persons who spoke at the hearing and submitted written comments and a list of the organizations or interests they represent with addresses. The EIS preparation team must make sure a verbatim transcript of the hearing is provided to the EPF for inclusion as an appendix to the Final EIS. The officer should also ensure that all persons who request a copy of the transcript get a copy when it is completed. Copying charges are determined according to 40 CFR 1506.6(f).
Use the format outlined below as a general guideline for conducting a hearing. Hearing officers should tailor the format to meet the hearing objectives. These objectives provide information to the public, record opinions of interested persons on environmental impacts of the proposed action, and set out alternatives for improving the EIS and for later consideration.
A3.7.1. Record of Attendees. The hearing officer should make a list of all persons who wish to speak at the hearing to help the hearing officer in calling on these individuals, to ensure an accurate transcript of the hearing, and to enable the officer to send a copy of the Final EIS (40 CFR 1502.19) to any person, organization, or agency that provided substantive comments at the hearing. The hearing officer should assign assistants to the entrance of the hearing room to provide cards on which individuals can voluntarily write their names, addresses, telephone numbers, organizations they represent, and titles; whether they desire to make a statement at the hearing; and what environmental area(s) they wish to address. The hearing officer can then use the cards to call on individuals who desire to make statements. However, the hearing officer will not deny entry to the hearing or the right to speak to people who decline to submit this information on cards.
A3.7.2. Introductory Remarks. The hearing officer should first introduce himself or herself and the EIS preparation team. Then the hearing officer should make a brief statement on the purpose of the hearing and give the general ground rules on how it will be
A3.7.3. Explanation of the Proposed Action. The Air Force EIS preparation team representative should next explain the proposed action, the alternatives, the potential environmental consequences, and the EIAP.
A3.7.4. Questions by Attendees. After the EIS team representative explains the proposed action, alternatives, and consequences, the hearing officer should give attendees a chance to ask questions to clarify points they may not have understood. The EIS preparation team may have to reply in writing, at a later date, to some of the questions. While the Air Force EIS preparation team should be as responsive as possible in answering questions about the proposal, they should not become involved in debate with questioners over the merits of the proposed action. Cross-examination of speakers, either those of the Air Force or the public, is not the purpose of an informal hearing. If necessary, the hearing officer may limit questioning or conduct portions of the hearing to ensure proper lines of inquiry. However, the hearing officer should include all questions in the hearing record.
A3.7.5. Statement of Attendees. The hearing officer must give the persons attending the hearing a chance to present oral or written statements. The hearing officer should be sure the recorder has the name and address of each person who submits an oral or written statement. The officer should also permit the attendees to submit written statements within a reasonable time, usually two weeks, following the hearing. The officer should allot a reasonable length of time at the hearing for receiving oral statements. The officer may waive any announced time limit at his or her discretion. The hearing officer may allow those who have not previously indicated a desire to speak to identify themselves and be recognized only after those who have previously indicated their intentions to speak have spoken.
A3.7.6. Ending or Extending a Hearing. The hearing officer has the power to end the hearing if the hearing becomes disorderly, if the speakers become repetitive, or for other good cause. In any such case, the hearing officer must make a statement for the record on the reasons for terminating the hearing. The hearing officer may also extend the hearing beyond the originally announced date and time. The officer should announce the extension to a later date or time during the hearing and prior to the hearing if possible.
After all persons have had a chance to speak, when the hearing has culled a representative view of public opinion, or when the time set for the hearing and any reasonable extension of time has ended, the hearing officer adjourns the hearing. In certain circumstances (for example, if the hearing officer believes it is likely that some participants will introduce new and relevant information), the hearing officer may justify scheduling an additional, separate hearing session. If the hearing officer makes the decision to hold another hearing while presiding over the original hearing he or she should announce that another public hearing will be scheduled or is under consideration. The officer gives notice of a decision to continue these hearings in essentially the same way he or she announced the original hearing, time permitting. The Public Affairs officer provides the required public notices and directs notices to interested parties in coordination with the hearing officer. Because of lead-time constraints, SAF/MIQ may waive
5 U.S.C. 301; 10 U.S.C. 125; 28 U.S.C. 2672; and DoD Directive 5105.22 dated December 9, 1965.
(a) This part 1280 provides procedures for investigating and processing claims and related litigation:
(1) By civilian and military personnel of DLA for property lost or damaged incident to service (31 U.S.C. 240 through 243).
(2) Incident to use of Government vehicles and other property of the United States not cognizable under other law (10 U.S.C. 2737).
(3) Based on Negligence of Civilian and Military Employees under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 through 2680.
(4) In favor of the United States, other than contractual, for loss, damage, or destruction of real or personal property in the possession, custody, or control of DLA.
(b) This part 1280 is applicable to HQ DLA and DLA field activities, except nonappropriated funds and related activities established pursuant to DSAR 1330.2, Open Messes and Other Military Sundry Associations and Funds, and DSAR 1330.4, Civilian Nonappropriated Funds and Related Activities. Claims involving these activities are processed pursuant to the regulations referenced therein.
(a)
(b)
This revision provides current citations to the Army regulations which have superseded those previously prescribed for the processing of some claims. It reflects the new Army claims processing procedures effected upon the reorganization of the Army. Finally, it provides specific procedures for Air Force processed claims.
(a)
(i) Designating a qualified individual under their command, preferably one experienced in the conduct of investigations, as the Claims Investigating Officer for the activity.
(ii) Authorizing Heads of subordinate activities to appoint Claims Investigating Officers where necessary.
(2) The Commander, DLA Administrative Support Center (DLASC) is responsible for designating a qualified individual, preferably one experienced in the conduct of investigations, as the Claims Investigating Officer for DLASC and HQ DLA.
(3) Claims Investigating Officers are responsible for the expeditious conduct of all investigations and the processing of reports in accordance with appropriate Departmental regulations as prescribed by this part 1280. To ensure prompt investigation of every incident while witnesses are available, and before damage has been repaired, the duties of personnel as Claims Investigating Officers will ordinarily have priority over any other assignments they may have.
(4) The Counsel, DLA Field Activities are responsible for:
(i) Receiving claims reports and information about related litigation, and processing these reports and information in accordance with this part 1280 and appropriate Departmental regulations.
(ii) Providing directions and guidance to Claims Investigating Officers in the investigation and processing of claims.
(b) The Counsel, DLA (DLAH-G) is responsible for:
(1) Providing guidance to Counsel at DLA field activities on all claims and litigation matters within the purview of this part 1280.
(2) Receiving claims reports and information on related litigation forwarded to HQ DLA, Attention: DLAH-G, and processing these in accordance with this part 1280 and appropriate Departmental regulations.
(3) Maintaining this part 1280 in a current status and reviewing it annually.
(a)
(2) The completed report will be forwarded by the Claims Investigating Officer to one of the following activities for settlement:
(i) Where the claimant is a DLA civilian employee or a member of the Army; the Staff Judge Advocate designated in AR 27-20, appendix F, as the Area Claims Authority where the claim arose.
(ii) Where the claimant is a member of the Navy or Marine Corps the cognizant adjudicating authority as listed in JAGINST 5800.7A, paragraph 2124.
(iii) Where the claimant is a member of the Air Force; the Base Staff Judge Advocate of the nearest Air Force Base.
(b)
(2) The completed report will be forwarded by the Claims Investigating Officer to the Counsel for his activity or, if the activity has no Counsel, to the next higher echelon having such a position.
(3) The activity Counsel receiving the Claims Investigating Officer's report will review the report, and take all necessary action to assure that it is complete and in accordance with the appropriate regulation. He will forward the report together with his comments and recommendations to one of the following activities for settlement. Where the incident giving rise to the claim was occasioned by an act or omission of:
(i)
(ii)
(iii)
(iv)
(c)
(2) The completed report of investigation will be forwarded by the Claims Investigating Officer to one of the following activities for settlement. Where the incident giving rise to the claim was occasioned by an act or omission of:
(i)
(ii)
(iii)
(d)
(i) The duties of the claims officer will be performed by the Claims Investigating Officer.
(ii) The duties of the Staff Judge Advocate will be performed by Counsel, except where the property is a GSA motor pool system vehicle (see paragraph (e) of this section).
(iii) The reports of the Claims Investigating Officer will be furnished direct to Counsel for his activity or, if his activity has no Counsel, to the next higher echelon having such a position.
(iv) With respect to reports referred to them, Counsel are authorized to give receipts for any payments received and to execute releases where payment in full is received, except where the property is a GSA motor pool system vehicle (see paragraph (e) of this section). Offers of compromise will be processed pursuant to DSAM 7000.1, chapter 12, section V, paragraph 120502.
(v) Where payment in full is not received after reasonable efforts have been made to collect the claim administratively, Counsel will refer the case directly to the U.S. Attorney unless:
(2) If, at any stage of the processing of a claim under this paragraph (d), a claim is filed against the Government arising out of the same incident, or it becomes apparent that one will be filed, the claim under this paragraph (d) will be treated as a counterclaim, and included under the report filed in accordance with the applicable paragraph of this part 1280.
(e)
(2) In the event of damage to a motor pool system vehicle which is not due to the fault of the operator, Counsel receiving the report will submit the report to GSA's Regional Counsel for the region that issued the vehicle pursuant to the Federal Property Management Regulation, § 101-39.805. Damages to motor pool system vehicles caused by the negligence of vehicle operator employed by DLA or caused by the negligence or misconduct of any other officer or employee of DLA are reimbursed to General Services Administration (GSA). Determination affixing responsibility will be made by the Counsel to which the report is referred, after considering the views of GSA.
(f)
(2) Any Military Service member or civilian employee of DLA (or his personal representative) against whom a domestic civil action or proceeding is brought for damage to property, or for personal injury or death, on account of his operation of a motor vehicle (Government- or privately-owned) in the scope of his employment (28 U.S.C. 2679) will:
(i) Upon receipt of process and pleadings or any other information regarding the commencement of such action or proceeding, immediately inform the Head of his activity and Counsel as specified in paragraph (f)(1) of this section.
(ii) Promptly deliver all process and pleadings served upon him, or an attested true copy thereof, to Counsel.
(3) Upon receipt of information or process and pleadings pursuant to paragraph (f)(1) or (2) of this section, Counsel will promptly prepare and process reports in accordance with the appropriate portions of AR 27-40 except that:
(i) If the incident giving rise to the litigation was occasioned by an act or omission of a member of the Navy or Marine Corps, or a member of the Air Force, information and reports required to be furnished to The Judge Advocate General of the Army will be furnished instead to The Judge Advocate General of the Navy and Air Force respectively.
(ii) If the litigation is under the Federal Tort Claims Act and no administrative claim has been filed, Counsel will immediately advise the U.S. Attorney and furnish him a report of all information the activity has with respect to the claim and an affidavit by the Claims Investigating Officer to the effect that no administrative claim has been filed. Two copies of the foregoing will be provided to the appropriate Military Service Judge Advocate General. If an administrative claim has been filed and has been referred to a Military Service, a copy of the process and pleadings and any information not previously furnished will be sent to the appropriate Military Service Judge Advocate General.
5 U.S.C. 552.
This rule provides policies and procedures for the DLA implementation of DoD 5400.7-R,
(a)
(b)
(c)
(d)
(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, DLA activities should apply a standard of reasonableness. In other words, if the capability exists to respond to the request and the effort would be a business-as-usual approach, then the request should be processed. However, the request need not be processed where the capability to respond does not exist without a significant expenditure of resources, thus not being a normal business-as-usual approach.
(i)
(2) The following guidelines are provided to deal with “fishing expedition” requests and are based on the principle of reasonable effort. Descriptive information about a record may be divided into two broad categories.
(i) Category I is file-related and includes information such as type of record (for example, memorandum), title, index citation, subject area, date the record was created, and originator.
(ii) Category II is event-related and includes the circumstances that resulted in the record being created or the date and circumstances surrounding the event the record covers.
(3) Generally, a record is not reasonably described unless the description contains sufficient Category I information to permit the conduct of an organized, nonrandom search based on the activity's filing arrangements and existing retrieval systems, or unless the record contains sufficient Category II information to permit inference of the Category I elements needed to conduct such a search. The decision of the DLA activity concerning reasonableness of description must be based on knowledge of its files. If the description enables DLA activity personnel to locate the record with reasonable effort, the description is adequate.
(4) The following guidelines deal with requests for personal records. Ordinarily, when only personal identifiers are provided in connection with a request for records concerning the requester, then only records retrievable by personal identifiers need be searched. The search for such records may be conducted under Privacy Act procedures contained in DLAR 5400.21.
(j)
(1)
(2)
(ii) A DLA activity shall refer an FOIA request for a classified record that it holds to another DoD component or agency outside the Department of Defense if the record originated in the other DoD component or outside agency or if the classification is derivative. In this situation, provide the record and a release recommendation on the record with the referral action.
(iii) A DLA activity may refer a request for a record that it originated to another DoD component or agency when the record was created for the use of the other DoD component or agency. The DoD component or agency for which the record was created may have an equally valid interest in withholding the record as the DLA activity that created the record. In such situations, provide the record and a release recommendation on the record with the referral action.
(iv) Within DLA, an activity shall ordinarily refer an FOIA request for a record that it holds but that was originated by another activity or that contains substantial information obtained from another activity to that activity for direct response after coordination and obtaining concurrence from the activity. The requester shall then be notified of such referral. DLA activities shall not, in any case, release or deny such records without prior consultation with the other activity.
(3)
(4)
(5)
(6)
(7)
(k)
(l)
(m)
(1) Requesters who seek records about themselves contained in a Privacy Act system of records and who cite or imply the Privacy Act, will have their requests processed under the provisions of the Privacy Act, 5 U.S.C. 552a.
(2) Requesters who seek records about themselves which are not contained in a Privacy Act system of records and who cite or imply the Privacy Act, will have their requests processed under the provisions of the FOIA, since they have no access rights under the Privacy Act.
(3) Requesters who seek records about themselves which are contained in a Privacy Act system of records and who cite or imply the FOIA or both Acts will have their requests processed under the time limits of the FOIA and the exemption and fee provisions of the Privacy Act.
(4) Requesters who seek access to Agency records and who cite or imply the Privacy Act, the FOIA, or both will have their requests processed under the FOIA.
(5) Requesters should be advised in final responses why their request was processed under a particular act.
(n)
(2)
(3) DLA publications and PLFA supplements may, at the discretion of the DLA activity, be regarded as “(a)(2)” material and placed in reading rooms subject to the restrictions in paragraph (o)(2) of this section. Otherwise, requests for publications will be handled according to paragraph (o)(1) of this section.
(o)
(2) Requests for DLA publications which are classified, marked “FOR OFFICIAL USE ONLY,” or have limited distribution statements will be referred to the issuing activity for release determination and, if appropriate, formal denial. Such publications will not be placed in reading rooms. However, where a public reading room also serves as an activity's library, restricted publications may be maintained provided they are appropriately safeguarded and not commingled with other nonensitive regulations.
(3) For DoD regulations, manuals, directives, handbooks and similar issuances, the FOIA manager may refer the requester to the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161-2171.
(p)
(q)
(r)
(s)
(t)
(1) Officials of State or local governments.
(2) Members of Congress seeking records on behalf of their constituents.
(3) Officials of foreign governments.
(u)
(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. However, receipt of a subpoena
(iii) To other Federal Agencies, both executive and administrative, as determined by the DLA Director or designee.
(2) Disclosure under these privileged release circumstances does not set a precedent for disclosure to the general public under the FOIA.
(3) DLA activities shall inform officials receiving records under the provisions of this paragraph that those records are exempt from public release under the FOIA and are privileged. DLA activities will also advise officials of any special handling instructions. See part 286, subpart D, of this title for marking requirements under privileged release circumstances.
The following terms and meanings shall be applicable:
(a)
(b)
(1) 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.
(2) Statements of policy and interpretations that have been adopted by the agency and are not published in the
(3) Administrative staff manuals and instructions, or portions thereof, that establish DLA 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 DLA activities. Examples of manuals and instructions not normally made available include but are not limited to the following:
(i) 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.
(ii) Operations and maintenance manuals and technical information concerning munitions, equipment, systems, and foreign intelligence operations.
(c)
(d)
(2) The following are 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) 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 DLA activity. 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 (d)(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 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:
(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 DLA activity, such as computer models used to forecast budget outlays, calculate retirement system costs, or optimization models on travel costs.
(iii) See part 286, subpart C, of this title for guidance on release determinations of computer software.
(4) A record must exist and be in the possession and control of DLA at the time of the request to be considered subject to this rule and the FOIA. There is no obligation to create, compile, or obtain a record to satisfy an FOIA request.
(5) 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 requests for such need not be processed under the FOIA. Normally, documents disclosed to the public by publication in the
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(a)
(2) Designates a FOIA manager to administer the DLA FOIA program.
(3) Serves as the point of contact for referring members of the public to the proper DLA source for Agency records.
(4) Serves as appellate authority on fee waivers and category determinations.
(5) Serve as initial denial authority for record denials where more than one PSE is involved or where a PSE has made a determination that the requested record cannot be found.
(6) Submits required reports to the Office of the Assistant Secretary of Defense, Public Affairs.
(7) Collects and deposits fees for FOIA services performed at HQ DLA and DASC.
(b)
(2) Processes appeals to the Director, DLA, of denials to provide records or “no record” determinations.
(3) Coordinates denial actions with Office of the General Counsel, DoD, and the Department of Justice, as appropriate.
(4) Ensures that case files of FOIA appeals are maintained for 6 years after final agency decision.
(c)
(d)
(e)
(2) Forward to DLA-XAM any FOIA request received directly from the public so that the request may be administratively controlled.
(3) Ensures that provisions of this regulation are followed in processing requests for records from the public.
(4) Coordinate requests with other HQ DLA staff elements to the extent considered necessary.
(5) Coordinate any proposed denial with the General Counsel.
(6) Serve as initial denial authority.
(7) Ensure that FOIA case files of denials are maintained for 6 years and that full releases are maintained for 2 years.
(8) Make initial determinations to release records or designate individuals to make such determinations.
(f)
(2) Make sure established suspenses are met.
(3) Request extensions of time from DLA-XAM when necessary and within the limits of § 1285.5(j) of this part.
(4) Gather cost estimates when requested.
(5) Ensure costs for processing each Freedom of Information Act request are properly recorded.
(6) Coordinate proposed full and partial denials with DLA-XAM prior to signature by the PSE director. Forward a copy of the final response and cost information to DLA-XAM.
(g)
(2) Ensure that the provisions of this regulation are followed in processing requests for records from members of the public.
(3) Provide facilities where members of the public may examine and copy the following documents:
(i) DLAH 5805.1
(ii) DLAH 5025.1
(iii) DLAM 5015.1, Files Maintenance and Disposition.
(iv) Copies of local directories or indexes.
(v) Any other available “(a)(1)” or “(a)(2)” material.
(4) Sign letters of denial and “no record” determinations after coordination with Counsel.
(5) Refer cases of significance to DLA-XAM for review and evaluation when the issues raised are unusual, precedent setting, or otherwise require special guidance.
(6) Establish safeguards to ensure that FOUO material is protected.
(7) Establish procedures to ensure that a record is maintained of all FOIA requests for logistical data (data on magnetic tape extracted from any of the DLA automated data processing (ADP) systems). The record will contain the requester's name and address, the date of the request, what information was requested, and what information was furnished. This record will be kept for five years.
(8) Inform Public Affairs offices 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.
(h)
(2) Review requests to determine if they meet the requirements of 5 U.S.C. 552. Determine category of the requester before assigning the request for search. Provide instructions to the searching office on fees and time limits for response.
(3) Consult with requesters, where necessary, to determine requester category and to resolve fee issues.
(4) Establish training and education program for those personnel who may be involved in responding to FOIA requests.
(5) Approve requests for formal extensions of time and notify requesters in writing of the extension.
(6) Grant or deny requests for fee waivers or requester category determinations and provide DLA-XAM with a copy of each such denial.
(7) Establish procedures to ensure that § 1285.5(1) of this part regarding consultation with submitters of information is complied with.
(8) Establish procedures for the collection and deposit of fees for FOIA services.
(9) Ensure that cost data is maintained for each case file.
(10) Establish procedures to ensure that record denials and “no record” determinations are signed by the PLFA initial denial authority and a copy forwarded to DLA-XAM.
(11) Notify DLA-XAM of requesters who have failed to pay fees in a timely manner.
(12) Prepare and submit reports as required.
(13) Consult with public affairs officers (PAO's) to become familiar with subject matter that is considered to be newsworthy and advise PAO's of all requests from news media representatives.
(14) Establish procedures to provide the Congressional Affairs focal point with an information copy of each FOIA request received from a member of the Congress.
(15) Coordinate any proposed supplements or training material with DLA-XAM prior to publication or dissemination.
(16) Establish procedures to ensure that case files of FOIA releases are maintained for two years after cutoff and that denials are maintained for 6 years after cutoff.
(17) Review all proposed full and partial denials prior to signature by the initial denial authority for compliance with these rules.
(a)
(b)
(c)
(d)
(i)
(ii)
(iii)
(A) Notify the requester that he or she should provide additional justification to warrant the category claimed and that a search for responsive records will not be initiated until agreement has been attained relative
(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 FOIA manager. Requesters must submit a fee declaration appropriate for the following categories:
(iv)
(2) In cases where there is disagreement on the category of the requester or there is lack of justification for fee waiver, the FOIA manager may process the request without further contacting the requester if he or she believes it can be processed within the automatic $15 waiver limit.
(e)
(f)
(2) After reviewing a request, the OPI may determine, based on knowledge of the files and programs, that a request is, in fact, not reasonably described. OPI's will notify FOIA managers of such defects immediately so that further details may be sought from the requester. Any delays on the requester's part in receiving more detailed information will not count toward the 10-day time limit.
(g)
(i) The request is transferred to another DLA activity, DOD component, or to another Federal agency.
(ii) The DLA activity determines through knowledge of its files and reasonable search efforts that it neither controls nor otherwise possesses the requested record. Responding officials will advise requesters of the right to appeal such determinations. See paragraph (i)(5) of this section for details on processing “no record” responses.
(iii) A record has not been described with sufficient particularity to enable the DLA activity to locate it by conducting a reasonable search.
(iv) The requester has failed unreasonably to comply with procedural requirements, including payment of fees, imposed by this rule.
(v) The request is withdrawn by the requester.
(vi) The information requested is not a record within the meaning of the FOIA and this rule.
(vii) The record is denied in accordance with procedures set forth in the FOIA and this rule.
(2)
(h)
(2)
(i)
(2)
(3)
(4)
(ii) FOIA managers shall forward a copy of each letter of denial to DLA-XAM, Cameron Station, Alexandria,
(5)
(ii) Before a formal “no record” response is issued, OPI will verify that the requester has adequately described the record. If additional details will aid the search, then the requester will be asked to provide those details. See paragraph (d)(1)(ii) of this section and § 1285.2(i) of this part for procedures for resolving inadequate descriptions.
(iii) In cases where the requested record has been destroyed, the initial denial authority will confirm that the record was retained for the period authorized in DLAM 5015.1 before issuing a formal response. In responding to requesters in these cases, advise the requester that the records were properly destroyed according to Agency rules for record disposition and give the right to appeal as outlined in paragraph (i)(5)(i) of this section. However, do not ask the requester to provide reasons why the activity should have the records.
(iv) Upon receipt of an appeal, the FOIA manager will direct that a second search be conducted using any information supplied by the requester. If the second search produces no documents, the appeal will be forwarded to HQ DLA-G, Cameron Station, Alexandria, Virginia 22304-6100, along with a copy of the case file. The FOIA manager will include the cost information and an explanation of the method of search and the types of offices searched. In cases where the “no record” response was issued because the records have been destroyed, the FOIA manager will verify that the records were destroyed as provided for in DLAM 5015.1 and provide a statement to that effect.
(v) FOIA managers will ensure that a copy of each “no record” response letter is forwarded to DLA-XAM, Cameron Station, Alexandria, Virginia 22304-6100. Do not include attachments, the incoming request, or any backup material.
(6)
(j)
(i)
(ii)
(iii)
(2)
(k)
(l)
(i) The person designated to respond will provide the source with a copy of the incoming request, a copy of the documents responsive to the request, and a letter of instruction. The notification letter will be addressed to the president of the entity or the entity's counsel and sent by return receipt mail.
(ii) When a substantial issue has been raised, the DLA activity may seek additional information from the source and afford the source and requester reasonable opportunities to present their arguments on the legal and substantive issues involved.
(iii) Any objections to release will be evaluated and the source provided with a copy of the activity's final decision. Where a decision is made to release information claimed to be exempt, the source will be notified that the information will be released on a specified date unless the source seeks a restraining order or takes court action to prevent disclosure. Evaluators are cautioned that any decision to disclose information claimed to be exempt under 5 U.S.C. 552(b)(4) must be made by an official equivalent in rank to the initial denial authority.
(iv) When the source advises it will seek a restraining order or take court action to prevent release of the record or information, the FOIA manager will notify the requester and suspend action on the request until after the outcome of that court action is known. When the requester brings court action to compel disclosure, the FOIA manager shall promptly notify the submitter of this action.
(2) These procedures are required for those FOIA requests for data not deemed clearly exempt from disclosure under exemption (b)(4). If, for example, the record or information was provided with actual or presumptive knowledge of the non-U.S. Government source and established that it would be made available to the public upon request, there is no obligation to notify the source.
(3) These coordination provisions also apply to any non-U.S. Government record in the possession and control of DLA from multi-national organizations, such as North Atlantic Treaty Organization (NATO) and North American Aerospace Defense Command (NORAD), or foreign governments. Coordination with foreign governments under the provisions of this paragraph shall be made through the Department of State.
(m)
(n)
(ii)
(iii)
(2)
(ii)
(iii)
(iv)
(B) 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 paragraph (j) of this section, they may consider their administrative remedies exhausted. They may, however, without prejudicing their right of judicial remedy, await a substantive response. DLA 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 of a complaint shall be forwarded to the Department of Justice.
(C) When the appellate authority or the authority's representative must consult with the requester over an issue not previously settled, such as agreement to pay fees for documents previously denied, then any delays on the requester's part will not count toward the 20-day time limit.
(3)
(ii) Final refusal to provide a requested record must be made in writing by the DLA Director or his designee. In the case of fee appeals, final refusal to waive or reduce fees must be made in writing by the Staff Director of Administration. Record denial responses, at a minimum, shall conform to the following:
(A) The basis for the refusal shall be explained to the requester with regard to the applicable statutory exemption or exemptions invoked.
(B) 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.
(C) The response shall advise the requester that the material being denied does not contain meaningful portions that are reasonably segregable.
(D) The response shall advise the requester of the right to judicial review.
(4)
(ii) 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.
(5)
(o)
(p)
The rules and rates published in part 286, subpart F of this title apply to this rule. For purposes of computer search, DLA has established rates of $20 per minute of central processing unit time for mainframe computer use and $20 per hour of wall clock time for personal computer use. These rates represent average operational costs and may be used when the actual computer cost cannot be determined.
The reporting requirement outlined in this rule is assigned Report Control Symbol DD-PA(A)1365 and will be prepared according to part 286, subpart G, of this title.
The Defense Logistics Agency was established pursuant to authority vested in the Secretary of Defense and is an agency of DoD under the direction, authority, and control of the Assistant Secretary of Defense (Production and Logistics) and is subject to DoD policies, directives, and instructions. DLA is made up of a headquarters and 22 Primary Level Field Activities (PLFA's). DLA does not have a central repository for its records.
The headquarters is organized by broad functional area and includes the following offices and directorates:
The 22 PLFA's are organized into six supply centers, four depots, six service centers, and six contract districts.
1.
a. Defense Construction Supply Center (DCSC). Buys and manages construction materials, automotive, and construction equipment components, and many repair parts used by the Military Services and other Federal agencies. Manages items ranging from common commercial items such as lumber and plumbing accessories to complex repair parts for mechanical, construction, and automotive equipment, and for military aircraft, surface ships, submarines, combat vehicles, and missile systems.
b. Defense Electronics Supply Center (DESC). Responsible for the acquisition, management, and supply of more than one-half million electronic components such as resistors, capacitors, tubes, transformers, microcircuits, and components for various communications and weapons systems.
c. Defense Fuel Supply Center (DFSC). Serves as material manager for bulk petroleum and coal and is responsible for its worldwide supply, storage, and distribution.
d. Defense Industrial Supply Center (DISC). Buys and manages industrial items such as bearings, ferrous and nonferrous metals, electrical wire, gasket material, and certain mineral ores and precious metals.
e. Defense Personnel Support Center (DPSC). Buys and manages food, clothing, and medical supplies for all the armed services, some Federal agencies and authorized foreign governments.
f. Defense General Supply Center (DGSC). Buys and manages such categories of materials as electrical hardware, materials handling equipment, kitchen and laundry equipment, woodworking and metalworking machines, photographic supplies, and precision measuring instruments.
2.
3.
a. Defense Logistics Services Center (DLSC). Responsible for maintenance of the Federal Supply Catalog System, including the development and dissemination of cataloging and item intelligence data to the Military Departments and other authorized customers.
b. Defense Reutilization and Marketing Service (DRMS). The central clearinghouse for the reutilization, donation, sale, or disposal of DoD-owned excess property, including scrap and waste.
c. Defense Industrial Plant Equipment Center (DIPEC). Manages the reserve of DoD-owned industrial plant equipment. The center repairs, rebuilds, and updates equipment to avoid new procurement costs.
d. DLA Administrative Support Center (DASC). Provides general administrative support to designated DLA activities.
e. Defense National Stockpile Center (DNSC). Maintains the national reserve of
f. DLA Systems Automation Center (DSAC). Develops and maintains DLA's automated and computerized systems.
4.
Address requests to the DLA PLFA most likely to hold the records (see paragraph V of this appendix for mailing addresses of FOIA managers). If the PLFA is undeterminable, address requests to HQ DLA-XAM for proper routing. Requests must be in writing.
Provide a reasonable description of the documents you are seeking. If you have detailed information which would help reduce the search time involved, please include it in your request. If you have a document which references the DLA record you seek, include a copy of that document.
State your willingness to pay fees above the $15 automatic waiver or provide a justification for waiver of all or part of the costs. Waiver requests must address with specificity each of the fee waiver elements in part 286, subpart F, of this title.
Unrestricted DLA regulations, manuals, and handbooks may be purchased from the DLA publications sales outlet. DLA Handbook 5025.1, Defense Logistics Agency Index of Publications, is published quarterly and may be used to help you identify publications of interest to you. Orders for this and other nonrestricted publications may be placed through DASC-PD, Cameron Station, Alexandria, VA 22304-6130. That office will advise you of cost before completing your order.
5 U.S.C. 301; DOD Directive 5105.22, June 8, 1978.
To prescribe policy and procedures for the registration, inspection, and marking of privately owned vehicles (POV) on Defense Logistics Agency (DLA) activities. This regulation is applicable to individuals serving in or employed by the Defense Logistics Agency, and to all other individuals subject to motor vehicle registration requirements set forth in this part 1288 and DLAR 5720.1/AR 190-5/OPNAVINST 11200.5B/AFR 125-14/MCO 5110.1B, Military Police Motor Vehicle Traffic Supervision.
(a) The operation of a POV on a DLA activity constitutes a conditional privilege extended by the Head of the activity. The Heads of DLA primary level field activities (PLFA's) have the authority to supplement this regulation to implement additional controls and restraints warranted by existing conditions at a PLFA. For example, commanders of depots and supply centers may impose searches of vehicles as warranted to reduce pilferage, and protect Government interests.
(b) POV's permanently registered for operation on a DLA activity will be identified by use of one of the decals prescribed in this part 1288 (appendices A and B).
(c) The DLA vehicle decal will be valid for a period of 3 years from the year and month of issue.
(d) Activities will use DLA Form 1454, Vehicle Registration/Driver Record, as the basic vehicle registration and driver record.
(e) DLA tenant activities will comply with host installation policies and procedures for registering POV's.
Terms used in this part 1288 are contained in DLAR 5720.1.
(a)
(2) The inspector general, DLA (DLA-I) will procure, issue, and control inspector general (IG) vehicle decals in accordance with § 1288.6 of this part, with the exception of the 3-year validation requirement. (Vehicles bearing such decals will be permitted entry to all DLA activities.)
(b) The heads of DLA primary level field activities will:
(1) Insure that personnel adhere to the provisions of this part 1288 when implemented.
(2) Procure, issue, and control vehicle decals in accordance with this DLAR.
(3) Periodically inform personnel of the requirements of this DLAR, DLAR 5720.1, and local requirements concerning the motor vehicle registration program.
(4) Activity/tenant employees are not considered visitors and will not be issued visitor passes. Employees operating loaner/rental vehicles may be temporarily registered in accordance with DLAR 5720.1, paragraph 3-2c.
(a)
(2) A 3-year validation sticker indicating the decal expiration will be issued at the same time the DLA decal is issued. Every 3 years, or following a significant change, registrants will be required to update their registration information. Evidence of compliance will be documented by the issuance and display of a new 3-year validation sticker.
(3) The validation sticker will be placed next to the DLA decal affixed to the front bumper of the vehicle. This sticker will reflect the month and year of the decal expiration, e.g., vehicles registered during the month of June 1978 will have affixed a validation sticker with the numbers “6-81”, indicating expiration of the decal at the end of June 1981. The specifications for the validation sticker will be determined locally.
(4) Decals or other media used to identify vehicles of temporary registrants or visitors will be locally prescribed.
(5) Decals will be removed from POV's by the registrant when activity registration is terminated. See DLAR 5720.1, chapter 3, for information on termination of registration.
(6) Vehicle decals will be purchased with appropriated funds for issuance at no cost to authorized users.
(b)
(2) The certification contained on DLA form 1454 will, as indicated thereon, be witnessed and manifested by a signature.
(c)
(2) Vehicle safety inspections are not mandatory for DLA activities located in areas not requiring such inspections.
(d)
(a) DLA form 1454 will be prepared at the time of initial registration of the vehicle and will remain valid for as long as the registrant retains ownership of the vehicle and complies with registration requirements. A Privacy Act statement for use in conjunction with DLA form 1454 will be made available to the individual supplying data on the form.
(b) Data blocks 3, 4, and 14 on DLA form 1454 will be entered in ink; remaining entries will be in pencil.
(c) One copy of DLA form 1454 will also serve as the driver record of the registrant.
(d) Upon permanent change of station of the military service registrant, activity clearance procedures will provide for DLA form 1454 to be included in the registrant's military personnel folder for transmittal to the gaining activity. DLA forms 1454 for transferring civilian personnel will be forwarded to the security officer of the gaining activity.
(e) The DLA form 1454 for military personnel being discharged or separated will be forwarded to the appropriate personnel office for inclusion in the records folder for subsequent retirement.
A. The design format of the standard DLA decal to be used for identifying POV's permanently registered for operation on DLA activities is shown in enclosure 2. The IG decal will be of the same design and color as that prescribed for the standard DLA decal except that the registration letter/number scheme will consist of the letters “IG” followed by a number. Standard DLA decals may be procured from the U.S. Disciplinary Barracks, USDB, Fort Leavenworth, Kans. 66027, which is an approved Federal printing plant. Existing stocks of decals with “DSA” inscribed will be used until exhausted.
B. The following specifications apply to the separate elements of the decal:
1.
2.
a. Background—Silver.
b. DLA emblem, field activity name, and scroll, the letters DLA, and year/date—Black.
C. Registration letters/numbers:
(1) Mandatory categories:
(a) Officer personnel—Blue.
(b) Enlisted personnel—Red.
(c) Civilian employees—Green.
(2) The following additional colors will be used to categorize registration further:
(a) Noncommissioned officer personnel—Brown.
(b) Civilian employees (nonappropriated fund), Red Cross, concessionaires, contractors, and other similar categories—Black.
3.
4.
a. Maximum size: 3 inches by 6 inches. For economy a reduced size decal may be used on POV's to include those with less than four wheels.
b. Registration letters and numerals: 1
c. DLA emblem letters: 1
d. DLA letters:
e. Activity designation scroll and lettering: See appendix B.
Department of Defense Instruction 6055.4; 18 U.S.C. 13, 3401, and 3402.
(a) DLAR 5720.1/AR 190-5/OPNAVINST 11200.5B/AFR 125-14/MCO 5110.1B, Motor Vehicle Traffic Supervision.
(b) DLAR 5710.1, Authority of Military Commanders To Issue Security Orders and Regulations for the Protection of Property or Places Under Their Command.
(c) Sections 1, 3401 and 3402, title 18, U.S.C.
(d) Rules of procedures for the Trial of Minor Offenses before United States Magistrates.
(e) Section 13, title 18, U.S.C., Assimilative Crimes Act.
(a) This part 1290 implements DoD Instruction 6055.4, Department of Defense Traffic Safety Program, and sets forth basic objectives and procedures applicable to implementation of the Federal Magistrate System by DLA. This part 1290 is applicable to HQ DLA, Defense Supply Centers (DSC's), less Defense Fuel Supply Center and Defense Industrial Supply Center, and to Defense Depots, less Defense Depot Mechanicsburg. DLA activities/personnel tenant on other DoD activities will abide by the requirements of the host.
(b) This part 1290 provides Heads of DLA primary level field activities (PLFAs) with a means of exercising effective control over violators who are not otherwise under their jurisdiction.
(a) It is the policy of HQ DLA that the Heads of DLA PLFAs will take such steps as are necessary to prevent offenses. Emphasis will be placed on prevention rather than apprehension and prosecution of offenders.
(b) The procedures outlined in this part 1290 may, at the discretion of the Head of the activity concerned, be invoked in lieu of the provisions of the Uniform Code of Military Justice (UCMJ) to deal with minor offenses of a civil nature, other than violations of state traffic laws, committed by military personnel. These procedures may also be invoked to deal with nontraffic minor offenses committed by civilian personnel.
For the purpose of this part 1290 the following definitions apply:
(a)
(b)
(c)
A petty offense is a type of minor offense.
(d)
A complaint, made under oath on forms provided by the magistrate, is the prescribed form for charging minor offenses other than petty offenses.
(a) DoD Instruction 6055.4 requires that all traffic violations occurring on DoD installations be referred to the appropriate United States Magistrate, or State or local system magistrate, in the interest of impartial judicial determination and effective law enforcement. Exceptions will be made only for those rare violations in which military discipline is the paramount consideration, or where the Federal court system having jurisdiction has notified the PLFA commander it will not accept certain offenses for disposition.
(b) Generally, the Federal Magistrate System applies state traffic laws and
This revision incorporates the DoD requirement for referral of traffic violations occurring on military installations to the Federal or local magistrate.
(a)
(i) Exercise staff supervision over the Magistrate system within DLA.
(ii) Provide guidance and assistance to DLA activities concerning administrative and procedural aspects of this part 1290.
(2)
(b)
(1) Develop and put into effect the necessary regulatory and supervisory procedures to implement this part 1290.
(2) Ensure implementing directives authorize law enforcement/security force (080, 083, 085 and 1800 series) personnel to issue DD Form 1805.
(3) Periodically publish in the PLFA Daily or Weekly Bulletin, a listing of offenses for which mail-in procedures apply, with the amount of the fine for each, and a listing of offenses requiring mandatory appearance of the violator before the U.S. Magistrate. The listings will indicate that they are not necessarily all inclusive and that they are subject to change. A copy of the listings will be provided to the local Union representatives.
(a)
(1) The means to process and dispose of certain categories of minor offenses by mail. Under this system, U.S. Magistrate and District Courts will, by local court rule, preset fines for the bulk of petty violations (Federal or Assimilated) and permit persons charged with such violations, who do not contest the charge nor wish to have a court hearing, to pay their fines by using mail-in, preaddressed, postage paid envelopes furnished to them with the violation notice.
(2) Efficient, minimal commitment of judicial and clerical time by using uniform procedures which centralize the collection of fines, the scheduling of mandatory hearings or hearings where violators request them, and the keeping of violator records.
(3) A simple but sure method of accounting for fines collected and tickets issued.
(4) Impartial enforcement of minor offense laws.
(b)
(ii) Mandatory appearance offense categories normally include:
(A) Indictable offenses.
(B) Offenses resulting in accidents.
(C) Operation of motor vehicle while under the influence of intoxicating alcohol or a narcotic or habit producing or other mind altering drug, or permitting another person who is under the influence of intoxicating alcohol, or a narcotic or habit producing or mind altering drug to operate a motor vehicle owned by the defendant or in his/her custody or control.
(D) Reckless driving or speeding.
(2) Voluntary Appearances—(i)
(B) Command security officers will provide security force personnel with necessary information to facilitate scheduling violators to appear before U.S. Magistrates. Box B of the DD Form 1805 will be marked by the issuing official for each violator requesting a hearing. Additionally procedures set forth in appendix A will be
(ii)
(B) Violators who use the mail-in procedure to voluntarily appear before a U.S. Magistrate must follow the instructions in Box B of the DD Form 1805 (violator copy). The violator will be notified by the clerk of the District Court of the time and place to appear for the scheduled hearing.
(a)
(2) DLA field activity Counsels will coordinate with the U.S. Magistrate of the judicial district in which the activity is located and maintain the information listed below:
(i) List of petty offenses for which mail-in procedure is authorized and the amount of the fine for each specific offense. The District Court address will be prestamped on the violator's copy of the DD Form 1805 by the applicable issuing authority.
(ii) List of minor offenses requiring mandatory appearance of the violator before the magistrate. The name and location of the magistrate before whom violators will appear. Schedule will be coordinated with nearest Military Service activity and appearance will be conducted jointly whenever possible.
(b)
(i) The type of violation, i.e., parking, (such as blocking a fire lane) moving traffic violation, or nontraffic offenses.
(ii) Whether the offense cited requires the mandatory appearance of the violator before a U.S. Magistrate.
(2) Preparation and disposition of DD Form 1805:
(i) See illustration in appendix B for petty offenses where the mail-in fine procedures are authorized.
(A) The amount of the fine for a specific offense must be recorded in the lower right corner of the DD Form 1805. This amount will always be predetermined by the U.S. Magistrate and provided to on duty enforcement personnel by the activity security officer or equivalent authority. When violation notices are issued for an offense (e.g., parking violation) and the offender is absent, all entries concerning the violator will be left blank.
(B) Disposition of DD Form 1805 will be as follows:
(
(
(
(ii) When DD Form 1805 is used to cite personnel for mail-in type violations, the appropriate supervisor will be provided an information copy of DLA Form 635, Security/Criminal Incident Report, denoting the date, time, place, and type of violation, and the amount of fine assessed.
(iii) Heads of DLA primary level field activities or their representative will not accept or otherwise collect any fines or keep records of fines paid or not paid. They also will take no action concerning nonpayment delinquencies
(iv) See illustrations in appendices C and D for minor offenses requiring the mandatory appearance of violators before the U.S. Magistrate:
(A) Mail-in fine procedures will not apply in mandatory appearance cases. The law enforcement authority issuing a violation notice for an offense requiring mandatory appearance of the violator, will place a check mark in “Box A”, DD Form 1805. The name and location of the U.S. Magistrate before whom the violator must appear will be inserted on the line below “United States District Court” as shown in appendix C. The date and time of the initial appearance will be entered in the space provided in “Box A”. It is the violator's responsibility to verify the date, time, and place of required court appearances.
(B) Disposition of DD Form 1805 will be as follows:
(
(
(
(C) When DD Form 1805 is used to cite personnel for mandatory appearance type offenses, the individual's supervisor will be provided an information copy of DLA Form 635, denoting the date, time, place, and type of violation, and the date the violator is scheduled to appear before the U.S. Magistrate.
(v) Additional information governing preparation of DD Form 1805 is provided as appendix A.
All violations will require:
Last four digits of the Social Security Number of the Issuing guard/police officer (placed in space marked “Officer No.”). Date of notice (is also violation date unless otherwise shown) and time. Description of violation, including place noted. Violation code number and issuing location code number (as determined by local Magistrate/District Court). Examples are shown at appendices B, C, and D.
Parking offenses require: Vehicle description (make, color, body type), licensing state, auto license number; and, if violator is present: Driver permit number, driver address, driver's name (all of above items and); moving traffic offenses require: Birth date and sex, race (if it appears on driver's permit), height and weight.
Nontraffic offenses require: Statute violated, person's name, person's address, birth date, and sex; and, if applicable: Race, height, and weight.
All mailable disposition offenses—amount of fine (collateral).
All mandatory court offenses—Above data, as appropriate, and the place of court (i.e., Magistrate Court Address), the date and time of appearance (if known by officer), and check mark in Box “A”.
DoD Directive 5200.8 and in accordance with Sec. 21 of the Internal Security Act of 1950, 50 U.S.C. 797.
“To establish policy, assign responsibilities, and prescribe procedures for the issuance of security regulations and orders by Heads of DLA activities. This part 1292 implements DoD Directive 5200.8, Security of Military Installations and Resources, and is applicable to HQ DLA, DLA field activities and property/places subject to the jurisdiction or administration of the Defense Logistics Agency.
(a) Military Heads of DLA field activities are authorized to issue or approve necessary security regulations and orders for the protection of property and places under their jurisdiction/administration. Regulations and orders for the protection of property and personnel of subordinate activities headed by civilians shall be promulgated by the military commander in the chain of command immediately above such subordinate activity.
(b) Regulations and orders for the protection of property and personnel of primary level field activities (PLFAs) headed by civilians, and subordinate activities of such PLFAs which likewise are headed by civilians, shall be promulgated by the Director, DLA/Deputy Director/Deputy Director, CAS.
(c) Heads of DLA field activities that are tenants on a military reservation, post, camp, station, installation, base, or Government-owned or leased facility administered by another command or agency are responsible for protection of property and places under their command and may issue security regulations and orders in fulfillment of their responsibility to protect property and places under their jurisdiction and administration. However, separate security regulations and orders should not be issued when the host has issued security regulations and orders that afford protection to the DLA activity.
(d) Detailed physical security and emergency plans developed in conjunction with these security regulations and orders will be as prescribed by DLAM 5710.1, Physical Security Manual, and DLA War and Emergency Support Plan (WESP), part II, Annex A.
Section 21 of the Internal Security Act of 1950 (appendix A) authorizes the Secretary of Defense to designate military commanders to promulgate or approve regulations and orders for the protection of property and places under their command. DoD Directive 5200.8 designates military commanders of Army, Navy, Air Force, and Defense Agency activities as having authority to promulgate regulations and orders pursuant to the Internal Security Act of 1950.
(a)
(2) The Command Security Officer, DLA (DLA-T) will:
(i) Provide technical staff guidance on the issuance of security regulations and orders.
(ii) Keep the Director, DLA informed of violations of regulations/orders as reported.
(b)
(i) Publish a physical security plan which provides proper and economical use of personnel and equipment to prevent or minimize loss or damage from theft, espionage, sabotage, and other criminal or disruptive activities.
(ii) Report violations of security regulations and orders to HQ DLA, ATTN: DLA-T, in accordance with DLAR 5705.1, Reporting of Security and Criminal Violations.
(2) The Military Heads of DLA field activities will issue security regulations and orders as necessary for the protection of places and property under their jurisdiction pursuant to the provisions of this part 1292 and other pertinent directives.
(a) Security regulations and orders will be promulgated by any of the following means:
(1) Written directives of the activity Head.
(2) Signs and similar media.
(3) Orally, when required by a contingency/emergency.
(b) Written directives and orders will contain so much of the following statement as is pertinent:
This order (directive, bulletin, etc.) is issued pursuant to section 21, Internal Security Act of 1950, 50 U.S.C. 797, DoD Directive 5200.8, DLAR 5710.1, (directive issued by the Head of a DLA field activity subordinate to HQ DLA).
(c) Signs used as the sole vehicle for issuing a security regulation or order must contain a recitation of the authority under which issued and the title of the authorized official who issued the regulation or order. DLAM 5710.1, chapter 3, contains instructions on the exact wording of such signs.
(d) Oral orders will include a statement which clearly indicates the authority for issuance similar to the provisions of paragraph (b) of this section.
(e) Written security orders and regulations will be posted in conspicuous and appropriate places to ensure widest dissemination. The posting of a general security regulation/order, or a listing of applicable directives, will suffice provided it cites the authority to issue such directive. The posting of voluminous, individual security regulations and orders will be avoided.
(a) Whoever willfully shall violate any such regulation or order as, pursuant to lawful authority, shall be or has been promulgated or approved by the Secretary of Defense, or by any military commander designated by the Secretary of Defense, or by the Director of the National Advisory Committee for Aeronautics, for the protection or security of military or naval aircraft, airports, airport facilities, vessels, harbors, ports, piers, waterfront facilities, bases, forts, posts, laboratories, stations, vehicles, equipment, explosives, or other property or places subject to the jurisdiction, administration, or in the custody of the Department of Defense, any Department or agency of which said Department consists, or any officer or employeee of said Department or agency, or of the National Advisory Committee for Aeronautics or any officer or employee thereof, relating to fire hazards, fire protection, lighting, machinery, guard service, disrepair, disuse or other unsatisfactory conditions thereon, or the ingress thereto or egress or removal of persons therefrom, or otherwise providing for safeguarding the same against destruction, loss, or injury by accident or by enemy action, sabotage or other subversive actions, shall be guilty of a misdemeanor and upon conviction thereof shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year or both.
(b) Every such regulation or order shall be posted in conspicuous and appropriate places. Sept. 23, 1950, c. 1024, Title I, Par. 21, 64 Stat. 1005.
E.O. 12222, 30 FR 6469; 18 U.S.C. 201-209.
(a) DLAR 1005.1, Decorations and Gifts from Foreign Governments.
(b) DLAR 1430.12, Civilian Employee Development and Training.
(c) DLAR 5035.1, Fund-Raising Within the Defense Logistics Agency.
(d) DLAR 5400.13, Clearance of Information for Public Release.
(e) DLAR 5500.4, Policies Governing Participation of DLA and Its Personnel in Activities of Private Associations.
(a) Part 1293 prescribes standards of conduct required of all DLA personnel, military and civilian, regardless of grade or assignment. It also establishes criteria and procedures for reports required of certain individuals who have left Federal service and of former employees of defense contractors presently employed by DLA.
(b) Close adherence to the standards of conduct will ensure compliance with the high ethical standards demanded of all public employees. Violations of the standards prescribed in this regulation, or by Federal laws, including the laws described in enclosure 1, may result in criminal and/or administrative sanctions. Accordingly, all DLA personnel should become familiar with these standards.
(c) The reporting procedures for defense related employment are applicable to former military officers and civilian employees of DLA and to former employees of defense contractors presently employed by DLA.
(d) All retired regular officers are also required to file a statement of employment with the Military Department in which they hold a retired status.
(e) This DLAR is applicable to HQ DLA and all DLA field activities and implements DoD Directive 5500.7, Standards of Conduct.
(a)
(2) DLA personnel shall become familiar with the scope of, authority for, and limitations on the activities for which they are responsible. DLA personnel also shall acquire a general knowledge of the statutory standards of conduct prohibitions and restrictions. The most commonly encountered of these provisions are summarized in appendix A, and are laws dealing generally with conflicts of interest and postemployment activities.
(3) If DLA personnel are unsure whether a proposed action or decision is proper because it may be contrary to law or regulation, they shall consult the Designated Agency Ethics Official, or Deputy Ethics Official, for guidance. The individuals are identified in § 1293.4.
(4) DLA personnel shall not take or recommend any action or make or recommend any expenditure of funds known or believed to be in violation of Federal laws, Executive Orders, or applicable directives, instructions, or regulations.
(5) Practices that may be accepted in the private business world may not be acceptable for DLA personnel. As public employees, all DLA personnel are accountable for the manner in which they perform their official responsibilities.
(6) DLA personnel shall strictly adhere to the DLA program of equal opportunity regardless of race, color, religion, sex, age, national origin, or handicap.
(7) DLA personnel shall avoid any action, whether or not specifically prohibited by part 1293, which might result in or reasonably be expected to create the appearance of:
(i) Using public office for private gain.
(ii) Giving preferential treatment to any person or entity.
(iii) Impeding Government efficiency or economy.
(iv) Losing complete independence or impartiality.
(v) Making a Government decision outside official channels.
(vi) Affecting adversely the confidence of the public in the integrity of the Government.
(b)
(2) DLA personnel shall be reminded at least semiannually of their duty to comply with the required standards of conduct. Appropriate means of accomplishing these reminders include notices, circulation of part 1293 to employees, briefings, or any other means which serve to remind employees of their ethical responsibilities.
(3) Copies of the Code of Ethics for Government Service (appendix B) shall be displayed in appropriate areas of DLA occupied buildings in which 20 or more persons are regularly employed. (Code of Ethics posters are self-service supply items and may be obtained under NSN 7690-01-099-8167.)
(4) All DLA employees (military and civilian) who leave Federal service shall be informed of the restrictions on the postemployment activities of former Federal employees.
(c)
(ii) Membership or activity of DLA personnel in non-Governmental associations or organizations must not be incompatible with their official Government positions (see DLAR 5500.4).
(iii) DLA personnel shall not knowingly deal, on behalf of the Government, with present or former Government personnel, military or civilian, whose participation in the transaction would be in violation of a statute, regulation, or policy set forth in part 1293.
(2)
(3)
(4)
(d)
(2)
(ii) Retired military personnel, and members of Reserve components not on active duty, may use their military titles in connection with commercial enterprises provided that they indicate their Retired or Reserve status. However, if the use of military titles in any way casts discredit on the Military Departments or DoD, or gives the appearance of sponsorship, sanction, endorsement, or approval by a Military Department or DoD, it is prohibited. In addition, a Military Department may further restrict the use of titles, including use by retired military personnel and members of reserve components not on active duty, in overseas areas.
(3)
(ii) These provisions do not preclude the use of Government facilities for approved activities in furtherance of DLA community relations, provided they do not interfere with military missions or Government business. Government equipment and clerical support may be authorized for the preparation of papers to be presented to professional associations if appropriate to the mission of the office and approved, in advance, by the Head of the HQ PSE or PLFA.
(iii) All DLA personnel are responsible for using office telecommunication services (telephone, message, data, video, facsimile services, etc.) for official use only. The term
(A) DLA office telecommunications services are resources provided to conduct business directly in support of the Government.
(B) DLA shall pay only for the official uses of DLA telecommunications services.
(C) Where available and practicable, steps shall be taken to ensure user accountability (i.e., call verification, call restriction, other telecommunications service features).
(D) Employees who make unofficial use of DLA office telecommunications services are subject to appropriate disciplinary action.
(4)
(5)
(6)
(e)
(i) This prohibition includes, but is not limited to, the solicitation and sale of insurance, stocks, mutual funds, real estate, and any other commodities, goods, or services.
(ii) This prohibition does not include the sale or lease by individuals of their own personal property or privately-owned residence or to the off-duty employment of DLA personnel as employees in retail stores or other situations not involving solicited sales.
(2)
(i) DLA personnel may assist only those charitable programs administered by the Office of Personnel Management under its delegation from the President and those other programs authorized by DLAR 5035.1.
(ii) This prohibition does not preclude speeches before such organizations by DLA officials if the speech is designed to express an official position in a public forum.
(iii) This prohibition does not preclude volunteer efforts on behalf of charitable or nonprofit organizations by individuals who do not use their official titles in relation to solicitations and who do not solicit from individuals or entities with whom they do business in their official capacity.
(f)
(i) Where authorized by law, such as vending stands licensed in accordance with 20 U.S.C. 107a(a)(5) to sell chances for any lottery authorized by state law and conducted by an agency of a state.
(ii) Activities which have been specifically approved by the Director, DLA.
(2)
(g)
(2)
(3)
(i) Is engaged in or seeks business or financial relations of any sort with any DoD Component.
(ii) Conducts operations or activities that are either regulated by a DoD Component or substantially affected by DoD decisions.
(iii) Has interests that may be substantially affected by the performance or nonperformance of the official duties of DLA personnel.
(iv) Is a foreign government or representative of a foreign government that is engaged in selling to the DoD, where the gratuity is tendered in the context of the foreign government's commercial activities. (See also paragraph (h)(1) of this section.)
(4) Employees who receive gratuities which may not be accepted under the limited circumstances set forth in appendix C shall promptly report the matter to the Designated Agency Ethics Official or Deputy Ethics Official.
(h)
(2) Prohibition of Contributions or Presents to Superiors. DLA personnel shall not solicit a contribution from other DLA personnel for a gift to a superior, make a donation as a gift to a superior, give a gift to a superior, or accept a gift from other DLA personnel subordinate to themselves. This prohibition also applies to gifts, contributions, or donations to immediate family members of a superior. However, this paragraph does not prohibit voluntary gifts of reasonable value or contributions of nominal amounts (or the acceptance thereof) on special occasions such as marriage, illness, transfer, or retirement, provided that any gifts acquired with such contributions will be reasonable in value in view of the occasion.
(i)
(i) Interferes with, or is not compatible with, the performance of their Government duties.
(ii) May reasonably be expected to bring discredit on the Government.
(iii) Is otherwise inconsistent with the requirements of part 1293, including the requirements to avoid actions and situations which reasonably can be expected to create the appearance of conflicts of interests.
(2) Enlisted military personnel on active duty may not be ordered or authorized to leave their post to engage in a civilian pursuit, business, or professional activity if it interferes with the customary or regular employment of local civilians in their art, trade, or profession.
(3) Off-duty employment of military personnel by an entity involved in a strike is permissible if the person was on the payroll of the entity prior to the commencement of the strike, and if the employment is otherwise in conformance with the provisions of part 1293.
(4) DLA personnel are encouraged to engage in teaching, lecturing, and writing. However:
(i) DLA personnel shall not, either for or without compensation, engage in activities that are dependent on information obtained as a result of their Government employment, except when: The information has been published or is generally available to the public; or it will be made generally available to the public, and the Director, DLA gives written authorization for the use of nonpublic information on the basis that the use is in the public interest.
(ii) Employment by a DoD contractor is prohibited unless the circumstances are presented to and approval is obtained from the Designated Agency Ethics Official or Deputy Ethics Official stating that such employment does not constitute either a conflict or the appearance of a conflict of interest between the employee's duties and the outside employment.
(j)
(1) DLA personnel are prohibited from accepting an honorarium of more than $2,000 (excluding travel and subsistence expenses, agent's fees or commissions) for any appearance, speech, or article;
(2) The acceptance of honoraria from groups doing, or seeking to do business with DLA, presents the potential for a conflict of interest or the appearance of a conflict. Before accepting any honorarium, DLA personnel shall consult the Designated Agency Ethics Official, or Deputy Ethics Official.
(k)
(2) DLA personnel shall not perform any official duties, or otherwise participate in any official matter dealing with any organization with which the DLA employee is pursuing employment, has any arrangement concerning future employment, or has a financial interest. Pursuing employment is not limited to firm offers of employment; it includes any action which could reasonably be construed as an indication of interest in future employment, including sending letters or re
(3) All DLA personnel who have contact (regardless of who initiated the contact) regarding possible future employment, or have any arrangement concerning future employment with any organization that may be affected by the performance of their official duties shall immediately report the contact to the Designated Agency Ethics Official or Deputy Ethics Official. So long as the decision on future employment with the organization remains open, DLA personnel must disqualify themselves from participating in any manner in any official action involving that organization. Thus, if a DLA employee mails resumes to multiple organizations, that may be affected by the performance of official duties, the DLA employee must report the sending of resumes, disqualify himself/herself from participating in matters involving those organizations until either the organization or the employee specifically terminates the employment possibilities. Disqualification procedures are set forth in § 1293.7(c).
(l)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Part 1293 has been revised to incorporate changes necessitated by a new DoD Standards of Conduct Regulation and new statutory reporting and postemployment restrictions. The most significant changes relate to the limited circumstances under which DLA personnel can accept gratuities from DoD contractors and in prescribing which employees are required to file DD Forms 1555, Confidential Statement
(a)
(ii) Adhere to the highest standards of honesty and integrity.
(iii) Promptly file financial disclosure reports when required by part 1293.
(iv) Bring suspected violations of a statute or standards of conduct imposed by part 1293 to the attention of the Designated Agency Ethics Official or Deputy Ethics Official in a timely manner.
(v) Report to their immediate supervisor the acceptance of gratuities under the exceptions provisions of appendix C. Failure to submit these reports will be a basis for disciplinary action.
(vi) Refuse to participate in any matters which appear to violate the provisions of appendix A, call the appropriate provisions of appendix A to the attention of any retired or former officer or employee with whom they deal, and advise that any apparent violations will have to be referred to the Department of Justice.
(2) All DLA Supervisors will: (i) Ensure that the position description of each of their immediate subordinates indicates whether the incumbent of the position is required to submit a financial disclosure report (DD Form 1555 or SF 278).
(ii) Ensure that an individual has filed a DD Form 1555 prior to assuming the duties of a position that requires the incumbent to submit the form.
(iii) Annually review the positions of their immediate subordinates to ensure that the position descriptions accurately reflect whether the incumbent is required to file a financial disclosure report (DD Form 1555).
(iv) Review DD Forms 1555 filed by their immediate subordinates to identify any conflict between the employee's private financial interests and official responsibilities, complete the supervisor's statement contained therein, and forward the completed form to the appropriate DLA ethics official. (See appendix E, § 1293.3(g)).
(b)
(ii) Report promptly all violations of part 1293 and statutes cited herein to the General Counsel, DLA.
(iii) Review and evaluate the DD Forms 1555 filed by their deputies prior to forwarding them to the General Counsel, DLA.
(iv) Assure that required DD Forms 1555 are filed by officers and employees of their element and forwarded to the General Counsel, DLA, in accordance with part 1293.
(2) The Staff Director, Office of Military Personnel, DLA (DLA-M) will:
(i) Assure that all military personnel, upon assignment to duty with DLA in the Metropolitan Washington area, are informed of the standards of conduct specified in part 1293, and are furnished a copy.
(ii) Maintain a list of all military personnel within the activities furnished personnel services by DLA-M who are required to submit a DD Form 1555.
(iii) Assure that all military officers furnished personnel services by DLA-M, upon separation from active duty when assigned to DLA, are informed of the standards of conduct and post employment restrictions governing former military officers, and are furnished copies of available information and guidance relating to service with DLA.
(3) The Commander, DLA Administrative Support Center (DASC) will: (i)
(ii) Assure that each position description for a civilian employee receiving personnel services from DASC indicates whether the incumbent of that position is required to submit a financial disclosure report (DD Form 1555 or SF 278).
(iii) Maintain a list of all civilian employees in DLA activities furnished personnel service by DASC who are required to submit a financial disclosure report (DD Form 1555 or SF 278).
(iv) Assure that all civilian employees receiving personnel services by DASC, upon their separation from Federal service, are informed of the standards of conduct and post employment restrictions governing former civilian employees, and are furnished copies of available information and guidance.
(4) The General Counsel, DLA will:
(i) Have the authority to modify or supplement any of the enclosures to part 1293 in a manner consistent with the policies set forth in part 1293.
(ii) Provide additional clarification of standards of conduct, post employment restrictions and related laws, rules and regulations, and provide advice and assistance on all matters relating to conflicts of interests.
(iii) Coordinate proper and final disposition of all matters that are not resolved by the supervisor or Deputy Ethics Official relating to matters arising under part 1293.
(iv) Receive, review, approve, and make available to the public all SF 278s required to be filed in accordance with part 1293.
(v) Receive, review, and approve DD Forms 1555 required to be submitted to the General Counsel, DLA after review by supervisors.
(vi) Receive, review, and approve DD Form 1787, Report of DoD and Defense Related Employment, required to be filed under the part 1293.
(vii) Receive reports of any favor, gratuity, or entertainment accepted by DLA personnel as being in the Government's interest, when required to be submitted to the Designated Agency Ethics Official and initiate or recommend action as appropriate.
(viii) Review reports of violations of the standards of conduct statutes or regulations required to be submitted under paragraphs (c)(2)(ii) and (iii) of this section and assure proper action has been taken.
(ix) Initiate procedures and take action in accordance with appendix G, Administrative Enforcement Provisions.
(x) Initiate and maintain a counseling, education, and training program concerning all ethics, standards of conduct, and post-employment matters.
(xi) Periodically evaluate DLA's ethics program and disclosure reporting systems.
(xii) Appoint the Alternate Agency Ethics Official.
(c)
(1) Heads of DLA Primary Level Field Activities will: (i) Assure that all employees, military and civilian, upon their separation from military or Federal service, are informed of the standards of conduct and post employment restrictions governing former military or civilian employees, and are furnished copies of available information and guidance.
(ii) Take action to advise employees that they may obtain clarification of part 1293 from the PLFA Office of Counsel.
(iii) Review and evaluate the DD Forms 1555 submitted by their deputies prior to forwarding them to the General Counsel, DLA.
(iv) Assure that required DD Forms 1555 are filed by officers and employees of their activity and forwarded to the appropriate Deputy Ethics Official, in accordance with part 1293.
(2) The Counsel for each DLA PLFA will: (i) Serve as Deputy Ethics Official and provide advice and assistance on matters relating to standards of conduct, post employment restrictions, and conflicts of interest and related
(ii) Issue advice on the applicability of 10 U.S.C. 2397b to personnel assigned to their activity.
(iii) Forward to DLA-G a report of each suspected violation of the standards of conduct statutes or regulations as required under § 1293.7(a).
(iv) Provide a summary of all reports of violations of the standards of conduct statutes or regulations and the status of each investigation or other action taken to HQ DLA, ATTN: DLA-G. Such reports shall be furnished semiannually, as of 31 March and 30 September each year, and shall be forwarded to reach HQ DLA no later than 10 calendar days after the reporting date. For those violations that are being reported under other procedures, this reporting requirement may be satisfied by a reference to the identifier of the other procedure. This reporting requirement is assigned report control symbol DLA(SA)2217(G).
(v) Review, approve, and retain DD Forms 1555 for personnel of the activity (except the Head of the PLFA and deputy) and all subordinate DLA activities after review by the supervisor.
(vi) Establish a procedure to identify employees within the activity and subordinate activities who are required by part 1293 to file DD Forms 1555.
(vii) By 10 December of each year, notify DLA-G that all employees of the activity required to file DD Forms 1555 as of 30 September of that year have filed the form, and of any apparent conflicts of interest identified on the forms that have not been resolved.
(3) The responsibilities assigned to PLFA Counsel may be delegated to the Counsel of a subordinate activity.
(a)
(1) Evaluate the report and obtain such additional information as may be necessary.
(2) Refer the matter for investigation or other action as appropriate, or advise the reporter that no further action will be taken.
(3) Forward a report of the matter and any action taken to the General Counsel, DLA within 30 days.
(b)
(c)
(ii)
(B) In limited circumstances, the General Counsel, DLA may exempt, under 18 U.S.C. 208(b), certain affiliations and financial interests if they are deemed not substantial enough to affect the integrity of Government services. Written requests for such exemptions will be processed through the appropriate Deputy Ethics Official.
(2) Written notice of disqualification must be promptly delivered to the employee's immediate supervisor, immediate subordinates, and to the Designated Agency Ethics Official or Deputy Agency Ethics Official.
(3) Supervisors shall periodically review disqualification notices to ensure their effectiveness.
(d)
(1)
(A) Civilian employees, including special Government employees, whose positions are classified at GS-16 or above of the General Schedule, or whose basic rate of pay under other pay schedules is equal to or greater than the minimum rate of basic pay fixed for- GS-16 (except for GS/GM-15s).
(B) Members of the uniformed services whose pay grade is O-7 or above.
(C) Civilian employees in SES or in any other position determined by the Director of the Office of Government Ethics to be of equal classification to GS-16.
(D) The Designated Agency Ethics Official and Alternate Agency Ethics Official.
(ii) Detailed instructions on the information to be furnished and the procedures for processing the forms are set forth in appendix D.
(2)
(A) PLFA Commanders, Deputy Commanders and Counsel, and PSE Heads and Deputies.
(B) DLA personnel classified at GS/GM-15 or below, or at a comparable pay level under other authority, and members of the military whose pay grade is below O-7 not otherwise required to file under paragraph (d)(2)(i)(A) of this section, whose official duties require the exercise of judgment in making a Government decision or in taking Government action for contracting or procurement, regulating or auditing private or other non-Federal enterprise, or other activities in which the final decision or action may have an economic impact on any non-Federal entity.
(C) DLA personnel, regardless of grade, in the following positions:
(
(
(
(
(
(
(
(
(
(
(D) Reserve officers assigned to positions meeting the criteria in paragraphs (d)(2)(i) (B) and (C) of this section.
(E) Other special Government employees as set forth in appendix E.
(ii) Detailed instructions on the information to be furnished and the procedures for processing the forms are set forth in appendix E.
(e) Reporting procedures applicable to former military officers and civilians employees, and to former employees of defense contractors now employed by DLA.
(1)
(A) A retired former military officer who served on active duty at least 10 years and who held, for any period during that service, the pay grade of O-4 or above, or a former civilian employee whose pay rate at any time during the 3-year period prior to the end of DoD employment was equal to or greater than a the minimum rate for a GS-13 (GS-12, step 7) and:
(
(
(B) Each civilian officer and employee of a DoD Component who:
(
(
(
(ii) Detailed instructions concerning this reporting requirement are contained in appendix F.
(2)
(ii) Additional details concerning this reporting requirement are contained in:
(A) AR 600-50.
(B) SECNAVINST 5370.2.
(C) AFR 30-30.
(D) MCO 5330.3C.
Employees and former employees are cautioned that the descriptions of the laws and regulations in this enclosure should not be the only thing relied upon to make decisions regarding their activities. Although the descriptions do provide general guidelines, restrictions are dependent on the specific facts in a particular case. Accordingly, employees and former employees are encouraged to discuss specific cases with the Designated Agency Ethics Official or Deputy Ethics Official in their Office of Counsel, or with private counsel.
1. Subsection (a) prohibits military officers or civilian employees from directly or indirectly receiving or seeking compensation for services rendered or to be rendered before any department or agency in connection with any contract, claim, controversy or particular matter in which the United States is a party or has a direct and substantial interest. The statute does not apply to enlisted military personnel. The purpose of this law is to reach any situation where the judgment or efficiency of a Government agency might be influenced because of payments or gifts to an officer or employee regardless of whether there is any intent to give preferential treatment in a manner otherwise than provided by law.
2. Subsection (b) makes it unlawful for anyone to offer or to pay the compensation prohibited by subsection (a).
1. This law prohibits military officers or civilian employees from acting as an agent or attorney for anyone else before a department, agency, or court in connection with any particular matter in which the United
2. The following exemptions are allowed:
a. The law does not prohibit military officers or civilian employees from giving testimony under oath; from making statements required to be made under the penalty of perjury or contempt; or, from representing another person, without compensation, in a personnel matter such as a discrimination complaint or disciplinary action.
b. The law also authorizes a limited waiver of its restrictions and those of section 203 for an officer or employee, including a special Government employee, who represents his or her parents, spouse, or child, or a person or estate he or she serves as a fiduciary. The waiver is available only if approved by the official making appointments to the position. However, the waiver does not allow the officer or employee to represent any person in matters in which the officer or employee has participated personally and substantially or which are the subject of the officer or employee's official responsibility.
c. Finally, section 205 gives the head of a department or agency the authority to allow a special Government employee to represent his or her regular employer or other outside organization in the performance of work under a Government grant or contract if the department or agency head certifies and publishes in the
1. Subsection (a) prohibits military officers and civilian personnel from their personal and substantial participation as Government personnel in any particular matter in which they, their spouse, their minor children, their partners, their employers, their prospective employers, or their organizations have a financial interest. “Personal and substantial participation” includes such things as decision, approval, disapproval, recommendation, the rendering of advice, or investigation. A “particular matter” may be less concrete than an actual contract, but is something more specific than rule making or abstract scientific principles. If the individual can reasonably anticipate that his/her Government action, or the decision in which he/she participates or with respect to which he/she advises, will have a direct and predictable effect upon financial interests, then a “particular matter” is involved.
2. Subsection (b) permits a written exemption from subsection (a) if the outside financial interest is deemed in advance not substantial enough to affect the integrity of Government services. Categories of financial interests may also be made nondisqualifying by a regulation published in the
Subsection (a) prohibits military officers and civilian employees from receiving, and prohibits anyone from paying them, any money as additional compensation for their Government service. The law does not apply to enlisted military personnel. Subsection (b) permits military officers and civilian employees to participate in a bona fide pension plan or other employee welfare or benefit plan maintained by a former employer. Subsection (c) exempts special Government employees and anyone serving the Government without compensation. Subsection (d) exempts contributions, awards, or other expenses under the Government Employees Training Act. See 5 U.S.C. 4111(a).
This law applies to DoD employees at pay rates of GS-11 or higher (GS-10, Step 4) and to military officers in pay grades O-4 or higher. These employees must report any contact they have had, or will have, with defense contractors regarding future employment with the defense contractor. These employees must also disqualify themselves from any participation in DoD procurements related to the defense contractor. The penalty for violation is a bar from employment with the defense contractor for up to 10 years after Government service and up to a $10,000 penalty.
A. Former Officers and Employees Include the Following Personnel:
1. Full-time civilian employees who have left Federal service.
2. Special Government employees who have left Federal service.
3. Retired military officers released from active duty.
4. Reserve military officers released from active duty. The term does not include enlisted personnel; however, enlisted personnel are subject to the restrictions applicable to retired members of the Armed Forces set forth in subparagraph G.
B. Senior employees are those individuals who have been specifically advised by the Designated Agency Ethics Official that they hold senior employee positions. In general, senior employees within DLA include military officers in pay grades O-7 and above, and most Senior Executive Service (SES) positions.
C. General:
1. Laws and regulations restrict the activities of former officers and employees, establish certain reporting requirements, and, in some cases, restrict employment by former officers and employees with DoD contractors. Violation of some of the laws and regulations may result in criminal prosecution, or civil fines.
2. The purpose of the post employment restrictions is to preclude the actual or apparent use of public office for private gain, and to ensure that the administration of Government is conducted honestly and in an impartial manner.
3. The restrictions are divided into five parts; those applicable to all former officers and employees, those applicable to former senior employees, those applicable to retired military officers, and those applicable to all retired members of the Armed Forces. In addition, the special restrictions applicable to personnel who were engaged in “procurement functions” are set out. Because of the expansive definition of the term “procurement function,” all civilian employees whose grade was GS-12, step 7 or higher, and all military personnel in grades O-4 and above should review the definition of “procurement function” set forth in subparagraph H6i below.
4. In addition to the information contained herein, retired military personnel are encouraged to review parallel regulations of their Military Service:
a. Army—AR 600-50.
b. Navy—SECNAVINST 5370.2H.
c. Air Force—AFR 30-30.
d. Marine Corps—MCO 5330.3C.
5. General professional knowledge acquired while in Federal service generally may be used while employed in the private sector. Laws and regulations do, however, restrict activities of former officers and employees which give the appearance of making unfair use of prior Federal employment and affiliations, or are detrimental to public confidence in the Government. In addition, certain former employees who dealt with DoD contractors may be prohibited from working for those contractors.
D. Restrictions Applicable to all Former Officers and Employees:
1. Permanent bar on representation. (18 U.S.C. 207(a).) Former officers and employees (not including former enlisted personnel) may never represent anyone except the United States or communicate with any Government agency with the intent to influence the United States in any matter with which the former officer or employee was personally and substantially involved while a Government employee, and which involves specific parties where the United States either is a party or has an interest.
a. This provision is aimed at your activities representing anyone, whether or not you make a personal appearance before the Government. The intent of the provision is to prevent you from “switching sides,” so that information, influence, and access you acquired during Federal service is not subsequently used for improper or unfair advantage in post-employment dealings with the Government.
b. The matters to which this bar applies are those in which you were involved as a Federal employee. Your involvement as a Federal employee must have been of significance to the matter, or must form the basis for a reasonable appearance that it was significant, and may include involvement by any of your subordinates.
c. Matters of general application such as general policy or program design are not included in this bar.
d. The concept of representation is broadly construed and includes any type of communication whose intent is to influence the United States. Representation includes not only acting as another's attorney or agent, but promotional and contract representations as well. Communications include both oral and written communications.
2. Two-year bar on representation. (18 U.S.C. 207(b)(i).) Former officers and employees (not including enlisted personnel) may not, for a 2-year period after departing from Federal service, represent anyone except the United States in any matter which was pending under the former employee's official responsibility during the final year of Federal service. The bar includes communicating with any Government agency with intent to influence the United States on the matter.
a. The only substantive difference between this 2-year bar and the permanent bar described in subparagraph 1. above is the degree of your closeness to, or involvement in, the matter.
b. The term “official responsibility” refers to the direct administrative or operating authority, whether intermediate or final, either personally or through subordinates, to approve, disapprove, or otherwise direct Government action.
3. Exception for Scientific or Technological Information. The permanent bar and 2-year bar do not apply to communications made solely for the purpose of furnishing scientific or technological information if approved by the head of the agency to which the communication is directed.
E. Additional Restrictions Applicable to Former Senior Employees:
1.
a. The matters to which this bar applies are those in which you were involved as a Federal employee. Your involvement as a Federal employee must have been of significance to the matter, or must form the basis for a reasonable appearance that it was significant, and may include involvement by any of your subordinates.
b. This restriction does not bar all forms of behind-the-scenes assistance by you, but only assistance in representing or assisting in representing another person while personally present at any type of proceeding.
2.
a. This bar applies regardless of the degree of your involvement with the matter.
b. The bar applies to all matters, whether or not specific parties are involved, and includes matters of general application such as general policy or program design.
c. The bar also extends to matters in which your agency has a substantial interest even though the matter may be pending before another agency.
d. The bar is limited to contracts with your former agency and does not apply Government-wide.
e. Your former agency is specifically defined. As it pertains to former DLA senior employees, the term includes DLA and the DoD less:
(1) The Military Departments.
(2) Defense Mapping Agency.
(3) Defense Communications Agency.
(4) Defense Intelligence Agency.
(5) Defense Nuclear Agency.
(6) National Security Agency.
f. There are several exemptions to this one-year bar. The bar does not cover a former senior employee who is: An elected official of a state or local government; an employee of an accredited degree-granting institution of higher education; or, an employee of a nonprofit hospital or medical research organization, provided that the communication, appearance, or representation is on behalf of such government, institution, hospital, or organization. The bar also does not cover purely social or informational communications, the transmission or filing of documents not requiring governmental action, personal matters, representing oneself in any administrative or judicial proceeding, any expression of personal view where the former senior employee has no monetary interest, responses to the former agency's request for information, or participation as the principal researcher or investigator under Government grants.
F. Additional Restrictions Applicable to Retired Regular Military Officers:
a. A retired officer of the Armed Forces may not, for two years after release from active duty, act as an agent or attorney for prosecuting or assisting in the prosecution of a claim against the United States:
(1) Which involves the Military Department in which the officer is retired, or
(2) Which involves any subject matter with which the officer was directly connected while on active duty.
b. The penalty for violating this restriction includes civil and criminal sanctions.
a. A retired officer of the Armed Forces may not, for two years after release from active duty, receive (or agree to receive), either directly or indirectly, any compensation for representating any person in the sale of anything to the United States through the Military Department in which the officer is retired.
b. The penalty for violating this restriction includes civil and criminal sanctions.
For 3 years after retirement, a retired Regular officer may not, either for himself/herself or for others, sell, contract, or negotiate to sell, any supplies or war materials to the DoD (or any of its components), Coast Guard, National Oceanic and Atmospheric Administration, or Public Health Service.
a. This 3-year bar does not prohibit all types of employment by, or association with, a company that does business with the Government. The bar is directed only to those activities related to selling which include:
(1) Signing a bid, proposal, or contract.
(2) Negotiating a contract.
(3) Contracting an officer or employee of any of the agencies listed in subparagraph 2.b. above for the purpose of:
(a) Obtaining or negotiating contracts,
(b) Negotiating or discussing changes in specifications, price, cost allowance, or other terms of a contract, or
(c) Settling disputes concerning performance of a contract, or
(4) Any other liaison activity with a view toward the ultimate consummation of a sale although the actual contract therefore is subsequently negotiated by another person.
b. Violations of this bar are punishable by loss of retirement pay for that period of time during which the prohibited activity occurs.
G. Additional Restrictions Applicable to all Retired members of the Armed Forces:
1.
a. The employment is approved by the appropriate authority (D0D Directive 1402.1, Employment of Retired Members of the Armed Forces).
b. The position is one for which an advance hiring pay rate has been authorized by the Office of Personnel Management under 5 U.S.C. 5305, or
c. A state of national emergency exists.
2.
3.
H. Special Restrictions on the Activities of Former Employees Who Were Engaged in Procurement Functions:
1. Pursuant to 10 U.S.C. 2397b, certain former military officers and civilian employees may not receive compensation from a major defense contractor for a 2-year period, beginning on the date the former officer or employee separated from Federal service. This restriction prohibits the acceptance of compensation from a particular major defense contractor only if the former officer or employee performed the duties listed in subparagraph 2, below, relating to that same defense contractor.
2.
a. Civilian employees whose rate of pay was greater than or equal to that for a GS-13, Step 1 (GS-12, Step 7) and military officers in pay grades of O-4 or higher, if such individuals:
(1) Spent the majority of their working days during the last 2 years of DoD service performing a procurement function relating to a DoD contract, at a site or plant that was owned or operated by a contractor, and which was the principal location of their performance of that procurement function; or
(2) Performed, on a majority of their working days during the last two years of DoD service, a procurement function relating to a major defense system and, in the performance of such a function, participated on any occasion personally and substantially in a manner involving decision-making responsibilities with respect to a contract for that major defense system through contact with the contractor.
b. Civilian employees who served in a Senior Executive Sevice position or higher, and military officers who served in the pay grade of O-7 or higher, if such individuals during the last 2 years of DoD service:
(1) Acted as a primary representative of the United States in the negotiation with a defense contractor of a defense contract in an amount in excess of $10,000,000 (the actual contractual action taken by the individual must have been in an amount in excess of $10,000,000), or
(2) Acted as a primary representative of the United States in the negotiation of a settlement of an unresolved claim of such a defense contractor in an amount in excess of $10,000,000. An unresolved claim shall be, for the purposes of part 1293 valued by the greater of the amount of the claim or the amount of the settlement.
3.
a. Any person may, before accepting compensation, request that PLFA Counsel or the General Counsel, DLA provide advice on the applicability of 10 U.S.C. 2397b and part 1293 to the acceptance of such compensation.
b. A request for advice shall be in writing and shall contain all relevant information.
c. If the PLFA Counsel or General Counsel, DLA receives a request for advice, he shall issue a written opinion in response thereto not later than 30 days after receipt of all relevant information.
d. If the advice rendered by the PLFA Counsel or General Counsel, DLA states that the law and part 1293 are inapplicable, and that the individual may accept the compensation from the contractor, then there shall be a conclusive presumption that the acceptance of the compensation is not a violation of 10 U.S.C. 2397b.
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Engaging in the following activities may subject present and former DLA personnel to criminal or other penalties:
A. Aiding, abetting, counseling, commanding, inducing, or procuring another to commit a crime under any criminal statute (18 U.S.C. 201).
B. Concealing or failing to report to proper authorities the commission of felony under any criminal statute if the person knew of the actual commission of the crime (18 U.S.C. 4).
C. Conspiring with one or more persons to commit a crime under any criminal statute or to defraud the United States, if any party to the conspiracy does any act to effect the object of the conspiracy (18 U.S.C. 371).
D. Lobbying with appropriated funds (18 U.S.C. 1913).
E. Disloyalty and striking (5 U.S.C. 7311, 18 U.S.C. 1918).
F. Disclosure of classified information (18 U.S.C. 793 and 798, 50 U.S.C. 783); and disclosure of trade secrets and other confidential information (18 U.S.C. 1905).
G. Habitual use of intoxicants to excess (5 U.S.C. 7352).
H. Misuse of a Government vehicle (31 U.S.C. 1349(b)).
I. Misuse of the mailing privilege (18 U.S.C. 1719).
J. Deceit in an examination or personnel action in connection with Government employment (18 U.S.C. 1917).
K. Committing fraud or making false statements in a Government matter (18 U.S.C. 1001).
L. Mutilating or destroying a public record (18 U.S.C. 2071).
M. Counterfeiting and forging transportation requests (18 U.S.C. 641).
N. Embezzlement of Government money or property (18 U.S.C. 641); failing to account for public money (18 U.S.C. 643); private use of public money (18 U.S.C. 653) and embezzlement of the money or property of another person in the possession of an employee by reason of his/her Government employment (18 U.S.C. 654).
O. Unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).
P. Certain political activities (5 U.S.C. 7321-7327 and 18 U.S.C. 600, 601, 602, 603, 606, and 607). These statutes apply to civilian employees; regulations govern military personnel (DoD Directive 1344.10).
Q. Any person (including a special Government employee) who is required to register under the Foreign Agents Registration Act of 1938 (18 U.S.C. 219) may not serve the Government as an officer or employee. The section does not apply to retired Regular military officers who are not on active duty, or Reserves who are not on active duty or who are on active duty for training; or, a special Government employee in any case in which the department head certifies to the Attorney General that his or her employment by the United States Government is in the national interest.
R. Soliciting contributions for gifts or giving gifts to superiors, or accepting gifts from subordinates (5 U.S.C. 7351). This statute applies only to civilian employees; the provisions of § 1293.3(h), apply to military personnel.
S. Acceptance of excessive honoraria (2 U.S.C. 441i).
T. Acceptance, without statutory authority, of any present, emolument, office or title, or employment of any kind whatever, from any king, prince, or foreign state by any person holding any office or profit in or trust of the Federal Government, including all retired military personnel and regular enlisted personnel (U.S. Constitution, Art. I., Sec. 9, cl. 8). Exceptions to this prohibition are authorized under 37 U.S.C. 908.
U. Union activities of military personnel (10 U.S.C. 976).
V. Violation of merit system principles (5 U.S.C. 2301).
W. Prohibited personnel practices (5 U.S.C. 2302).
X. Employment of a Regular Navy Officer or a Regular Marine Corps Officer, other than a retired officer, by a person furnishing naval supplies or war materials to the United States (37 U.S.C. 801(a)).
Any person in Government service should:
I. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department.
II. Uphold the Constitution, laws, and regulations of the United States and of all governments therein and never be a party to their evasion.
III. Give a full day's labor for a full day's pay; giving earnest effort and best thought to the performance of duties.
IV. Seek to find and employ more efficient and economical ways of getting tasks accomplished.
V. Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not; and never accept, for himself or herself or for family members, favors and benefits under circumstances which might be construed by reasonable persons as influencing the performance of governmental duties.
VI. Make no private promises of any kind binding upon the duties of office, since a Government employee has no private word which can be binding on public duty.
VII. Engage in no business with the Government, either directly or indirectly, which is inconsistent with the conscientious performance of governmental duties.
VIII. Never use any information gained confidentially in the performance of government duties as a means for making private profit.
IX. Expose corruption wherever discovered.
X. Uphold these principles, ever conscious that public office is a public trust.
The general prohibition against accepting gratuities, reimbursements, and other benefits from outside sources does not apply to
A. The continued participation in employee welfare or benefit plans of a former employee when permitted by law and approved by the General Counsel, DLA, or PLFA Counsel.
B. The acceptance of unsolicited advertising or promotional items that are less than $10 in retail value.
C. The acceptance of trophies, entertainment, prizes, or awards for public service or achievement in an individual, unofficial capacity or given in games or contests that do not relate to official duties and are clearly open to the public generally, or are officially approved for DLA personnel participation.
D. The acceptance of benefits available to the public, such as university scholarships covered by DoD Directive 1322.6, Fellowships, Scholarships, and Grants for Members of the Armed Forces, and free exhibitions by DoD contractors at public trade fairs.
E. The acceptance of discounts or concessions realistically available to all DLA personnel, provided that such discounts or concessions are not used to obtain any item for the purpose of resale at a profit.
F. Participation by DLA personnel in civic and community activities that also involve a DoD contractor, when any relationship between DLA personnel and the contractor is indirect; for example participation in a Little League or Combined Federal Campaign luncheon that is subsidized by a defense contractor.
G. Activities engaged in by DLA personnel with local civic or military leaders as part of authorized community relations programs of DLA.
H. The participation of DLA personnel in widely attended gatherings of mutual interest to Government and industry, sponsored or hosted by industrial, technical, and professional associations (not by individual contractors), provided that they have been approved in accordance with DoD Instruction 5410.20, Public Affairs Relations with Business and Nongovernmental Organizations Representing Business.
I. Situations in which participation by DLA personnel at public ceremonial activities of mutual interest to industry, local communities, and DLA serves the interest of the Government, and acceptance of the invitation is approved by the General Counsel, DLA or PLFA Counsel.
J. When on official Government business and when the DLA personnel reports the circumstances in writing to the immediate supervisor and to the General Counsel, DLA or the PLFA Counsel, as soon as possible:
1. Space available use of previously scheduled ground transportation to or from a DoD contractor's place of business provided by the contractor for its own employees, and
2. Contractor-provided transportation, meals, or overnight accommodations when arrangements for Government or commercial transportation, meals, or accommodations are clearly impracticable.
K. Attendance or participation of DLA personnel in gatherings, including social events such as receptions, which are hosted by foreign governments (when not acting in their DoD contractor capacity) or international organizations, provided that the acceptance of the invitation is approved by the General Counsel, DLA or PLFA Counsel.
L. Customary exchanges of gratituities between DLA personnel and their friends and relatives or the friends and relatives of their spouse, minor children and members of their household, when the circumstances clearly indicate that it is the relationship, rather than the business of the person concerned, that is the motivating factor for the gratuity and it is clear that the gratuity is not paid for by the United States Government or any DoD contractor.
M. Acceptance of coffee, doughnuts, and similar refreshments of nominal value offered as a normal courtesy incidental to the performance of duty. This exception applies to acceptance on an occasional basis and does not authorize acceptance on a recurring basis.
N. The acceptance of benefits resulting from the business activities of a spouse where it is clear that the benefits are given to the spouse in the normal course of the spouse's employment or business and have not been given or made more attractive because of the DLA employee's status. This exception does not, however, alter the requirement for disqualification under § 1293.7(c)(1).
O. Acceptance of transportation and related travel expenses from a potential employer in connection with a job interview, provided that prior to departing on the trip:
1. The DLA employee receiving the gratuity notifies his or her immediate supervisor of the travel arrangements.
2. The DLA employee files a written disqualification statement concerning any possible official actions involving the potential employer.
3. The DLA employee submits some evidence that the potential employer offers the same benefits to all similarly situated individuals, not only those employed in the Department of Defense.
P. Situations in which, in the sound judgment of both the individual involved and his or her immediate supervisor, the Government's interest will be served by DLA personnel participating in activities otherwise prohibited. In any such case, a written report of the circumstances shall be made in advance, or, when an advance report is not possible, within 48 hours, by the individual or supervisor to the General Counsel, DLA or PLFA Counsel.
The guidance in subparagraphs A through C of this section applies whenever defense contractors provide training, orientation, or refresher courses to DLA personnel. These courses range from executive orientation courses in which all expenses are borne by the defense contractor to seminars devoted to technical developments in which the only “gratuity” may be lectures given free of charge.
A. Attendance by DLA employees at training sessions provided by defense contractors is permitted when the contractor's products or systems are provided under contract to DoD and the training is to facilitate the utilization of those products or systems by DLA personnel.
B. When a defense contractor provides training pursuant to a contract, the training itself is not a gratuity. Likewise, meals, lodging, and transportation would not be considered a gratuity if the defense contractor was required to furnish them under the terms of the contract, but would result in reductions to the travel and other expenses normally payable to the employee under the Joint Federal Travel Regulation. However, if the defense contractor, without charge, provides something to DLA personnel which is not required by the contract, the contractor is giving a gratuity to the DLA employee.
C. Attendance at tuition-free training, refresher courses, or other educational meetings offered by a defense contractor (although not required to do so by the terms of a contract) may be authorized when attendance is clearly in the best interests of the Government and meets the following criteria of DLAR 1430.12, Civilian Employee Development and Training:
1. Selection of the DLA employees attending the contractor training will be made by the Government.
2. The unavailability of alternative training sources, and confidence that the contractor provided training will not adversely affect the objectivity of the DLA employee.
3. Approval of the training is at a sufficiently high level to assure the need cannot otherwise reasonably be met and has the concurrence of the General Counsel, DLA or PLFA Counsel.
4. No appreciable cost is incurred by the contractor in order to accommodate attendance by DLA employees.
5. An understanding that the contractor will receive no special consideration or benefit because of the Government's participation.
DLA personnel may not accept either personal reimbursement or in kind accommodations, subsistence, transportation, or services for expenses incident to official travel, from any source outside the Government except as indicated in subparagraphs A through F of this section. In cases where acceptance is authorized, appropriate deductions will be made in the travel, per diem, or other allowances payable to the employee. In no event will DLA personnel accept benefits which are excessive.
A. A DLA employee who is to be a speaker, panelist, project officer, or other bona fide participant in the activity attended, may accept accommodations, subsistence, transportation, or other services furnished in-kind in connection with official travel when such attendance and acceptance are authorized by the order-issuing authority as being in the overall Government interest. Under these circumstances, an employee may not accept personal reimbursement.
B. When a DLA employee is summoned to testify in an official capacity on behalf of a private party at a judicial proceeding, the appearance will be on official time and travel expenses may be accepted from the court, authority, or party who caused the person to be summoned. In accordance with 5 U.S.C. 5751, the funds may be turned over to the agency and Government travel orders issued or the employee may use the funds to defray costs directly. Any excess funds must be returned to the party or paid into the U.S. Treasury as miscellaneous receipts. Any employee appearing on behalf of a private party not in an official capacity must use leave to do so and may retain any fees or expenses.
C. Except as indicated in subparagraphs A and B of this section, DLA personnel may not accept personal reimbursement from any source for expenses incident to official travel, unless authorized by their supervisor consistent with guidance provided by the Designated Agency Ethics Official or Deputy Ethics Official pursuant to 5 U.S.C. 4111 or other statutory authority. Rather reimbursement must be made to the Government by check payable to DLA.
D. DLA personnel may accept travel, or reimbursement for travel expenses from a foreign government as provided in DLAR 1005.1, Decorations and Gifts from Foreign Governments.
E. When accommodations, subsistence, or services in kind are furnished to DLA personnel by non-U.S. Government sources, consistent with this paragraph, appropriate deductions shall be reported and made in the travel, per diem, or other allowance payable.
F. DLA personnel who receive gratuities, or have gratuities received on their behalf, in circumstances not in conformance with
The following guidance applies to ceremonies and gifts associated with the launch or commissioning of a naval vessel, an aircraft or other vehicle, and all similar events:
A. Attendance at Ceremonies
Acceptance of an invitation to attend a ceremony shall be approved by the Head of the PSE or PLFA. Attendance is permitted at appropriate functions incident to the ceremony, such as a dinner preceding the ceremony and the reception following it, as long as the function is not lavish, excessive, or extravagant.
B. Acceptance of Gifts
DLA personnel, their spouses, and their dependent children, who are official participants may accept a tangible thing of value as a gift or memento in connection with the ceremony as long as its retail value does not exceed $100 per family and the cost is not borne by the Government. When a gift exceeds the $100 limit the recipient shall pursue one of the following alternatives:
1. Return the gift to the donor.
2. Retain the gift after reimbursing the donor the full value of the gift.
3. Forward the gift to the Staff Director, Administration (DLA-X) for disposition as a gift to the Government in accordance with statute.
A. DLA personnel required to file a Financial Disclosure Report (SF 278) are listed at § 1293.7(d)(1). These personnel occupy “covered positions.”
B. A person who is nominated to or assumes a covered position is not required to file an SF 278 if the Secretary of Defense or the General Counsel, DLA determines that the person is not reasonably expected to perform the duties of the position for more than 60 days in the calendar year. However, if the person performs the duties of the office or position for more than 60 days in the calendar year, an SF 278 shall be filed within 15 days after the 61st day of duty.
C. A person otherwise required to file an SF 278, but who is expected to perform the duties of the position for less than 130 days in the calendar year, may request a waiver of any or all reporting requirements from the Director, Office of Government Ethics, if the person is not a full-time employee of the Government, is able to provide specially needed services, and does not have outside employment or financial interests likely to create a conflict of interest. A request for a waiver shall be initially submitted to the General Counsel, DLA.
An SF 278 shall be submitted under the circumstances described below.
DLA personnel shall submit a SF 278 to the General Counsel, DLA before assuming a covered position. This requirement does not apply if the individual has left another covered position within 30 days before assuming a new position, or already has filed with respect to nomination for the new position.
DLA personnel, including special Government employees, occupying a covered position for more than 60 days during a calendar year shall submit an SF 278 annually. The annual report must be filed with the General Counsel, DLA not later than 15 May unless a written extension is granted.
DLA personnel occupying a covered position shall submit an SF 278 to the General Counsel, DLA no sooner than 15 days before and no later than 30 days after the date of departure from that position unless they accept another covered position. The termination report will cover the portion of the present calendar year up to the date of termination and, if the annual report has not yet been filed, the preceding calendar year.
Instructions for completing SFs 278 are included as part of the report forms. Additional guidance for personnel in covered positions is available from the General Counsel, DLA.
A. Reports will be submitted to the General Counsel, DLA. After final review, copies of the reports of military officers assigned to DLA will be forwarded by the General Counsel, DLA to the appropriate Military Department official.
B. Final review of an SF 278 is completed when the Genral Counsel, DLA has signed the SF 278, indicating that each item is completed and that the report discloses no unresolved conflict or appearance of a conflict of interest under applicable laws and regulations.
1. If the General Counsel, DLA, after reviewing an SF 278, believes additional information is required, the reporting individual shall be notified of the additional information required and the date by which it must be submitted. The reporting individual shall
2. If the General Counsel, DLA, after reviewing the SF 278, is of the opinion, on the basis of information submitted, that the reporting person is not in compliance with applicable laws and regualtions, the following steps shall be taken:
a. The person shall be notified in writing of the preliminary determination.
b. After an opportunity for personal consultation, if practicable, the General Counsel, DLA shall notify the person in writing of the remedial measures that should be taken to bring the person into compliance. The notification shall specify a date by which such measures must be taken, which, except in unusual circumstances, must be taken within 90 days.
(1) When the General Counsel, DLA determines that a reporting person has fully complied with the remedial measures, a notation to that effect shall be made in the comment section of the SF 378. The General Counsel, DLA shall then sign and date the SF 278 and send written notice of that action to the person.
(2) If steps assuring compliance with applicable laws and regulations are not taken by the date established, the General Counsel, DLA shall report the matter to the Director, DLA for appropriate action. The Office of Government Ethics and the Attorney General shall also be notified.
3. Remedial action may include the following measures:
a. Disqualification.
b. Limitation of duties.
c. Divestiture.
d. Transfer or reassignment.
e. Resignation.
f. Exemption under 18 U.S.C. 208.
g. Establishment of a qualified blind trust.
A. SFs 278 must be made available for public examination upon request 15 days after the report is filed unless otherwise exempted pursuant to law. Receipt of the report by the General Counsel, DLA for final review constitutes official filing and establishes the date from which the 15 days shall run. In most cases, this means the reports are available to the public before final review is completed. Reporting persons are personally responsible for ensuring that their reports are accurate, complete, and timely.
B. Any request for an SF 278 must be in writing and state:
1. The person's name, occupation, and address.
2. The name and address of any other person or organization on whose behalf the inspection or copy is requested.
3. That the person is aware that it is unlawful to obtain or use the report for:
a. Any unlawful purpose.
b. Any commercial purpose, other than by news and communications media for dissemination to the general public.
c. Determining or establishing the credit rating of any individual.
d. Use, directly or indirectly, in the solicitation of money for any political, charitable, or other purpose.
SFs 278 shall be retained for 6 years from the date of filing.
Compliance with the financial disclosure provisions shall be enforced by adminstrative, civil, or criminal remedies, which include:
The Director, DLA may take appropriate action, including a change in assigned duties or adverse action, in accordance with applicable law or regulation, against any person who fails to file an SF 278, or who falsifies or fails to report required information.
The General Counsel, DLA is required to refer to the Attorney General the name of any person whom he or she has reasonable cause to believe has failed willfully to file an SF 278 on time or has falsified or failed willfully to file information required to be reported. Such referral does not bar additional administrative or judicial enforcement. The Attorney General may bring a civil action in the U.S. District Courts against any person who knowingly and willfully falsifies or fails to file or report any required information. The court may assess a civil penalty not to exceed $5,000. Knowing or willful falsification of information required to be filed also may result in criminal prosecution under 18 U.S.C. 1001, leading to a fine of not more than $10,000, or imprisonment for not more than 5 years, or both.
1. The Attorney General may bring a civil action against a person who obtains or uses an SF 278 filed under the Ethics in Government Act for any of the following reasons:
a. Any unlawful purpose.
b. Any commercial purpose, other than by news and communications media for dissemination to the general public.
c. Determining or establishing the credit rating of any individual.
d. Directly or indirectly, for the solicitation of money for any political, charitable, or other purpose.
2. The court in which such action is brought may assess a penalty in any amount not to exceed $5,000. This is in addition to any other legal remedy available.
A. DLA personnel required to file Statements of Affiliations and Financial Interests (DD Forms 1555) are those indicated in § 1293.7(d)(2).
B. Special Government Employees (as defined in § 1293.4(i)).
1. Special Government employees, including Reserve military officers assigned to positions requiring the submission of a DD Form 1555 shall file a DD Form 1555 prior to performing the duties of the position.
2. The following categories of special Government employees are not required to file DD Forms 1555 unless they are specifically notified that they must do so:
a. Physicians, dentists, and allied medical specialists engaged only in providing service to patients.
b. Veterinarians providing only veterinary services.
c. Lecturers participating only in educational activities.
d. Chaplains performing only religious services.
e. Individuals in the motion picture and television fields who are utilized only as narrators or actors in DLA productions.
f. A special Government employee who is not a “consultant” or “expert” as those terms are defined in the Federal Personnel Manual, chapter 304.
Immediate supervisors shall annually review each civilian and military position under their supervision, determine whether the position requires the incumbent to file a DD Form 1555, and will notify each employee of the determination. The position description of each position shall state whether or not the incumbent must file a DD Form 1555. Any individual may request a review of the determination requiring submission of a DD Form 1555 from the Deputy Ethics Official. In the event the employee is dissatisfied with this decision, there is an appeal right to the Designated Agency Ethics Official, whose decision shall be final.
1. Employees will file a DD Form 1555 for review and approval prior to performing the duties of a position that requires filing of a DD Form 1555. Reserve Officers shall file the form upon reporting for duty. If an employee has filed a DD Form 1555 by virtue of a previous position, a copy of the previously submitted form may be submitted to the new supervisor for review rather than filing a new DD Form 1555.
2. DD Forms 1555 shall annually be filed by 31 October each year for all affiliations and financial interests as of the 30th of September of that year. Even if no changes occur from the previous year, a new and complete DD Form 1555 is required to be filed each year.
3.
1.
b. Deputy Heads of PSEs required to file DD Forms 1555 will submit them to the Head of the PSE for review and evaluation. After resolution of any conflict, the DD Forms 1555 will be forwarded to the General Counsel, DLA.
c. Other officers and employees of HQ DLA, and their management support activities, will submit DD Forms 1555 to their immediate supervisor for review and evaluation. Upon completion of their review and resolution of any conflicts, supervisors will forward the DD Forms 1555 to the General Counsel, DLA.
2.
b. Deputy Heads of PLFAs required to file DD Forms 1555 will submit them to their immediate supervisors for review and evaluation. After resolution of any conflict, the forms will be submitted to the General Counsel, DLA.
c. Other officers and employees of PLFAs or subordinate activities required to file DD Forms 1555 will submit them to their immediate supervisors for review and evaluation. After resolution of any conflict, the forms will be forwarded to the appropriate Deputy Ethics Official.
d. Counsel for PLFAs will submit DD Forms 1555 to the Head of the PLFA for review and evaluation. After resolution of any conflict, the forms will be forwarded to the General Counsel, DLA.
e. Heads of DLA activities subordinate to PLFAs, when required to file DD Forms 1555, will submit the forms to the Head of the PLFA, who will review and evaluate, and forward to the appropriate Deputy Ethics Official after resolution of any conflict.
f. Counsel for DLA activities subordinate to a PLFA will submit DD Forms 1555 to the activity Head for review, evaluation, and resolution of any conflict. The forms will be forwarded to the Counsel of the PLFA.
3.
b. Other officers and employees of Management Support Activities will submit them to their immediate supervisors for review and evaluation. After resolution of any conflict, the forms will be forwarded to the Deputy Ethics Official of the PLFA providing personnel services to the Management Support Activity.
4.
1. Instructions for completing the DD Form 1555 are included as a part of the form. Additional guidance may be obtained from the Designated Agency Ethics Official or Deputy Ethics Official.
2. The interest of a spouse, minor child, or any member of the employee's household shall be reported as if it were the interest of the employee. The interests of a spouse need not be reported if the employee and spouse have:
a. A final decree of separation,
b. An interim or interlocutory decree, or
c. A separation agreement formally executed by the employee and spouse in anticipation of its incorporation into a final decree of divorce or separation.
3. DLA personnel are not required to submit on a DD Form 1555 any information relating to their connection with or interest in a professional society or a charitable, religious, social, fraternal, recreational, public service, civic, or political organization, or a similar organization not conducted as a business for profit. However, educational or other institutions doing research and development or related work involving grants of money or contracts with the Government must be reported.
4. Ownership of personal savings or checking accounts in financial institutions, shares in credit unions or savings and loan associations, life or property insurance policies and shares in widely held diversified mutual funds or regulated investment companies need not be reported.
5. An employee need not disclose the assets of, sources of income of, or transactions of, a trust if:
a. The trust is a qualified blind or qualified diversified trust certified by the Office of Government Ethics and is otherwise reported on the DD Form 1555 by name of trust and date of execution, or
b. The trust is an “excepted” trust, defined as follows:
(1) A trust that was not created by the DLA employee, or the employee's spouse, or dependent child:
(2) A trust that consists of withholdings or sources of income of which the officer or employee, or spouse, or dependent child have no knowledge, and
(3) Which is disclosed as an asset or income source on the report.
6. DLA personnel shall request submission on their behalf of required information known only to other persons; for example, holdings of spouse or other members of the household, executor of any estate, or trustee. The submissions may be made with a request for confidentiality that will be honored even if it includes a limitation on disclosure to the DLA employee concerned.
D.
E.
F.
2. DD Forms 1555 shall be reviewed to assure that:
a. Each item is completed, and
b. No interest or position disclosed on the form violates or appears to violate any of the following:
(1) Any applicable provision of chapter 11 of title 18 of the United States Code (part 1).
(2) The “Ethics in Government Act of 1978,” as amended, and any regulations promulgated thereunder.
(3) Executive Order 11222 as amended, and any regulations promulgated thereunder.
(4) Any other related statute or regulation applicable to the employees of the agency.
3. The supervisor need not audit the report to ascertain whether the disclosures are correct; disclosures are to be taken at “face value” unless there is a patent omission or ambiguity or the official has independent knowledge of matters outside the report. The supervisor's signature shall signify that he or she has found that the information in the report discloses no conflict of interest under applicable laws and regulations and that the report fulfills the requirements set out in IIIF2, above.
4. If the supervisor believes that additional information is required, the reporting individual shall be notified of the additional information required and the date by which it must be submitted.
5. Whenever the supervisor's review of a DD Form 1555 discloses a conflict or an apparent conflict of interest, the employee concerned will be given an opportunity to explain the conflict or apparent conflict to the immediate supervisor. Resolution of a conflict or apparent conflict will be made under § 1293.7(b). If the conflict or apparent conflict cannot be resolved by the supervisor, it will be forwarded, along with a copy of the employee's current position description, to the Designated Agency Ethics Official or Deputy Ethics Official, as appropriate, for resolution.
6. If the supervisor concludes that the report is completed properly and that no item violates, or appears to violate, applicable statute or regulation, then such official shall sign and date the report.
G.
1. Whenever the designated Agency Ethics Official or Deputy Ethics Official concludes that the filing individual is not in compliance with applicable laws or regulations, the Designated Agency Ethics Official or Deputy Ethics Official shall do the following:
a. Notify the reporting individual of the preliminary determination.
b. Afford the reporting individual an opportunity for personal consultation, if practicable.
c. Determine what remedial action should be taken to bring the reporting individual into compliance.
d. Notify the reporting individual of the remedial action required, indicating a date by which that action must be taken.
2. Except in unusual situations, which must be documented fully to the satisfaction of the appropriate ethics official, remedial action shall be completed within 90 days from the date the reporting individual was notified that the action is required.
3. Remedial action includes any of the following measures:
a. Disqualification.
b. Limitation of duties.
c. Divestiture.
d. Transfer or reassignment.
e. Resignation.
f. Exemption under 18 U.S.C. 208.
g. Establishment of a qualified blind trust.
4. When the ethics official determines that a reporting person has complied fully with the remedial measures, a notation to that effect shall be made in the comment section of the DD Form 1555. The ethics official then shall sign and date the form and send written notice of that action to the reporting individual.
5. If steps ensuring compliance with applicable laws and regulation are not taken by the date established, the ethics official shall report the matter to the General Counsel, DLA for appropriate action.
H.
I.
2.
The following military officers and civilian employees are required to file a Report of DoD and Defense Related Employment (DD Form 1787):
A. A retired military officer who served on active duty at least 10 years and who held, for any period during that service, the pay grade of O-4 or above, or a former civilian employee whose pay rate at any time during the 3-year period prior to the end of DoD employment was equal to or greater than the minimum rate for a GS-13 (GS-12, step 7), and who:
1. Within the 2-year period immediately following the termination of service or employment with a DoD Component, is employed by a defense contractor who, during the year before the former officer or employee began employment, was awarded $10,000,000 or more in defense contracts; and
2. Is employed by or performs services for the defense contractor and at any time during a year directly receives compensation of or is salaried at a rate of $25,000 per year or more from the defense contractor (
B. Each civilian employee of a DoD Component who:
1. Is employed at a pay rate equal to or greater than the minimum rate for GS-13 (GS-12, step 7),
2. Within the 2-year period prior to the effective date of service or employment with the DoD Component, was employed by a defense contractor who, during a year, was awarded $10,000,000 or more in defense contracts, and
3. Was employed by or performed services for the defense contractor and at any time during that year received compensation from or was salaried at a rate of $25,000 per year or more at any time during employment (
Instructions for completing DD Forms 1787 are included as part of the form. A DD Form 1787 appears at the end of this appendix. Additional guidance for personnel required to file is available from the Designated Agency Ethics Official (DAEO) or Deputy Ethics Official.
1. Current military officers and civilian employees shall file a DD Form 1787 within 30 days after entering employment or service with any DoD Component.
2. Former officers and employees shall file an initial report within 90 days after the date on which the individual began employment with the defense contractor.
3. Former officers and employees shall file subsequent reports each time, during the 2-year period after service or employment with the DoD Component ended, that the person's duties with the defense contractor significantly changes or the person begins employment with another defense contractor. Such reports shall be filed within 30 days after the date of the change.
1. Civilians shall submit their reports to the General Counsel, DLA
2. Former military officers shall submit their report in accordance with the procedures set forth in the following:
a.
b.
c.
3. The General Counsel, DLA shall review DD Forms 1787 to assure that:
a. Each item is completed, and
b. No interest or position disclosed on the form violates or appears to violate the following:
(1) Any applicable provision of chapter 11 of title 18 U.S.C. (part 1).
(2) The “Ethics in Government Act of 1978,” as amended, and any regulations promulgated thereunder.
(3) E.O. 11222 as amended, and any regulations promulgated thereunder.
(4) Any other related statute or regulation applicable to the employees of DLA.
4. The reports need not be audited to ascertain whether the disclosures are correct; disclosures are to be taken at “face value” unless there is a patent omission or ambiguity or the General Counsel, DLA has independent knowledge of matters outside the report.
5. If the General Counsel, DLA believes that additional information is required, the reporting individual shall be notified of the additional information required and the date by which it must be submitted. The reporting individual shall submit the required information directly to the General Counsel, DLA.
6. If the General Counsel, DLA concludes that the report is completed properly and that no item violates, or appears to violate, applicable statute or regulation, then the reports shall be signed and dated.
A. If the General Counsel, DLA concludes that the filing individual is not in compliance with applicable laws or regulations, he shall:
1. Notify the reporting individual in writing of the preliminary determination;
2. Afford the reporting individual an opportunity for personal consultation, if practicable;
3. Determine what remedial action should be taken to bring the reporting individual into compliance; and
4. Notify the reporting individual in writing of the remedial action required, indicating a date by which that action must be taken.
B. Except in unusual situations, which must be fully documented to the satisfaction of the General Counsel, DLA, remedial action shall be completed within 90 days from the date the reporting individual was notified that the action is required.
C. Remedial steps may include the following measures:
D. When the General Counsel, DLA determines that a reporting person has fully complied with the remedial measures, a notation to that effect shall be made in the comment section of the DD Form 1787. The General Counsel, DLA shall then sign and date the DD Form 1787 and send written notice of that action to the reporting individual.
E. If steps assuring compliance with applicable laws and regulations are not taken by the date established, appropriate remedial action shall be instituted. The Office of Government Ethics shall be notified of the remedial action taken.
DD Forms 1787 must be made available for public examination upon request 15 days after the report is filed unless otherwise exempted pursuant to law. Receipt of the report for final review constitutes official filing and establishes the date from which the 15 days shall run. In most cases, this means the reports are available to the public before final review is completed. Reporting persons are personally responsible for ensuring that their reports are accurate, complete, and timely.
DD Forms 1787 shall be retained for 6 years from the date of filing.
Any individual failing to file a report or falsifying or failing to file required information, may be subject to any appropriate personnel or other action in accordance with applicable law or regulation, including adverse action. Administrative penalty of up to $10,000 may also be imposed.
Any individual who knowingly or willfully falsifies information on a report required to be filed under this subpart may be also be subject to criminal prosecution under 18 U.S.C. 1001.
A. These provisions shall apply to all DLA Activities.
B. This appendix is adopted pursuant to 18 U.S.C. 207 and 10 U.S.C. 2397, 2397a, and 2397c which require the Department of Defense to develop administrative procedures for the review and disposition of reported violations of post employment restrictions and reporting requirements.
C. The procedures set forth in this appendix may be used, at the discretion of the General Counsel, DLA, to accomplish administrative enforcement of all statutes and regulations which would require or allow their use.
In cases in which an APA hearing is required by statute, APA rules shall be used.
In the discretion of the hearing examiner, the rules of evidence may be relaxed from those established in the Federal Rules of Evidence. Evidence must be relevant and material to be considered.
The DLA bears the burden of proof. A violation must be established by substantial evidence.
The privacy of suspected individuals or entities shall be protected by safeguarding information concerning allegations and evidence, especially before initiation of administrative disciplinary action.
1. If any DLA officer or employee has reason to suspect that an individual or entity has violated a statute or regulation referred to in part 1293 the suspicion shall be reported immediately to the General Counsel, DLA or to the Counsel of the PLFA affected.
2. If other individuals have reason to suspect that an individual or entity has violated a statute or regulation, the suspicion may be reported to any DoD officer or employee.
A. The General Counsel, DLA, shall:
1. Administer the provisions of this appendix.
2. Receive reports of alleged violations from the Inspector General, Department of Defense (IG, DoD).
3. Receive memoranda of results of preliminary investigations from the IG, DoD.
4. Review copies of reports and memoranda from the IG, DoD, to determine if it is reasonable to believe there may have been a violation.
5. Provide copies of reports and memoranda regarding cases where it is reasonable to believe there may have been a violation, to the Director, Office of Government Ethics (OGE).
6. Provide copies of reports and memoranda regarding cases where it is reasonable to believe there may have been a violation, to the Criminal Division, Department of Justice (DoJ).
7. Coordinate investigations and administrative disciplinary actions with the DoJ Criminal Divisions, unless DoJ advises that criminal proceedings will not be pursued.
8. Initiate administrative disciplinary action, in cases where it is reasonable to believe there may have been a violation, by providing the suspected individual or entity with notice as described in IVB, below.
9. Request the Heads of DLA PLFAs or PSEs in which the case arose to appoint a Government representative to present evidence of violations.
10. In cases not subject to the APA, appoint a hearing examiner.
11. Receive written appeals from suspected individuals or entities.
12. Make appeal decisions, when appeals are timely submitted, after reviewing the findings of facts and decision of the hearing examiner and the appeal.
13. Impose administrative disciplinary sanctions when applicable.
14. Mail copies of appeal decisions and/or any sanctions to be imposed to the suspected individuals of entities along with statements notifying of the right to seek judicial review of administrative decisions.
15. Submit written reports of suspected violations, when the information regarding the violations is not frivolous, directly to the IG, DoD, and not through ordinary DoD Component channels.
B. The Hearing Examiner shall:
1. Hear each case in accordance with the hearing procedures specified in subparagraph 4, of this section IV.
2. Make a written report of all findings of fact and conclusions of law, including mitigating factors.
3. Make a written decision and recommendation of administrative disciplinary sanctions to be imposed.
4. Submit the report, the decision, and any recommendations to the General Counsel, DLA through the Head of the cognizant PLFA or PSE.
5. Mail a copy of the report, the decision, and any recommendations to the suspected individual and General Counsel, DLA.
1. Administrative disciplinary actions are initiated by providing suspected individuals or entities with notice of the report of a violation and notice of the intention to begin administrative disciplinary proceedings at least 20 calendar days prior to the beginning of such proceedings.
2. When hearings are required by statute, a hearing shall be conducted before imposition of administrative disciplinary sanctions unless the suspected individual or entity waives the hearing in writing in accordance with subparagraphs D2c and d, of this section IV.
3. When hearings are not required by statute, a hearing may be requested in writing by the suspected individual or entity in accordance with subparagraphs D2e and f, of this section IV.
Notice to initiate administrative disciplinary proceedings shall include the following:
1. A statement of allegations, and the basis thereof, sufficiently detailed to enable the suspected individual or entity to prepare an adequate defense.
2. Notification of the right to a hearing when a hearing is required by statute.
3. The procedure for waiving the right to appear at the hearing when a hearing is required by statute.
4. A copy of a written waiver that shall include a statement that the signer understands that the signer has the right to appear at a hearing and that administrative disciplinary sanctions may be imposed even if the signer does not appear at a hearing.
5. When a hearing is not required by statute, a statement to the effect that if the suspected individual or entity fails to request such a hearing in writing, the DLA may initiate administrative disciplinary action which may result in imposition of administrative disciplinary sanctions.
6. The procedure for requesting a hearing when a hearing is not required by statute.
7. Notice that the failure to appear at a scheduled hearing shall constitute a constructive waiver of the right to appear at the hearing.
8. The date, time, and place of a scheduled hearing; however, suspected individuals or entities shall be scheduled to appear for hearings in the Federal judicial district in which the individual or entity resides or in the Federal judicial district in which the alleged violation occurred.
9. A statement of hearing rights in accordance with subparagraph D of this section IV.
10. A copy of these Administrative Enforcement Provisions.
1. Hearing examiners shall be attorneys with not less than 3 years experience in the practice of law subsequent to admission to the bar.
2. A hearing examiner shall be impartial. An individual who has participated in the decisions to initiate proceedings shall not serve as a hearing examiner in those proceedings.
3. In cases not subject to the APA, the General Counsel, DLA, shall appoint a hearing examiner.
4. In cases subject to the APA, Administrative Law Judges (ALJ) shall be used as hearing examiners. The General Counsel, DLA, shall forward a written request to the office of Administrative Law Judges, Office of Personnel Management. (See 5 U.S.C. 3344.) The request shall contain the following:
a. The requisite authority requiring an APA hearing for the particular statutory violation.
b. The status of the case.
c. The tentative hearing data.
d. The point of contact within the DLA.
e. An acknowledgment that the request is being made on a reimbursable, intermittent basis.
1. The hearing examiner shall have the power to do the following:
a. Administer oaths and affirmations.
b. Issue subpoenas authorized by law.
c. Rule on offers of proof and recieve relevant evidence.
d. Take depositions or have depositions taken when justice shall be served.
e. Regulate the course of the hearing.
f. Hold conferences for the settlement or simplification of the issues by comment from the suspected individual or entity and the Government representative.
g. Dispose of procedural requests or similar matters.
h. Make decisions, in writing, on the merits of the particular case, as well as written recommendations of administrative disciplinary sanctions.
2. Suspected individuals and entities shall have hearing rights which include the following:
a. The right to self representation, or to be represented by counsel.
b. The right to introduce evidence and witnesses and the right to examine adverse witnesses.
c. The right to stipulate to facts.
d. The right to present oral argument.
e. The right to receive a transcript or recording of the proceedings upon request.
f. Additional rights that may be in the Administrative Procedure Act, if applicable.
3. Before the hearing examiner makes a decision, or the General Counsel, DLA, makes an appeal decision, the suspected individual or entity and the Government representative may submit the following material for consideration:
a. Proposed findings and conclusions.
b. Exceptions to the decisions of the hearing examiner, or to the tentative decisions of the GC, OSD.
c. Supporting reasons for the exceptions or proposed findings or conclusions.
4. The record shall reflect the ruling on each finding, conclusion, or exception. All decisions by the hearing examiner or the General Counsel, DLA, shall be a part of the record, along with the reasons and basis for such findings and decisions.
1. Within 20 days following the date on the report and recommendations from the hearing examiner, the suspected individual or entity may file an appeal with the General Counsel, DLA. An appeal shall be in writing, and shall set forth all errors of act, law, or both, together with the reasons, alleged to exist in the report from the hearing examiner.
2. Extensions of time to file an appeal may be granted at the discretion of the General Counsel, DLA, upon receipt of written request for an extension from the individual or entity concerned.
3. The General Counsel, DLA shall make a written appeal decision if any appeal is submitted timely, after reviewing the report of findings of facts, the decision, and recommendations from the hearing examiner.
4. If the appeal decision is not in accordance with the report of findings of facts, the decision, or recommendations from the hearing examiner, the reasons shall be specified.
5. The decision of the General Counsel, DLA, shall be the final administrative determination. The appeal decision shall be mailed to the suspected individual or entity along with a statement, if applicable, that the individual or entity may seek judicial review of the administrative determinations.
1. The General Counsel, DLA, may take appropriate disciplinary action when indicated by the outcome of a case involving a violation of 18 U.S.C. 207 by:
a. Prohibiting the individual or entity from making on behalf of any other person except the United States, any formal or informal appearance before, or any oral or written communication with the intent to influence, to the Department of Defense, its officers or employees, on any matter of business for a period not to exceed 5 years. This may be enforced by directing DoD officers and employees to refuse to participate in any such appearance, or to accept any such communication.
b. Barring the individual or entity from employment by the Department of Defense for a period not to exceed 5 years.
2. The General Counsel, DLA, may take appropriate disciplinary action whenever indicated by the outcome of a case involving violations of 10 U.S.C. 2397, 2397a, or 2397c by:
a. Imposing and administrative penalty, not to exceed $10,000.
b. With respect to violations of 10 U.S.C. 2397a, imposing an additional administrative penalty of a particular amount if the individual is determined to have accepted or continued employment with a defense contractor during the 10-year period beginning with the date of separation from Government service.
3. The General Counsel, DLA, may take other appropriate disciplinary action when indicated by the outcome of a case in accordance with the laws or regulations violated.
Any individual or entity found in violation as described, and against whom an administrative sanction is imposed, may seek judicial review of the final administrative determination.
Regulation governing standards for discharge under the Selective Service Act of 1948: See part 41 of this title.
Military Selective Service Act, 50 U.S.C. App. 451
The definitions contained in section 16 of the Military Selective Service Act, and the definitions contained in this part shall govern in the interpretation of the regulations of this chapter.
A reclassification action relating to a registrant's claim for Class 1-C, 1-D-D, 1-D-E, 1-H, 1-O-S, 1-W, 3-A-S, 4-A-A, 4-A, 4-B, 4-C, 4-F, 4-G, 4-T, or 4-W. These classes shall be identified as administrative classes.
(a) The term
(b) The term
(1) A citizen of the United States, or
(2) A person, though not a citizen of the United States, who owes allegiance to the United States.
The Selective Service Office which is responsible for all administrative and operational support for the one or more local boards within its jurisdiction.
The compensated employees, civilian and military, of the Selective Service System employed in an area office will be referred to as the area office staff.
The word
Classification is the exercise of the power to determine claims or questions with respect to inclusion for or exemption or deferment from training and service under Selective Service Law.
The term
Unless otherwise specified the period of days allowed a registrant or other person to perform any act or duty required of him shall be counted as beginning on the day following that on which the notice is issued.
The word
A district appeal board or a panel thereof of the Selective Service System is a group of not less than three civilian members appointed by the President to act on cases of registrants in
The word
A classification action relating to a registrant's claim for Class 1-A-O, 1-O, 2-D, 3-A, or 4-D.
A local board or a panel thereof of the Selective Service System is a group of not less than three civilian members appointed by the President after nomination by a Governor to act on cases of registrants in accord with the provisions of part 1648 of this chapter.
The local board of jurisdiction is the local board to which a registrant is assigned and which has authority, in accord with the provisions of this chapter, to determine his claim or to issue to him an order.
A Military Entrance Processing Station is a military installation to which registrants are ordered to report for examination or induction.
The term
The National Appeal Board or a panel thereof of the Selective Service System is a group of not less than three civilian members appointed by the President to act on cases of registrants in accord with the provisions of part 1653 of this chapter.
Cardinal numbers may be expressed by Arabic or Roman symbols.
A
The term
Words importing the singular number shall include the plural number, and words importing the plural number shall include the singular, except where the context clearly indicates otherwise.
The word
A
Military Selective Service Act, 50 U.S.C. App. 451
The Director of Selective Service shall be responsible directly to the President. The Director of Selective Service is hereby authorized and directed:
(a) To prescribe such rules and regulations as he shall deem necessary for the administration of the Selective Service System, the conduct of its officers and employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.
(b) To issue such public notices, orders, and instructions, as shall be necessary for carrying out the functions of the Selective Service System.
(c) To obligate and authorize expenditures from funds appropriated for carrying out the functions of the Selective Service System.
(d) To appoint and to fix, in accordance with provisions of chapter 51 and subchapter III of chapter 53 of title 5 U.S.C., relating to classification and General Schedule pay rates, the compensation of such officers, agents, and employees as shall be necessary for carrying out the functions of the Selective Service System.
(e) To procure such space as he may deem necessary for carrying out the functions of the Selective Service System by lease pursuant to existing statutes.
(f) To obtain by purchase, loan, or gift such equipment, supplies, printing, binding, and blankbook work for the Selective Service System as he may deem necessary to carry out the functions of the Selective Service System.
(g) To perform such other duties as shall be required of him under the Selective Service Law or which may be delegated to him by the President.
(h) To delegate any of his authority to such officers, agents, or persons as he may designate and to provide for the subdelegation of any such authority.
(a) There is hereby created and established within the Selective Service System a civilian agency of appeal which shall be known as the National Appeal Board. The President shall appoint not less than three members to the National Appeal Board, and he shall designate one member as chairman.
(b) The President shall appoint members of the National Appeal Board from among citizens of the United States who:
(1) Are not active or retired members of the Armed Forces or any reserve component thereof;
(2) Have not served as a member of the National Appeal Board for a period of more than five years;
(3) Are at least 18 years of age;
(4) Are able to devote sufficient time to duties of the Board; and
(5) Are willing to fairly and uniformly apply Selective Service Law.
(c)(1) A majority of the members of the board shall constitute a quorum for the transaction of business, and a majority of the members present at any meeting at which a quorum is present, shall decide any question.
(2) The National Appeal Board may sit
(3) The National Appeal Board or a panel thereof shall hold meetings in Washington, DC, and upon request of the Director or as determined by the Chairman of the National Appeal Board, at any other place.
(d) The National Appeal Board or panel thereof shall classify each registrant whose classification has been appealed to the President under part 1653 of this chapter.
(e) No member of the National Appeal Board shall act on the case of a registrant who is the member's first cousin or closer relation either by blood, marriage, or adoption, or who is the member's employer, employee or fellow employee or stands in the relationship of superior or subordinate of the member in connection with any employment, or is a partner or close business associate of the member, or is a fellow member or employee of the National Appeal Board. A member of the National Appeal Board must disqualify himself in any matter in which we would be restricted for any reason in making an impartial decision.
(f) Each member of the National Appeal Board while on the business of the National Appeal Board away from his home or regular place of business shall receive actual travel expenses and per diem in lieu of subsistence in accordance with rates established by Federal Travel Regulations.
(g) The Director shall pay the expenses of the members of the National Appeal Board in accord with applicable Federal Travel Regulations and shall furnish that Board and its panels necessary personnel, suitable office space, necessary facilities and services.
(a) Subject to the direction and control of the Director of Selective Service, the Region Manager of Selective Service for each region shall be in immediate charge of the Region Headquarters and shall be responsible for carrying out the region functions of the Selective Service System in the various States assigned to the region.
(b) The Region Manager will perform such duties as are prescribed by the Director of Selective Service.
(a) Subject to applicable law, and within the limits of available funds, the staff of each region for Selective Service shall consist of as many officers, either military or civilian, as shall be authorized by the Director of Selective Service.
(b) In accordance with limitations imposed by the Director of Selective Service, the Region Manager is authorized to appoint such civilian personnel as he considers are required in the operation of the Region Headquarters.
The Governor is authorized to recommend a person to be appointed by the President as State Director of Selective Service for his State, who shall represent the Governor in all Selective Service matters.
(a) The State Director of Selective Service for each State, subject to the direction and control of the Director of
(b) The State Director of Selective Service will perform such duties as are prescribed by the Director of Selective Service.
(a) Subject to applicable law and within the limits of available funds, the staff of each State Headquarters for Selective Service shall consist of as many officers, either military or civilian, as shall be authorized by the Director of Selective Service.
(b) In accordance with limitations imposed by the Director of Selective Service, the State Director of Selective Service is authorized to appoint such civilian personnel as he considers are required in the operation of the State Headquarters for Selective Service.
The Governor of the State of New York is authorized to recommend a person to be appointed by the President as State Director of Selective Service for New York City, who shall represent the Governor in all Selective Service matters within the City of New York. Subject to the direction and control of the Director of Selective Service, the State Director of Selective Service for New York City shall be in immediate charge of the State Headquarters for Selective Service for New York City and shall perform such duties as are prescribed by the Director of Selective Service. The State Director of Selective Service for the State of New York shall have no jurisdiction in Selective Service matters within the City of New York. The State headquarters of Selective Service for New York City shall be an office of record for Selective Service operations only, and no records other than Selective Service records shall be maintained in such office.
The Director of Selective Service shall establish one or more district appeal boards in each of the Federal Judicial Districts in the several states of the United States, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. The Director of Selective Service may establish panels of appeal boards.
The Director of Selective Service will prescribe the number of members for the district appeal boards. The President shall appoint members of district appeal boards from among citizens of the United States who are residents of the area for which the respective boards have jurisdiction. The Director of Selective Service shall furnish necessary personnel, suitable office space, facilities and services to support each district appeal board.
The Director of Selective Service shall assign each district appeal board within a Federal Judicial District a specific identification by which it shall be known. If a district appeal board consists of more than one panel, each panel shall have a specific identifying number. Such numbers shall be assigned in numerical sequence beginning with numeral 1.
The district appeal board shall have jurisdiction to review and to affirm or change any local board decision appealed to it when:
(a) An appeal is submitted by a registrant from a local board in its area; or
(b) An appeal is submitted to it from a local board not in the appeal board area by a registrant whose principal place of employment or residence is located within the jurisdiction of the appeal board; or
(c) An appeal is submitted or transferred to it by the Director of Selective Service to assure the fair and equitable administration of the Law.
(a) No member of a district appeal board shall act on the case of a registrant who is the member's first cousin or closer relation, either by blood, marriage, or adoption, or who is the member's employer, employee, or fellow employee, or stands in the relationship of superior or subordinate of the member in connection with any employment, or is a partner or close business associate of the member, or is a fellow member or employee of the board.
(b) A member of a district appeal board must disqualify himself in any matter in which he would be restricted for any reason in making an impartial decision.
(c) Whenever a quorum of the district appeal board or a panel thereof cannot act on the case of a registrant that it has been assigned, and there is no other panel of the district appeal board to which the case may be transferred, the district appeal board shall transmit such case to the director of Selective Service for transfer to another district appeal board.
Each district appeal board, or panel thereof, shall elect a chairman and a vice-chairman at least every two years. A majority of the members of the board when present at any meeting shall constitute a quorum for the transaction of business. A majority of the members present at any meeting at which a quorum is present shall decide any question. Every member, unless disqualified, shall vote on every question or classification. In case of a tie vote on a question or classification, the board shall postpone action until the next meeting. If the question or classification remains unresolved at the next meeting, the file will be transferred for classification in accord with § 1605.25(c). If any member is absent so long as to hamper the work of the board, the chairman, a member of the board or panel concerned, or an area office employee shall report that fact to the Director of Selective Service and such action as appropriate shall be taken. If, through death, resignation, or other causes, the membership of the board falls below the prescribed number of members, the board or panel shall continue to function, provided a quorum of the prescribed membership is present at each official meeting.
A Selective Service compensated employee will keep the minutes of each appeal board meeting. In the absence of a compensated employee the minutes will be kept by an appeal board member.
Official documents issued and minutes of meetings maintained by a district appeal board may be signed by any member of the board, or by any compensated employee of the Selective Service System authorized to perform administrative duties for the board, except when otherwise prescribed by the Director of Selective Service.
(a) The Director of Selective Service shall divide each State into local board areas and establish local boards. There shall be at least one local board in each county except where the Director of Selective Service establishes an intercounty board. When more than one local board is established within the same geographical jurisdiction, registrants residing in that area will be assigned among the boards as prescribed by the Director of Selective Service. The Director of Selective Service may establish panels of local boards.
(b) [Reserved]
The Director of Selective Service shall prescribe the number of members of local boards.
The Director of Selective Service shall assign each local board within a State a specific identifying number by which it shall be known. Such identifying numbers shall be assigned in numerical sequence beginning with the numeral 1.
The local board shall have full authority to perform all acts within its jurisdiction authorized by law, to include the acting on any claim presented to it when:
(a) The claim is submitted by a registrant who is assigned to it; or
(b) The claim is transferred to it from another board in the manner provided in these regulations; or
(c) The claim is submitted or tranferred to it by the Director of Selective Service to assure the fair and equitable administration of the Law.
(a) No member of a local board shall act on the case of a registrant who is the member's first cousin or closer relation, either by blood, marriage, or adoption, or who is the member's employer, employee, or fellow employee, or stands in the relationship of superior or subordinate of the member in connection with any employment, or is a partner or close business associate of the member, or a fellow member or employee of the area office.
(b) A member of the local board must disqualify himself in any matter in which he would be restricted, for any reason, in making an impartial decision.
(c) Whenever a quorum of a local board cannot act on the case of a registrant, the area office supervisor shall cause such case to be transferred to another board within the area office. In those instances where only one board exists in an area office, the case should be transmitted to the nearest area office for transfer to a board under its jurisdiction.
Each local board shall elect a chairman and vice-chairman at least every two years. A majority of the membership of the board shall constitute a quorum for the transaction of business. A majority of the members present at any meeting at which a quorum is present shall decide any question or classification. Every member present, unless disqualified, shall vote on every question or classification. In case of a tie vote on any question or classification, the board shall postpone action on the question or classification until it can be decided by a majority vote at the next meeting. If the question or classification remains unresolved at the next meeting, the file will be transferred for classification in accord with § 1605.55(c). If any member is absent so long as to hamper the work of the board, the chairman, a member of the board, or a Selective Service compensated employee shall report that fact to the Director of Selective Service and appropriate action shall be taken. If through death, resignation, or other cause, the membership of a board falls below the prescribed number, it shall continue to function provided a quorum of the prescribed membership is present at each official meeting.
A compensated employee of the appropriate area office will keep the minutes of each meeting of a local board. In the absence of a compensated employee the minutes will be kept by a board member.
Official papers issued by a local board may be signed by any member of the board or compensated employee of the area office, or any compensated employee of the Selective Service System whose official duties require him to perform administrative duties at the area office except when otherwise prescribed by the Director of Selective Service.
(a) The Director of Selective Service shall prescribe the number of area offices to be established and shall define the boundaries thereof.
(b) The area office shall be an office of record and responsible for all administrative and operational support of the one or more local boards within its jurisdiction.
Subject to applicable law and within the limits of available funds, the staff of each area office shall consist of as many compensated employees, either
(a) The local board, district appeal board and the National Selective Service Appeal Board are authorized to use interpreters when necessary.
(b) The following oath shall be administered by a member of the board or a compensated employee of the System to an interpreter each time he or she interprets:
Do you swear (or affirm) that you will truly interpret in the matter now in hearing?
(c) Any interpreter who fails to respond in the affirmative shall not be permitted to function in this capacity.
Military Selective Service Act, 50 U.S.C. App. 451
Members of civilian review boards, local boards, and district appeal boards and all other persons volunteering their services to assist in the administration of the Selective Service Law shall be uncompensated. No person serving without compensation shall accept remuneration from any source for services rendered in connection with Selective Service matters.
No person shall be appointed to any uncompensated position in the Selective Service System who is not a citizen of the United States.
(a) The President, upon the recommendation of the respective Governors, will consider for appointment as a member of a local board, any person who:
(1) Is within the age limits prescribed by the Military Selective Service Act; and
(2) Is a citizen of the United States; and
(3) Is a resident of the county in which the local board has jurisdiction; and
(4) Is not an active or retired member of the Armed Forces or any reserve component thereof; and
(5) Has not served as a member of a Selective Service board for a period of more than 20 years; and
(6) Is able to perform such duties as necessary during standby status; and
(7) Is able to devote sufficient time to board affairs; and
(8) Is willing to fairly and uniformly apply Selective Service Law.
(b) The President, upon the recommendation of the Director of Selective Service, will consider for appointment as a member of a district appeal board any person who:
(1) Is within the age limits prescribed by the Military Selective Service Act; and
(2) Is a citizen of the United States; and
(3) Is a resident of the Federal Judicial District in which the district appeal board has jurisdiction; and
(4) Is not an active or retired member of the Armed Forces or any reserve component thereof; and
(5) Has not served as a member of a Selective Service board for a period of more than 20 years; and
(6) Is able to perform such duties as necessary during standby status; and
(7) Is able to devote sufficient time to the district appeal board affairs; and
(8) Is willing to fairly and uniformly apply Selective Service Law.
Every person who undertakes to render voluntary uncompensated service in the administration of the Selective Service Law shall execute an Oath of Office and Waiver of Pay before he enters upon his duties.
The Director of Selective Service may suspend from duty any uncompensated person engaged in the administration of the Selective Service Law pending his consideration of the advisability of removing such person.
(a) The Director of Selective Service may remove any uncompensated person engaged in the administration of the Selective Service Law.
(b) The Governor may recommend to the Director of Selective Service the removal, for cause, of the State Director or any uncompensated person engaged in the administration of the Selective Service Law in his State. The Director of Selective Service shall make such investigation of the Governor's recommendation as he deems necessary, and upon completion of his investigation, he shall take such action as he deems proper.
Any information or records obtained by compensated or uncompensated personnel during the performance of their official duties, including proceedings before the boards, shall be restricted to official use by the personnel of the Selective Service System except as specifically authorized by law.
Military Selective Service Act, 50 U.S.C. app. 451
(a) Registration under selective service law consists of:
(1) Completing of the Registration Card prescribed by the Director of Selective Service by a person required to register and
(2) The recording of the information furnished by the registrant on his Registration Card in the records (master computer file) of the Selective Service System. Registration is completed when both of these actions have been accomplished.
(b) The Director of Selective Service will furnish to each registrant a verification notice that includes a copy of the information pertaining to his registration that has been recorded in the records of the Selective Service System together with a correction form. If the information is correct, the registrant should take no action. If the information is incorrect, the registrant should forthwith furnish the correct information to the Director of Selective Service. If the registrant does not receive the verification notice within 90 days after he completed a Registration Card, he shall advise in writing the Selective Service System, 600 E Street, NW., Washington, DC 20435, of the applicable facts.
Whenever the President by proclamation or other public notice fixes a day or days for registration, the Director of Selective Service shall take the necessary steps to prepare for registration and, on the day or days fixed, shall supervise the registration of those persons required to present themselves for and submit to registration. The Director of Selective Service shall also arrange for and supervise the registration of those persons who present themselves for registration at times other than on the day or days fixed for any registration.
Persons required by selective service law and the Proclamation of the President to register shall be registered in accord with procedures prescribed by the Director of Selective Service.
A person required by selective service law to register has the duty.
(a) To complete the Registration Card prescribed by the Director of Selective Service and to record thereon his name, date of birth, sex, Social Security Account Number (SSAN), current mailing address, permanent residence, telephone number, date signed, and signature; and
(b) To submit for inspection evidence of his identity at the time he submits his completed Registration Card to a person authorized to accept it. Evidence of identity may be a birth certificate, motor vehicle operator's license, student's identification card, United States Passport, or a similar document.
No person who is not required by selective service law or the Proclamation of the President to register shall be registered.
Every registrant shall be given a selective service number. The Social Security Account Number will not be used for this purpose.
The Director of Selective Service Shall issue to each registrant written evidence of his registration. The Director of Selective Service will replace that evidence upon written request of the registrant, but such request will not be granted more often than once in any period of six months.
The Director of Selective Service may cancel the registration of any particular registrant or of a registrant who comes within a specified group of registrants.
For the purposes of these regulations, the terms Registration Card and Registration Form are synonomous.
Military Selective Service Act, 50 U.S.C. App. 451
If a registrant fails to claim and exercise any right or privilege within the required time, he shall be deemed to have abandoned the right or privilege unless the Director of Selective Service, for good cause, waives the time limit.
A document other than a registration card received by an element of the Selective Service System will be considered to have been filed on the date that it is received:
Personnel of the Selective Service System will transmit orders or other official papers addressed to a registrant by handing them to him personally or mailing them to him to the current mailing address last reported by him in writing to the Selective Service System.
Military Selective Service Act, 50 U.S.C. App. 451
Until otherwise notified by the Director of Selective Service, it is the duty of every registrant who registered after July 1, 1980:
(a) To notify the System within 10 days of any change in the following items of information that he provided on his registration form: name, current mailing address and permanent residence address; and
(b) To submit to the classifying authority, all information concerning his status within 10 days after the date on which the classifying authority mails him a request therefor, or within such longer period as may be fixed by the classifying authority; and
(c) Who has a postponement of induction, or has been deferred or exempted from training and service, to notify the System immediately of any changes in facts or circumstances relating to the postponement, deferment or exemption; and
(d) Who has a postponement of examination, to notify the System immediately of any changes in facts or circumstances relating to the postponement.
When the Director of Selective Service orders a registrant for induction, it shall be the duty of the registrant to report for and submit to induction at the time and place ordered unless the order has been canceled. If the time when the registrant is ordered to report for induction is postponed, it shall be the continuing duty of the registrant to report for and submit to induction at such time and place as he may be reordered. Regardless of the time when or the circumstances under which a registrant fails to report for induction when it is his duty to do so, it shall thereafter be his continuing duty from day to day to report for and submit to induction at the place specified in the order to report for induction.
When the Director orders a registrant for examination, it shall be the duty of the registrant to report for and submit to examination at the time and place ordered unless the order has been canceled. If the time when the registrant is ordered to report for examination is postponed, it shall be the continuing duty of the registrant to report for and submit to examination at such time and place as he may be reordered. Regardless of the time when, or the circumstances under which a registrant fails to report for examination when it is his duty to do so, it shall thereafter be his continuing duty from day to day to report for and submit to examination at the place specified in the order to report for examination.
Military Selective Service Act, 50 U.S.C. App. 451
(a) The Director of Selective Service shall from time to time establish a random selection sequence for induction by a drawing to be conducted in the place and on a date the Director shall fix. The random selection method shall use 365 days, or when appropriate, 366 days to represent the birthdays (month and day only) of all registrants who,
(b) The date of birth of the registrant that appears on his Selective Service Registration Record on the day before the lottery is conducted to establish his random selection sequence will be conclusive as to his date of birth in all matters pertaining to his relations with the Selective Service System.
The Director of Selective Service, upon receipt of a call from the Secretary of Defense for persons to be inducted into the Armed Forces in accord with § 1624.4, shall issue orders to report for induction to registrants whose registration records are in the master computer file at the beginning of any day on which orders are issued. Orders shall be issued in such numbers and at such times as will assure that such call or requisition is filled. The names contained in the Selective Service System data base on a given day will constitute the valid list of registrants from which induction orders can be issued on that day.
Age selection groups are established as follows:
(a) The age 20 selection group for each calendar year consists of registrants who have attained or will attain the age of 20 in that year.
(b) The age 21 selection group for each calendar year consists of registrants who have attained or will attain the age of 21 in that year and, in like manner, each age selection group will be so designated through age group 25.
(c) The age 26 through 34 selection groups consist of registrants who meet the following three criteria:
(1) They have attained or will attain the age of 26 through 34, respectively, during the calendar year;
(2) They have been previously ordered to report for induction but have not been inducted;
(3) They have been classified in one of the following classes:
(i) Class 1-D-D.
(ii) Class 2-D.
(iii) Class 3-A.
(iv) Class 4-B.
(v) Class 4-F.
(d) The age 19 selection group for each calendar year consists of registrants who have attained the age of 19 in that year.
(e) The age 18 selection group shall consist of registrants who have attained the age of 18 years and six months and who have not attained the age of 19 years in the order of their dates of birth with the oldest being selected first.
A registrant in Class 1-A or a registrant subsequently classified 1-A-0 shall be selected and ordered or rescheduled to report for induction in the following categories and in the order indicated:
(a) Volunteers for induction in the order in which they volunteered.
(b) Registrants whose postponements have expired in the order of expiration.
(c) Registrants who previously have been ordered to report for induction and whose exemptions or deferments have expired, in the order of their random sequence number (RSN) established by random selection procedures in accord with § 1624.1
(d) Registrants in the age 20 selection group for the current calendar year in the order of their random sequence number (RSN) established by random selection procedures in accord with § 1624.1.
(e) Registrants in each succeeding age selection group commencing with age 21 selection group and terminating with the age 34 selection group, in turn, within the group, in the order of their random sequence number (RSN) established by random selection procedures in accord with § 1624.1.
(f) Registrants in the age 19 selection group for the current calendar year in the order of their random sequence number (RSN) established by random selection procedures in accord with § 1624.1.
(g) Registrants in the age 18 year and six months selection group and who have not attained the age of 19 in the order of their date of birth with the oldest being selected first.
(a) Immediately upon determining which persons are to be ordered for induction, the Director of Selective Service shall issue to each person selected an Order to Report for Induction. The order will be sent to the current address most recently provided by the registrant to the Selective Service System. The date specified to report for induction shall be at least 10 days after the date on which the Order to Report for Induction is issued. The filing of a claim for reclassification in accord with § 1633.2 of this chapter delays the date the registrant is required to report for induction until not earlier than the tenth day after the claim is determined to have been abandoned or is finally determined is finally determined in accord with the provisions of this chapter. A claim is finally determined when the registrant does not have the right to appeal the last classification action with respect to the claim or he fails to exercise his right to appeal.
(b) Any person who has been ordered for induction who is distant from the address to which the order was sent must either report at the time and place specified in the order, or voluntarily submit himself for induction processing at another MEPS on or before the day that he was required to report in accordance with his induction order.
(c) The Director of Selective Service may direct the cancellation of any Order to Report for Induction at any time.
(d) Any Order to Report for Induction issued by the Director of Selective Service to a registrant who is an alien, who has not resided in the United States for one year will be void. Such order will be deemed only to be an order to produce evidence of his status. When an alien registrant has been within the United States for two or more periods (including periods before his registration) and the total of such periods equals one year, he shall be deemed to have resided in the United States for one year. In computing the length of such periods, any portion of one day shall be counted as a day. Upon establishing a one year residency, the alien registrant will be assigned to the age selection group corresponding to his age.
(a) [Reserved]
(b) In the case of the death of a member of the registrant's immediate family, extreme emergency involving a member of the registrant's immediate family, serious illness or injury of the registrant, or other emergency beyond the registrant's control, the Director, after the Order to Report for Induction has been issued, may postpone for a specific time the date when such registrant shall be required to report. The period of postponement shall not exceed 60 days from the date of the induction order. When necessary, the Director may grant one further postponement, but the total postponement shall not exceed 90 days from the reporting date on the induction order.
(c)(1) Any registrant who is satisfactorily pursuing a full-time course of instruction at a high school or similar institution of learning and is issued an order to report for induction shall, upon presentation of appropriate facts in the manner prescribed by the Director of Selective Service, have his induction postponed:
(i) Until the time of his graduation therefrom; or
(ii) Until he attains the twentieth anniversary of his birth; or
(iii) Until the end of his last academic year, even if he has attained the twentieth anniversary of his birth; or
(iv) Until he ceases satisfactorily to pursue such course of instruction, whichever is the earliest.
(2) Any registrant who, while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning, is ordered to report for induction shall, upon the presentation of appropriate facts in the manner prescribed by the Director of Selective Service, have his induction postponed:
(i) Until the end of the semester or term, or in the case of his last academic year, the end of the academic year; or
(ii) Until he ceases to satisfactorily pursue such course of instruction, whichever is the earlier.
(3) A postponement authorized by this subsection may be terminated by the Director of Selective Service for cause upon no less than 10 days notice to the registrant.
(d) The Director of Selective Service may authorize a delay of induction for any registrant whose date of induction conflicts with a religious holiday historically observed by a recognized church, religious sect or religious organization of which he is a member. Any registrant so delayed shall report for induction on the next business day following the religious holiday.
(e) [Reserved]
(f) The Director of Selective Service may authorize a postponement of induction to a registrant when:
(1) The registrant qualifies and is scheduled for a State or National examination in a profession or occupation which requires certification before being authorized to engage in the practice of that profession or occupation; or
(2) The registrant has been accepted in the next succeeding class as a cadet at the U.S. Military Academy, or the U.S. Air Force Academy, or the U.S. Coast Guard Academy; or as a midshipman at the U.S. Naval Academy, or the U.S. Merchant Marine Academy; or
(3) The registrant is a ROTC applicant who has been designated to participate in the next succeeding ROTC field training program prior to enrollment in the ROTC; or
(4) The registrant has been accepted as a ROTC scholarship student in the next succeeding ROTC program at a college or university.
(g) The Director of Selective Service shall issue to each registrant whose induction is postponed a written notice thereof.
(h) No registrant whose induction has been postponed shall be inducted into the Armed Forces during the period of any such postponement. A postponement of induction shall not render invalid the Order to Report for Induction which has been issued to the registrant, but shall operate only to postpone the reporting date, and the registrant shall report on the new date scheduled without having issued to him a new Order to Report for Induction.
(i) Any registrant receiving a postponement under the provisions of this section, shall, after the expiration of such postponement, be rescheduled to report for induction at the place to which he was originally ordered.
(j) The initial determination of claims for all postponements is made by area office compensated personnel. After a denial of a claim for a student postponement, the registrant may request the local board to consider the claim. Such registrant shall be afforded an opportunity to appeal before the board in accord with the procedures of §§ 1648.4 and 1648.5.
The Director shall issue an Order to Report for Induction to a registrant who is liable for induction whenever his deferment or exemption expires.
The Director of Selective Service may direct that a registrant or registrants in a specified group of registrants be transferred for induction to such MEPS as he may designate.
Registrants in classes 1-A and 1-A-0, who have been ordered for induction and found qualified under standards prescribed by the Secretary of Defense, will be inducted at the MEPS into the Armed Forces.
(a) The Director of Selective Service may order any registrant in Class 1-A who has filed a claim for classification in a class other than Class 1-A or whose induction has been postponed, to report for an Armed Forces examination to determine acceptability for military service. The date specified to report for examination shall be at least 7 days after the date on which the Order to Report for Examination is issued. Such registrant will not be inducted until his claim for reclassification has been decided or abandoned.
(b) The reporting date for examination may be postponed for any reason a reporting date for induction may be postponed in accord with § 1624.6 (b), (d) or (f)(1).
(c) If a registrant fails to report for or complete an examination, the local board will determine that he has abandoned his claim.
(d) If a registrant is determined not acceptable for military service, he will be reclassified in Class 4-F.
(e) If a registrant is determined acceptable for military service, the processing of his claim will be completed.
Military Selective Service Act, 50 U.S.C. App 451
Any registrant who has attained the age of 17 years, who has not attained the age of 26 years, and who has not completed his active duty obligation under the Military Selective Service Act, when inductions are authorized, may volunteer for induction into the Armed Forces unless he;
(a) Is classified in Class 4-F or is eligible for Class 4-F; or
(b) Has been found temporarily unacceptable with reexamination believed justified (RBJ) and the period of time specified for his return for examination has not been terminated and the basis for his temporary rejection continues to exist; or
(c) Is an alien who has not resided in the United States for a period of at least one year; or
(d) Has not attained the age of 18 years and does not have the consent of his parent or guardian for his induction.
(a) If a person who is required to be registered but who has failed to register volunteers for induction, he shall be registered.
(b) In registering a volunteer, the area office shall follow the procedure set forth in § 1615.3 of this chapter.
When a registrant who is eligible to volunteer files an Application for Voluntary Induction, he shall be classified in Class 1-A and processed for induction.
Military Selective Service Act, 50 U.S.C. App. 451
Each registrant shall be classified in one of the classes prescribed in this part.
(a) All registrants available for unrestricted military service shall be in Class 1-A.
(b) All registrants in the selection groups as determined by the Director of Selective Service are available for unrestricted Military Service, except those determined by a classifying authority to be eligible for exemption or deferment from military service or for noncombatant or alternative service, or who have random sequence numbers (RSNs) determined by the Director not to be required to fill calls by the Secretary of Defense.
In accord with part 1636 of this chapter any registrant shall be palced in Class 1-A-0 who has been found, by reason of religious, ethical, or moral belief, to be conscientiously opposed to participation in combatant military tranining and service in the Armed Forces.
In Class 1-C shall be placed:
(a) Every registrant who is or who becomes by enlistment or appointment, a commissioned officer, a warrant officer, a pay clerk, an enlisted man or an aviation cadet of the Regular Army, the Navy, the Air Force, the Marine Corps, the Coast Guard, the National Oceanic and Atmospheric Administration or the Public Health Service.
(b) Every registrant who is a cadet, United States Military Academy; or midshipman, United States Naval Academy; or a cadet, United States Air Force Academy; or cadet, United States Coast Guard Academy.
(c) Every registrant who by induction becomes a member of the Army of the United States, the United States Navy, the United States Marine Corps, the Air Force of the United States, or the United States Coast Guard.
(d) Exclusive of periods for training only, every registrant who is a member of a reserve component of the Armed Forces and is on active duty, and every member of the reserve of the Public Health Service on active duty and assigned to staff the various offices and bureaus of the Public Health Service including the National Institutes of Health, or assigned to the Coast Guard, the Bureau of Prisons of the Department of Justice, Environmental Protection Agency, or the National Oceanic and Atmospheric Administration or who are assigned to assist Indian tribes, groups, bands, or communities pursuant to the Act of August 5, 1954 (68 Stat. 674), as amended.
In Class 1-D-D shall be placed any registrant who:
(a)(1) Has been selected for enrollment or continuance in the Senior (entire college level) Army Reserve Officer's Training Corps, or the Air Force Reserve Officer's Training Corps, or the Naval Reserve Officer's Training Corps, or the Naval and Marine Corps officer candidate program of the Navy, or the platoon leader's class of the Marine Corps, or the officer procurement programs of the Coast Guard and the Coast Guard Reserve, or is appointed an ensign, U.S. Naval Reserve while undergoing professional training; and
(2) Has agreed in writing to accept a commission, if tendered, and to serve subject to order of the Secretary of the military department having jurisdiction over him (or the Secretary of Transportation with respect to the U.S. Coast Guard), not less than 2 years on active duty after receipt of a commission; and
(3) Has agreed to remain a member of a regular or reserve component until the eighth anniversary of his receipt of a commission. Such registrant shall remain eligible for Class 1-D-D until completion or termination of the course of instruction and so long thereafter as he continues in a reserve status upon being commissioned except during any period he is eligible for Class 1-C under the provision of § 1630.12; or
(b) Is a fully qualified and accepted aviation cadet applicant of the Army, Navy, or Air Force, who has signed an agreement of service and is within such numbers as have been designated by the Secretary of Defense. Such registrant shall be retained in Class 1-D-D during the period covered by such agreement but in no case in excess of four months; or
(c) Is other than a registrant referred to in paragraph (a) or (d) of this section who:
(1) Prior to the issuance of orders for him to report for induction; or
(2) Prior to the date scheduled for his induction and pursuant to a proclamation by the Governor of a State to the effect that the authorized strength of any unit of the National Guard of that State cannot be maintained by the enlistment or appointment of persons who have not been issued orders to report for induction; or
(3) Prior to the date scheduled for his induction and pursuant to a determination by the President that the strength of the Ready Reserve of the Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve cannot be maintained by the enlistment or appointment of persons who have not been issued orders to report for induction:
(d) At any time has enlisted in the Army Reserve, the Naval Reserve, the Marine Corps Reserve, the Air Force Reserve, or the Coast Guard Reserve and who thereafter has been commissioned therein upon graduation from an Officer's Candidate School of such Armed Force and has not has been ordered to active duty as a commissioned officer. Such registrant shall remain eligible for Class 1-D-D so long as he performs satisfactory service as a commissioned officer in an appropriate unit of the Ready Reserve, as determined under regulations prescribed by the Secretary of the department concerned; or
(e) Is serving satisfactorily as a member of a reserve component of the Armed Forces and is not eligible for Class 1-D-D under the provisions of any other paragraph of this section:
In Class 1-D-E shall be placed any registrant who:
(a) Is a student enrolled in an officer procurement program at a military college the curriculum of which is approved by the Secretary of Defense; or
(b) Has been enlisted in the Delayed Entry Program (DEP) at least ten days prior to his scheduled induction date; or
(c) Has been transferred to a reserve component of the Army, Navy, Air Force, Marine Corps or Coast Guard after a period of extended active duty, which was not for training only.
In Class 1-H shall be placed any registrant who is not eligible for Class 1-A and is not currently subject to processing for induction.
(a) Any registrant whose acceptability for military service has been satisfactorily determined and who, in accord with part 1636 of this chapter, has been found, by reason of religious, ethical, or moral belief, to be conscientiously opposed to participation in both combatant and noncombatant training and service in the Armed Forces shall be classified in Class 1-O.
(b) Upon the written request of the registrant filed with his claim for classification in Class 1-O, the local board will consider his claim for classification in Class 1-O before he is examined. If the local board determines that the registrant would qualify for Class 1-O if he were acceptable for military service, it will delay such classification until he is found acceptable for military service. Upon the written request of such registrant, he will be deemed acceptable for military service without examination only for the purpose of paragraph (a) of this section.
Any registrant who has been separated from the Armed Forces (including their reserve components) by reason of conscientious objection to participation in both combatant and noncombatant training and service in the Armed Forces shall be classified in Class 1-O-S unless his period of military service qualifies him for Class 4-A. A registrant in Class 1-O-S will be required to serve the remainder of his obligation under the Military Selective Service Act in Alternative Service.
In Class 1-W shall be placed any registrant who has been ordered to perform alternative service contributing to the mainenance of the national health, safety, or interest.
In accord with part 1639 of this chapter any registrant shall be placed in Class 2-D who has requested such deferment and:
(a) Who is preparing for the ministry under the direction of a recognized church or religious organization; and
(b) Who is satisfactorily pursuing a full-time course of instruction required for entrance into a recognized theological or divinity school in which he has been pre-enrolled; or
(c) Who is satisfactorily pursuing a full-time course of instruction in or at the direction of a recognized theological or divinity school; or
(d) Who having completed theological or divinity school is a student in a full-time graduate program or is a full-time intern. The registrant's studies must be related to and lead to entry into service as a regular or duly ordained
(a) In accord with part 1642 of this chapter any registrant shall be classified in Class 3-A:
(1) Whose induction would result in extreme hardships to his wife when she alone is dependent upon him for support; or
(2) Whose deferment is advisable because his child(ren), parent(s), grrandparent(s), brother(s), or sister(s) is dependent upon him for support; or
(3) Whose deferment is advisable because his wife and his child(ren), parent(s), grandparent(s), brother(s), or sister(s) are dependent upon him for support.
(b) The classification of each registrant in Class 3-A will not be granted for a period longer than 365 days.
Any registrant who has been separated from active military service by reason of dependency or hardship shall be placed in Class 3-A-S unless his period of military service qualifies him for Class 4-A or 1-D-E. No registrant shall be retained in Class 3-A-S for more than six months.
(a) In Class 4-A shall be placed any registrant other than a registrant eligible for classification in Class 1-C, 1-D-D, or 1-D-E who is within any of the following categories:
(1) A registrant who was discharged or transferred to a reserve component of the Armed Forces for the convenience of the Government after having served honorably on active duty for a period of not less than six months in the Army, the Navy, the Air Force, the Marine Corps, or the Coast Guard; or
(2) A registrant who has served honorably on active duty for a period of not less than one year in the Army, the Navy, the Air Force, the Marine Corps, or the Coast Guard; or
(3) A registrant who has served on active duty for a period of not less than twenty-four months as a commissioned officer in the National Oceanic and Atmospheric Administration or the Public Health Service, provided that such period of active duty in the Public Health Service as a commissioned Reserve Officer shall have been performed by the registrant while assigned to staff any of the various offices and bureaus of the Public Health Service including the National Institutes of Health, or while assigned to the Coast Guard, or the Bureau of Prisons of the Department of Justice, Environmental Protection Agency, or the National Oceanic and Atmospheric Administration, or who are assigned to assist Indian tribes, groups, bands or communities pursuant to the Act of August 5, 1954 (68 Stat. 674), as amended;
(4) [Reserved]
(5) A registrant who has completed six years of satisfactory service as a member of one or more of the Armed Forces including the Reserve components thereof.
(b) For the purpose of computation of periods of active duty referred to in paragraphs (a) (1), (2), or (3) of this section, no credit shall be allowed for:
(1) Periods of active duty training performed as a member of a reserve component pursuant to an order or call to active duty solely for training purposes; or
(2) Periods of active duty in which the service consisted solely of training under the Army specialized training program, the Army Air Force college training program, or any similar program under the jurisdiction of the Navy, Marine Corps, or Coast Guard; or
(3) Periods of active duty as a cadet at the United States Military Academy, United States Air Force Academy, or United States Coast Guard Academy, or as a midshipman at the United States Naval Academy, or in a preparatory school after nomination as a principal, alternate, or candidate for admission to any such academies; or
(4) Periods of active duty in any of the Armed Forces while being processed for entry into or separation from any educational program or institute referred to in paragraph (b) (2) or (3) of this section; or
(5) Periods of active duty of members of the Reserve of the Public Health Service other than when assigned to staff any of the various offices and bureaus of the Public Health Service, including the National Institute of Health, or the Coast Guard or the Bureau of Prisons of the Department of Justice, Environmental Protection Agency, or the Environmental Science Services Administration, or who are assigned to assist Indian tribes, groups, bands, communities pursuant to the Act of August 5, 1954 (68 Stat. 674), as amended.
In Class 4-B shall be placed any registrant who is the Vice President of the United States, a governor of a State, Territory or possession, or any other official chosen by the voters of the entire State, Territory or Possession; a member of a legislative body of the United States or of a State, Territory or Possession; a judge of a court of record of the United States or of a State, Territory or Possession, or the District of Columbia.
In Class 4-C shall be placed any registrant who:
(a) Establishes that he is a national of the United States and of a country with which the United States has a treaty or agreement that provides that such person is exempt from liability for military service in the United States.
(b) Is an alien and who has departed from the United States prior to being issued an order to report for induction or alternative service that has not been canceled. If any registrant who is classified in Class 4-C pursuant to this paragraph returns to the United States he shall be classified anew.
(c) Is an alien and who has registered at a time when he was required by the Selective Service Law to present himself for and submit to registration and thereafter has acquired status within one of the groups of persons exempt from registration.
(d) Is an alien lawfully admitted for permanent residence as defined in paragraph (2) of section 101(a) of the Immigration and Nationality Act, as amended (66 Stat. 163, 8 U.S.C. 1101), and who by reason of occupational status is subject to adjustment to nonimmigrant status under paragraph (15)(A), (15)(E), or (15)(G) or section 101(a) but who executes a waiver in accordance with section 247(b) of that Act of all rights, privileges, exemptions, and immunities which would otherwise accrue to him as a result of that occupational status. A registrant placed in Class 4-C under the authority of this paragraph shall be retained in Class 4-C only for so long as such occupational status continues.
(e) Is an alien and who has not resided in the United States for one year, including any period of time before his registration. When such a registrant has been within the United States for two or more periods and the total of such period equals one year, he shall be deemed to have resided in the United States for one year. In computing the length of such periods, any portion of one day shall be counted as a day.
In accord with part 1645 of this chapter any registrant shall be placed in Class 4-D who is a:
(a) Duly ordained minister of religion; or
(b) Regular minister of religion.
In Class 4-F shall be placed any registrant who is found by the Secretary of Defense, under applicable physical, mental or administrative standards, to be not acceptable for service in the Armed Forces; except that no such registrant whose further examination or re-examination is determined by the Secretary of Defense to be justified shall be placed in Class 4-F until such further examination has been accomplished and such registrant continues
In Class 4-G shall be placed any registrant who, except during a period of war or national emergency declared by Congress, is:
(a) A surviving son or brother:
(1) Whose parent or sibling of the whole blood was killed in action or died in the line of duty while serving in the Armed Forces of the United States after December 31, 1959, or died subsequent to such date as a result of injuries received or disease incurred in the line of duty during such service; or
(2) Whose parent or sibling of the whole blood is in a captured or missing status as a result of such service in the Armed Forces during any period of time; or
(b) The sole surviving son of a family in which the father or one or more siblings were killed in action before January 1, 1960 while serving in the Armed Forces of the United States, or died after that date due to injuries received or disease incurred in the line of duty during such service before Janaury 1, 1960.
In Class 4-T shall be placed any registrant who is an alien who established that he is exempt from military service under the terms of a treaty or international agreement between the United States and the country of which he is a national, and who has made application to be exempted from liability for training and service in the Armed Forces of the United States.
In Class 4-W shall be placed any registrant who subsequent to being ordered to perform alternative service in lieu of induction has been released from such service after satisfactorily performing the work for a period of 24 months, or has been granted an early release by the Director of Selective Service after completing at least 6 months of satisfactory service.
In Class 4-A-A shall be placed any registrant who, while an alien, has served on active duty for a period of not less than 12 months in the armed forces of a nation determined by the Department of State to be a nation with which the United States is associated in mutual defense activities and which grants exemptions from training and service in its armed forces to citizens of the United States who have served on active duty in the Armed Forces of the United States for a period of not less than 12 months;
Military Selective Service Act, 50 U.S.C. App. 451
The following officials are authorized to classify registrants into the indicated classes established by part 1630 of this chapter:
(a) The Director of Selective Service may in accord with the provisions of this chapter classify a registrant into any class for which he is eligible except Classes 1-A-0, 1-0, 2-D, 3-A, and 4-D:
(b) The National Selective Service Appeal Board may in accord with part 1653 of this chapter classify a registrant into any class for which he is eligible.
(c) A district appeal board may in accord with part 1651 of this chapter classify a registrant into any class for which he is eligible.
(d) A local board may in accord with part 1648 of this chapter classify a registrant into Class 1-A-0, 1-0, 2-D, 3-A, or 4-D for which he is eligible.
(e) A local board may also classify a registrant into Class 1-C, 1-D-D, 1-D-E, 1-O-S, 1-W, 3-A-S, 4-A, 4-A-A, 4-B, 4-C, 4-F, 4-G, 4-T or 4-W for which he is eligible upon request by the registrant for a review of a classification denial action under § 1633.1(f). No individual shall be classified into Class 4-F unless the Secretary of Defense has determined that he is unacceptable for military service.
(f) Compensated employees of an area office may in accord with § 1633.2 may classify a registrant into an administrative class for which he is eligible. No individual shall be classified into Class 4-F unless the Secretary of Defense has determined that he is unacceptable for military service.
(a) Any registrant who has received an order to report for induction may, prior to the day he is scheduled to report, submit to the Selective Service System a claim that he is eligible to be classified into any class other than Class 1-A. The registrant may assert a claim that he is eligible for more than one class other than Class 1-A. The registrant cannot subsequently file a claim with respect to a class for which he was eligible prior to the day he was originally scheduled to report. Information and documentation in support of claims for reclassification and postponement of induction shall be filed in accordance with instructions from the Selective Service System.
(b) Any registrant who has received an order to report for induction that has not been canceled may, at any time before his induction, submit a claim that he is eligible to be classified into any class other than Class 1-A based upon events over which he has no control that occurred on or after the day he was originally scheduled to report for induction.
(c)(1) Claims will be filed with the area office supporting the local board of jurisdiction.
(2) Claims will be considered by the local board identified in paragraph (c)(1) or its supporting area office as prescribed in this part.
(d) The initial determination of claims for all administrative classifications are made by area office compensated personnel. After a denial of a claim for an administrative classification the registrant may request the local board to consider the claim.
(e) The initial determination of a judgmental classification is made by a local board.
(f) A registrant may request and shall be granted a personal appearance whenever a local or appeal board considers his claim for reclassification. Personal appearances will be held in accord with parts 1648, 1651 and 1653 of this chapter.
(g) A registrant who has filed a claim for classification in Class 1-A-O or Class 1-0 shall be scheduled for a personal appearance in accord with § 1648.4 before his claim is considered.
(h) If granted, a deferment or exemption supersedes the original order to report for induction. When a deferment or exemption expires or ends, a new order to report for induction will be issued.
Except as otherwise expressly provided by the Director, no document relating to any registrant's claims or potential claims will be retained by the Selective Service System and no file relating to a registrant's possible classification status will be established prior to that registrant being ordered to report for induction.
The registrant shall be entitled to present all relevant written information which he believes to be necessary to assist the classifying authority in determining his proper classification; such information may include documents, affidavits, and depositions. The affidavits and depositions shall be as concise and brief as possible.
The classifying authority is authorized to request and receive information whenever such information will assist in determining the proper classification of a registrant.
Claims of a registrant will be considered in inverse order of the listing of the classes below. When grounds are established to place a registrant in one or more of the classes listed in the following table, the registrant shall be classified in the lowest class for which he is determined to be eligible, with Class 1-A-O considered the highest class and Class 1-H considered the lowest class, according to the following table:
Class 1-A-O: Conscientious Objector Available for Noncombatant Military Service Only.
Class 1-O: Conscientious Objector to all Military Service.
Class 1-O-S: Conscientious Objector to all Military Service (Separated).
Class 2-D: Registrant Deferred Because of Study Preparing for the Ministry.
Class 3-A: Registrant Deferred Because of Hardship to Dependents.
Class 3-A-S: Registrant Deferred Because of Hardship to Dependents (Separated).
Class 4-D: Minister of Religion.
Class 1-D-D: Deferment for Certain Members of a Reserve Component or Student Taking Military Training.
Class 4-B: Official Deferred by Law.
Class 4-C: Alien or Dual National.
Class 4-G: Registrant Exempted From Service Because of the Death of his Parent or Sibling While Serving in the Armed Forces or Whose Parent or Sibling is in a Captured or Missing in Action Status.
Class 4-A: Registrant Who Has Completed Military Service.
Class 4-A-A: Registrant Who Has Performed Military Service For a Foreign Nation.
Class 4-W: Registrant Who Has Completed Alternative Service in Lieu of Induction.
Class 1-D-E: Exemption of Certain Members of a Reserve Component or Student Taking Military Training.
Class 1-C: Member of the Armed Forces of the United States, the National Oceanic and Atmospheric Administration, or the Public Health Service.
Class 1-W: Conscientious Objector Ordered to Perform Alternative Service in Lieu of Induction.
Class 4-T: Treaty Alien.
Class 4-F-: Registrant Not Acceptable for Military Service.
Class 1-H: Registrant Not Subject to Processing for Induction.
(a) Each classified registrant in a selection group is available for unrestricted military service until his eligibility for noncombatant service, alternative service, or deferment or exemption from service has been determined by a classifying authority.
(b) The classifying authority in considering a registrant's claim for classification shall not discriminate for or against him because of his race, creed, color or ethnic background and shall not discriminate for or against him because of his membership or activity in any labor, political, religious, or other organization.
The registrant's classification shall be determined on the basis of the official forms of the Selective Service System and other written information in his file, oral statements, if made by the registrant at his personal appearance before the board, and oral statements, if made by the registrant's witnesses at his personal appearance. Any information in any written summary of the oral information presented at a registrant's personal appearance that was prepared by an official of the Selective Service System or by the registrant will be placed in the registrant's file. The file shall be subject to review by the registrant during normal business hours.
Whenever a classifying authority denies the request of a registrant for classification into a particular class or classifies a registrant in a class other than that which he requested, it shall record the reasons therefor in the registrant's file.
The Director will notify the registrant of any classification action.
(a) A registrant is assigned to the local board that has jurisdiction over his permanent address that he last furnished the Selective Service System prior to the issuance of his induction order.
(b) The Director may change a registrant's assignment when he deems it necessary to assure the fair and equitable administration of the Selective Service Law.
No classification is permanent. The Director of Selective Service may order the reconsideration of any classification action when the facts, upon which the classification is based, change or when he finds that the registrant made a misrepresentation of any material fact related to his claim for classification. No action may be taken under the preceding sentence of this paragraph unless the registrant is notified in writing of the impending action and the reasons thereof, and is given an opportunity to respond in writing within 10 days of the mailing of the notice. If the Director orders a reconsideration of a classification in accord with this paragraph, the claim will be treated in all respects as if it were the original claim for that classification.
Military Selective Service Act, 50 U.S.C. App. 451
(a) The provisions of this part govern the consideration of a claim by a registrant for classification in Class 1-A-0 (§ 1630.11 of this chapter), or Class 1-0 (§ 1630.17 of this chapter).
(b) The definitions of this paragraph shall apply in the interpretation of the provisions of this part:
(1)
(2)
(3)
A claim to classification in Class 1-A-0 or Class 1-0, must be made by the registrant in writing. Claims and documents in support of claims may only be submitted after the registrant has received an order to report for induction or after the Director has made a specific request for submission of such documents. All claims or documents in support of claims received prior to a registrant being ordered to report for induction or prior to the Director's specific request for such documentation will be returned to the registrant and no file or record of such submission will be established.
(a) A registrant must be conscientiously opposed to participation in combatant training and service in the Armed Forces.
(b) A registrant's objection may be founded on religious training and belief; it may be based on strictly religious beliefs, or on personal beliefs that are purely ethical or moral in source or content and occupy in the life of a registrant a place parallel to that filled by belief in a Supreme Being for those holding more traditionally religious views.
(c) A registrant's objection must be sincere.
(a) A registrant must be conscientiously opposed to participation in war in any form and conscientiously opposed to participation in both combatant and noncombatant training and service in the Armed Forces.
(b) A registrant's objection may be founded on religious training and belief; it may be based on strictly religious beliefs, or on personal beliefs that are purely ethical or moral in source or centent and occupy in the life of a registrant a place parallel to that filled by belief in a Supreme Being for those holding more traditionally religious views.
(c) A registrant's objection must be sincere.
A registrant shall be excluded from Class 1-A-0 or Class 1-0:
(a) Who asserts beliefs which are of a religious, moral or ethical nature, but who is found not to be sincere in his assertions; or
(b) Whose stated objection to participation in war does not rest at all upon moral, ethical, or religious principle, but instead rests solely upon considerations of policy, pragmatism, expediency, or his own self-interest or well-being; or
(c) Whose objection to participation in war is directed against a particular war rather than against war in any form (a selective objection). If a registrant objects to war in any form, but also believes in a theocratic, spiritual war between the forces of good and evil, he may not by reason of that belief alone be considered a selective conscientious objector.
(a) A registrant claiming conscientious objection is not required to be a member of a
(b) The registrant who identifies his beliefs with those of a traditional church or religious organization must show that he basically adheres to beliefs of that church or religious organization whether or not he is actually affiliated with the institution whose teachings he claims as the basis of his conscientious objection. He need not adhere to
(c) A registrant whose beliefs are not religious in the traditional sense, but are based primarily on moral or ethical principle should hold such beliefs with the same strength or conviction as the belief in a Supreme Being is held by a
(d) Where the registrant is or has been a member of a church, religious organization, or religious sect, and where his claim of a conscientious objection is related to such membership, the board may properly inquire as to the registrant's membership, the religious teachings of the church, religious organization, or religious sect, and the registrant's religious activity, insofar as each relates to his objection to participation in war. The fact that the registrant may disagree with or not subscribe to some of the tenets of his church or religious sect does not necessarily discredit his claim.
(e)(1) The history of the process by which the registrant acquired his beliefs, whether founded on religious, moral, or ethical principle is relevant to the determination whether his stated opposition to participation in war in any form is sincere.
(2) The registrant must demonstrate that his religious, ethical, or moral convictions were acquired through training, study, contemplation, or other activity comparable to the processes by which traditional religious convictions are formulated. He must show that these religious, moral, or ethical convictions, once acquired, have directed his life in the way traditional religious convictions of equal strength, depth, and duration have directed the lives of those whose beliefs are clearly founded in traditional religious conviction.
(f) The registrant need not use formal or traditional language in describing the religious, moral, or ethical nature of his beliefs. Board members are not free to reject beliefs because they find them incomprehensible or inconsistent with their own beliefs.
(g) Conscientious objection to participation in war in any form, if based on moral, ethical, or religious beliefs, may not be deemed disqualifying simply because those beliefs may influence the registrant concerning the Nation's domestic or foreign policy.
Boards may not give preferential treatment to one religion over another, and all beliefs whether of a religious, ethical, or moral nature are to be given equal consideration.
(a) After the registrant has submitted a claim for classification as a conscientious objector and his file is complete, a determination of his sincerity will be made based on:
(1) All documents in the registrant's file folder; and
(2) The oral statements of the registrant at his personal appearance(s) before the local and/or appeal board; and
(3) The oral statements of the registrant's witnesses, if any, at his personal appearance(s) before the local board; and
(4) The registrant's general demeanor during his personal appearance(s).
(b) The registrant's stated convictions should be a matter of conscience.
(c) The board should be convinced that the registrant's personal history since the crystallization of his conscientious objection is not inconsistent with his claim and demonstrates that the registrant's objection is not solely a matter of expediency. A recent crystallization of beliefs does not in itself indicate expediency.
(d) The information presented by the registrant should reflect a pattern of behavior in response to war and weapons which is consistent with his stated beliefs. Instances of violent acts or conviction for crimes of violence, or employment in the development or manufacturing of weapons of war, if the claim is based upon or supported by a life of nonviolence, may be indicative of inconsistent conduct.
(e) The development of a registrant's opposition to war in any form may bear on his sincerity. If the registrant
(f) In the event that a registrant has previously worked in the development of or manufacturing of weapons of war or has served as a member of a military reserve unit, it should be determined whether such activity was prior to the stated crystallization of the registrant's conscientious objector beliefs. Inconsistent conduct prior to the actual crystallization of conscientious objector beliefs is not necessarily indicative of insincerity. But, inconsistent conduct subsequent to such crystallization may indicate that registrant's stated objection is not sincere.
(g) A registrant's behavior during his personal appearance before a board may be relevant to the sincerity of his claim.
(1) Evasive answers to questions by board members or the use of hostile, belligerent, or threatening words or actions, for example, may in proper circumstances be deemed inconsistent with a claim in which the registrant bases his objection on a belief in nonviolence.
(2) Care should be exercised that nervous, frightened, or apprehensive behavior at the personal appearance is not misconstrued as a reflection of insincerity.
(h) Oral response to questions posed by board members should be consistent with the written statements of the registrant and should generally substantiate the submitted information in the registrant's file folder; any inconsistent material should be explained by the registrant. It is important to recognize that the registrant need not be eloquent in his answers. But, a clear inconsistency between the registrant's oral remarks at his personal appearance and his written submission to the board may be adequate grounds, if not satisfactorily explained, for concluding that his claim is insincere.
(i) The registrant may submit letters of reference and other supporting statements of friends, relatives and acquaintances to corroborate the sincerity of his claim, although such supplemental documentation is not essential to approval of his claim. A finding of insincerity based on these letters or supporting statements must be carefully explained in the board's decision, specific mention being made of the particular material relied upon for denial of classification in Class 1-A-0 or Class 1-0.
The following are the types of decisions which may be made by a board when a claim for classification in Class 1-A-0 or Class 1-0 has been considered.
(a) Decision to grant a claim for classification in Class 1-A-0 or Class 1-0, as requested, based on a determination that the truth or sincerity of the registrant's claim is not refuted by any information contained in the registrant's file or obtained during his personal appearance.
(b) Decision to deny a claim for classification in Class 1-A-0 or Class 1-0 based on all information before the board, and a finding that such information fails to meet the tests specified in § 1636.3 or 1636.4 of this part. If supported by information contained in the registrant's file or obtained during his personal appearance the board may find that the facts presented by the registrant in support of his claim are untrue.
(a) Denial of a conscientious objector claim by a board must be accompanied by a statement specifying the reason(s) for such denial as prescribed in §§ 1633.9, 1651.4 and 1653.3 of this chapter. The reason(s) must, in turn, be supported by evidence in the registrant's file.
(b) If a board's denial is based on statements by the registrant or on a determination that the claim is inconsistent or insincere, this should be fully explained in the statement of reasons accompanying the denial.
Military Selective Service Act, 50 U.S.C. App. 451
(a) The provisions of this part shall govern the consideration of a claim by a registrant for classification in Class 2-D (§ 1630.26 of this chapter).
(b) The definitions of this paragraph shall apply to the interpretation of the provisions of this part:
(1) The term
(2) The term
(3) The term
(4) The term
(5) The term
(6) The term
A claim to classification in Class 2-D must be made by the registrant in writing, such document being placed in his file folder.
(a) In Class 2-D shall be placed any registrant who is preparing for the ministry under the direction of a recognized church or religious organization; and
(1) Who is satisfactorily pursuing a full-time course of instruction required for entrance into a recognized theological or divinity school in which he has been pre-enrolled or accepted for admission; or
(2) Who is satisfactorily pursuing a full-time course of instruction in a recognized theological or divinity school; or
(3) Who, having completed theological or divinity school, is a student in a full-time graduate program or is a full-time intern, and whose studies are related to and lead toward entry into service as a regular or duly ordained minister of religion. Satisfactory progress in these studies as determined by the school in which the registrant is enrolled, must be maintained for qualification for the deferment.
(b) The registrant's classification shall be determined on the basis of the written information in his file folder, oral statements, if made by the registrant at his personal appearance before a board, and oral statements, if made by the registrant's witnesses at his personal appearance.
A registrant shall be excluded from Class 2-D when:
(a) He fails to establish that the theological or divinity school is a recognized school; or
(b) He fails to establish that the church or religious organization which is sponsoring him is so recognized; or
(c) He ceases to be a full-time student; or
(d) He fails to maintain satisfactory academic progress.
Boards may not give precedence to any religious organization or school over another, and all are to be given equal consideration.
(a) The registrant's claim for Class 2-D must include the following:
(1) A statement from a church or religious organization that the registrant is preparing for the ministry under its direction; and
(2) Current certification to the effect that the registrant is satisfactorily pursuing a full-time course of instruction required for entrance into a recognized theological or divinity school in which he has been pre-enrolled; or
(3) Current certification to the effect that the registrant is satisfactorily pursuing a full-time course of instruction in a recognized theological or divinity school; or
(4) Current certification to the effect that the registrant, having completed theological or divinity school, is satisfactorily pursuing a full-time graduate program or is a full-time intern, whose studies are related to and lead toward entry into service as a regular or duly ordained minister of religion.
(b) A board may require the registrant to obtain from the church, religious organization, or school detailed information in order to determine whether or not the theological or divinity school is in fact a recognized school or whether or not the church or religious organization which is sponsoring the registrant is recognized.
(a) A board may grant a classification into Class 2-D until the end of the academic school year.
(b) Upon the expiration of a 2-D classification, a board shall review any request for extension of the classification in the same manner as the first request for Class 2-D. This section does not relieve a registrant of his duties under § 1621.1 of this chapter.
(c) The board may deny a claim for Class 2-D when the evidence fails to merit any of the criteria established in this section.
(a) Denial of a claim for a ministerial student deferment by a board must be accompanied by a statement specifying the reason(s) for such denial as prescribed in §§ 1633.9, 1651.4 and 1653.3 of this chapter. The reason(s) must in turn, be supported by evidence in the registrant's file.
(b) If a board's denial is based on statements by the registrant or his witnesses at a personal appearance, this must be fully explained in the statement of reasons accompanying the denial.
Military Selective Service Act, 50 U.S.C. App. 451
(a) The provisions of this part govern the consideration of a claim by a registrant for classification in Class 3-A (§ 1630.30 of this chapter).
(b) The following definitions apply to the interpretation of the provisions of this part.
(1) The term
(2) The term
(3) The term
(4) The term
(5) The term
(6) Hardship is the unreasonable deprivation of a dependent of the financial assistance, personal care or companionship furnished by the registrant when that deprivation would be caused by the registrant's induction.
A claim for classification in Class 3-A must be made by the registrant in writing. Prior to the consideration of the claim, the registrant shall submit supporting documentation, such documents being placed in his file folder.
(a) In Class 3-A shall be placed any registrant:
(1) Whose induction would result in extreme hardship to his wife when she alone is dependent upon him for support; or
(2) Whose deferment is advisable because his child(ren), parent(s), grandparent(s), brother(s), or sister(s) is dependent upon him for support; or
(3) Whose deferment is advisable because his wife and child(ren), parent(s), grandparent(s), brother(s), or sister(s) are dependent upon him for support.
(b) In its consideration of a claim by a registrant for classification in Class 3-A, the board will first determine whether the registrant's wife, child(ren), parent(s), grandparent(s), brother(s), or sister(s) is dependent upon the registrant for support. Support may be financial assistance, personal care or companionship. If financial assistance is the basis of support, the registrant's contribution must be a substantial portion of the necessities of the dependent. Under most circumstances 40 to 50% of the cost of the necessities may be considered substantial. If that determination is affirmative, the board will determine whether the registrant's induction would result in extreme hardship to his wife when she is the only dependent, or whether the registrant's deferment is advisable because his child(ren), parent(s), grandparent(s), brother(s), or sister(s) is dependent upon him for support, or because his wife and his child(ren), parent(s), grandparent(s), brother(s), or sister(s) are dependent upon him for support. A deferment is advisable whenever the registrant's induction would result in hardship to his dependents.
(c) The registrant's classification shall be determined on the basis of the written information in his file, oral statements, if made by the registrant at his personal appearance before a board, and oral statements, if made by the registrant's witnesses at his personal appearances.
(a) A registrant is ineligible for Class 3-A when:
(1) He assumed an obligation to his dependents specifically for the purpose of evading training and service; or
(2) He acquired excessive financial obligations primarily to establish his dependency claim; or
(3) His dependents would not be deprived of reasonable support if the registrant is inducted; or
(4) There are other persons willing and able to assume the support of his dependents; or
(5) The dependents would suffer only normal anguish of separation from the registrant if he is inducted; or
(6) The hardship to a dependent is based solely on financial conditions and can be removed by payment and allowances which are payable by the United States to the dependents of persons who are serving in the Armed Forces; or
(7) The hardship to the dependent is based upon considerations that can be eliminated by payments and allowances which are payable by the United States to the dependents of persons who are serving in the Armed Forces.
(b) [Reserved]
(a) Boards shall consider all questions in a claim for classification in Class 3-A with equal consideration of race, creed, color, sex or ethnic background.
(b) Boards may not give precedence to one type of dependency hardship over another.
(a) The registrant's claim for Class 3-A must include the following, with documentation, as applicable:
(1) Registrant's and his dependent's marital status;
(2) Physician's statement concerning any dependent who is physically or mentally handicapped;
(3) Employment status of registrant and his dependents; and
(b) Each case must be weighed carefully and decided on its own merits.
(a) A board may grant a classification into Class 3-A for such period of time it deems appropriate but in no event the period exceed one year.
(b) Upon the expiration of a 3-A classification a board shall review any request for an extension of the classification as if it were the first request for that classification, and the fact that the registrant was placed in Class 3-A under apparently similar circumstances will not be a factor in the decision of the board. This section does not relieve a registrant from his duties under § 1621.1 of this chapter.
(c) [Reserved]
(d) A board shall deny a claim for Class 3-A when the evidence fails to meet the criteria established in this part.
(a) Denial of a claim for Class 3-A by a board must be accompanied by a statement specifying the reason(s) for such denial as prescribed in §§ 1633.9, 1651.4 and 1653.3 of this chapter. The reason must in turn, be supported by evidence in the registrant's file.
(b) If a board's denial is based on statements by the registrant or his witnesses at a personal appearance, this must be fully explained in the statement of reasons accompanying the denial.
Military Selective Service Act, 50 U.S.C. App. 451
(a) The provisions of this part govern the consideration of a claim by a registrant for classification in Class 4-D (§ 1630.43 of this chapter).
(b) The definitions of this paragraph shall apply in the interpretation of the provisions of this part:
(1) The term
(i) Who has been ordained in accordance with the ceremonial ritual or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character; and
(ii) Who preaches and teaches the doctrines of such church, sect, or organization; and
(iii) Who administers the rites and ceremonies thereof in public worship; and
(iv) Who, as his regular and customary vocation, preaches and teaches the principles of religion; and
(v) Who administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization.
(2) The term
(3) The term
(i) A person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization; or
(ii) Any person who has been duly ordained a minister in accordance with the ceremonial rite or discipline of a church, religious sect or organization, but who does not regularly, as a bona fide vocation, teach and preach the principles of religion and administer the ordinances of public worship, as embodied in the creed or principles of his church, sect, or organization.
(4) The term
A claim to classification in Class 4-D must be made by the registrant in writing, such document being placed in his file folder.
In accordance with part 1630 of this chapter any registrant shall be placed in Class 4-D who is a:
(a) Duly ordained minister of religion; or
(b) Regular minister of religion.
A registrant is excluded from Class 4-D when his claim clearly shows that:
(a) He is not a regular minister or a duly ordained minister; or
(b) He is a duly ordained minister of religion in accordance with the ceremonial rite or discipline of a church, religious sect or organization, but who does not regularly as his bona fide vocation, teach and preach the principles of religion and administer the ordinances of public worship, as embodied in the creed or principles of his church, sect, or organization; or
(c) He is a regular minister of religion, but does not regularly, as his bona fide vocation, teach and preach the principles of religion; or
(d) He is not recognized by the church, sect, or organization as a regular minister of religion; or
(e) He is a duly ordained minister of religion but does not administer the ordinances of public worship, as embodied in the creed of his church, sect, or organization.
Boards may not give preferential treatment to one religion or sect over another and no preferential treatment will be given a duly ordained minister over a regular minister.
(a) The board shall first determine whether the registrant is requesting classification in Class 4-D because he is a regular minister of religion or because he is a duly ordained minister of religion.
(b) If the registrant claims to be a duly ordained minister of religion, the board will:
(1) Determine whether the registrant has been ordained, in accordance with the ceremonial ritual or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of religious character, to preach and teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship; and
(2) Determine whether the registrant as his regular, customary, and bona fide vocation, preaches and teaches the principles of religion and administers the ordinances of public worship, as embodied in the creed or principles of the church, sect, or organization by which the registrant was ordained.
(c) If the registrant claims to be a regular minister of religion, the board will:
(1) Determine whether the registrant as his customary and regular calling or customary and regular full-time profession, preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion; and
(2) Determine whether the registrant is recognized by such church, sect, or organization as a regular minister.
(d) If the board determines that the registrant is a regular minister of religion or duly ordained minister of religion he shall be classified in Class 4-D.
(a) In evaluating a claim for classification in Class 4-D, the board will not consider:
(1) The training or abilities of the registrant for duty as a minister; or
(2) The motive or sincerity of the registrant in serving as a minister.
(b) The board should be careful to ascertain the actual duties and functions of registrants seeking classification in Class 4-D, such classification being appropriate only for leaders of the various religious groups, not granted to members of such groups generally.
(c) Preaching and teaching the principles of one's sect, if performed part-time or half-time, occasionally or irregularly, are insufficient to establish eligiblity for Class 4-D. These activities must be regularly performed and must comprise the registrant's regular calling or full-time profession. The mere fact of some secular employment on the part of a registrant requesting classification in Class 4-D does not in itself make him ineligible for that class.
(d) The board should request the registrant to furnish any additional information that it believes will be of assistance in the consideration of the registrant's claim for classification in Class 4-D.
(a) If the board determines that the registrant is a regular minister of religion or a duly ordained minister of religion, he shall be classified in Class -4-D.
(b) The board will deny a claim for Class 4-D when the evidence fails to meet the criteria established in this part.
(a) Denial of a 4-D claim by a board must be accompanied by a statement specifying the reason(s) for such denial as prescribed in §§ 1633.9, 1651.4 and 1653.3 of this chapter. The reason(s) must in turn, be supported by evidence in the registrant's file.
(b) If the board's denial is based on statements by the registrant or his witnesses at a personal appearance or on documentation in the registrant's file, such basis will be fully explained in the statement of reasons accompanying the denial.
Military Selective Service Act, 50 U.S.C. App. 451
A local board shall consider and determine all claims which it receives in accord with § 1633.2 or § 1648.6 of this chapter. No action shall be taken by the board in the absence of a quorum of its prescribed membership.
(a) A registrant who has filed a claim for classification in Class 1-A-O or Class 1-O shall be scheduled for a personal appearance in accord with § 1648.4 before his claim is considered.
(b) A registrant who has filed a claim for classification in Class 2-D, Class 3-A, or Class 4-D, shall, upon his written request, be afforded an opportunity to appear in person before the board before his claim for classification is considered.
(c) Any registrant who has filed a claim for classification in an administrative class and whose claim has been denied, shall be afforded an opportunity to appear before the board if he requests that the denial of such claim be reviewed by the board.
(a) Not less than 10 days (unless the registrant requests an earlier appointment) in advance of the meeting at which he may appear, the registrant shall be informed of the time and place of such meeting and that he may present evidence, including witnesses, bearing on his classification.
(b) Should the registrant who has filed a claim for classification in Class 1-A-O or Class 1-O fail to appear at his scheduled personal appearance, the board will not consider his claim for classification in Class 1-A-O or Class 1-O. The board shall consider any written explanation of such failure that has been filed within 5 days (or extension thereof granted by the board) after such failure to appear. It the board determines that the registrant's failure to appear was for good cause it shall reschedule the registrant's personal appearance. If the board does not receive a timely written explanation of the registrant's failure to appear for his scheduled personal appearance or if the board determines that the registrant's failure to appear was not for good cause, the registrant will be deemed to have abandoned his claim for Class 1-A-O or 1-O and will be notified that his claim will not be considered. The board will notify the registrant in writing of its action under this paragraph.
(c) Whenever a registrant who has filed a claim for a class other than Class 1-A-0 or Class 1-0 for whom a personal appearance has been scheduled, fails to appear in accord with such schedule, the board shall consider any written explanation of such failure that has been filed within 5 days (or extension thereof granted by the board) after such failure to appear. If the board determines that the registrant's failure to appear was for good cause it shall reschedule the registrant's personal appearance. If the board does not receive a timely written explanation of the registrant's failure to appear for his scheduled personal appearance or if the board determines that the registrant's failure to appear was not for good cause, the registrant will be deemed to have abandoned his request for personal appearance and the board will proceed to classify him on the basis of the material in his file. The board will notify the registrant in writing of its action under this paragraph.
(a) A quorum of the prescribed membership of a board shall be present during all personal appearances. Only those members of the board before whom the registrant appears shall classify him.
(b) At any such appearance, the registrant may present evidence, including witnesses; discuss his classification; direct attention to any information in his file; and present such further information as he believes will assist the board in determing his proper classification. The information furnished should be as concise as possible.
(c) The registrant may present the testimony of not more than three witnesses unless it is the judgment of the board that the testimony of additional witnesses is warranted. The registrant may summarize in writing, the oral information that he or his witnesses presented. Such summary shall be placed in the registrant's file.
(d) A summary will be made of all oral testimony given by the registrant and his witnesses at his personal appearance and such summary shall be placed in the registrant's file.
(e) If the registrant does not speak English adequately he may appear with a person to act as interpreter for him. The interpreter shall be sworn in accordance with § 1605.81(b). Such interpreter will not be deemed to be a witness unless he testifies in behalf of the registrant.
(f) During the personal appearance only the registrant or his witnesses may address the board or respond to questions of the board and only the registrant and the board will be allowed to address questions to witnesses. A registrant may, however, be accompanied by an advisor of his choosing and may confer with the advisor before responding to an inquiry or statement by the board:
(g) If, in the opinion of the board, the informal, administrative nature of the personal appearance is unduly disrupted by the presence of an advisor, the board chairman may require the advisor to leave the hearing room. In such case, the board chairman shall put a statement of reasons for his action in the registrant's file.
(h) The making of verbatim transcripts, and the using of cameras or other recording devices are prohibited in proceedings before the board. This does not prevent the registrant or Selective Service from making a written summary of all testimony presented.
(i) Proceedings before the local boards shall be open to the public only upon the request of or with the permission of the registrant. The board chairman may limit the number of persons attending the hearing in order to maintain order. If during the hearing the presence on nonparticipants in the proceeding becomes disruptive, the chairman may close the hearing.
(a) Before a board of jurisdiction has undertaken the classification of a registrant, the file may, at his request, be transferred for classification to a local board nearer to his current address than is the local board of jurisdiction.
(b) The Director of Selective Service may transfer a registrant to another board for classification at any time when:
(1) A board cannot act on the registrant's claim because of disqualification under the provisions of § 1605.55 of this chapter; or
(2) He deems such transfer to be necessary in order to assure equitable administration of the Selective Service Law.
A board to which a registrant is transferred for classification shall classify the registrant in the same manner it would classify a registrant assigned to it. When the classification has been decided by the transfer board, the file will be returned to the local board of jurisdiction in the manner prescribed by the Director.
Military Selective Service Act, 50 U.S.C. App. 451
(a) The Director of Selective Service may appeal from any determination of a local board when he deems it necessary to assure the fair and equitable administration of the Selective Service Law:
(b) The registrant may appeal to a district appeal board the denial of his claim for a judgmental classification by the local board. The registrant may appeal to a district appeal board the denial of his claim for an administrative classification by the local board whenever its decisions is not unanimous.
The registrant who wishes to appeal must file the appeal with his local board within 15 days after the date he is mailed a notice of classification action. The registrant who wishes a personal appearance before the district appeal board must file the request at the same time he files the appeal.
(a) When the Director of Selective Service appeals to a district appeal board he shall place in the registrant's file a written statement of his reasons for taking such appeal. When an appeal is taken by the Director, the registrant will be notified that the appeal has been taken, the reason therefor, and that the registrant may appear in person before the appeal board in accord with § 1651.4(e).
(b) The registrant may appeal the classification action of the local board by filing with it a written notice of appeal. The registrant's notice of appeal need not be in a particular form but must include the name of the registrant and his request. Any notice shall be liberally construed so as to permit the appeal.
(c) The registrant may also request an opportunity to appear in person before the district appeal board and such appeal will be considered by the board having jurisdiction over the local board which last classified him.
(d) The registrant may attach to his appeal a statement specifying the reasons he believes the classification action that he is appealing is inappropriate, directing attention to any information in his file, and setting out any information relevant to his claim.
(a) An appeal to the district appeal board is determined by the classification of the registrant in a class other than 1-A or by its refusal to take such action. No action shall be taken by the board in the absence of a quorum of its prescribed membership.
(b) Prior to the adjudication of an appeal, the clerk of the appeal board or any compensated employee authorized to perform the administrative duties of the board shall review the file to insure that no procedural errors have occurred during the history of the current claim. Files containing procedural errors will be returned to the local board that classified the registrant for any additional processing necessary to correct such errors.
(c) Files containing procedural errors that were not detected during the initial screening but which subsequently surfaced during processing by the appeal board, will be acted on and the board will take such action necessary to correct the errors and process the appeal to completion.
(d) A board shall consider appeals in the order of their having been filed.
(e) Upon receipt of the registrant's file, a board shall ascertain whether the registrant has requested a personal appearance before the board. If no such request has been made, the board may classify the registrant on the bases of the material in his file.
(f) Not less than 10 days (unless the registrant requests an earlier appointment) in advance of the meeting at
(g) During the personal appearance, only the registrant may address the board or respond to questions of the board. The registrant will not be permitted to present witnesses at the personal appearance before the district appeal board. A registrant may, however, be accompanied by an advisor of his choosing and may confer with the advisor before responding to an inquiry or statement by the board:
(h) If, in the opinion of the board, the informal, administrative nature of the hearing is unduly disrupted by the presence of an advisor during the personal appearance, the board chairman may require the advisor to leave the hearing room. In such case, the board chairman shall put a statement of reasons for his action in the registrant's file.
(i) Whenever a registrant who has filed a claim for whom a personal appearance has been scheduled, fails to appear in accord with such schedule, the board shall consider any written explanation of such failure that has been filed within 5 days (or extension thereof granted by the board) after such failure to appear. If the board determines that the registrant's failure to appear was for good cause it shall reschedule the registrant's personal appearance. If the board does not receive a timely written explanation of the registrant's failure to appear for his scheduled personal appearance or if the board determines that the registrant's failure to appear was not for good cause, the registrant will be deemed to have abandoned his request for personal appearance and he will be classified on the basis of the material in his file. The board will notify the registrant in writing of its action under this paragraph.
(j) A quorum of the prescribed membership of a board shall be present during all personal appearances. Only those members of the board before whom the registrant appears shall classify him.
(k) At any personal appearance, the registrant may: Present his oral testimony; point out the class or classes in which he thinks he should have been placed; and direct attention to any information in his file. The registrant may present any additional written information he believes will assist the board in determining his proper classification. The information furnished should be as concise as possible.
(l) The registrant may summarize in writing the oral information that he presented. Such summary shall be placed in the registrant's file.
(m) A summary will be made of oral testimony given by the registrant at his personal appearance and such summary shall be placed in the registrant's file.
(n) A district appeal board shall classify a registrant who has requested a personal appearance after he:
(1) Has appeared before the board; or
(2) Has withdrawn his request to appear; or
(3) Has abandoned his right to an opportunity to appear; or
(4) Has failed to appear.
(o) In considering a registrant's appeal, a board shall not receive or consider any information other than the following:
(1) Information contained in the registrant's file; and
(2) Oral statements by the registrant during the registrant's personal appearance; and
(3) Written evidence submitted by the registrant to the board during his personal appearance.
(p) In the event a board classifies the registrant in a class other than that which he requested, it shall record its reasons therefor in the file.
(q) The making of verbatim transcripts, and the using of cameras or other recording devices are prohibited in proceedings before the board. This does not prevent the registrant or Selective Service from making a written summary of his testimony.
(r) Proceedings before the appeal boards shall be open to the public only upon the request of or with the permission of the registrant. The board chairman may limit the number of persons attending the hearing in order to maintain order. If during the hearing the presence of non-participants in the proceedings becomes disruptive the chairman may close the hearing.
When the appeal to a district appeal board has been decided, the file shall be returned as prescribed by the Director of Selective Service.
Military Selective Service Act, 50 U.S.C. App. 451
(a) The Director of Selective Service may appeal to the President from any non-unanimous determination of a district appeal board when he deems it necessary to assure the fair and equitable administration of the Selective Service Law:
(b) When a registrant has been classified by a district appeal board and one or more members of the board dissented from that classification, he may within 15 days after a notice thereof has been mailed, appeal to the President and may request a personal appearance before the National Selective Service Appeal Board.
(a) When the Director of Selective Service appeals to the President he shall place in the registrant's file a written statement of his reasons for taking such appeal. When an appeal is taken by the Director the registrant will be notified that the appeal has been taken, the reasons therefor, and that the registrant may appear in person before the National Board in accord with § 1653.1(b).
(b) An appeal to the President by the registrant shall be taken by filing a written notice of appeal with the local board that classified him. He may at the same time file a written request to appear before the National Selective Service Appeal Board. Such notice need not be in any particular form but must state the name of the registrant and the fact that he wishes the President to review the determination.
(a) An appeal to the President is determined by the National Appeal Board by its classification of the registrant in a class other than 1-A or by its refusal to take such action. No action shall be taken by the board in the absence of a quorum of its prescribed membership.
(b) Prior to the adjudication of an appeal, the clerk of the appeal board or any compensated employee authorized to perform the administrative duties of the board shall review the file to insure that no procedural errors have occurred during the history of the current claim. Files containing procedural errors will be returned to the board where the errors occurred for any additional processing necessary to correct such errors.
(c) Files containing procedural errors that were not detected during the initial screening but which subsequently surfaced during processing by the appeal board, will be acted on and the board will take such action necessary to correct the errors and process the appeal to completion.
(d) The board shall consider appeals in the order of their having been filed.
(e) Upon receipt of the registrant's file, the board shall ascertain whether the registrant has requested a personal
(f) The board shall proceed to classify any registrant who has not requested a personal appearance after the specified time in which to request a personal appearance has elapsed.
(g) Not less than 10 days in advance of the meeting at which his claim will be considered, the board shall inform any registrant with respect to whom the Director of Selective Service has appealed or who has requested a personal appearance that he may appear at such meeting and present written evidence bearing on his classification.
(h) During the personal appearance only the registrant may address the board or respond to questions of the board. The registrant will not be permitted to present witnesses at the personal appearance before the National Appeal Board. A registrant may, however, be accompanied by an advisor of his choosing and may confer with the advisor before responding to an inquiry or statement by the board:
(i) If, in the opinion of the board, the informal, administrative nature of the personal appearance is unduly disrupted by the presence of an advisor, the board chairman may require the advisor to leave the hearing room. In such a case, the board chairman shall put a statement of reasons for his action in the registrant's file.
(j) Whenever a registrant who has filed a claim for whom a personal appearance has been scheduled fails to appear in accord with such schedule, the board shall consider any written explanation of such failure that has been filed within five days (or extension thereof granted by the board) after such failure to appear. If the board determines that the registrant's failure to appear was for good cause it shall reschedule the registrant's personal appearance. If the board does not receive a timely written explanation of the registrant's failure to appear for his scheduled personal appearance or if the board determines that the registrant's failure to appear was not for good cause, the registrant will be deemed to have abandoned his request for personal appearance and the board will proceed to classify him on the basis of the material in his file. The registrant will be notified in writing of its action under this paragraph.
(k) A quorum of the prescribed membership of a board shall be present during all personal appearances. Only those members of the board before whom the registrant appears shall classify him.
(l) At any such appearance, the registrant may: Present oral testimony; point out the class or classes in which he thinks he should have been placed; and direct attention to any information in his file. The registrant may present such further written information as he believes will assist the board in determining his proper classification. The information furnished should be as concise as possible.
(m) The registrant may summarize in writing the oral information that he presented and any such summary shall be placed in his file.
(n) A summary will be made of the oral testimony given by the registrant at his personal appearance and such summary shall be placed in the registrant's file.
(o) The board shall classify a registrant who has requested a personal appearance after he:
(1) Has appeared before the National Board; or
(2) Has withdrawn his request to appear; or
(3) Has waived his right to an opportunity to appear; or
(4) Has failed to appear.
(p) Whenever the National Board or the panel thereof to which a case has been assigned cannot act on the case of a registrant, and there is no other panel of the National Board to which the case may be transferred, the decision of the District Appeal Board will be final.
(q) In considering a registrant's appeal, the board shall not receive or consider any information other than the following:
(1) Information contained in the registrant's file; and
(2) Oral statements by the registrant at the registrant's personal appearance; and
(3) Written evidence submitted by the registrant to the board during his personal appearance.
(r) In the event that the board classifies the registrant in a class other than that which he requested, it shall record its reasons therefor in his file.
(s) The making of verbatim transcripts, and the using of cameras or other recording devices are prohibited in proceedings before the board. This does not prevent the registrant or Selective Service from making a written summary of his testimony.
(t) Proceedings before the National Appeal Board are closed to the public.
When the appeal to the President has been decided, the file shall be returned as prescribed by the Director of Selective Service.
Sec. 6(j) Military Selective Service Act; 50 U.S.C. App. 456(j).
(a) The provisions of this part govern the administration of registrants in Class 1-W and the Alternative Service Program.
(b) The definitions of this paragraph shall apply in the interpretation of the provisions of this part:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(a) The local board of jurisdiction shall order any registrant who has been classified in Class 1-O or 1-O-S to perform alternative service at a time and place to be specified by the Director.
(b) When the local board orders a registrant to perform alternative service, it shall be the duty of the registrant to report for and perform alternative service at the time and place ordered unless the order has been canceled. If the time when the registrant is ordered to report for alternative service is postponed, it shall be the continuing duty of the registrant to report for and perform alternative service at such time and place as he may be reordered. Regardless of the time when or the circumstances under which a registrant fails to report for and perform alternative service when it is his duty to do so, it shall thereafter be his continuing duty from day to day to report for and perform alternative service at the place specified in the order to report for and perform alternative service.
(c) The Director may authorize a delay of reporting for alternative service for any registrant whose date of induction conflicts with a religious holiday historically observed by a recognized church, religious sect or religious organization of which he is a member. Any registrant so delayed shall report for alternative service on the next business day following the religious holiday.
(d)(1) Any registrant who is satisfactorily pursuing a full-time course of instruction at a high school or similar institution of learning and is issued an order to perform alternative service shall, upon presentation of appropriate facts in the manner prescribed by the Director of Selective Service, have his date to report to perform alternative service postponed:
(i) Until the time of his graduation therefrom; or
(ii) Until he attains the twentieth anniversary of his birth; or
(iii) Until the end of his last academic year, even if he has attained the twentieth anniversary of his birth; or
(iv) Until he ceases satisfactorily to pursue such course of instruction, whichever is the earliest.
(2) Any registrant who, while satisfactorily pursuing a full-time course of instruction at a college, university or similar institution of learning, is ordered to perform alternative service shall, upon the presentation of appropriate facts in the manner prescribed by the Director of Selective Service, have his date to report to perform alternative service.
(i) Until the end of the semester or term, or in the case of his last academic year, the end of the academic year; or
(ii) Until he ceases to satisfactorily pursue such course of instruction, whichever is the earlier.
(e) After the order to perform alternative service has been issued, the Director may postpone for a specific time the date when such registrant is required to report in the following circumstances:
(1) In the case of the death of a member of the registrant's immediate family, extreme emergency involving a member of the registrant's immediate family, serious illness or injury of the registrant, or other emergency beyond the registrant's control. The period of postponement shall not exceed 60 days from the date of the order to perform alternative service. When necessary, the Director may grant one further postponement but the total postponement shall not exceed 90 days from the reporting date on the order to perform alternative service.
(2) When the registrant qualifies and is scheduled for a State or National examination in a profession or occupation which requires certification before being authorized to engage in the practice of that profession or occupation.
(f) The Director shall issue to each registrant whose reporting date to perform alternative service is postponed a written notice thereof.
(g) A postponement of reporting date to perform alternative service shall not render invalid the order to report for alternative service which has been
(h) Any registrant receiving a postponement under the provisions of this section, shall, after the expiration of such postponement, be rescheduled to report for alternative service at the place to which he was originally ordered.
(a) The Director in the administration of the Alternative Service Program shall establish and implement appropriate procedures to:
(1) Assure that the program complies with the Selective Service Law;
(2) Provide information to ASWs about their rights and duties;
(3) Find civilian work for ASWs;
(4) Place ASWs in jobs approved for alternative service;
(5) Monitor the work performance of ASWs placed in the program;
(6) Order reassignment and authorize job separation;
(7) Issue certificates of completion;
(8) Specify the location of Alternative Service Offices;
(9) Specify the geographical area in which the ASOs shall have jurisdiction over ASWs;
(10) Establish Civilian Review Boards and panels and provide for the selection and appointment of members thereof;
(11) Refer to the Department of Justice, when appropriate, any ASW who fails to perform satisfactorily his alternative service;
(12) Perform all other functions necessary for the administration of the Alternative Service Program; and
(13) Delegate any of his authority to such office, agent or person as he may designate and provide as appropriate for the subdelegation of such authority.
(b) The Region Director shall be responsible for the administration and operation of the Alternative Service Program in his Region as prescribed by the Director.
(c) The State Director shall perform duties for the administration and operation of the Alternative Service Program in his State as prescribed by the Director.
(d) The ASOM shall perform duties for the administration and operation of the Alternative Service Program as prescribed by the Director.
(1) The ASO shall be an office of record that is responsible for the administration and operation of the Alternative Service Program in its assigned geographical area of jurisdiction.
(2) The staff of each ASO shall consist of as many compensated employees as shall be authorized by the Director.
(3) Appointment of civilians to ASO positions requiring direct dealing with ASWs will be made as soon as feasible.
(e) The manager of an area office shall perform duties for Alternative Service as prescribed by the Director.
(a) Jurisdiction over the ASW will be transferred from the area office immediately after his classification in Class 1-W to the ASO that administers the Alternative Service Program in the area in which he is assigned to perform alternative service.
(b) The ASO shall:
(1) Evaluate and approve jobs and employers for Alternative Service;
(2) Order the ASW to report for alternative service work;
(3) Issue such orders as are required to schedule the ASW for job interviews;
(4) Issue such orders as are required to schedule the ASW for job placement;
(5) Monitor the ASW's job performance;
(6) Issue a certificate of satisfactory completion of the ASW's Alternative Service obligation;
(7) Return the ASW to the jurisdiction of the area office from which he was directed to perform Alternative Service; and
(8) Perform such other actions the Director may authorize as necessary to administer the Alternative Service Program.
(a) The Director will determine in accordance with the Selective Service Law which civilian employment programs or activities are appropriate for Alternative Service work.
(1) Employers which are considered appropriate for Alternative Service assignments are limited to:
(i) The U.S. Government or a state, territory or possession of the United States or a political subdivision thereof, the District of Columbia or the Commonwealth of Puerto Rico;
(ii) Organizations, associations or corporations primarily engaged either in a charitable activity conducted for the benefit of the general public or in carrying out a program for the improvement of the public health, welfare or environment, including educational and scientific activities in support thereof, when such activity or program is not principally for the benefit of the members of such organization, association or corporation or for increasing the membership thereof.
(2) Employment programs or activities generally considered to be appropriate for Alternative Service work include:
(i) Health care services, including but not limited to hospitals, nursing homes, extended care facilities, clinics, mental health programs, hospices, community outreach programs and hotlines;
(ii) Educational services, including but not limited to teachers, teacher's aides, counseling, administrative support, parent counseling, recreation, remedial programs and scientific research;
(iii) Environmental programs, including but not limited to conservation and firefighting, park and recreational activities, pollution control and monitoring systems, and disaster relief;
(iv) Social services, including but not limited to sheltered or handicapped workshops, vocational training or retraining programs, senior citizens activities, crisis intervention and poverty relief;
(v) Community services, including but not limited to fire protection, public works projects, sanitation services, school or public building maintenance, correctional facility support programs, juvenile rehabilitation programs, and
(vi) Agricultural work.
(b) An organization desiring to employ ASWs is encouraged to submit a request in writing to the Director or an ASOM for approval. Such requests will be considered at any time.
(c) Selective Service shall negotiate employment agreements with prospective employers with the objective of obtaining an adequate number of agreements to assure the timely placement of all ASWs. Participating employers will provide prospective job listings to Selective Service.
(d) Selective Service shall also negotiate employment agreements with eligible employers wherein the employer will agree to hire a specified number of ASWs for open placement positions.
(e) A registrant classfied in Class 1-O or Class 1-O-S may seek his own alternative service work by identifying a job with an employer he believes would be appropriate for Alternative Service assignments and by having the employer advise the ASO in writing that he desires to employ the ASW. The acceptability of the job and employer so identified will be evaluated in accordance with § 1656.5(a).
Alternative Service job assignments outside the United States, its territories or possessions or the Commonwealth of Puerto Rico, will be allowed when:
(a) The employer is deemed eligible to employ ASWs and is based in the United States, its territories or possessions, or the Commonwealth of Puerto Rico;
(b) The job meets the criteria listed in § 1656.5(a);
(c) The ASW and the employer submit a joint application to Selective Service for the ASW to be employed in a specific job;
(d) The employer satisfies Selective Service that the employer has the capability to supervise and monitor the overseas work of the ASW; and
(e) International travel is provided without expense to Selective Service.
Employers participating in the Alternative Service Program are responsible for:
(a) Complying with the employment agreement with Selective Service;
(b) Providing a clear statement of duties, responsibilities, compensation and employee benefits to the ASW;
(c) Providing full-time employment for ASWs;
(d) Assuring that wages, hours and working conditions of ASWs confrom with Federal, state and local laws;
(e) Providing adequate supervision of ASWs in their employ; and
(f) Providing nondiscriminatory treatment of ASWs in their employ.
(a)
(b)
(c)
(d)
(a) A registrant classified in Class 1-W is required to comply with all orders issued under this part.
(b) A registrant classified in Class 1-W is liable to perform 24 months of creditable time toward completion of Alternative Service, unless released earlier by the Director.
(a) Selective Service will maintain a job bank for the exclusive purpose of placing ASWs in alternative service jobs.
(b) An ASW who has identified his own job in accordance with § 1656.5(e) of this part may be assigned by the ASO in that job pending review of the job by Selective Service. If the job is then approved as Alternative Service Work in accordance with § 1656.5(a) the ASW will receive creditable time beginning with the date he was placed on the job by Selective Service. If the job is not approved he will not receive creditable time and will be placed by Selective Service in a position approved for Alternative Service Work. Selective Service must review the job within 30 calendar days of the time it assigned the ASW to begin work. If the elapsed time from date of placement to the date of Selective Service review exceeds 30 days, the ASW will receive creditable time from the date of placement regardless of the final determination of employer eligibility made by Selective Service. If the placement is ultimately determined to be inappropriate for Alternative Service the ASW will be reassigned in accordance with § 1656.12.
(c) In making job interview referrals and in making assignments of ASWs to jobs, Selective Service will consider the compatibility of the ASW's skills, work experience, and preferences with the qualification criteria for the job.
(d) When An ASW is hired, the ASO will issue a Job Placement Order specifying the employer, the time, date and place to report for his alternative service work.
(e) The ASO will normally place the ASW in an alternative service job within 30 calendar days after classification in Class 1-W.
(a)
(b)
(1) He refuses to comply with an order of the Director issued under this part;
(2) He refuses employment by an approved employer who agrees to hire him;
(3) His employer terminates the ASW's employment because his conduct, attitude, appearance or performance violates reasonable employer standards; or
(4) He quits or leaves his job without reasonable justification, and has not submitted an appeal of his job assignment to the Civil Review Board.
(c)
(2) Prior to invoking any of the sanctions discussed herein, the ASO will conduct a review as prescribed in § 1656.17 of all allegations that an ASW has failed to perform pursuant to any of the provisions of § 1656.11(b).
(a)
(1) The job assignment violates the ASW's religious, moral or ethical beliefs or convictions as to participation in a war that led to his classification as a conscientious objector or violates § 1656.5(a) of this part.
(2) An ASW experiences a change in his mental or physical condition which renders him unfit or unable to continue performing satisfactorily in his assigned job;
(3) An ASW's dependents incur a hardship which is not so severe as to justify a suspension of the Order to Perform Alternative Service under § 1656.15;
(4) The ASW's employer ceases to operate an approved program or activity;
(5) The ASW's employer fails to comply with terms and conditions of these regulations or;
(6) Continual and severe differences between the ASW's employer and ASW remain unresolved.
(7) The sanctions authorized in § 1656.11 should be applied.
(b)
(c)
(a) Review of ASW job assignments will be accomplished in accordance with the provisions of this subsection.
(b) Whenever the ASW believes that his job assignment violates his religious, moral or ethical beliefs or convictions as to participation in war that led to his classification as a conscientious objector or is in violation of the provisions of this part he may request a reassignment by the ASOM, as provided for in § 1656.12.
(c) The ASOM shall reassign the ASW if the ASOM concludes that the ASW's work assignment violates his religious, moral or ethical beliefs or convictions as to participation in war which led to his classification as a CO or is in violation of the provisions of this part.
(d) If the ASOM does not reassign the ASW, the ASW may, within 15 days after the date of mailing of the decision of the ASOM, request a review of his job assignment by a Civilian Review Board.
(e) The Director shall establish a Civilian Review Board for each ASO in whose area ASW's are working. The Civilian Review Board shall consist of not less than three members who will
(f) It shall be the function of the Civilian Review Board to determine whether or not an ASW's job assignment violates the ASW's religious, moral, or ethical beliefs of convictions as to participation in war which led to his classification as a conscientious objector or is in violation of the provisions § 1656.5(a) of this part. In making the former determination, the Review Board must be convinced by the ASW that if the ASW performed the job, his convictions as to participation in war would be violated in a similar way as if the ASW had participated in war.
(g) The Civilian Review Board may affirm the assignment or order the reassignment of the ASW in any matter considered by it.
(h) Procedures of the Civilian Review Board are:
(1) Appeals to the Board shall be in writing, stating as clearly as possible the ground for the appeal.
(2) The ASW may appear before the Board at his request. He may not be represented by counsel or present witnesses. The ASOM or his representative may represent the Selective Service System at the hearing and present evidence.
(3) The Board's determination will be based on all documents in the ASW's file folder and statements made at the hearing.
(4) The decision of the Board will be binding only in the case before it. A decision of a Board will not be relied upon by a Board in any other case.
(5) A decision of the Board is not subject to review within the Selective Service System.
(a)
(1) Report for Job Placement;
(2) Report for a Job Interview; or
(3) Report to an Employer to Commence Employment.
(b)
(c)
(1) The death of a member of his immediate family;
(2) An extreme emergency involving a member of his immediate family;
(3) His serious illness or injury; or
(4) An emergency condition directly affecting him which is beyond his control.
(d)
(e)
(f)
(2) Any postponement shall be terminated when the basis for the postponement has ceased to exist.
(3) It is the responsibility of the ASW promptly to notify in writing the office that granted the postponement whenever the basis for which his postponement was granted ceases to exist.
(g)
(h)
(a) Whenever, after an ASW has begun work, a condition develops that results in hardship to his dependent as contemplated by § 1630.30(a) of this chapter which cannot be alleviated by his reassignment under § 1656.12 (a)(3) of this part, the ASW may request a suspension of Order to Perform Alternative Service. If the local board that ordered the ASW to report for Alternative Service determines he would be entitled to classification in Class 3-A, assuming that the ASW were eligible to file a claim for that class, further compliance with his order shall be suspended for a period not to exceed 365 days, as the local board specifies. Extensions of not more than 365 days each may be granted by the local board so long as the hardship continues until the ASW's liability for training and service under the Military Selective Service Act terminates.
(b) An ASW may file a request for the suspension of his Order to Perform Alternative Service with the ASO. This request must be in writing, state as clearly as possible the basis for the request, and be signed and dated by the ASW. The ASW must continue working in his assigned job until his request for the suspension of his Order to Perform Alternative Service has been approved.
(c) Local boards shall follow the procedures established in parts 1642 and 1648 of this chapter to the extent they are applicable in considering a request for the suspension of an Order to Perform Alternative Service.
(a)
(b)
(1) Has failed to meet the performance standards of available alternative service employment because of physical, mental or moral reasons;
(2) No longer meets the physical, mental or moral standards that are required for retention in the Armed Forces based on a physical or mental examination at a MEPS or other location designated by Selective Service;
(3) Is planning to return to school and has been accepted by such school and scheduled to enter within 30 days prior to the scheduled completion of his alternative service obligation;
(4) Has been accepted for employment and that such employment will not be available if he remains in alternative service the full 24 months. Such early release shall not occur more than 30 days before the scheduled completion of his alternative service obligation; or
(5) Has enlisted in or has been inducted into the Armed Forces of the United States.
(c)
(a) Whenever the ASOM learns that the ASW may have failed to perform satisfactorily his work (see § 1656.11(b)) or he receives a complaint by an employer or an ASW involving the ASW's work other than matters described in § 1656.8(b) of this part, he shall take necessary action to:
(1) Interview, as appropriate, all parties concerned to obtain information relevant to the problems or complaints;
(2) Place a written summary of each interview in the ASW's file and employer's file;
(3) Inform the persons interviewed that they may prepare and submit to him within ten days after the interview their personal written statements concerning the problem;
(4) Place such statements in the ASW's file; and
(5) Resolve the matter.
(b) The employer or ASW may seek a review of the decision pursuant to § 1656.17(a)(5). Such request must be filed in writing with the ASO, for action by the State Director of Selective Service, within ten days after the date the notice of the decision is transmitted to the ASW and employer.
(a) Creditable time starts when the ASW begins work pursuant to an Order to Perform Alternative Service or 30 days after the issuance of such order, whichever occurs first. Creditable time will accumulate except for periods of:
(1) Work of less than 35 hours a week or an employer's full-time work week whichever is greater;
(2) Leaves of absence in a calendar year of more than 5 days in the aggregate granted by the employer to the ASW to attend to his personal affairs unless such absence is approved by the ASOM;
(3) Time during which an ASW fails or neglects to perform satisfactorily his assigned Alternative Service;
(4) Time during which the ASOM determines that work of the ASW is unsatisfactory because of his failure to comply with reasonable requirements of his employer;
(5) Time during which the ASW is not employed in an approved job because of his own fault; or
(6) Time during which the ASW is in a postponement period or his Order to Perform Alternative Service has been suspended.
(b) Creditable time will be awarded for periods of travel, job placement and job interviews performed under orders issued by Selective Service. Creditable time may be awarded for normal employer leave periods.
(c) Creditable time will be awarded to an ASW for the time lost after he leaves his job assignment following his request for reassignment on the basis of § 1656.13(b) of this part until he is reassigned pursuant to § 1656.13 (c) or (g) of this part. Creditable time for the corresponding period will be lost if neither the ASOM nor the Civilian Review Board orders the ASW's reassignment on the basis of § 1656.12(a)(1) of this part.
Upon completion of 24 months of creditable time served in alternative service or when released early in accordance with § 1656.16(b) (3) or (4):
(a) The ASW shall be released from the Alternative Service Program; and
(b) The Director shall issue to the ASW a Certificate of Completion and the registrant shall be reclassified in Class 4-W in accordance with § 1630.47 of this chapter, and
(c) The ASW's records shall be returned to the area office of jurisdiction after the ASW has completed his obligation or has been separated from the Alternative Service Program for any reason.
(a) Claims for payment of actual and reasonable expenses for emergency medical care, including hospitalization, of ASWs who suffer illness or injury, and the transportation and burial of the remains of ASWs who suffer death as a direct result of such illness or injury will be paid in accordance with the provisions of this section.
(b) The term “emergency medical care, including hospitalization”, as used in this section, means such medical care or hospitalization that normally must be rendered promptly after occurrence of the illness or injury necessitating such treatment. Discharge by a physician or facility subsequent to such medical care or hospitalization shall terminate the period of emergency.
(c) Claims will be considered only for expenses:
(1) For which only the ASW is liable and for which there is no legal liability for his reimbursement except in accord with the provisions of this section; and
(2) That are incurred as a result of illness or injury that occurs while the ASW is acting in accord with orders of Selective Service to engage in travel or perform work for his Alternative Service employer.
(d) No claim shall be allowed in any case in which the Director determines that the injury, illness, or death occurred because of the negligence or misconduct of the ASW.
(e) No claim shall be paid unless it is presented to the Director within one year after the date on which the expense was incurred.
(f) Cost of emergency medical care including hospitalization greater than usual and customary fees for service established by the Social Security Administration, will
(g) Payment of claims when allowed shall be made only directly to the ASW or his estate unless written authorization of the ASW or the personal representative of his estate has been received to pay another person.
Military Selective Service Act, 50 U.S.C. 451
(a) The provisions of this part apply to the processing of overseas registrants, and, where applicable, they supersede inconsistent provisions in this chapter.
(b) An overseas registrant is a registrant whose bona fide current address most recently provided by him to the Selective Service System is outside the United States, its territories or possessions, Commonwealth of Puerto Rico, Canada and Mexico.
The Director shall establish local boards with jurisdiction to determine claims of overseas registrants. Such boards shall consist of three or more members appointed by the President. The Director shall prescribe the geographic jurisdiction of each board, and designate or establish an area office to support it.
The Director shall establish district appeal boards with jurisdiction to determine appeals of claims of overseas registrants. Such boards shall consist of three or more members appointed by the President. The Director shall prescribe the geographic jurisdiction of each board.
An overseas registrant's claim shall be determined by a local board (or its supporting area office) or appeal board as may be established in accord with this part or, upon the request of the registrant filed no later than the filing of his claim for reclassification, by the board having geographic jurisdiction
The Director may order an overseas registrant to any place in the world for induction.
(a) The Director shall furnish transportation for an overseas registrant from the place at which the registrant's order to report for induction was sent to the place he is required to report for induction. If such registrant is not inducted, the Director shall furnish him transportation from the place he reported for induction to the place to which his order to report for induction was sent.
(b) In the event the personal appearance before a local board or appeal board of an overseas registrant is required or permitted by regulation, travel expenses incurred in personally appearing before the board shall be at the registrant's own expense.
Military Selective Service Act, 50 U.S.C. App. 451
(a) Claims for payment of actual and reasonable expenses of:
(1) Emergency medical care, including hospitalization of registrants who suffer illness or injury; and
(2) The transportation and burial of the remains of registrants who suffer death while acting under orders issued by or under the authority of the Director of Selective Service will be paid in accordance with the provisions of this section.
(b) Claims for payment of expenses incurred for the purposes set forth in paragraph (a) of this section shall be presented to the Director of Selective Service.
(c)(1) The term
(2) The death of a registrant shall be deemed to have occurred while acting under orders issued by or under the authority of the Director of Selective Service if it results directly from an illness or injury suffered by the registrant while so acting and occurs prior to the completion of an emergency medical care, including hospitalization, occasioned by such illness or injury.
(d) No such claim shall be paid unless it is presented within the period of one year from the date on which the expenses were incurred.
(e) No such claim shall be allowed in case it is determined that the cause of injury, illness, or death was due to negligence or misconduct of the registrant.
(f) Burial expenses shall not exceed the maximum prescribed in Section 11 of the Military Selective Service Act in any one case.
(g) Payment of such claims when allowed shall be made only:
(1) Directly to the person or facility with which the expenses were incurred; or
(2) By reimbursement to the registrant, a relative of the registrant, or the legal representative of the registrant's estate, for original payment of such expenses.
5 U.S.C. 552, as amended.
The provisions of this part prescribe the procedures for requests for information under 5 U.S.C. 552, as amended (Freedom of Information Act).
Requests for information under the Freedom of Information Act (FOIA) shall be in writing and should be addressed to the Director, Selective Service System, ATTN: Records Manager, Washington, DC 20435.
Any person who requests information under FOIA shall provide a reasonably specific description of the information sought so that it may be located without undue search. If the description is not sufficient, the records manager will notify the requester and, to the extent possible, indicate the additional information required. Every reasonable effort shall be made to assist a requester in the identification and location of the record or records sought.
(a) Upon receipt of any request for information or records, the records manager will determine within 10 days (excepting Saturdays, Sundays, and legal federal holidays) whether it is appropriate to grant the request and will immediately provide written notification to the person making the request. If the request is denied, the written notification to the person making the request will include the reasons therefor and a notice that an appeal may be lodged with the Director of Selective Service.
(b) Appeals shall be in writing and addressed to the Director of Selective Service at the address specified in § 1662.2 of this part. The appeal shall include a statement explaining the basis for the appeal. Determinations of appeals will be in writing and signed by the Director, or his designee, within 20 days (excepting Saturdays, Sundays, and legal federal holidays). If, on appeal, the denial is in whole or in part upheld, the written determination will include the reasons therefor and also contain a notification of the provisions for judicial review.
When a request for information has been approved in accord with § 1662.4, the person making the request may make an appointment to inspect or copy the materials requested during regular business hours by writing or telephoning the records manager at the address listed in § 1662.2. Such materials may be copied manually without charge, and reasonable facilities will be made available for that purpose. Also, copies of individual pages of such materials will be made available as specified in § 1662.6; however, the right is reserved to limit to a reasonable quantity the copies of such materials which may be made available in this manner.
(a)
(1)
(2) The term
(3)
(4)
(5) The term
(6) The term
(7) The term
(8) The term
(b)
(1)
(2)
(3)
(4)
(c)
(2)
(ii)
(B) If the Records Manager estimates that the fees will likely exceed $25, he will notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.
(3)
(4)
(A) The relation of the records to the operations or activities of the System;
(B) The information value of the information to be disclosed;
(C) Any contribution to an understanding of the subject by the general public likely to result from disclosure;
(D) The significance of that contribution to the public understanding of the subject;
(E) The nature of the requester's personal interest, if any, in the disclosure requested; and
(F) Whether the disclosure would be primarily in the requester's commercial interest.
(ii) Contents of request for waiver. The Records Manager will normally deny a request for a waiver of fees that does not include:
(A) A clear statement of the requester's interest in the requested documents;
(B) The use proposed for the documents and whether the requester will derive income or other benefit from such use;
(C) A statement of how the public will benefit from such use and from the release of the requested documents; and
(D) If specialized use of the documents or information is contemplated, a statement of the requester's qualifications that are relevant to the specialized use.
(iii)
(5)
Salary of the employee (the basic rate of pay of the employee plus 16 percent of that rate to cover benefits), performing the work of manual search and review.
For each request the Records Manager will separately determine the actual direct costs of providing the service, including computer search time, tape or printout production, and operator salary.
The Records Manager may agree to provide and set fees to recover the costs of special services not covered by the Freedom of Information Act, such as certifying records or information, packaging and mailing records, and sending records by special methods such as express mail. The Records Manager may provide self-service photocopy machines and microfiche printers as a convenience to requesters and set separate perpage fees reflecting the cost of operation and maintenance of those machines.
For qualifying educational and noncommercial scientific institution requesters and representatives of the news media the Records Manager will not assess fees for review time, for the first 100 pages of reproduction, or, when the records sought are reasonably described, for search time. For other noncommercial use requests no fees will be assessed for review time, for the first 100 pages of reproduction, or for the first two hours of search time.
The Records Manager will waive in full fees that total less than $1.00 or that are less than the average cost of collecting fees.
The Records Manager will also waive or reduce fees, upon proper request, if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the System and is not primarily in the commercial interest of the requester.
5 U.S.C. 552a.
(a) Individuals desiring to know if a specific system of records maintained by the Selective Service System (SSS) contains a record pertaining to them should address their inquiries to the Director, Selective Service System, ATTN: Records Manager, Washington, DC 20435. The written inquiry should contain a specific reference to the system of records maintained by Selective Service listed in the SSS Notices of Systems of Records or it should describe the type of record in sufficient detail to reasonably identify the system of records. Notice of SSS Systems of Records subject to the Privacy Act is in the
(b) At a minimum, the request should also contain sufficient information to identify the requester in order to allow SSS to determine if there is a record pertaining to that individual in a particular system of records. In instances when the information is insufficient to insure that disclosure will be to the individual to whom the information pertains, in view of the sensitivity of the information, SSS reserves the right to ask the requester for additional identifying information.
(c) Ordinarily the requester will be informed whether the named system of records contains a record pertaining to the requester within 10 days of receipt of such a request (excluding Saturdays, Sundays, and legal federal holidays). Such a response will also contain or reference the procedures which must be followed by the individual making the request in order to gain access to the record.
(d) Whenever a response cannot be made within the 10 days, the records manager will inform the requester of the reason for the delay and the date by which a response may be anticipated.
(a) Requirement for written requests. Individuals desiring to gain access to a record pertaining to them in a system of records maintained by SSS must submit their request in writing in accord with the procedures set forth in paragraph (b) below.
(b)
(ii) If the request for access follows a prior request under § 1665.1, the same identifying information need not be included in the request for access if a reference is made to that prior correspondence, or a copy of the SSS response to that request is attached.
(iii) If the individual specifically desires a copy of the record, the request should so specify.
(2)
(i) A statement that there is a record as requested or a statement that there is not a record in the system of records maintained by SSS;
(ii) A statement as to whether access will be granted only by providing copy of the record through the mail; or the address of the location and the date and time at which the record may be examined. In the event the requester is unable to meet the specified date and time, alternative arrangements may be made with the official specified in § 1665.2(b)(1);
(iii) A statement, when appropriate, that examination in person will be the sole means of granting access only when the records manager has determined that it would not unduly impede the requester's right of access;
(iv) The amount of fees charged, if any (see § 1665.6) (Fees are applicable only to requests for copies);
(v) The name, title, and telephone number of the SSS official having operational control over the record; and
(vi) The documentation required by SSS to verify the identity of the requester. At a minimum, SSS's verification standards include the following:
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(vii)
(B) Within any system of records pertaining to possible violations of the Military Selective Service Act, the identity of or any information pertaining to any individual who provides information relating to a suspected violator will not be revealed to the suspected violator. This exemption is made under the provision of 5 U.S.C. 552a(k)(2).
Rules governing the granting of access to the accounting of disclosure are the same as those for granting accesses to the records (including verification of identity) outlined in § 1665.2.
(a)
(b)
(ii) When the individual's identity has been previously verified pursuant to § 1665.2(b)(2)(vi), further verification of identity is not required as long as
(iii) The exact portion of the record the individual seeks to have amended should be clearly indicated. If possible, the proposed alternative language should also be set forth, or at a minimum, the facts which the individual believes are not accurate, relevant, timely, or complete should be set forth with such particularity as to permit SSS not only to understand the individual's basis for the request, but also to make an appropriate amendment to the record.
(iv) The request must also set forth the reasons why the individual believes his record is not accurate, relevant, timely, or complete. In order to avoid the retention by SSS of personal information merely to permit verification of records, the burden of persuading SSS to amend a record will be upon the individual. The individual must furnish sufficient facts to persuade the official in charge of the system of the inaccuracy, irrelevancy, timeliness or incompleteness of the record.
(v) Incomplete or inaccurate requests will not be rejected categorically. The individual will be asked to clarify the request as needed.
(2)
(i) The decision of the Selective Service System whether to grant in whole, or deny any part of the request to amend the record.
(ii) The reasons for determination for any portion of the request which is denied.
(iii) The name and address of the official with whom an appeal of the denial may be lodged.
(iv) The name and address of the official designated to assist, as necessary and upon request of, the individual making the request in preparation of the appeal.
(v) A description of the review of the appeal with SSS (see § 1665.5).
(vi) A description of any other procedures which may be required of the individual in order to process the appeal.
(3) If the nature of the request for the correction of the system of records precludes a decision within 10 days, the individual making the request will be informed within 10 days of the extended date for a decision. Such a decision will be issued as soon as it is reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal Federal holidays) unless unusual circumstances preclude completing action within that time. If the expected completion date for the decision indicated cannot be met, the individual will be advised of the delay of a revised date when the decision may be expected to be completed.
(a) Individuals wishing to request a review of the decision by SSS with regard to any initial request to access or amend a record in accord with the provisions of §§ 1665.2 and 1665.4, should submit the request for review in writing and, to the extent possible, include the information specified in § 1665.5(b). Individuals desiring assistance in the preparation of their request for review should contact the records manager at the address provided herein.
(b) The request for review should contain a brief description of the record involved or in lieu thereof, copies of the correspondence from SSS in which the request to access or to amend was denied and also the reasons why the requester believes that access should be granted or the disputed information amended. The request for review should make reference to the information furnished by the individual in support of his claim and the reasons as required by §§ 1665.2 and 1665.4 set forth by SSS in its decision denying access or amendment. Appeals filed without a complete statement by the requester setting forth the reasons for review
(c) The request for review should be addressed to the Director of Selective Service.
(d) The Director of Selective Service will inform the requester in writing of the decision on the request for review within 20 days (excluding Saturdays, Sundays, and legal federal holidays) from the date of receipt by SSS of the individual's request for review unless the Director extends the 20 days period for good cause. The extension and the reasons therefor will be sent by SSS to the requester within the initial 20 day period. Such extensions should not be routine and should not normally exceed an additional thirty days. If the decision does not grant in full the request for amendment, the notice of the decision will provide a description of the steps the individual may take to obtain judicial review of such a decision, a statement that the individual may file a concise statement with SSS setting forth the individual's reasons for his disagreement with the decision and the procedures for filing such a statement of disagreement. The Director of Selective Service has the authority to determine the
(a)
(1) The search and review of the record.
(2) Any copies of the record produced as a necessary part of the process of making the record available for access, or
(3) Any copies of the requested record when it has been determined that access can only be accomplished by providing a copy of the record through the mail.
(4) Where a registrant has been charged under the Military Selective Service Act and must defend himself in a criminal prosecution, or where a registrant submits to induction and thereafter brings habeas corpus proceedings to test the validity of his induction, the Selective Service System will furnish to him, or to any person he may designate, one copy of his Selective Service file free of charge.
(b)
(c)
(1)
(2) Fees should be paid in full prior to issuance of requested copies. In the event the requester is in arrears for previous requests, copies will not be provided for any subsequent request until the arrears have been paid in full.
(3) Remittance shall be in the form of cash, a personal check or bank draft drawn on a bank in the United States, or postal money order. Remittances shall be made payable to the order of the Selective Service System and mailed or delivered to the records manager, Selective Service System, Washington, DC 20435.
(4) A receipt of fees paid will be given upon request.
(a) Each area office maintains a classification record which contains the name, Selective Service number, and the current and past classifications for each person assigned to that board. Information in this record may be inspected at the area office at which it is maintained.
(b) Any compensated employee of the Selective Service System may disclose to the former employer of a registrant who is serving in or who has been discharged from the Armed Forces whether the registrant has or has not been discharged and, if discharged, the date thereof, upon reasonable proof that the registrant left a position in the employ of the person requesting such information in order to serve in the Armed Forces.
(c) Whenever an office referred to in this section is closed, the request for information that otherwise would be submitted to it should be submitted to the National Headquarters, Selective Service System, Washington, DC 20435.
Pursuant to 5 U.S.C. 552a(k)(2), the Selective Service System will not reveal to the suspected violator the informant's name or other identifying information relating to the informant.
5 U.S.C. 5514, and 5 CFR part 550, subpart K.
(a) This regulation provides procedures for the collection by administrative offset of a federal employee's salary without his/her consent to satisfy certain debts owed to the federal government. These regulations apply to all federal employees who owe debts to the Selective Service System and to current employees of the Selective Service System who owe debts to other federal agencies. This regulation does not apply when the employee consents to recovery from his/her current pay account.
(b) This regulation does not apply to debts or claims arising under:
(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1
(2) The Social Security Act, 42 U.S.C. 301
(3) The tariff laws of the United States; or
(4) Any case where a collection of a debt by salary offset is explicitly provided for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 4108).
(c) This regulation does not apply to any adjustment to pay arising out of an employee's selection of coverage or a change in coverage under a federal benefits program requiring periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less.
(d) This regulation does not preclude the compromise, suspension, or termination of collection action where appropriate under the standards implementing the Federal Claims Collection Act 31 U.S.C. 3711
(e) This regulation does not preclude an employee from requesting waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32 U.S.C. 716 or in any way questioning the amount or validity of the debt by submitting a subsequent claim to the General Accounting Office. This regulation does not preclude an employee from requesting a waiver pursuant to other statutory provisions applicable to the particular debt being collected.
(f) Matters not addressed in these regulations should be reviewed in accordance with the Federal Claims Collection Standards at 4 CFR 101.1
For the purposes of the part the following definitions will apply:
(a) These regulations are to be followed when:
(1) The Selective Service System is owed a debt by an individual currently employed by another federal agency;
(2) The Selective Service System is owed a debt by an individual who is a current employee of the Selective Service System; or
(3) The Selective Service System employs an individual who owes a debt to another federal agency.
(a) Deductions shall not be made unless the employee is provided with written notice signed by the Director
(b) The written notice shall contain:
(1) A statement that the debt is owed and an explanation of its nature and amount;
(2) The agency's intention to collect the debt by deducting from the employee's current disposable pay account;
(3) The amount, frequency, proposed beginning date, and duration of the intended deduction(s);
(4) An explanation of interest, penalties, and administrative charges, including a statement that such charges will be assessed unless excused in accordance with the Federal Claims Collection Standards at 4 CFR 101.1
(5) The employee's right to inspect or request and receive a copy of government records relating to the debt;
(6) The opportunity to establish a written schedule for the voluntary repayment of the debt;
(7) The right to a hearing conducted by an impartial hearing official;
(8) The methods and time period for petitioning for hearings;
(9) A statement that the timely filing of a petition for a hearing will stay the commencement of collection proceedings;
(10) A statement that a final decision on the hearing will be issued not later than 60 days after the filing of the petition requesting the hearing unless the employee requests and the hearing official grants a delay in the proceedings;
(11) A statement that any knowingly false or frivolous statements, representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under chapter 75 of title 5 U.S.C., part 752 of title 5, Code of Federal Regulations, or any other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, sections 3729 through 3731 of title 31 U.S.C., or any other applicable statutory authority; or
(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of title 18 U.S.C., or any other applicable statutory authority.
(12) A statement of other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made; and
(13) Unless there are contractual or statutory provisions to the contrary, a statement that amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee.
(a)
(2) A hearing may be requested by filing a written petition addressed to the Director of Selective Service stating why the employee disputes the existence or amount of the debt. The petition for a hearing must be received by the Director no later than fifteen (15) calendar days after the date of the notice to offset unless the employee can show good cause for failing to meet the deadline date.
(b)
(2) The hearing shall conform to procedures contained in the Federal Claims Collection Standards 4 CFR 102.3(c). The burden shall be on the employee to demonstrate that the existence or the amount of the debt is in error.
(a) The hearing official shall issue a written opinion no later than 60 days after the hearing.
(b) The written opinion will include: a statement of the facts presented to demonstrate the nature and origin of the alleged debt; the hearing official's analysis, findings and conclusions; the amount and validity of the debt, and the repayment schedule, if applicable.
(a)
(i) Arrange for a hearing upon the proper petitioning by the employee;
(ii) Certify in writing to the paying agency that the employee owes the debt, the amount and basis of the debt, the date on which payment is due, the date the government's right to collect the debt accrued, and that Selective Service System regulations for salary offset have been approved by the Office of Personnel Management;
(iii) If collection must be made in installments, the Director must advise the paying agency of the amount or percentage of disposable pay to be collected in each installment;
(iv) Advise the paying agency of the actions taken under 5 U.S.C. 5514(b) and provide the dates on which action was taken unless the employee has consented to salary offset in writing or signed a statement acknowledging receipt of procedures required by law. The written consent or acknowledgement must be sent to the paying agency;
(v) If the employee is in the process of separating, the Selective Service System must submit its debt claim to the paying agency as provided in this part. The paying agency must certify any amounts already collected, notify the employee and send a copy of the certification and notice of the employee's separation to the creditor agency. If the creditor agency is aware that the employee is entitled to Civil Service Retirement and Disability Fund or similar payments, it must certify to the agency responsible for making such payments the amount of the debt and that the provisions of this part have been followed; and
(vi) If the employee has already separated and all payments due from the paying agency have been paid, the Director may request, unless otherwise prohibited, that money payable to the employee from the Civil Service Retirement and Disability Fund or other similar funds be collected by administrative offset as provided under 5 CFR 831.1801 or other provisions of law or regulation.
(b)
(2) If the employee transfers to another agency after the creditor agency has submitted its debt claim to the Selective Service System and before the debt is collected completely, the Selective Service System must certify the total amount collected. One copy of the certification must be furnished to the employee. A copy must be furnished the creditor agency with notice of the employee's transfer.
(a) Deductions to liquidate an employee's debt will be by the method and in the amount stated in the Director's notice of intention to offset as provided in § 1697.4. Debts will be collected in one lump sum where possible. If the employee is financially unable to pay in one lum sum, collection must be made in installments.
(b) Debts will be collected by deduction at officially established pay intervals from an employee's current pay account unless alternative arrangements for repayment are made with the approval of the Director.
(c) Installment deductions will be made over a period not greater than the anticipated period of employment. The size of installment deductions must bear a reasonable relationship to the size of the debt and the employee's ability to pay. The deduction for the pay intervals for any period must not exceed 15% of disposable pay unless the employee has agreed in writing to a deduction of a greater amount.
(d) Unliquidated debts may be offset against any financial payment due to a separated employee including but not limited to final salary or leave payment in accordance with 31 U.S.C. 3716.
(a) The Selective Service System will refund promptly any amounts deducted
(b) The creditor agency will promptly return any amounts deducted by the Selective Service System to satisfy debts owed to the creditor agency when the debt is waived, found not owed, or when directed by an administrative or judicial order.
(c) Unless required by law, refunds under this subsection shall not bear interest.
If a debt has been outstanding for more than 10 years after the agency's right to collect the debt first accrued, the agency may not collect by salary offset unless facts material to the government's right to collect were not known and could not reasonably have been known by the official or officials who were charged with the responsibility for discovery and collection of such debts.
An employee's involuntary payment of all or any part of a debt collected under these regulations will not be construed as a waiver of any rights that employee may have under 5 U.S.C. 5514 or any other provision of contract or law unless there are statutes or contract(s) to the contrary.
Charges may be assessed for interest, penalties, and administrative costs in accordance with the Federal Claims Collection Standards, 4 CFR 102.13
Military Selective Service Act, 50 U.S.C. 451
The provisions of this part prescribe the procedures for requesting and processing requests for advisory opinions relative to a named individual's liability for registration under the Military Selective Service Act (MSSA), 50 U.S.C. App. 451
(a) Any male born after December 31, 1959 who has attained 18 years of age may request an advisory opinion as to his liability to register under MSSA. A parent or guardian of such person who is unable to make a request for an advisory opinion may request an advisory opinion for him. Any Federal, state or municipal governmental agency may request an advisory opinion as to the liability of any male person born after December 31, 1959 who has attained 18 years of age to register under MSSA.
(b) Requests for advisory opinions shall be in writing and addressed to Director of Selective Service, ATTN: GCAO, Washington, DC 20435. With respect to the person concerning whom an advisory opinion is requested, the following should be furnished: full name, address, date of birth, Social Security Account Number, basis for the opinion that the registration requirement is inapplicable to him, and, if applicable, basis for his assertion that his failure to register “. . . was not a knowing and willful failure to register.”
(a) The Director may request additional appropriate information from the requester for an advisory opinion.
(b) The Director will forward a copy of the request by a Federal, state or municipal governmental agency for an advisory opinion to the person to whom the request pertains and invite his comments on it.
Advisory opinions will be confidential except as provided in § 1698.6. Requests for advisory opinions will be confidential except as provided in § 1698.3.
Advisory opinions will be based on the request therefor, responses to requests for information, and matters of which the Director can take official notice.
A copy of the advisory opinion will be furnished, without charge, to the requester therefor and to the individual to whom it pertains. A copy of an advisory opinion will be furnished, without charge, to any Federal, state, or municipal governmental agency upon request.
Whenever the Director has reason to believe that there is substantial error in the information on which an advisory opinion is based, he may reconsider it and issue an appropriate revised opinion.
The Selective Service System will not take action with respect to any person concerning whom the Director has issued an advisory opinion insonsistent with that advisory opinion.
9 U.S.C. 794.
The purpose of this part is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the agency.
For purposes of this part, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (l) of this definition but is treated by the agency as having such an impairment.
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(a) The agency shall, within one year of the effective date of this part, evaluate its current policies and practices,
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion of the evaluation required under paragraph (a) of this section, maintain on file and make available for public inspection—
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the agency head finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and its regulation.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aids, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under, any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified handicapped persons to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified handicapped persons to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped person is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 1699.150, no qualified handicapped persons shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subject to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons;
(2) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1699.150(a) would result in such alterations or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b)
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, at the time, identify steps that will be taken during each year of the transition period; and
(4) Indicate the officials responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handcapped persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151 through 4157), as established in 41 CFR 101-19.600 to 14-19.607, apply to buildings covered by this section.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aid where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunications devices for deaf persons (TDD's), or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signs at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1699.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) Responsibility for implementation and operation of this section shall be vested in the Associate Director for Administration.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151 through 4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible and usable to handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusion of law;
(2) A description of a remedy of each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 1699.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Director of Selective Service.
(j) The agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the agency determines that it needs additional information from the complainant, it shall have 60 days from the date it receives the additional information to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated.
5 U.S.C. 552.
This part is issued under the authority of and in order to implement the Freedom of Information Act (FOIA), as amended (5 U.S.C. 552); and section 102 of the National Security Act of 1947, as amended (50 U.S.C. 403). It prescribes procedures for:
(a) Requesting information on available NACIC records, or NACIC administration of the FOIA, or estimates of fees that may become due as a result of a request;
(b) Requesting records pursuant to the FOIA; and
(c) Filing an administrative appeal of an initial adverse decision under the FOIA.
For purposes of this part, the following terms have the meanings indicated:
(1)
(2)
(3)
(4)
(1)
(2)
(3)
(4)
(1) Books, newspapers, magazines, journals, magnetic or printed transcripts of electronic broadcasts, or similar public sector materials acquired generally and/or maintained for library or reference purposes; to the extent that such materials are incorporated into any form of analysis or otherwise distributed or published by NACIC, they are fully subject to the disclosure provisions of the FOIA;
(2) Index, filing, or museum documents made or acquired and preserved solely for reference, indexing, filing, or exhibition purposes; and
(3) Routing and transmittal sheets and notes and filing or destruction notes which do not also include information, comment, or statements of substance;
For general information on this part, to inquire about the FOIA program at NACIC, or to file a FOIA request (or expression of interest), please direct your communication in writing to the Information and Privacy Coordinator, Executive Secretariat Office, National Counterintelligence Center, 3W01 NHB, Washington, DC 20505. Such inquiries will also be accepted by facsimile at (703)874-5844. For general information or status information on pending cases only, the telephone number is (703)874-4121. Collect calls cannot be accepted.
NACIC welcomes suggestions or complaints with regard to its administration of the Freedom of Information Act. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate.
Members of the public shall address all communications to the NACIC Coordinator as specified at § 1800.03 and clearly delineate the communication as a request under the Freedom of Information Act and this regulation. NACIC employees receiving a communication in the nature of a FOIA request shall expeditiously forward same to the Coordinator. Requests and appeals on requests, referrals, or coordinations received from members of the public who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on all pending requests shall be terminated in such circumstances.
(a)
(b)
(c)
(a)
(b)
(1) That, as a matter of administrative discretion, the interest of the United States Government would be served, or
(2) That it is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester; NACIC shall consider the following factors when making this determination:
(i) Whether the subject of the request concerns the operations or activities of the United States Government; and, if so,
(ii) Whether the disclosure of the requested documents is likely to contribute to an understanding of United States Government operations or activities; and, if so,
(iii) Whether the disclosure of the requested documents will contribute to public understanding of United States Government operations or activities; and, if so,
(iv) Whether the disclosure of the requested documents is likely to contribute significantly to public understanding of United States Government operations and activities; and
(v) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so,
(vi) Whether the disclosure is primarily in the commercial interest of the requester.
(c)
(d)
(e)
(f)
(g)
(2)
(3)
(h)
(2)
(i)
(1) “Commercial use” requesters: Charges which recover the full direct costs of searching for, reviewing, and duplicating responsive records (if any);
(2) “Educational and non-commercial scientific institution” requesters as well as “representatives of the news media” requesters: Only charges for reproduction beyond the first 100 pages;
(3) “All other” requesters: Charges which recover the full direct cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time which will be furnished without charge.
(j)
In order to avoid unanticipated or potentially large fees, a requester may submit a request for a fee estimate. Pursuant to the Electronic Freedom of Information Act Amendments of 1996, NACIC will endeavor within twenty (20) days to provide an accurate estimate, and, if a request is thereafter submitted, NACIC will not accrue or charge fees in excess of our estimate without the specific permission of the requester.
(a)
(b)
(c)
(d)
(a)
(i) Determine whether a record exists;
(ii) Determine whether and to what extent any FOIA exemptions apply;
(iii) Approve the disclosure of all non-exempt records or portions of records for which they are the originator; and
(iv) Forward to the Coordinator all records approved for release or necessary for coordination with or referral to another originator or interested party.
(2) In making these decisions, the NACIC component officers shall be guided by the applicable law as well as the procedures specified at § 1800.31 and § 1800.32 regarding confidential commercial information and personal information (about persons other than the requester).
(b)
(a)
(b)
(c)
(a)
(b)
(c)
(i) The submitter has in good faith designated the information as confidential commercial information, or
(ii) NACIC believes that disclosure of the information could reasonably be expected to cause substantial competitive harm, and
(iii) The information was submitted within the last ten (10) years unless the submitter requested and provided acceptable justification for a specific notice period of greater duration.
(2)
(3)
(A) Specify that the information has not been disclosed to the public;
(B) Explain why the information is contended to be a trade secret or confidential commercial information;
(C) Explain how the information is capable of competitive damage if disclosed;
(D) State that the submitter will provide NACIC and the Department of Justice with such litigation defense as requested; and
(E) Be certified by an officer authorized to legally bind the corporation or similar entity.
(ii) It should be noted that information provided by a submitter pursuant to this provision may itself be subject to disclosure under the FOIA.
(4)
(A) A statement of the reasons for which the submitter's disclosure objections were not sustained;
(B) A description of the information to be disclosed; and
(C) A specified disclosure date which is seven (7) days after the date of the instant notice.
(ii) When notice is given to a submitter under this section, NACIC shall also notify the requester and, if NACIC notifies a submitter that it intends to disclose information, then the requester shall be notified also and given the proposed date for disclosure.
(5)
(6)
(i) The information should not be disclosed in light of other FOIA exemptions;
(ii) The information has been published lawfully or has been officially made available to the public;
(iii) The disclosure of the information is otherwise required by law or federal regulation; or
(iv) The designation made by the submitter under this section appears frivolous, except that, in such a case, NACIC will, within a reasonable time prior to the specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(a)
(b)
(c)
(a)
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director of NACIC or otherwise by law,
(3) The information review and release demands imposed by the Congress or other governmental authority, and
(4) The rights of all members of the public under the various information review and disclosure laws.
(b)
(c)
(a)
(b)
(1) When the matter involves an imminent threat to the life or physical safety of an individual; or
(2) When the request is made by a person primarily engaged in disseminating information and the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity.
The Director, NACIC will make final NACIC decisions from appeals of initial adverse decisions under the Freedom of Information Act and such other information release decisions made under parts 1801, 1802, and 1803 of this chapter. Matters decided by the Director,
(a)
(b)
(c)
(d)
(e)
Each Office Chief in charge of an office which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond in writing to the Coordinator with a finding as to the exempt status of the information. This response shall be provided expeditiously on a “first-in, first-out” basis taking into account the business requirements of the parties and consistent with the information rights of members of the general public under the various information review and release laws.
(a)
(b)
The Coordinator shall promptly prepare and communicate the decision of the Director, NACIC to the requester. With respect to any decision to deny information, that correspondence shall state the reasons for the decision, identify the officer responsible, and include a notice of a right to judicial review.
5 U.S.C. 552a.
(a)
(b)
(1) To request notification of whether the National Counterintellingence Center (NACIC) maintains a record concerning them in any non-exempt portion of a system of records or any non-exempt system of records;
(2) To request a copy of all non-exempt records or portions of records;
(3) To request that any such record be amended or augmented; and
(4) To file an administrative appeal to any initial adverse determination to deny access to or amend a record.
(c)
For purposes of this part, the following terms have the meanings indicated:
For general information on this part, to inquire about the Privacy Act program at NACIC, or to file a Privacy Act request, please direct your communication in writing to the Information and Privacy Coordinator, Executive Secretariat Office, National Counterintelligence Center, 3W01 NHB, Washington, DC 20505. Requests with the required identification statement pursuant to § 1801.13 must be filed in original form by mail. Subsequent communications and any inquiries will be accepted by mail or facsimile at (703) 874-5844 or by telephone at (703) 874-4121. Collect calls cannot be accepted.
NACIC welcomes suggestions or complaints with regard to its administration of the Privacy Act. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate.
Members of the public shall address all communications to the contact specified at § 1801.3 and clearly delineate the communication as a request under the Privacy Act and this regulation. Requests and administrative appeals on requests, referrals, and coordinations received from members of the public who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on existing requests and appeals will be terminated in such circumstances.
(a)
(b)
(c)
(a)
(b)
(c)
(d)
No fees will be charged for any action under the authority of the Privacy Act, 5 U.S.C. 552a, irrespective of the fact that a request is or may be processed under the authority of both the Privacy Act and the Freedom of Information Act.
(a)
(b)
(c)
(d)
(a)
(1) Determine whether responsive records exist;
(2) Determine whether access must be denied in whole or part and on what legal basis under both Acts in each such case;
(3) Approve the disclosure of records for which they are the originator; and
(4) Forward to the Coordinator all records approved for release or necessary for coordination with or referral to another originator or interested party as well as the specific determinations with respect to denials (if any).
(b)
(1) Make the amendment as requested;
(2) Write to all other identified persons or agencies to whom the record has been disclosed (if an accounting of the disclosure was made) and inform of the amendment; and
(3) Inform the Coordinator of such decisions.
(c)
(1) Set forth the reasons for refusal; and
(2) Inform the Coordinator of such decision and the reasons therefore.
(d)
(e)
Within ten (10) days of receipt of responses to all initial taskings and subsequent coordinations (if any), and dispatch of referrals (if any), NACIC will provide disclosable records to the requester. If a determination has been made not to provide access to requested records (in light of specific exemptions) or that no records are found, NACIC shall so inform the requester, identify the denying official, and advise of the right to administrative appeal.
(a)
(1) Which records may be sent directly to the requester and
(2) Which records should not be sent directly to the requester because of possible medical or psychological harm to the requester or another person.
(b)
(1) To review the documents with the requesting individual,
(2) To explain the meaning of the documents, and
(3) To offer counseling designed to temper any adverse reaction, NACIC will forward such records to the designated physician.
(c)
(a) All requests will be handled in the order received on a strictly “first-in, first-out” basis. Exceptions to this rule will only be made in circumstances that NACIC deems to be exceptional. In making this determination, NACIC shall consider and must decide in the affirmative on all of the following factors:
(1) That there is a genuine need for the records; and
(2) That the personal need is exceptional; and
(3) That there are no alternative forums for the records sought; and
(4) That it is reasonably believed that substantive records relevant to the stated needs may exist and be deemed releasable.
(b) In sum, requests shall be considered for expedited processing only when health, humanitarian, or due process considerations involving possible deprivation of life or liberty create circumstances of exceptional urgency and extraordinary need. In accordance with established judicial precedent, requests more properly the scope of requests under the Federal Rules of Civil or Criminal Procedure (or equivalent state rules) will not be granted expedited processing under this or related (e.g., Freedom of Information Act) provisions unless expressly ordered by a federal court of competent jurisdiction.
(a)
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director, NACIC or otherwise by law,
(3) The information review and release demands imposed by the Congress or other governmental authority, and
(4) The rights of all members of the public under the various information review and disclosure laws.
(b)
(c)
The Director, NACIC will make final NACIC decisions from appeals of initial adverse decisions under the Privacy Act and such other information release decisions made under 32 CFR parts 1800, 1802, and 1803 of this chapter. Matters decided by the Director, NACIC will be deemed a final decision by NACIC.
(a)
(b)
(c)
(d)
Each Office Chief in charge of an office which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond in writing to the Coordinator with a finding as to the exempt or non-exempt status of the information including citations to the applicable exemption and/or their agreement or disagreement as to the requested amendment and the reasons therefore. Each response shall be provided expeditiously on a “first-in, first-out” basis taking into account the business requirements of the parties and consistent with the information rights of members of the general public under the various information review and release laws.
(a)
(b)
(a)
(b)
No record which is within a system of records shall be disclosed by any means of communication to any individual or to another agency, 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 would be:
(a) To those officers and employees of NACIC which maintains the record who have a need for the record in the performance of their duties;
(b) Required under the Freedom of Information Act, 5 U.S.C. 552;
(c) For a routine use as defined in § 1801.02(m), as contained in the Privacy Act Issuances Compilation which is published biennially in the
(d) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of U.S.C. Title 13;
(e) To a recipient who has provided NACIC with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(f) 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 designee to determine whether the record has such value;
(g) 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 that agency or instrumentality has made a written request to NACIC specifying the particular information desired and the law enforcement activity for which the record is sought;
(h) 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;
(i) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(j) To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the General Accounting Office; or
(k) To any agency, government instrumentality, or other person or entity pursuant to the order of a court of competent jurisdiction of the United States or constituent states.
(a)
(b)
(c)
Pursuant to authority granted in section (k) of the Privacy Act, the Director, NACIC has determined to exempt from section (d) of the Privacy Act those portions and only those portions of all systems of records maintained by NACIC that would consist of, pertain to, or otherwise reveal information that is:
(a) Classified pursuant to Executive Order 12958 (or successor or prior Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1) and 5 U.S.C. 552a(k)(1);
(b) Investigatory in nature and compiled for law enforcement purposes, other than material within the scope of section (j)(2) of the Act; provided however, that if an individual is denied any right, privilege, or benefit to which they are otherwise eligible, as a result of the maintenance of such material, then such material shall be provided to that individual except to the extent that the disclosure would reveal the identity of a source who furnished the information to the United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality;
(c) Maintained in connection with providing protective services to the President of the United States or other individuals pursuant to 18 U.S.C. 3056;
(d) Required by statute to be maintained and used solely as statistical records;
(e) Investigatory in nature and 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 United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality;
(f) 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 examination process; or
(g) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality.
Executive Order 12958, 60 FR 19825, 3 CFR 1996 Comp., p. 333-356 (or successor Orders).
(a)
(b)
For purposes of this part, the following terms have the meanings as indicated:
(1) Owned by, produced by or for, or under the control of the United States Government, and
(2) Lawfully and actually in the possession of an authorized holder and for which ownership and control has not been relinquished by NACIC;
For information on this part or to file a challenge under this part, please direct your inquiry to the Director, National Counterintelligence Center,
NACIC welcomes suggestions or complaints with regard to its administration of the Executive Order. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate.
Prior to reliance on this part, authorized holders are required to first exhaust such established administrative procedures for the review of classified information. Further information on these procedures is available from the point of contact, § 1802.3.
The challenge shall include identification of the challenger by full name and title of position, verification of security clearance or other basis of authority, and an identification of the documents or portions of documents or information at issue. The challenge shall also, in detailed and factual terms, identify and describe the reasons why it is believed that the information is not protected by one or more of the § 1.5 provisions, that the release of the information would not cause damage to the national security, or that the information should be declassified due to the passage of time. The challenge must be properly classified; in this regard, until the challenge is decided, the authorized holder must treat the challenge, the information being challenged, and any related or explanatory information as classified at the same level as the current classification of the information in dispute.
Authorized holders shall append the documents at issue and clearly mark those portions subject to the challenge. If information not in documentary form is in issue, the challenge shall state so clearly and present or otherwise refer with specificity to that information in the body of the challenge.
Authorized holders must direct challenge requests to NACIC as specified in § 1802.3. The classified nature of the challenge, as well as the appended documents, require that the holder transmit same in full accordance with established security procedures. In general, registered U.S. mail is approved for SECRET, non-compartmented material; higher classifications require use of approved Top Secret facsimile machines or NACIC-approved couriers. Further information is available from NACIC as well as corporate or other federal agency security departments.
The Coordinator shall within ten (10) days record each challenge received under this part, acknowledge receipt to the authorized holder, and task the originator and other interested parties. Additional taskings, as required during the review process, shall be accomplished within five (5) days of notification.
The Coordinator shall respond on behalf of the Director, NACIC and deny any challenge where the information in question has been the subject of a classification review within the previous two (2) years or is the subject of pending litigation in the federal courts.
(a)
(b)
(c)
The Director, NACIC is the NACIC authority to hear and decide challenges under this part.
Action by Coordinator. The Coordinator shall provide a summation memorandum for consideration of the Director, NACIC; the complete package consisting of the challenge, the information at issue, and the findings of the originator and interested parties shall also be provided. The Director, NACIC shall personally decide each case; no personal appearances shall be permitted without the express permission of the Director, NACIC.
The Coordinator shall communicate the decision of NACIC to the authorized holder, the originator, and other interested parties within ten (10) days of the decision by the Coordinator. That correspondence shall include a notice that no adverse action or retribution can be taken in regard to the challenge and that an appeal of the decision may be made to the Interagency Security Classification Appeals Panel (ISCAP) established pursuant to § 5.4 of this Order.
A right of appeal is available to the ISCAP established pursuant to § 5.4 of this Order. Action by that body will be the subject of rules to be promulgated by the Information Security Oversight Office (ISOO).
Section 3.6 of Executive Order 12958 (or successor Orders) and Section 102 of the National Security Act, as amended (50 U.S.C. 403).
(a)
(b)
For purposes of this part, the following terms have the meanings as indicated:
For general information on this part or to request a declassification review, please direct your communication to the Information and Privacy Coordinator, National Counterintelligence Center, 3W01 NHB, Washington, DC 20505. Such inquiries will also be accepted by facsimile at (703) 874-5844. For general or status information only, the telephone number is (703) 874-4121. Collect calls cannot be accepted.
NACIC welcomes suggestions or complaints with regard to its administration of the mandatory declassification review program established under Executive Order 12958. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate.
Members of the public shall address all communications to the point of contact specified above and clearly delineate the communication as a request under this part. Requests and appeals on requests received from members of the public who owe outstanding fees for information services under this Order or the Freedom of Information Act at this or another federal agency will not be accepted until such debts are resolved.
The request shall identify the document(s) or material(s) with sufficient specificity (e.g., National Archives and Records Administration (NARA) Document Accession Number or other applicable, unique document identifying number) to enable NACIC to locate it with reasonable effort. Broad or topical requests for records on a particular subject may not be accepted under this provision. A request for documents contained in the various Presidential libraries shall be effected through the staff of such institutions who shall forward the document(s) in question for NACIC review. The requester shall also provide sufficient personal identifying information when required by NACIC to satisfy requirements of this part.
Requests submitted via NARA or the various Presidential libraries shall be responsible for reproduction costs required by statute or regulation. Requests made directly to NACIC will be liable for costs in the same amount and under the same conditions as specified in part 1800 of this chapter.
The Information and Privacy Coordinator shall within ten (10) days record each mandatory declassification review request received under this part, acknowledge receipt to the requester in writing (if received directly from a requester), and shall thereafter task the originator and other interested parties. Additional taskings, as required during the review process, shall be accomplished within ten (10) days of notification.
The Coordinator shall respond to the requester and deny any request where the information in question has been the subject of a classification review within the previous two (2) years or is the subject of pending litigation in the federal courts.
(a)
(b)
(c)
The Coordinator shall communicate the decision of NACIC to the requester within ten (10) days of completion of all review action. That correspondence shall include a notice of a right of administrative appeal to the Director, NACIC pursuant to § 3.6(d) of this Order.
Appeals of decisions must be received by the Coordinator within forty-five (45) days of the date of mailing of NACIC's initial decision. It shall identify with specificity the documents or information to be considered on appeal and it may, but need not, provide a factual or legal basis for the appeal.
The Coordinator shall promptly record each appeal received under this part, acknowledge receipt to the requester, and task the originator and other interested parties. Additional taskings, as required during the review process, shall be accomplished within ten (10) days of notification.
Each NACIC Office Chief in charge of an office which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond in writing to the Coordinator with a finding as to the classified status of the information including the category of protected information as set forth in § 1.5 of this Order, and, if older than ten (10) years, the basis for continued classification under §§ 1.6 and 3.4 of this Order. These parties shall also provide a statement as to whether or not there is any other statutory, common law, or Constitutional basis for withholding as required by § 6.1(c) of this Order. This response shall be provided expeditiously on a “first-in, first-out” basis taking into account the business requirements of the parties and consistent with the information rights of members of the general public under the Freedom of Information Act and the Privacy Act.
The Director, NACIC will make final NACIC decisions from appeals of initial denial decisions under E.O. 12958. Matters decided by the Director, NACIC will be deemed a final decision by NACIC.
Action by the Director, NACIC. The Coordinator shall provide a summation memorandum for consideration of the Director, NACIC; the complete record of the request consisting of the request, the document(s) (sanitized and full text) at issue, and the findings of the originator and interested parties. The Director, NACIC shall personally decide each case; no personal appearances shall be permitted without the express permission of the Director, NACIC.
The Coordinator shall communicate the decision of the Director, NACIC to the requester, NARA, or the particular Presidential Library within ten (10) days of such decision. That correspondence shall include a notice that an appeal of the decision may be made to the Interagency Security Classification Appeals Panel (ISCAP) established pursuant to § 5.4 of this Order.
A right of further appeal is available to the ISCAP established pursuant to
Section 4.5 of Executive Order 12958 (or successor Orders) and Presidential Decision Directive/NSC 24 “U.S. Counterintelligence Effectiveness,” dated May 3, 1994.
(a)
(b)
(i) Requesting access to NACIC records for purposes of historical research, or
(ii) Requesting access to NACIC records as a former Presidential appointee.
(2) Section 4.5 of Executive Order 12958 and this part do not create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, officers, or employees.
For purposes of this part, the following terms have the meanings indicated:
For general information on this part, to inquire about historical access to NACIC records, or to make a formal request for such access, please direct your communication in writing to the Information and Privacy Coordinator, Executive Secretariat, 3W01 NHB, National Counterintelligence Center, Washington, DC 20505. Inquiries will also be accepted by facsimile at (703) 874-5844. For general information only, the telephone number is (703) 874-4121. Collect calls cannot be accepted.
NACIC welcomes suggestions or complaints with regard to its administration of the historical access program established pursuant to Executive Order 12958. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate.
(a)
(2)
(b)
The Director, NACIC has designated the Coordinator, as the NACIC authority to decide requests for historical and former Presidential appointee access under Executive Order 12958 (or successor Orders) and this part.
The Information and Privacy Coordinator shall within ten (10) days record each request for historical access received under this part, acknowledge receipt to the requester in writing and take the following action:
(a)
(b)
(a)
(1)That a serious professional or scholarly research project by the requester is contemplated;
(2) That such access is clearly consistent with the interests of national security (by originator and interested party, if any);
(3) That a non-disclosure agreement has been or will be executed by the requester (or research associate, if any) and other appropriate steps have been taken to assure that classified information will not be disclosed or otherwise compromised;
(4) That a pre-publication agreement has been or will be executed by the requester (or research associate, if any) which provides for a review of notes and any resulting manuscript by the Deputy Director of NACIC;
(5) That the information requested is reasonably accessible and can be located and compiled with a reasonable effort (by the Deputy Director of NACIC and the originator);
(6) That it is reasonably expected that substantial and substantive government documents and/or information will be amenable to declassification and release and/or publication (by the Deputy Director of NACIC and the originator);
(7) That sufficient resources are available for the administrative support of the researcher given current mission requirements (by the Deputy Director of NACIC and the originator); and,
(8) That the request cannot be satisfied to the same extent through requests for access to reasonably described records under the Freedom of Information Act or the mandatory declassification review provisions of Executive Order 12958 (by the Coordinator, the Deputy Director of NACIC and the originator).
(b)
Action by Coordinator. The Coordinator shall provide a summation memorandum for consideration of the Director, NACIC, the complete record of the request consisting of the request and the findings of the tasked parties. The Director, NACIC shall decide requests on the basis of the eight factors enumerated at § 1804.14(a). The Director, NACIC shall personally decide each case; no personal appearances shall be permitted without the express permission of the Director, NACIC.
The record compiled (the request, the memoranda filed by the originator and interested parties, and the previous decision(s)) as well as any memorandum of law or policy the referent desires to be considered, shall be certified by the Coordinator and shall constitute the official record of the proceedings and must be included in any subsequent filings. In such cases, the factors to be determined as specified in § 1804.14(a) will be considered by the Director, NACIC de novo and that decision shall be final.
The Coordinator shall inform the requester of the decision of the Director, NACIC within ten (10) days of the decision and, if favorable, shall manage the
The Coordinator shall cancel any authorization whenever the security clearance of a requester (or research associate, if any) has been canceled or whenever the Director, NACIC determines that continued access would not be in compliance with one or more of the requirements of § 1804.14(a).
5 U.S.C. 104; Presidential Decision Directive/NSC 24 “U.S. Counterintelligence Effectiveness, dated May 3, 1994; 50 U.S.C. 403g; United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); E.O. 12333; E.O. 12356; U.S. v. Snepp 444 U.S. 507 (1980).
This part sets forth the policy and procedures with respect to the production or disclosure of:
(a) Material contained in the files of NACIC,
(b) Information relating to or based upon material contained in the files of NACIC,
(c) Information acquired by any person while such person is an employee of NACIC as part of the performance of that person's official duties or because of that person's association with NACIC.
For the purpose of this part:
(1) Any material contained in the files of NACIC; or
(2) Any information relating to material contained in the files of NACIC, including but not limited to summaries of such information or material, or opinions based on such information or material; or
(3) Any information acquired by persons while such persons were employees of NACIC as a part of the performance of their official duties or because of their official status or association with NACIC; in response to a demand upon an employee of NACIC.
(a) No employee shall produce any materials or information in response to a demand without prior authorization as set forth in this part. This part also applies to former employees to the extent consistent with applicable non-disclosure agreements.
(b) This part is intended only to provide procedures for responding to demands for production of documents or information, and is not intended to, does not, and may not be relied upon to, create any right or benefit, substantive or procedural, enforceable by any party against the United States.
(a) Whenever a demand for production is made upon an employee, the employee shall immediately notify
(b) NACIC Counsel and the Office Chiefs with responsibility for the information sought in the demand shall determine whether any information or materials may properly be produced in response to the demand, except that NACIC Counsel may assert any and all legal defenses and objections to the demand available to NACIC prior to the start of any search for information responsive to the demand. NACIC may, in its sole discretion, decline to begin any search for information responsive to the demand until a final and non-appealable disposition of any such defenses and objections raised by NACIC has been made by the entity or person that issued the demand.
(c) NACIC officials shall consider the following factors, among others, in reaching a decision:
(1) Whether production is appropriate in light of any relevant privilege;
(2) Whether production is appropriate under the applicable rules of discovery or the procedures governing the case or matter in which the demand arose; and
(3) Whether any of the following circumstances apply:
(i) Disclosure would violate a statute, including but not limited to the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
(ii) Disclosure would reveal classified information;
(iii) Disclosure would improperly reveal trade secrets or proprietary confidential information without the owner's consent; or
(iv) Disclosure would interfere with the orderly conduct of NACIC's functions.
(d) If oral or written testimony is sought by a demand in a case or matter in which the NACIC is not a party, a reasonably detailed description of the testimony sought, in the form of an affidavit or, if that is not feasible, a written statement, by the party seeking the testimony or by the party's attorney must be furnished to the NACIC Counsel.
(e) The NACIC Counsel shall be responsible for notifying the appropriate employees and other persons of all decisions regarding responses to demands and providing advice and counsel as to the implementation of such decisions.
(f) If response to a demand is required before a decision is made whether to provide the documents or information sought by the demand, NACIC Counsel, after consultation with the Department of Justice, shall appear before and furnish the court or other competent authority with a copy of this part and state that the demand has been or is being, as the case may be, referred for the prompt consideration of the appropriate NACIC officials, and shall respectfully request the court or other authority to stay the demand pending receipt of the required instructions.
(g) If the court or any other authority declines to stay the demand pending receipt of instructions in response to a request made in accordance with § 1805.4(g) or rules that the demand must be complied with regardless of instructions rendered in accordance with this Part not to produce the material or disclose the information sought, the employee upon whom the demand has been made shall, if so directed by NACIC Counsel, respectfully decline to comply with the demand under the authority of
(h) With respect to any function granted to NACIC officials in this part, such officials are authorized to delegate in writing their authority in any case or matter or category thereof to subordinate officials.
(i) Any non-employee who receives a demand for the production or disclosure of NACIC information acquired because of that person's association or contacts with NACIC should notify NACIC Counsel, (703) 874-4121, for guidance and assistance. In such cases, the provisions of this part shall be applicable.
5 U.S.C. 104; Presidential Decision Directive/NSC 24 “U.S. Counterintelligence Effectiveness”, dated May 3, 1994; 50 U.S.C. 403g; E.O. 12333.
(a) This part sets forth the authority of NACIC personnel to accept service of process on behalf of the NACIC or any NACIC employee.
(b) This part is intended to ensure the orderly execution of the NACIC's affairs and not to impede any legal proceeding.
(c) NACIC regulations concerning employee responses to demands for production of official information before federal, state or local government entities are set out in part 1805 of this chapter.
(a)
(2)
(b)
(2)
(3)
(c)
(d)
A NACIC employee who receives or has reason to expect to receive service of process in an individual, official, or combined individual and official capacity, in a matter that may involve or the furnishing of documents and that could reasonably be expected to involve NACIC interests, shall promptly notify the NACIC Counsel. Such notification should be given prior to providing the requestor, personal counsel or any other representative, any NACIC information and prior to the acceptance of service of process.
Any questions concerning interpretation of this part shall be referred to the NACIC Counsel for resolution
5 U.S.C. 104, Presidential Decision Directive/NSC 24 U.S. Counterintelligence Effectiveness, dated May 3, 1994, 29 U.S.C. 794.
The purpose of this part is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of disability in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the NACIC.
For purposes of this part, the following terms means—
(1) Physical or mental impairment includes—
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Cardiovascular; Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction, and alcoholism.
(2) Major life activities includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working;
(3) Has a record of such an impairment means has a history of, or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.
(4) Is regarded as having an impairment means—
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the NACIC as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the NACIC as having such an impairment.
(1) With respect to any NACIC program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with a handicap who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the NACIC can demonstrate would result in a fundamental alteration in its nature;
(2) With respect to any other NACIC program or activity, an individual with disabilities who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(3) Qualified individual with a disability as that term is defined for purposes of employment in 29 CFR 1614.203(a)(6), which is made applicable to this part by § 1807.140.
The NACIC shall make available to employees, applicants, participants, beneficiaries, and other interested persons, such information regarding the provisions of this part and its applicability to the programs or activities conducted by the NACIC, and make that information available to them in such manner as the Director finds necessary to apprise those persons of the protections against discrimination assured them by section 504 and the regulations in this part.
(a) No qualified individual with disabilities shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under, any program or activity conducted by the NACIC.
(b)(1) The NACIC, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability:
(i) Deny a qualified individual with disabilities the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Deny a qualified individual with disabilities an opportunity to obtain the same result, to gain the same benefit, to reach the same level of achievement as that provided to others;
(iii) Provide a qualified individual with disabilities with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless that action is necessary to provide qualified individuals with disabilities with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified individual with disabilities the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with disabilities in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The NACIC may not deny a qualified individual with disabilities the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The NACIC may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would:
(i) Subject qualified individuals with disabilities to discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(4) The NACIC may not, in determining the site or location of a facility, make selections the purpose or effect of which would:
(i) Exclude individuals with disabilities from, deny them the benefits of, or otherwise subject them to discrimination under, any program or activity conducted by the NACIC; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(5) The NACIC, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.
(6) The NACIC may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination
(c) The exclusion of persons without disabilities from the benefits of a program limited by Federal statute or Executive Order to individuals with disabilities or the exclusion of a specific class of individuals with disabilities from a program limited by Federal statute or Executive Order to a different class of individuals with disabilities is not prohibited by this part.
(d) The NACIC shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
No qualified individual with disabilities shall, solely on the basis of disability, be subjected to discrimination in employment under any program or activity conducted by the NACIC. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1979 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1614, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 1807.150, no qualified individual with disabilities shall, because the NACIC's facilities are inaccessible to or unusable by individuals with disabilities, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the NACIC.
(a)
(1) Necessarily require the NACIC to make each of its existing facilities accessible to and usable by individuals with disabilities;
(2)(i) Require the NACIC to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.
(ii) The NACIC has the burden of proving that compliance with § 1807.150(a) would result in that alteration or those burdens.
(iii) The decision that compliance would result in that alteration of those burdens must be made by the Director after considering all of the NACIC's resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion.
(iv) If an action would result in that alteration or those burdens, the NACIC shall take any other action that would not result in the alteration of burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity.
(b)
(2) The NACIC is not required to make structural changes in existing facilities if other methods are effective in achieving compliance with this section.
(3) In choosing among available methods for meeting the requirements of this section, the NACIC shall give priority to those methods that offer
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of, the NACIC shall be designed, constructed, or altered so as to be readily accessible to and usable by individuals with disabilities in compliance with the definitions, requirements, and standards of the Americans with Disabilities Act Accessibility Guidelines, 36 CFR part 1191.
(a) The NACIC shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public as follows:
(1)(i) The NACIC shall furnish appropriate auxiliary aids if necessary to afford an individual with disabilities an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the NACIC.
(ii) In determining what type of auxiliary aid is necessary, the NACIC shall give primary consideration to the requests of the individual with disabilities.
(2) Where the NACIC communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD's) or equally effective telecommunication systems shall be used to communicate with persons with impaired hearing.
(b) The NACIC shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) This section does not require the NACIC to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where NACIC personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the NACIC has the burden of proving that compliance with § 1807.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the NACIC head or his or her designee after considering all NACIC resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the NACIC shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of disability in programs and activities conducted by the NACIC.
(b) The NACIC shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Director, Office of Equal Employment Opportunity, is responsible for coordinating implementation of this section. Complaints may be sent to NACIC, Director, Washington, DC 20505.
(d) The NACIC shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The NACIC may extend this time period for good cause.
(e) If the NACIC receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The NACIC shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Americans with Disabilities Act Accessibility Guidelines is not readily accessible to and usable by individuals with disabilities.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, The NACIC shall notify the complainant of the results of the investigation in a letter containing:
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the NACIC of the letter required by paragraph (g) of this section. The NACIC may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Director.
(j) The NACIC shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the NACIC determines that it needs additional information from the complainant, it shall have 60 days from the date it receives the additional information to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The Director may delegate the authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated.
National Security Act of 1947, as amended; Central Intelligence Agency Act of 1949, as amended; Freedom of Information Act, as amended; CIA Information Act of 1984; and Executive Order 12958 , 60 FR 19825, 3 CFR 1996 Comp., p. 333-356 (or successor Orders).
This part is issued under the authority of and in order to implement the Freedom of Information Act (FOIA), as amended (5 U.S.C. 552); the CIA Information Act of 1984 (50 U.S.C. 431); sec. 102 of the National Security Act of 1947, as amended (50 U.S.C. 403); and sec. 6 of the Central Intelligence Agency Act of 1949, as amended (50 U.S.C. 403g). It prescribes procedures for:
(a) Requesting information on available CIA records, or the CIA administration of the FOIA, or estimates of fees that may become due as a result of a request;
(b) Requesting records pursuant to the FOIA; and
(c) Filing an administrative appeal of an initial adverse decision under the FOIA.
For purposes of this part, the following terms have the meanings indicated:
(a)
(b)
(c)
(d)
(e)
(1)
(2)
(3)
(4)
(f)
(g)
(h)
(1)
(2)
(3)
(4)
(i)
(j)
(k)
(l)
(m)
(n)
(1)
(2)
(3)
(o)
For general information on this part, to inquire about the FOIA program at CIA, or to file a FOIA request (or expression of interest), please direct your communication in writing to the Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505. Such inquiries will also be accepted by facsimile at (703) 613-3007. For general information or status information on pending cases only, the telephone number is (703) 613-1287. Collect calls cannot be accepted.
The Agency welcomes suggestions or complaints with regard to its administration of the Freedom of Information Act. Many requesters will receive pre-paid, customer satisfaction survey cards. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. The Agency will respond to all substantive communications and take such actions as determined feasible and appropriate.
Members of the public shall address all communications to the CIA Coordinator as specified at 32 CFR 1900.03 and clearly delineate the communication as a request under the Freedom of Information Act and this regulation. CIA employees receiving a communication in the nature of a FOIA request shall expeditiously forward same to the Coordinator. Requests and appeals on requests, referrals, or coordinations received from members of the public who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on all pending requests shall be terminated in such circumstances.
(a)
(b)
(c)
(a)
(b)
(1) That, as a matter of administrative discretion, the interest of the United States Government would be served, or
(2) That it is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester; the Agency shall consider the following factors when making this determination:
(i) Whether the subject of the request concerns the operations or activities of the United States Government; and, if so,
(ii) Whether the disclosure of the requested documents is likely to contribute to an understanding of United States Government operations or activities; and, if so,
(iii) Whether the disclosure of the requested documents will contribute to public understanding of United States Government operations or activities; and, if so,
(iv) Whether the disclosure of the requested documents is likely to contribute significantly to public understanding of United States Government operations and activities; and
(v) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so,
(vi) Whether the disclosure is primarily in the commercial interest of the requester.
(c)
(d)
(e)
(f)
(g)
(2)
(3)
(h)
(2)
(i)
(1)
(2)
(3)
(j)
In order to avoid unanticipated or potentially large fees, a requester may submit a request for a fee estimate. The Agency will endeavor within ten (10) days to provide an accurate estimate, and, if a request is thereafter submitted, the Agency will not accrue or charge fees in excess of our estimate without the specific permission of the requester. Effective October 2, 1997, the ten (10) day provision is modified to twenty (20) days pursuant to the Electronic Freedom of Information Act Amendments of 1996.
(a)
(b)
(c)
(d)
(a)
(1) Determine whether a record exists;
(2) Determine whether and to what extent any FOIA exemptions apply;
(3) Approve the disclosure of all non-exempt records or portions of records for which they are the originator; and
(4) Forward to the Coordinator all records approved for release or necessary for coordination with or referral
(b)
(a)
(b)
(c)
(a)
(1)
(2)
(3)
(b)
(c)
(i) The submitter has in good faith designated the information as confidential commercial information, or
(ii) The Agency believes that disclosure of the information could reasonably be expected to cause substantial competitive harm, and
(iii) The information was submitted within the last ten (10) years unless the submitter requested and provided acceptable justification for a specific notice period of greater duration.
(2)
(3)
(A) Specify that the information has not been disclosed to the public;
(B) Explain why the information is contended to be a trade secret or confidential commercial information;
(C) Explain how the information is capable of competitive damage if disclosed;
(D) State that the submitter will provide the Agency and the Department of Justice with such litigation defense as requested; and
(E) Be certified by an officer authorized to legally bind the corporation or similar entity.
(ii) It should be noted that information provided by a submitter pursuant to this provision may itself be subject to disclosure under the FOIA.
(4)
(A) A statement of the reasons for which the submitter's disclosure objections were not sustained;
(B) A description of the information to be disclosed; and
(C) A specified disclosure date which is seven (7) days after the date of the instant notice.
(ii) When notice is given to a submitter under this section, the Agency shall also notify the requester and, if the Agency notifies a submitter that it intends to disclose information, then the requester shall be notified also and given the proposed date for disclosure.
(5)
(6)
(i) The information should not be disclosed in light of other FOIA exemptions;
(ii) The information has been published lawfully or has been officially made available to the public;
(iii) The disclosure of the information is otherwise required by law or federal regulation; or
(iv) The designation made by the submitter under this section appears frivolous, except that, in such a case, the Agency will, within a reasonable time prior to the specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(a)
(1)
(2)
(b)
(c)
(a)
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director of Central Intelligence or otherwise by law,
(3) The information review and release demands imposed by the Congress or other governmental authority, and
(4) The rights of all members of the public under the various information review and disclosure laws.
(b)
(c)
(a)
(b)
(i) That there is a genuine need for the specific requested records; and
(ii) That the personal need is exceptional; and
(iii) That there are no alternative forums for the records or information sought; and
(iv) That it is reasonably believed that substantive records relevant to the stated needs may exist and be deemed releasable.
(2) In sum, requests shall be considered for expedited processing only when health, humanitarian, or due process considerations involving possible deprivation of life or liberty create circumstances of exceptional urgency and extraordinary need.
(c)
(1) When the matter involves an imminent threat to the life or physical safety of an individual; or
(2) When the request is made by a person primarily engaged in disseminating information and the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity.
(a)
(b)
(1)
(2)
(c)
(1)
(2)
(a)
(b)
(c)
(d)
(e)
Each Deputy Director in charge of a directorate which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond
(a)
(b)
(c)
The Executive Secretary of the Agency Release Panel shall promptly prepare and communicate the decision of the Panel or Board to the requester. With respect to any decision to deny information, that correspondence shall state the reasons for the decision, identify the officer responsible, and include a notice of a right to judicial review.
National Security Act of 1947, as amended; Central Intelligence Agency Act of 1949, as amended; Privacy Act, as amended; and Executive Order 12958 (or successor Orders).
(a)
(b)
(1) To request notification of whether the Central Intelligence Agency maintains a record concerning them in any non-exempt portion of a system of records or any non-exempt system of records;
(2) To request a copy of all non-exempt records or portions of records;
(3) To request that any such record be amended or augmented; and
(4) To file an administrative appeal to any initial adverse determination to deny access to or amend a record.
(c)
For purposes of this part, the following terms have the meanings indicated:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
For general information on this part, to inquire about the Privacy Act program at CIA, or to file a Privacy Act request, please direct your communication in writing to the Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC. 20505. Requests with the required identification statement pursuant to 32 CFR 1901.13 must be filed in original form by mail. Subsequent communications and any inquiries will be accepted by mail or facsimile at (703) 613-3007 or by telephone at (703) 613-1287. Collect calls cannot be accepted.
The Agency welcomes suggestions or complaints with regard to its administration of the Privacy Act. Many requesters will receive pre-paid, customer satisfaction survey cards. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. The Agency will respond to all substantive communications and take such actions as determined feasible and appropriate.
Members of the public shall address all communications to the contact specified at § 1901.03 and clearly delineate the communication as a request under the Privacy Act and this regulation. Requests and administrative appeals on requests, referrals, and coordinations received from members of the public who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on existing requests and appeals will be terminated in such circumstances.
(a)
(b)
(c)
(a)
(b)
(c)
(d)
No fees will be charged for any action under the authority of the Privacy Act, 5 U.S.C. 552a, irrespective of the fact that a request is or may be processed under the authority of both the Privacy Act and the Freedom of Information Act.
(a)
(b)
(c)
(d)
(a)
(1) Determine whether responsive records exist;
(2) Determine whether access must be denied in whole or part and on what legal basis under both Acts in each such case;
(3) Approve the disclosure of records for which they are the originator; and
(4) Forward to the Coordinator all records approved for release or necessary for coordination with or referral to another originator or interested party as well as the specific determinations with respect to denials (if any).
(b)
(1) Make the amendment as requested;
(2) Write to all other identified persons or agencies to whom the record has been disclosed (if an accounting of the disclosure was made) and inform of the amendment; and
(3) Inform the Coordinator of such decisions.
(c)
(1) Set forth the reasons for refusal; and
(2) Inform the Coordinator of such decision and the reasons therefore.
(d)
(e)
Within ten (10) days of receipt of responses to all initial taskings and subsequent coordinations (if any), and dispatch of referrals (if any), the Agency will provide disclosable records to the requester. If a determination has been made not to provide access to requested records (in light of specific exemptions) or that no records are found, the Agency shall so inform the requester, identify the denying official, and advise of the right to administrative appeal.
(a)
(1) Which records may be sent directly to the requester and
(2) Which records should not be sent directly to the requester because of possible medical or psychological harm to the requester or another person.
(b)
(1) To review the documents with the requesting individual,
(2) To explain the meaning of the documents, and
(3) To offer counseling designed to temper any adverse reaction, the Agency will forward such records to the designated physician.
(c)
(a) All requests will be handled in the order received on a strictly “first-in, first-out” basis. Exceptions to this rule will only be made in circumstances that the Agency deems to be exceptional. In making this determination, the Agency shall consider and must decide in the affirmative on all of the following factors:
(1) That there is a genuine need for the records; and
(2) That the personal need is exceptional; and
(3) That there are no alternative forums for the records sought; and
(4) That it is reasonably believed that substantive records relevant to the stated needs may exist and be deemed releasable.
(b) In sum, requests shall be considered for expedited processing only when health, humanitarian, or due process considerations involving possible deprivation of life or liberty create circumstances of exceptional urgency and extraordinary need. In accordance with established judicial precedent, requests more properly the scope of requests under the Federal Rules of Civil or Criminal Procedure (or equivalent state rules) will not be granted expedited processing under this or related (e.g., Freedom of Information Act) provisions unless expressly ordered by a federal court of competent jurisdiction.
(a)
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director of Central Intelligence or otherwise by law,
(3) The information review and release demands imposed by the Congress or other governmental authority, and
(4) The rights of all members of the public under the various information review and disclosure laws.
(b)
(c)
(a)
(b)
(1)
(2)
(c)
(1)
(2)
(a)
(b)
(c)
(d)
Each Deputy Director in charge of a directorate which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond in writing to the Coordinator with a finding as to the exempt or non-exempt status of the information including citations to the applicable exemption and/or their agreement or disagreement as to the requested amendment and the reasons therefore. Each response shall be provided expeditiously on a “first-in, first-out” basis taking into account the business requirements of the parties and consistent with the information rights of members of the general public under the various information review and release laws.
(a)
(b)
(c)
(a)
(b)
No record which is within a system of records shall be disclosed by any means of communication to any individual or to another agency, 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 would be:
(a) To those officers and employees of this Agency which maintains the record who have a need for the record in the performance of their duties;
(b) Required under the Freedom of Information Act, 5 U.S.C. 552;
(c) For a routine use as defined in § 1901.02(m), as contained in the Privacy Act Issuances Compilation which is published biennially in the
(d) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of U.S.C. Title 13;
(e) To a recipient who has provided the Agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(f) 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 designee to determine whether the record has such value;
(g) 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 that agency or instrumentality has made a written request to the CIA specifying the particular information desired and the law enforcement activity for which the record is sought;
(h) 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;
(i) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(j) To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the General Accounting Office; or
(k) To any agency, government instrumentality, or other person or entity pursuant to the order of a court of competent jurisdiction of the United States or constituent states.
(a)
(b)
(c)
(a) The purpose of the following specified general exemption of polygraph records is to prevent access and review of records which intimately reveal CIA operational methods. The purpose of the general exemption from the provisions of sections (c)(3) and (e)(3) (A)-(D) of the Privacy Act is to avoid disclosures that may adversely affect ongoing operational relationships with other intelligence and related organizations and thus reveal or jeopardize intelligence sources and methods or risk exposure of intelligence sources and methods in the processing of covert employment applications.
(b) The purpose of the general exemption from sections (d), (e)(4)(G), (f)(1), and (g) of the Privacy Act is to protect only those portions of systems of records which if revealed would risk exposure of intelligence sources and methods or hamper the ability of the CIA to effectively use information received from other agencies or foreign governments.
(c) It should be noted that by subjecting information which would consist of, reveal, or pertain to intelligence sources and methods to separate determinations by the Director of Central Intelligence under the provision entitled
(d) The purpose of the general exemption for records that consist of, pertain to, or would otherwise reveal the identities of employees who provide information to the Office of the Inspector General is to implement section 17 of the CIA Act of 1949, as amended, 50 U.S.C. 403q(e)(3), and to ensure that no action constituting a reprisal or threat of reprisal is taken because an employee has cooperated with the Office of Inspector General.
(e) The purpose of the specific exemptions provided for under section (k) of the Privacy Act is to exempt only those portions of systems of records which would consist of, reveal, or pertain to that information which is enumerated in that section of the Act.
(f) In each case, the Director of Central Intelligence currently or then in office has determined that the enumerated classes of information should be exempt in order to comply with dealing with the proper classification of national defense or foreign policy information; protect the identification of persons who provide information to the CIA Inspector General; protect the privacy of other persons who supplied information under an implied or express grant of confidentiality in the case of law enforcement or employment and security suitability investigations (or promotion material in the case of the armed services); protect information used in connection with protective services under 18 U.S.C. 3056; protect the efficacy of testing materials; and protect information which is required by statute to be maintained and used solely as statistical records.
(a) Pursuant to authority granted in section (j) of the Privacy Act, the Director of Central Intelligence has determined to exempt from all sections of the Act—except sections 552a(b); (c) (1) and (2); (e) (1), (4) (A)-(F), (5), (6), (7), (9), (10), and (11); and (i)—the following systems of records or portions of records in a system of record:
(1) Polygraph records.
(2) [Reserved].
(b) Pursuant to authority granted in section (j) of the Privacy Act, the Director of Central Intelligence has determined to exempt from sections (c)(3) and (e)(3) (A)-(D) of the Act all systems of records maintained by this Agency.
(c) Pursuant to authority granted in section (j) of the Privacy Act, the Director of Central Intelligence has determined to exempt from notification
(d) Pursuant to authority granted in section (j) of the Privacy Act, the Director of Central Intelligence has determined to exempt from access by individuals under section (d) of the Act those portions and only those portions of all systems of records maintained by the CIA that:
(1) Consist of, pertain to, or would otherwise reveal intelligence sources and methods;
(2) Consist of documents or information provided by any foreign government entity, international organization, or, any United States federal, state, or other public agency or authority; and
(3) Consist of information which would reveal the identification of persons who provide information to the CIA Inspector General.
(e) Pursuant to authority granted in section (j) of the Privacy Act, the Director of Central Intelligence has determined to exempt from judicial review under section (g) of the Act all determinations to deny access under section (d) of the Act and all decisions to deny notice under sections (e)(4)(G) and (f)(1) of the Act pursuant to determination made under paragraph (c) of this section when it has been determined by an appropriate official of the CIA that such access would disclose information which would:
(1) Consist of, pertain to, or otherwise reveal intelligence sources and methods;
(2) Consist of documents or information provided by any foreign government entity, international organization, or, any United States federal, state, or other public agency or authority; and
(3) Consist of information which would reveal the identification of persons who provide information to the CIA Inspector General.
Pursuant to authority granted in section (k) of the Privacy Act, the Director of Central Intelligence has determined to exempt from section (d) of the Privacy Act those portions and only those portions of all systems of records maintained by the CIA that would consist of, pertain to, or otherwise reveal information that is:
(a) Classified pursuant to Executive Order 12958 (or successor or prior Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1) and 5 U.S.C. 552a(k)(1);
(b) Investigatory in nature and compiled for law enforcement purposes, other than material within the scope of section (j)(2) of the Act; provided however, that if an individual is denied any right, privilege, or benefit to which they are otherwise eligible, as a result of the maintenance of such material, then such material shall be provided to that individual except to the extent that the disclosure would reveal the identity of a source who furnished the information to the United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality;
(c) Maintained in connection with providing protective services to the President of the United States or other individuals pursuant to 18 U.S.C. 3056;
(d) Required by statute to be maintained and used solely as statistical records;
(e) Investigatory in nature and 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 United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality;
(f) 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 examination process; or
(g) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality.
Sec. 5-402 of Executive Order 12065.
(a)—(b) [Reserved]
(c) The Executive Order provides that in some cases the need to protect properly classified information “may be outweighed by the public interest in disclosure of the information,” and that “when such questions arise” the competing interests in protection and disclosure are to be balanced. The Order further provides that the information is to be declassified in such cases if the balance is struck in favor of disclosure. The drafters of the Order recognized that such cases would be rare and that declassification decisions in such cases would remain the responsibility of the Executive Branch. For purposes of these provisions, a question as to whether the public interest favoring the continued protection of properly classified information is outweighed by a public interest in the disclosure of that information will be deemed to exist only in circumstances where, in the judgment of the agency, nondisclosure could reasonably be expected to:
(1) Place a person's life in jeopardy.
(2) Adversely affect the public health and safety.
(3) Impede legitimate law enforcement functions.
(4) Impede the investigative or oversight functions of the Congress.
(5) Obstruct the fair administration of justice.
(6) Deprive the public of information indispensable to public decisions on issues of critical national importance (effective for declassification reviews conducted on or after 1 February 1980).
(d) When a case arises that requires a balancing of interests under paragraph (c) above, the reviewing official shall refer the matter to an Agency official having Top Secret classification authority, who shall balance. If it appears that the public interest in disclosure of the information may outweigh any continuing need for its protection, the case shall be referred with a recommendation for decision to the appropriate Deputy Director or Head of Independent Office. If those officials believe disclosure may be warranted, they, in coordination with OGC, as appropriate, shall refer the matter and a recommendation to the DDCI. If the DDCI determines that the public interest in disclosure of the information outweighs any damage to national security that might reasonably be expected to result from disclosure, the information shall be declassified.
50 U.S.C. 403o.
As used in this part:
The provisions of this part apply to all Agency installations, and to all persons entering on to or when on an Agency installation. They supplement the provisions of Title 18, United States Code, relating to crimes and
(a) Unless specifically addressed by the regulations in this part, traffic safety and the permissible use and operation of vehicles within an Agency installation are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part.
(b) Violating a provision of State law is prohibited.
(a)
(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 an Agency installation 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, to an open container stored in some other portion of the vehicle designated for the storage of luggage and not normally occupied by or readily accessible to the operator or passenger; or
(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.
(b)
(i) Under the influence of alcohol, drug or drugs, a controlled substance, 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 is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more alcohol per 210 liters of breath. Provided, however, that if the applicable 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 section.
(2) The provisions or paragraph (b)(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 many 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 officer of the Security Protective Service.
(iv) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability and operated by personnel certified in its use.
(4)
(ii) The provisions of paragraph (b)(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 any combination thereof.
(a) A vehicle parked in any location without authorization, pursuant to a fraudulent, fabricated, copied or altered parking permit, or parked contrary to the directions of posted signs or markings, shall be subject to any penalties imposed by this section and the vehicle may be removal from the Agency installation a the owner's risk and expense. The Central Intelligence Agency assumes no responsibility for the payment of any fees or costs related to the removal and/or storage of the vehicle which may be charged to the owner of the vehicle by the towing organization.
(b) The use, attempted use or possession of a fraudulent, fabricated, copied or altered parking permit is prohibited.
(c) The blocking of entrances, driveways, sidewalks, paths, loading platforms, or fire hydrants on an Agency installation is prohibited.
(d) This section may be supplemented or the applicability suspended from time to time by the Director of the Center for CIA Security, or by his or her designee, by the issuance and posting of such parking directives as may be required, and when so issued and posted, such directives shall the same force and effects as if made a part thereof.
(e) Proof that a vehicle was parked in violation of the regulations of this section or directives may be taken as
(a) Access on to any Agency installation shall be controlled and restricted to ensure the orderly and secure conduct of Agency business. Admission on to an Agency installation or into a restricted area on an Agency installation shall be limited to Agency employees and other persons with proper authorization.
(b) All persons entering on to or when on an Agency installation shall, when required and/or requested, produce and display proper identification to authorized persons.
(c) All personal property, including but not limited to any packages, briefcases, other containers or vehicles brought on to, on, or being removed from an Agency installation are subject to inspection and search by authorized persons.
(d) A full search of a person may accompany an investigative stop or an arrest.
(e) Persons entering on to an Agency installation or into a restricted area who refuse to permit an inspection and search will be denied further entry and will be ordered to leave the Agency installation or restricted area pursuant to § 1903.7(a) of this part.
(f) All persons entering on to or when on any Agency installation shall comply with all official signs of a prohibitory, regulatory, or directory nature at all times while on the Agency installation.
(g) All persons entering on to or when on any Agency installation shall comply with the instructions or directions of authorized persons.
(a) Entering, or remaining on any Agency installation without proper authorization is prohibited. Failure to obey an order to leave given under this section by an authorized person, or reentry or attempted reentry onto the Agency installation after being ordered
(b) Any person who violates the provisions of this part may be ordered to leave the Agency installation by an authorized person. A violator's reentry may also be prohibited.
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) Using, possessing, storing, or transporting explosives, blasting agents, ammunition or explosive materials is prohibited on any Agency installation, except as authorized by the Director of the Center for CIA Security. When permitted, the use, possession, storage, and transportation shall be in accordance with applicable Federal and State laws, and shall also be in accordance with applicable Central Intelligence Agency rules and/or regulations.
(b) Using, possessing, storing, or transporting items intended to be used to fabricate an explosive or incendiary device, either openly or concealed, except for official purposes is prohibited.
(a) Except as provided in paragraph (c) of this section, knowingly possessing or causing to be present a weapon on an Agency installation, or attempting to do so is prohibited.
(b) Knowingly possessing or causing to be present a weapon on an Agency installation, incident to hunting or other lawful purposes is prohibited.
(c) This section does not apply—
(1) Where Title 18 U.S.C. 930 applies;
(2) To any person who has received authorization from the Director of the Center for CIA Security, or from his or her designee to possess, carry, transport, or use a weapon in support of the Agency's mission or for other lawful purposes as determined by the Director of the Center for CIA Security;
(3) To the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law; or
(4) To the possession of a weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law.
(a) Except as otherwise authorized under this section, the following are prohibited on Agency installations:
(1) Possessing a camera, other visual or audio recording devices, or electronic transmitting equipment of any kind.
(2) Carrying a camera, other visual or audio recording devices, or electronic transmitting equipment of any kind.
(3) Using a camera, other visual or audio recording devices, or electronic transmitting equipment of any kind.
(b) This section does not apply to any person using, possessing or storing a government or privately owned cellular telephone or pager while on any
(c) This section does not apply to any officer, agent, or employee of the United States, a State, or a political subdivision thereof, who may enter on to an Agency installation to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law.
(d) This section does not apply to any person who has received approval from the Director of the Center for CIA Security, or from his or her designee to carry, transport, or use a camera, other visual or audio recording devices, or electronic transmitting equipment while on an Agency installation.
(a)
(b)
(1) The delivery of a controlled substance, except when distribution is made by a licensed physician or pharmacist in accordance with applicable Federal or State law, or as otherwise permitted by Federal or State law. For the purpose of this paragraph, delivery means the actual, attempt, 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 ordered by, a licensed physician or pharmacist, or as otherwise allowed by Federal or State law.
Presence on an Agency installation when under the influence of alcohol, a drug, or a controlled substance or a combination thereof to a degree that interferes with, impedes or hinders the performance of the official duties of any government employee, or damages government or personal property is prohibited.
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) Acts in a manner that is physically threatening or menacing, or acts in a manner that is likely to inflict injury or incite an immediate breach of peace.
(c) Makes noises that are 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 reasonable prudent person under the circumstances.
(d) Uses obscene language, an utterance, or gesture, or engages in a display or act that is obscene.
(e) Impedes or threatens the security of persons or property, or disrupts the performance of official duties by employees, officers, contractors or visitors on an Agency installation or obstructs the use of areas on an Agency installation such as entrances, foyers, lobbies, corridors, concourses, offices, elevators, stairways, roadways, driveways, walkways, or parking lots.
The following are prohibited:
(a)
(b)
(c)
(d)
Animals, except for those animals used for the assistance of persons with
Commercial or political soliciting, vending of all kinds, displaying or distributing commercial advertising, collecting private debts or soliciting alms on any Agency installation is prohibited. This does not apply to:
(a) National or local drives for funds for welfare, health, or other purposes as authorized by Title 5 CFR parts 110 and 950 as amended and sponsored or approved by the Director of Central Intelligence, or by his or her designee.
(b) Personal notices posted on authorized bulletin boards and in compliance with Central Intelligence Agency rules governing the use of such authorized bulletin boards advertising to sell or rent property of Central Intelligence Agency employees or their immediate families.
Distributing, posting, or affixing materials, such as pamphlets, handbills, or flyers, on any Agency installation is prohibited except as authorized by § 1903.17(b), or by other authorization from the Director of the Center for CIA Security, or from his or her designee.
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 (Title 20 U.S.C. 107
(a) Whoever shall be found guilty of 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) Nothing in this part shall be construed to abrogate or supersede any other Federal law or any non-conflicting State or local law, ordinance or regulation applicable to any location where the Agency installation is situated.
50 U.S.C. 403g; 50 U.S.C. 403(d)(3); E.O. 12333 sections 1.8(h), 1.8(i), 3.2.
(a) This part sets forth the limits of authority of CIA personnel to accept service of process on behalf of the CIA or any CIA employee.
(b) This part is intended to ensure the orderly execution of the Agency's affairs and not to impede any legal proceeding.
(c) CIA regulations concerning employee responses to demands for production of official information in proceedings before federal, state, or local government entities are set out in part 1905 of this chapter.
(a)
(b)
(c)
(d)
(a)
(2)
(b)
(2)
(3)
(c)
(d) The documents for which service is accepted in official capacity only shall be stamped “Service Accepted in Official Capacity Only.” Acceptance of service of process shall not constitute an admission or waiver with respect to jurisdiction, propriety of service, improper venue, or any other defense in law or equity available under the laws or rules applicable to the service of process.
A CIA employee who receives or has reason to expect service of process in an individual, official, or combined individual and official capacity, in a matter that may involve testimony or the furnishing of documents and that could reasonably be expected to involve Agency interests, shall promptly notify the Litigation Division, Office of General Counsel (703-874-3118). Such notification should be given prior to providing the requestor, counsel or other representative any Agency information, and prior to accepting service of process.
Any questions concerning interpretation of this regulation shall be referred to the Office of General Counsel for resolution.
5 U.S.C. 403(d)(3); 50 U.S.C. 403g; United States ex rel.
This part sets forth the policy and procedures with respect to the production or disclosure of (a) material contained in the files of CIA, (b) information relating to or based upon material contained in the files of CIA, and (c) information acquired by any person while such person was an employee of CIA as part of the performance of that person's official duties or because of that person's association with CIA.
For the purpose of this part:
(a)
(b)
(c)
(d)
(1) Any material contained in the files of CIA; or
(2) Any information relating to material contained in the files of CIA, including but not limited to summaries of such information or material, or opinions based on such information or material; or
(3) Any information acquired by persons while such persons were employees of CIA as a part of the performance of their official duties or because of their official status or association with CIA;
(e)
(a) No employee shall produce any materials or information in response to a demand without prior authorization as set forth in this part. This part applies to former employees to the extent consistent with applicable nondisclosure agreements.
(b) This part is intended only to provide procedures for responding to demands for production of documents or information, and is not intended to, does not, and may not be relied upon to, create any right or benefit, substantive or procedural, enforceable by any party against the United States.
(a) Whenever a demand for production is made upon an employee, the employee shall immediately notify the Litigation Division, Office of General Counsel, Central Intelligence Agency, Washington, DC 20505 (703/874-3118), which shall follow the procedures set forth in this section.
(b) The General Counsel of CIA and Deputy Directors or Heads of Independent Offices with responsibility for the information sought in the demand, or their designees, shall determine whether any information or materials may properly be produced in response to the demand, except that the Office of General Counsel may assert any and all legal defenses and objections to the demand available to CIA prior to the start of any search for information responsive to the demand. CIA may, in its sole discretion, decline to begin any search for information responsive to the demand until a final and non-appealable disposition of any such defenses and objections raised by CIA has been made by the entity or person that issued the demand.
(c) CIA officials shall consider the following factors, among others, in reaching a decision:
(1) Whether production is appropriate in light of any relevant privilege;
(2) Whether production is appropriate under the applicable rules of discovery or the procedures governing the case or matter in which the demand arose; and
(3) Whether any of the following circumstances apply:
(i) Disclosure would violate a statute, including but not limited to the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
(ii) Disclosure would be inconsistent with the statutory responsibility of the Director of Central Intelligence to protect intelligence sources and methods;
(iii) Disclosure would violate a specific CIA regulation or directive;
(iv) Disclosure would reveal classified information;
(v) Disclosure would improperly reveal trade secrets or proprietary confidential information without the owner's consent; or
(vi) Disclosure would unduly interfere with the orderly conduct of CIA's functions.
(d) If oral or written testimony is sought by a demand in a case or matter in which the CIA is not a party, a reasonably detailed description of the testimony sought, in the form of an affidavit or, if that is not feasible, a written statement, by the party seeking the testimony or by the party's attorney must be furnished to the CIA Office of General Counsel.
(e) The Office of General Counsel shall be responsible for notifying the appropriate employees and other persons of all decisions regarding responses to demands and providing advice and counsel as to the implementation of such decisions.
(f) If response to a demand is required before a decision is made whether to provide the documents or information sought by the demand, an attorney from the Office of General Counsel, after consultation with the Department of Justice, shall appear before and furnish the court or other competent authority with a copy of this Regulation and state that the demand has been or is being, as the case may be, referred for the prompt consideration of the appropriate CIA officials, and shall respectfully request the court or other authority to stay the demand pending receipt of the requested instructions.
(g) If the court or other authority declines to stay the demand pending receipt of instructions in response to a request made in accordance with § 1905.4(g), or rules that the demand must be complied with irrespective of instructions rendered in accordance with this part not to produce the material or disclose the information sought, the employee upon whom the demand has been made shall, if so directed by the General Counsel of CIA, or designee, respectfully decline to comply with the demand under the authority of
(h) With respect to any function granted to CIA officials in this part, such officials are authorized to delegate in writing their authority in any case or matter or category thereof to subordinate officials.
(i) Any nonemployee who receives a demand for the production or disclosure of CIA information acquired because of that person's association or contacts with CIA should notify CIA's Office of General Counsel, Litigation Division (703/874-3118) for guidance and assistance. In such cases the provisions of this regulation shall be applicable.
19 U.S.C. 794.
The purpose of this part is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the Agency except for programs or activities conducted outside the United States that do not involve handicapped persons in the United States. This regulation will apply to the Agency only to the extent consistent with the National Security Act of 1947 (50 U.S.C. 402
For purposes of this part, the following terms means—
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Cardiovascular; Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the Agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the Agency as having such an impairment.
(1) With respect to any Agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with handicaps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the Agency can demonstrate would result in a fundamental alteration in its nature;
(2) With respect to any other Agency program or activity, an individual with handicaps who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(3)
(a) The Agency shall, within one year of the effective date of this part, evaluate its current policies and practices, and the effect thereof, that do not or may not meet the requirements of this part, and to the extent modification of any of those policies and practices is required, the Agency shall proceed to make the necessary modifications.
(b) The Agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The Agency shall, for at least 3 years following completion of the self-evaluation, maintain on file, and make available for public inspection—
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
The Agency shall make available, to employees, applicants, participants, beneficiaries, and other interested persons, such information regarding the provisions of this part and its applicability to the programs or activities conducted by the Agency, and make that information available to them in such manner as the Director finds necessary to apprise those persons of the protections against discrimination assured them by section 504 and the regulations in this part.
(a) No qualified individual with handicaps shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under, any program or activity conducted by the Agency.
(b)(1) The Agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified individual with handicap the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Deny a qualified individual with handicaps an opportunity to obtain the same result, to gain the same benefit, to reach the same level of achievement as that provided to others;
(iii) Provide a qualified individual with handicaps with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to individuals with handicaps or to any class of individuals with handicaps than is provided to others unless that action is necessary to provide qualified individuals with handicaps with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The Agency may not deny a qualified individual with handicaps the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The Agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.
(4) The Agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude individuals with handicaps from, deny them the benefits of, or otherwise subject them to discrimination under, any program or activity conducted by the Agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.
(5) The Agency, in the selection of procurement contractors, may not use criteria that subject qualified individuals with handicaps to discrimination on the basis of handicap.
(6) The Agency may not administer a licensing or certification program in a manner that subjects qualified individuals with handicaps to discrimination on the basis of handicap, nor may the Agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with handicaps to discrimination on the basis on handicap. However, the programs or activities of entities that are licensed or certified by the Agency are not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits or a program limited by Federal statute or Executive Order to individuals with handicaps or the exclusion of a specific class of individuals with handicaps from a program limited by Federal statute or Executive Order to a different class of individuals with handicaps is not prohibited by this part.
(d) The Agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.
No qualified individual with handicaps shall, solely on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the Agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1979 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 1906.150, no qualified individual with handicaps shall, because the Agency's facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the Agency.
(a)
(1) Necessarily require the Agency to make each of its existing facilities accessible to and usable by individuals with handicaps;
(2)(i) Require the Agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.
(ii) The Agency has the burden of proving that compliance with § 1906.150(a) would result in that alteration or those burdens.
(iii) The decision that compliance would result in that alteration or those burdens must be made by the Director after considering all of the Agency's resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion.
(iv) If an action would result in that alteration or those burdens, the Agency shall take any other action that would not result in the alteration or burdens but would nevertheless ensure that individuals with handicaps receive the benefits and services of the program or activity.
(b)
(2) The Agency is not required to make structural changes in existing facilities if other methods are effective in achieving compliance with this section.
(3) The Agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing that Act.
(4) In choosing among available methods for meeting the requirements of this section, the Agency shall give priority to those methods that offer programs and activities to qualified individuals with handicaps in the most integrated setting appropriate.
(c)
(d)
(2) The Agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan must be made available for public inspection.
(3) The plan must, at a minimum—
(i) Identify physical obstacles in the Agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;
(ii) Describe in detail the methods that will be used to make the facilities accessible;
(iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(iv) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of, the Agency shall be designed, constructed, or altered so as to be readily accessible to and usable by individuals with handicaps. The definitions, requirements, and standards of the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4175), as established in 41 CFR 101-19.600 to 101-19-607, apply to buildings covered by this section.
(a) The Agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public as follows:
(1)(i) The Agency shall furnish appropriate auxiliary aids if necessary to afford an individual with handicaps an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the Agency.
(ii) In determining what type of auxiliary aid is necessary, the Agency shall give primary consideration to the requests of the individual with handicaps.
(2) Where the Agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD's) or equally effective telecommunication systems shall be used to communicate with persons with impaired hearing.
(b) The Agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The Agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the Agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where Agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the Agency has the burden of proving that compliance with § 1906.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Agency head or his or her designee after considering all Agency resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the Agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs and activities conducted by the Agency.
(b) The Agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Director, Office of Equal Employment Opportunity, is responsible for coordinating implementation of this section. Complaints may be sent to Central Intelligence Agency, Director, Office of Equal Employment Opportunity, Washington, DC 20505.
(d) The Agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The Agency may extend this time period for good cause.
(e) If the Agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The Agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157) is not readily accessible to and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, The Agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the Agency of the letter required by § 1906.170(g). The Agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Director.
(j) The Agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the Agency determines that it needs additional information from the complainant, it shall have 60 days from the date it receives the additional information to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The Director may delegate the authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated.
Executive Order 12958, 60 FR 19825, 3 CFR 1996 Comp., P. 333-356 (or successor orders).
(a)
(b)
For purposes of this part, the following terms have the meanings as indicated:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) Owned by, produced by or for, or under the control of the United States Government, and
(2) Lawfully and actually in the possession of an authorized holder and for which ownership and control has not been relinquished by the CIA;
(h)
(i)
(j)
For information on this part or to file a challenge under this part, please direct your inquiry to the Executive Secretary, Agency Release Panel, Central Intelligence Agency, Washington, DC 20505. The commercial (non-secure) telephone is (703) 613-1287; the classified (secure) telephone for voice and facsimile is (703) 613-3007.
The Agency welcomes suggestions or complaints with regard to its administration of the Executive Order. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. The Agency will respond to all substantive communications and take such actions as determined feasible and appropriate.
The Central Intelligence Agency has established liaison and procedures with many agencies for declassification issues. Prior to reliance on this Part, authorized holders are required to first exhaust such established administrative procedures for the review of classified information. Further information on these procedures is available from the point of contact, see 32 CFR 1907.03.
The challenge shall include identification of the challenger by full name and title of position, verification of security clearance or other basis of authority, and an identification of the documents or portions of documents or information at issue. The challenge shall also, in detailed and factual terms, identify and describe the reasons why it is believed that the information is not protected by one or more of the § 1.5 provisions, that the release of the information would not cause damage to the national security, or that the information should be declassified due to the passage of time. The challenge must be properly classified; in this regard, until the challenge is decided, the authorized holder must treat the challenge, the information being challenged, and any related or explanatory information as classified at the same level as the current classification of the information in dispute.
Authorized holders shall append the documents at issue and clearly mark those portions subject to the challenge. If information not in documentary form is in issue, the challenge shall state so clearly and present or otherwise refer with specificity to that information in the body of the challenge.
Authorized holders must direct challenge requests to the CIA as specified in § 1907.03. The classified nature of the challenge, as well as the appended documents, require that the holder transmit same in full accordance with established security procedures. In general, registered U.S. mail is approved for SECRET, non-compartmented material; higher classifications require use of approved Top Secret facsimile machines or CIA-approved couriers. Further information is available from the CIA as well as corporate or other federal agency security departments.
The Executive Secretary of the Agency Release Panel shall within ten (10) days record each challenge received under this Part, acknowledge receipt to the authorized holder, and task the originator and other interested parties. Additional taskings, as required during the review process, shall be accomplished within five (5) days of notification.
The Executive Secretary of the Agency Release Panel shall respond on behalf of the Panel and deny any challenge where the information in question has been the subject of a classification review within the previous two (2) years or is the subject of pending litigation in the federal courts.
(a)
(b)
(c)
The Deputy Director for Administration has designated the Agency Release Panel and the Historical Records Policy Board, established pursuant to 32 CFR 1900.41, as the Agency authority to hear and decide challenges under these regulations.
(a)
(b)
The Executive Secretary of the Agency Release Panel shall communicate the decision of the Agency to the authorized holder, the originator, and other interested parties within ten (10) days of the decision by the Panel or Board. That correspondence shall include a notice that no adverse action or retribution can be taken in regard to the challenge and that an appeal of the decision may be made to the Interagency Security Classification Appeals Panel (ISCAP) established pursuant to § 5.4 of this Order.
A right of appeal is available to the ISCAP established pursuant to § 5.4 of this Order. Action by that body will be the subject of rules to be promulgated by the Information Security Oversight Office (ISOO).
Executive Orders 12958, 60 FR 19825, 3 CFR 1996 Comp., p. 333-356 (or successor Orders).
(a)
(b)
For purposes of this part, the following terms have the meanings as indicated:
(a)
(b)
(c)
(d)
(e)
(f)
(1) Information within the scope of the CIA Information Act, or
(2) Information originated by the incumbent President, White House Staff, appointed committees, commissions or boards, or any entities within the Executive Office that solely advise and assist the incumbent President;
(g)
(h)
(i)
(j)
(k)
(l)
For general information on this Part or to request a declassification review, please direct your communication to the Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505. Such inquiries will also be accepted by facsimile at (703) 613-3007. For general or status information only, the telephone number is (703) 613-1287. Collect calls cannot be accepted.
The Agency welcomes suggestions or complaints with regard to its administration of the mandatory declassification review program established under Executive Order 12958. Many requesters will receive pre-paid, customer satisfaction survey cards. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. The Agency will respond to all substantive communications and take such actions as determined feasible and appropriate.
Members of the public shall address all communications to the point of contact specified above and clearly delineate the communication as a request under this regulation. Requests and appeals on requests received from members of the public who owe outstanding fees for information services under this Order or the Freedom of Information Act at this or another federal agency will not be accepted until such debts are resolved.
The request shall identify the document(s) or material(s) with sufficient specificity (e.g., National Archives and Records Administration (NARA) Document Accession Number or other applicable, unique document identifying number) to enable the Agency to locate it with reasonable effort. Broad or topical requests for records on a particular subject may not be accepted under this provision. A request for documents contained in the various Presidential libraries shall be effected through the staff of such institutions who shall forward the document(s) in question for Agency review. The requester shall also provide sufficient personal identifying information when required by the Agency to satisfy requirements of this part.
Requests submitted via NARA or the various Presidential libraries shall be responsible for reproduction costs required by statute or regulation. Requests made directly to this Agency will be liable for costs in the same amount and under the same conditions as specified in 32 CFR part 1900.
The Information and Privacy Coordinator shall within ten (10) days record each mandatory declassification review
The Coordinator shall respond to the requester and deny any request where the information in question has been the subject of a classification review within the previous two (2) years or is the subject of pending litigation in the federal courts.
(a)
(b)
(c)
The Coordinator shall communicate the decision of the Agency to the requester within ten (10) days of completion of all review action. That correspondence shall include a notice of a right of administrative appeal to the Agency Release Panel pursuant to § 3.6(d) of this Order.
Appeals of decisions must be received by the Coordinator within forty-five (45) days of the date of mailing of the Agency's initial decision. It shall identify with specificity the documents or information to be considered on appeal and it may, but need not, provide a factual or legal basis for the appeal.
The Coordinator shall promptly record each appeal received under this part, acknowledge receipt to the requester, and task the originator and other interested parties. Additional taskings, as required during the review process, shall be accomplished within ten (10) days of notification.
Each Deputy Director in charge of a directorate which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond in writing to the Coordinator with a finding as to the classified status of the information including the category of protected information as set forth in § 1.5 of this Order, and, if older than ten (10) years, the basis for continued classification under §§ 1.6 and 3.4 of this Order. These parties shall also provide a statement as to whether or not there is any other statutory, common law, or Constitutional basis for withholding as required by § 6.1(c) of this Order. This response shall be provided expeditiously on a “first-in, first-out” basis
(a)
(b)
(c)
(a)
(b)
The Coordinator shall communicate the decision of the Panel or Board to the requester, NARA, or the particular Presidential Library within ten (10) days of such decision. That correspondence shall include a notice that an appeal of the decision may be made to the Interagency Security Classification Appeals Panel (ISCAP) established pursuant to § 5.4 of this Order.
A right of further appeal is available to the ISCAP established pursuant to § 5.4 of this Order. Action by that Panel will be the subject of rules to be promulgated by the Information Security Oversight Office (ISOO).
Executive Order 12958, 60 FR 19825. 3 CFR 1996 Comp., p. 333-356 (or successor Orders).
(a)
(b)
(i) Requesting access to CIA records for purposes of historical research, or
(ii) Requesting access to CIA records as a former Presidential appointee.
(2) Section 4.5 of Executive Order 12958 and these regulations do not create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, officers, or employees.
For purposes of this part, the following terms have the meanings indicated:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
For general information on this Part, to inquire about historical access to CIA records, or to make a formal request for such access, please direct your communication in writing to the Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC. 20505. Inquiries will also be accepted by facsimile at (703) 613-3007. For general information only, the telephone number is (703) 613-1287. Collect calls cannot be accepted.
The Agency welcomes suggestions or complaints with regard to its administration of the historical access program established pursuant to Executive Order 12958. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. The Agency will respond to all substantive communications and take such actions as determined feasible and appropriate.
(a)
(2)
(b)
The Deputy Director for Administration has designated the Coordinator, the Agency Release Panel, and the Historical Records Policy Board, established pursuant to 32 CFR 1900.41, as the Agency authorities to decide requests for historical and former Presidential appointee access under Executive Order 12958 (or successor Orders) and these regulations.
The Information and Privacy Coordinator shall within ten (10) days record each request for historical access received under this Part, acknowledge receipt to the requester in writing and take the following action:
(a)
(b)
(a)
(1) That a serious professional or scholarly research project by the requester is contemplated (by D/CSI);
(2) That such access is clearly consistent with the interests of national security (by originator and interested party, if any);
(3) That a non-disclosure agreement has been or will be executed by the requester (or research associate, if any) and other appropriate steps have been taken to assure that classified information will not be disclosed or otherwise compromised (by Director of Personnel Security and representative of the Office of General Counsel);
(4) That a pre-publication agreement has been or will be executed by the requester (or research associate, if any) which provides for a review of notes and any resulting manuscript (by Director of Personnel Security and representative of the Office of General Counsel);
(5) That the information requested is reasonably accessible and can be located and compiled with a reasonable effort (by D/CSI and originator);
(6) That it is reasonably expected that substantial and substantive government documents and/or information will be amenable to declassification and release and/or publication (by D/CSI and originator);
(7) That sufficient resources are available for the administrative support of the researcher given current mission requirements (by D/CSI and originator); and,
(8) That the request cannot be satisfied to the same extent through requests for access to reasonably described records under the Freedom of Information Act or the mandatory declassification review provisions of Executive Order 12958 (by Coordinator, D/CSI and originator).
(b)
In any cases of divided vote by the ARP, any member of that body is authorized to refer the request to the CIA Historical Records Policy Board which acts as the senior corporate board for the Agency. The record compiled (the request, the memoranda filed by the originator and interested parties, and the previous decision(s)) as well as any memorandum of law or policy the referent desires to be considered, shall be certified by the Executive Secretary of the Agency Release Panel and shall constitute the official record of the proceedings and must be included in any subsequent filings. In such cases, the factors to be determined as specified in 32 CFR 1909.14(a) will be considered by the Board de novo and that decision shall be final.
The Coordinator shall inform the requester of the decision of the Agency Release Panel or the Historical Records Policy Board within ten (10) days of the decision and, if favorable, shall manage the access for such period as deemed required but in no event for more than two (2) years unless renewed by the Panel or Board in accordance with the requirements of 32 CFR 1909.14(a).
The Coordinator shall cancel any authorization whenever the Director of Personnel Security cancels the security clearance of a requester (or research associate, if any) or whenever the Agency Release Panel determines that continued access would not be in compliance with one or more of the requirements of 32 CFR 1909.14(a).
Section 5.2 (a) and (b), and section 5.4., E.O. 12958, 60 FR 19825, April 20, 1995.
(a)
(i) The official who authorized the original classification, if that official is still serving in the same position;
(ii) The originator's current successor in function;
(iii) A supervisory official of either; or
(iv) The senior agency official under Executive Order 12958 (“the Order”).
(2)
(i) Records that have been accessioned into the National Archives of the United States;
(ii) Records that have been scheduled as permanent under a records retention schedule approved by the National Archives and Records Administration (NARA); and
(iii) Presidential historical materials, presidential records or donated historical materials located in the National Archives of the United States, a presidential library, or any other approved repository.
(b)
(a)
(b)
(a)
(i) The original classification authority shall attempt to determine a date or event that is less than 10 years from the date of original classification and which coincides with the lapse of the information's national security sensitivity, and shall assign such date or event as the declassification instruction.
(ii) If unable to determine a date or event of less than 10 years, the original classification authority shall ordinarily assign a declassification date that is 10 years from the date of the original classification decision.
(iii) The original classification authority may assign an exemption designation to the information only if the information qualifies for exemption from automatic declassification as described in section 1.6(d) of the Order. Unless declassified earlier, such information contained in records determined by the Archivist of the United States to be permanently valuable shall remain classified for 25 years from the date of its origin, at which time it will be subject to section 3.4 of the Order.
(2)
(i) For information in records determined to have permanent historical value, successive extensions may not exceed a total of 25 years from the date of the information's origin. Continued classification of this information beyond 25 years is governed by section 3.4 of the Order.
(ii) For information in records not determined to have permanent historical value, successive extensions may exceed 25 years from the date of the information's origin.
(3)
(i) Be an original classification authority with jurisdiction over the information;
(ii) Ensure that the information continues to meet the standards for classification under the Order; and
(iii) Make reasonable attempts to notify all known holders of the information.
(b)
(2)
(i) A declassification authority, as defined in section 3.1 of the Order, may declassify it;
(ii) An authorized original classification authority with jurisdiction over the information may re-mark the information to establish a duration of classification consistent with the requirements for information originally classified under the Order, as provided in paragraph (a) of this section; or
(iii) Unless declassified earlier, such information contained in records determined by the Archivist of the United States to be permanently valuable shall remain classified for 25 years from the date of its origin, at which time it will be subject to section 3.4 of the Order.
(c)
(d)
An agency first issues a classification guide on the F-99 aircraft on October 20, 1995. The guide states that the fact that the F-99 aircraft has a maximum velocity of 500 m.p.h. shall be classified at the “Secret” level for a period of ten years. A document dated July 10, 1999, is classified because it includes the maximum velocity of the F-99. The document should be marked for declassification on October 20, 2005, ten years after the specific information was first recorded in the guide, not on July 10, 2009, ten years after the derivatively classified document was created.
An agency classification guide issued on October 20, 1995, states that the maximum velocity of any fighter aircraft shall be classified at the “Secret” level for a period of ten years. The agency first records the specific maximum velocity of the new F-88 aircraft on July 10, 1999. The document should be marked for declassification on July 10, 2009, ten years after the specific information is first recorded, and not on October 20, 2005, ten years after the date of the guide's generic instruction.
(a)
(b)
(2) Agencies shall establish a system for processing, tracking and recording formal classification challenges made by authorized holders. Agencies shall consider classification challenges separately from Freedom of Information Act or other access requests, and shall not process such challenges in turn with pending access requests.
(3) The agency shall provide an initial written response to a challenge within 60 days. If the agency is unable to respond to the challenge within 60 days, the agency must acknowledge the challenge in writing, and provide a date by which the agency will respond. The acknowledgment must include a statement that if no agency response is received within 120 days, the challenger has the right to forward the challenge to the Interagency Security Classification Appeals Panel for a decision. The challenger may also forward the challenge to the Interagency Security Classification Appeals Panel if an agency has not responded to an internal appeal within 90 days of the agency's receipt of the appeal. Agency responses to those challenges it denies shall include the challenger's appeal rights to the Interagency Security Classification Appeals Panel.
(4) Whenever an agency receives a classification challenge to information that has been the subject of a challenge within the past two years, or that is the subject of pending litigation, the agency is not required to process the challenge beyond informing the challenger of this fact and of the challenger's appeal rights, if any.
(c)
(2) The classification challenge provision is not intended to prevent an authorized holder from informally questioning the classification status of particular information. Such informal inquiries should be encouraged as a means of holding down the number of formal challenges.
(a)
(b)
(1) Identify the subject matter of the classification guide;
(2) Identify the original classification authority by name or personal identifier, and position;
(3) Identify an agency point-of-contact or points-of-contact for questions regarding the classification guide;
(4) Provide the date of issuance or last review;
(5) State precisely the elements of information to be protected;
(6) State which classification level applies to each element of information, and, when useful, specify the elements of information that are unclassified;
(7) State, when applicable, special handling caveats;
(8) Prescribe declassification instructions or the exemption category from automatic declassification for each element of information;
(9) Specify, when citing the exemption category listed in section 1.6(d)(8) of the Order, the applicable statute, treaty or international agreement; and
(10) State a concise reason for classification which, at a minimum, cites the applicable classification category or categories in section 1.5 of the Order.
(c)
(d)
(2) Originators of classification guides are encouraged to consult the users of guides for input when reviewing or updating guides. Also, users of classification guides are encouraged to notify the originator of the guide when they acquire information that suggests the need for change in the instructions contained in the guide.
A uniform security classification system requires that standard markings be applied to classified information. Except in extraordinary circumstances, or as approved by the Director of ISOO, the marking of classified information created after October 14, 1995, shall not deviate from the following prescribed formats. If markings cannot be affixed to specific classified information or materials, the originator shall provide holders or recipients of the information with written instructions for protecting the information. Markings shall be uniformly and conspicuously applied to leave no doubt about the classified status of the information, the level of protection required, and the duration of classification.
(a)
(1)
(2)
(3)
(i) These categories, as they appear in the Order, are as follows:
(a) military plans, weapons, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources;
(e) scientific, technological, or economic matters relating to the national security;
(f) United States Government programs for safeguarding nuclear materials or facilities; or
(g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.
(ii) An example might appear as:
(iii) When the reason for classification is not apparent from the content of the information, e.g., classification by compilation, the classifier shall provide a more detailed explanation of the reason for classification.
(4)
(i) The classifier will apply a date or event for declassification that corresponds to the lapse of the information's national security sensitivity, which may not exceed 10 years from the date of the original decision. When linking the duration of classification to a specific date or event, mark that date or event as:
(ii) When a specific date or event within 10 years cannot be established, the classifier will apply the date that is 10 years from the date of the original decision. For example, on a document that contains information classified on October 14, 1995, mark the “Declassify On” line as:
(iii) Upon the determination that the information must remain classified beyond 10 years, the classifier will apply the letter “X” plus a brief recitation of the exemption category(ies), or the letter “X” plus the number that corresponds to that exemption category(ies) in section 1.6(d) of the Order.
(A) Exemption categories in E.O. 12958.
X1: reveal an intelligence source, method, or activity, or a cryptologic system or activity;
X2: reveal information that would assist in the development or use of weapons of mass destruction;
X3: reveal information that would impair the development or use of technology within a United States weapons system;
X4: reveal United States military plans, or national security emergency preparedness plans;
X5: reveal foreign government information;
X6: damage relations between the United States and a foreign government, reveal a confidential source, or seriously undermine diplomatic activities that are reasonably expected to be ongoing for a period greater than that provided in paragraph (b) above, [section 1.6(b) of the Order];
X7: impair the ability of responsible United States Government officials to protect the President, the Vice President, and other individuals for whom protection services, in the interest of national security, are authorized; or
X8: violate a statute, treaty, or international agreement.
(B) Example. A document containing information exempted from automatic declassification may appear as:
(b)
(1) Conspicuously place the overall classification at the top and bottom of the outside of the front cover (if any), on the title page (if any), on the first page, and on the outside of the back cover (if any).
(2) For documents containing information classified at more than one level, the overall marking shall be the highest level. For example, if a document contains some information marked “Secret” and other information marked “Confidential,” the overall marking would be “Secret.”
(3) Each interior page of a classified document shall be marked at the top and bottom either with the highest level of classification of information contained on that page, including the designation “Unclassified” when it is applicable, or with the highest overall classification of the document.
(c)
(1) To indicate the appropriate classification level, the symbols “(TS)” for Top Secret, “(S)” for Secret, “(C)” for Confidential, and “(U)” for Unclassified shall be used.
(2) Unless the original classification authority indicates otherwise on the document, each classified portion of a document exempted from automatic
(3) An agency head or senior agency official may request a waiver from the portion marking requirement for a specific category of information. Such a request shall be submitted to the Director of ISOO and should include the reasons that the benefits of portion marking are outweighed by other factors. Statements citing administrative burden alone will ordinarily not be viewed as sufficient grounds to support a waiver.
(d)
(2) The “Declassify On” line shall be revised to include the new declassification instructions, and shall include the identity of the person authorizing the extension and the date of the action.
(3) The office of origin shall make reasonable attempts to notify all holders of such information. Classification guides shall be updated to reflect such revisions.
(4) An example of an extended duration of classification may appear as:
Declassify On: Classification extended on December 1, 2000, until December 1, 2010, by David Jones, Chief, Division 5
(e)
(2) The pertinent exemptions, using the language of section 3.4(b) of the Order, are:
25X1: reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States;
25X2: reveal information that would assist in the development or use of weapons of mass destruction;
25X3: reveal information that would impair U.S. cryptologic systems or activities;
25X4: reveal information that would impair the application of state-of-the-art technology within a U.S. weapon system;
25X5: reveal actual U.S. military war plans that remain in effect;
25X6: reveal information that would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States;
25X7: reveal information that would clearly and demonstrably impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services, in the interest of national security, are authorized;
25X8: reveal information that would seriously and demonstrably impair current national security emergency preparedness plans; or
25X9: violate a statute, treaty, or international agreement.
(3) The pertinent portion of the marking would appear as:
(4) Documents should not be marked with a “25X” marking until the agency has been informed that the President or the Interagency Security Classification Appeals Panel concurs with the proposed exemption.
(5) Agencies need not apply a “25X” marking to individual documents contained in a file series exempted from automatic declassification under section 3.4(c) of the Order until the individual document is removed from the file.
(a)
(b)
(i) When a document is classified derivatively on the basis of more than one source document or classification guide, the “Derived From” line shall appear as:
(ii) The derivative classifier shall maintain the identification of each source with the file or record copy of the derivatively classified document. When practicable, this list should be included in or with all copies of the derivatively classified document.
(2) A document derivatively classified on the basis of a source document that is itself marked “Multiple Sources” shall cite the source document on its “Derived From” line rather than the term “Multiple Sources.” An example might appear as:
(c)
(d)
(2) When a document is classified derivatively on the basis of more than one source document or more than one element of a classification guide, the “Declassify On” line shall reflect the longest duration of any of its sources.
(i) When a document is classified derivatively from a source document(s) or classification guide that contains the declassification instruction, “Originating Agency's Determination Required,” or “OADR,” unless otherwise instructed by the original classifier, the derivative classifier shall carry forward:
(A) The fact that the source document(s) was marked with this instruction; and
(B) The date of origin of the most recent source document(s), classification guide, or specific information, as appropriate to the circumstances.
(ii) An example might appear as:
(iii) This marking will permit the determination of when the classified information is 25 years old and, if permanently valuable, subject to automatic declassification under section 3.4 of the Order.
(e)
(f)
(a)
(b)
(c)
(d)
(e)
(1) Released by the originator outside the originating activity;
(2) Retained more than 180 days from the date of origin; or
(3) Filed permanently.
(f)
(g)
(a)
(b)
(c)
(d)
(1) A review of relevant security directives, guides and instructions;
(2) Interviews with producers and users of classified information;
(3) A review of access and control records and procedures; and
(4) A review of a sample of classified documents generated by agency activities.
(e)
(f)
(a)
(b)
(A) Applicable standards for classification;
(B) Levels of classification and the damage criteria associated with each; and
(C) Required classification markings.
(ii) Determine if delegations of original classification authority conform with the requirements of the Order, including whether:
(A) Delegations are limited to the minimum required to administer the program;
(B) Designated original classifiers have a demonstrable and continuing need to exercise this authority;
(C) Delegations are in writing and identify the official by name or position title; and
(D) New requests for delegation of classification authority are justified.
(iii) Assess original classifiers’ familiarity with the duration of classification requirements, including:
(A) Assigning a specific date or event for declassification when possible;
(B) Establishing ordinarily a maximum 10-year duration of classification when an earlier date or event cannot be determined;
(C) Limiting extensions of classification for specific information for successive periods not to exceed 10 years at a time; and
(D) Exempting from declassification within 10 years specific information as provided in section 1.6 of the Order.
(iv) Conduct a review of a sample of classified information generated by the inspected activity to determine the propriety of classification and the application of proper and full markings.
(v) Evaluate classifiers’ actions to comply with the standards specified in § 2001.14 and § 2001.53 of this part, relating to classification and declassification guides, respectively.
(vi) Verify observance with the prohibitions on classification and limitations on reclassification.
(vii) Assess whether the agency's classification challenges program meets the requirements of the Order and this part.
(2)
(i) Conditions for derivative classification;
(ii) Requirement to consult with the originator of the information when questions concerning classification arise;
(iii) Proper use of classification guides; and
(iv) Proper and complete application of classification markings to derivatively classified documents.
(3)
(ii) Evaluate the status of the agency declassification program, including the requirement to:
(A) Comply with the automatic declassification provisions regarding historically valuable records over 25 years old;
(B) Declassify, when possible, historically valuable records prior to accession into the National Archives;
(C) Provide the Archivist with adequate and current declassification guides;
(D) Ascertain that the agency's mandatory review program conforms to established requirements; and
(E) Determine whether responsible agency officials are cooperating with the Archivist in the development and maintenance of a Government-wide database of information that has been declassified.
(4)
(ii) Assess compliance with controls for access to classified information.
(iii) Evaluate the effectiveness of the agency's program in detecting and processing security violations and preventing recurrences.
(iv) Assess compliance with the procedures for identifying, reporting and processing unauthorized disclosures of classified information.
(v) Evaluate the effectiveness of procedures to ensure that:
(A) The originating agency exercises control over the classified information it generates;
(B) Holders of classified information do not disclose information originated by another agency without that agency's authorization; and
(C) Departing or transferred officials return all classified information in their possession to authorized agency personnel.
(5)
(6)
(ii) Verify whether the agency's special access programs:
(A) Adhere to specified criteria in the creation of these programs;
(B) Are kept to a minimum;
(C) Provide for the conduct of internal oversight; and
(D) Include an annual review of each program to determine whether it continues to meet the requirements of the Order.
(iii) Assess whether:
(A) Senior management demonstrates commitment to the success of the program, including providing the necessary resources for effective implementation;
(B) Producers and users of classified information receive guidance with respect to security responsibilities and requirements;
(C) Controls to prevent unauthorized access to classified information are effective;
(D) Contingency plans are in place for safeguarding classified information used in or near hostile areas;
(E) The performance contract or other system used to rate civilian or military personnel includes the management of classified information as a critical element or item to be evaluated in the rating of: Original classifiers; security managers; classification
(F) A method is in place for collecting information on the costs associated with the implementation of the Order.
(a)
(1) Ensure that all executive branch employees who create, process or handle classified information have a satisfactory knowledge and understanding about classification, safeguarding, and declassification policies and procedures;
(2) Increase uniformity in the conduct of agency security education and training programs; and
(3) Reduce improper classification, safeguarding and declassification practices.
(b)
(c)
(d)
(e)
(a)
(b)
(1)
(ii) What are the responsibilities of agency employees who create or handle classified information?
(iii) Who should be contacted in case of questions or concerns about classification matters?
(2)
(ii) What are the levels of classified information and the damage criteria associated with each level?
(iii) What are the prescribed classification markings and why is it important to have classified information fully and properly marked?
(iv) What are the general requirements for declassifying information?
(v) What are the procedures for challenging the classification status of information?
(3)
(ii) What constitutes an unauthorized disclosure and what are the penalties associated with these disclosures?
(iii) What are the general conditions and restrictions for access to classified information?
(iv) What should an individual do when he or she believes safeguarding standards may have been violated?
(c)
(1)
(ii) Who can classify information originally?
(iii) What are the standards that a designated classifier must meet to classify information?
(iv) What is the process for determining duration of classification?
(v) What are the prohibitions and limitations on classifying information?
(vi) What are the basic markings that must appear on classified information?
(vii) What are the general standards and procedures for declassification?
(2)
(ii) What are the standards for creating and using agency declassification guides?
(iii) What is contained in the agency's automatic declassification plan?
(iv) What are the agency responsibilities for the establishment and maintenance of a declassification database?
(3)
(ii) What are the proper and complete classification markings, as described in subpart B of this part?
(iii) What are the authorities, methods and processes for downgrading and declassifying information?
(iv) What are the methods for the proper use, storage, reproduction, transmission, dissemination and destruction of classified information?
(v) What are the requirements for creating and updating classification and declassification guides?
(vi) What are the requirements for controlling access to classified information?
(vii) What are the procedures for investigating and reporting instances of security violations, and the penalties associated with such violations?
(viii) What are the requirements for creating, maintaining, and terminating special access programs, and the mechanisms for monitoring such programs?
(ix) What are the procedures for the secure use, certification and accreditation of automated information systems and networks which use, process, store, reproduce, or transmit classified information?
(x) What are the requirements for oversight of the security classification program, including agency self-inspections?
(d)
(e)
(f)
(1) Practices applicable to U.S. officials traveling overseas;
(2) Procedures for protecting classified information processed and stored in automated information systems;
(3) Methods for dealing with uncleared personnel who work in proximity to classified information;
(4) Responsibilities of personnel serving as couriers of classified information; and
(5) Security requirements that govern participation in international programs.
A
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(i) The design, manufacture, or utilization of atomic weapons;
(ii) The production of special nuclear material, e.g., enriched uranium or plutonium; or
(iii) The use of special nuclear material in the production of energy.
(2) Formerly Restricted Data is information that is still classified but which has been removed from the Restricted Data category because it is related primarily to the military utilization of atomic weapons.
(3) Any document marked as containing Restricted Data or Formerly Restricted Data shall remain classified indefinitely or shall be referred to the Department of Energy or the Department of Defense for a classification review.
(a)
(b)
(a)
(b)
(1) Identify the subject matter of the declassification guide;
(2) Identify the original declassification authority by name or personal identifier, and position;
(3) Provide the date of issuance or last review;
(4) State precisely the categories or elements of information:
(i) To be declassified;
(ii) To be downgraded; or
(iii) Not to be declassified.
(5) Identify any related files series that have been exempted from automatic declassification pursuant to section 3.4(c) of the Order;
(6) To the extent a guide is used in conjunction with the automatic declassification provisions in section 3.4 of the Order, state precisely the elements of information to be exempted from declassification to include:
(i) The appropriate exemption category listed in section 3.4(b) of the Order, and, when citing the exemption category listed in section 3.4(b)(9) of the Order, specify the applicable statute, treaty or international agreement; and
(ii) A date or event for declassification.
(c)
(d)
(a)
(2)
(ii) Requests for classified records in the custody of an agency other than the originating agency. When an agency receives a mandatory declassification review request for records in its possession that were originated by another agency, it shall refer the request and the pertinent records to the originating agency. However, if the originating agency has previously agreed that the custodial agency may review its records, the custodial agency shall review the requested records in accordance with declassification guides or guidelines provided by the originating agency. Upon receipt of a request from the referring agency, the originating agency shall process the request in accordance with this section. The originating agency shall communicate its declassification determination to the referring agency.
(iii) Appeals of denials of mandatory declassification review requests. The agency appellate authority shall normally make a determination within 60 working days following the receipt of an appeal. If additional time is required to make a determination, the agency appellate authority shall notify the requester of the additional time needed and provide the requester with the reason for the extension. The agency appellate authority shall notify the requester in writing of the final determination and of the reasons for any denial.
(iv) Appeals to the Interagency Security Classification Appeals Panel. In accordance with section 5.4 of the Order, the Interagency Security Classification Appeals Panel shall publish in the
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(c)
(d)
(e)
(1) When referral is from a pass/fail agency to a pass/fail agency, both agencies conduct pass/fail reviews and annotate the classification or declassification decisions on the tabs and/or documents in accordance with NARA guidelines. The receiving agency should also notify the referring agency that the review has been completed.
(2) When referral is from a pass/fail agency to a redaction agency, the redaction agency is only required to conduct pass/fail reviews of documents referred by a pass/fail agency. If the redaction agency wishes to redact the document, it must do so on a copy of the referred document, then file the redacted version with the original. The redaction agency should also notify the pass/fail referring agency that the review has been completed.
(3) Referrals from redaction agencies to pass/fail agencies will be in the form of document copies. In the course of review the pass/fail agency may either pass or fail the document or its equities. Failed documents will be reviewed and redacted when practicable.
(4) Referrals between redaction agencies may result in redaction of any exemptible equities.
(f)
(1) Complete a review of the document to identify other agency equities and notify those agencies; or
(2) Exempt the document and assign a Date/Event for automatic declassification, before which time they must provide timely notification to any equity agencies. Agencies reviewing previously exempted documents may apply a different exemption and new Date/Event for automatic declassification based upon the content of previously unreviewed equities.
(g)
(h)
(1)
(2)
(i) Agencies will use NARA-approved tabs and will clearly indicate on them the agency or agencies having equity in the document(s) held within the
(ii) Agency notification must include, at a minimum, the following information: the approximate volume of equity, the highest classification of documents, the exact location (to box level) of the documents so marked, and instructions related to access to the boxes containing the documents.
(iii) Agencies will acknowledge receipt of referral notifications. They should notify the agency that placed the tabs that the review is complete. Any additional equities noted in the review must be annotated on the tab and brought to the attention of the agency that tabbed the document so the tabbing agency can notify those newly identified agencies.
(i) [Reserved].
(j)
(1) Redactions must never be indicated on original documents, only on copies. Redaction agencies need a means of tracking the results of review (at the document level) by all reviewing agencies and a reason for each redaction.
(2) If only one exemption from declassification applies to all redacted portions of a document, the applicable exemption may be indicated on the front page of the redacted copy. If more than one exemption applies to a document, each redacted portion for which an exemption is asserted must be marked on the redacted copy.
(3) Redacted portions must be marked to indicate the agency and the number of the applicable exemption, for example, DIA25X1.
(4) Agencies reviewing a referred document must indicate on the tab, folder, or box the result of the review (i.e., exemption or declassification). The original document should be marked with the final action only by the agency responsible for the final declassification decision. Options include marking a copy of the document, marking the tab, notification as part of a transmittal, or marking the box or folder according to NARA guidelines. Automated agencies may forgo marking documents, provided the required information is maintained in an agency database and is accessible to other agencies. Exempt documents may be marked.
(i)
(A) Normally, only one stamp should be placed on the document with any subsequent reviewing agencies adding their information to the stamp on the document, if possible. The stamp should not cover any writing on the document.
(B) Specific fields in the stamp must be completed as follows:
(
(
(
(4)
(5)
(ii) Sample Stamp for Document Declassification. (A) When agencies mark declassified documents, the stamp must, at a minimum, include the information shown in the following example:
(B) Specific fields in the stamp must be completed as follows:
(
(
(
Each agency that creates or handles classified information shall report annually to the Director of ISOO statistics related to its security classification program. The Director shall solicit recommendations from the member agencies of the Security Policy Forum regarding the reporting requirements. The Director will instruct agencies what data elements are required, and how and when they are to be reported.
(a) Information on the costs associated with the implementation of the Order will be collected from the agencies by the Office of Management and Budget (OMB). OMB will provide data to ISOO on the cost estimates for classification-related activities. ISOO will include these cost estimates in its annual report to the President. The agency senior official should work closely with the agency comptroller to ensure that the best estimates are collected.
(b) The Secretary of Defense, acting as the executive agent for the National Industrial Security Program under Executive Order 12829, and consistent with agreements entered into under section 202 of E.O. 12829, will collect cost estimates for classification-related activities of contractors, licensees, certificate holders, and grantees, and report them to ISOO annually. ISOO will include these cost estimates in its annual report to the President.
Part 2001 shall become effective October 14, 1995.
The purpose of the Interagency Security Classification Appeals Panel (ISCAP) and these bylaws is to fulfill the functions assigned to the ISCAP by Executive Order 12958, “Classified National Security Information.”
Executive Order 12958, “Classified National Security Information” (hereafter the “Order”), and its implementing directives.
A. Primary Membership. Appointments under section 5.4(a) of the Order establish the primary membership of the ISCAP.
B. Alternate Membership.
1. Primary members are expected to participate fully in the activities of the ISCAP. The Executive Secretary shall request that each agency or office head represented on the ISCAP also designate in writing addressed to the Chair an alternate to represent his or her agency or office on all occasions when the primary member is unable to participate. When serving for a primary member, an alternate member shall assume all the rights and responsibilities of that primary member, including voting.
2. When a vacancy in the primary membership occurs, the designated alternate shall represent the agency or office until the agency or office head fills the vacancy. The Chair, working through the Executive Secretary, shall take all appropriate measures to encourage the agency or office head to fill a vacancy in the primary membership as quickly as possible.
C. Chair. As provided in section 5.4(a) of the Order, the President shall select the Chair from among the primary members.
D. Vice Chair. The members may elect from among the primary members a Vice Chair who shall:
1. Chair meetings that the Chair is unable to attend; and
2. Serve as Acting Chair during a vacancy in the Chair of the ISCAP.
A. Purpose. The primary purpose of ISCAP meetings is to discuss and bring formal resolution to matters before the ISCAP.
B. Frequency. As provided in section 5.4(a) of the Order, the ISCAP shall meet at the call of the Chair, who shall schedule meetings as may be necessary for the ISCAP to fulfill its functions in a timely manner. The Chair shall also convene the ISCAP when requested by a majority of its primary members.
C. Quorum. Meetings of the ISCAP may be held only when a quorum is present. For this purpose, a quorum requires the presence of at least five primary or alternate members.
D. Attendance. As determined by the Chair, attendance at meetings of the ISCAP shall be limited to those persons necessary for the ISCAP to fulfill its functions in a complete and timely manner.
E. Agenda. The Chair shall establish the agenda for all meetings. Potential items for the agenda may be submitted to the Chair by
F. Minutes. The Executive Secretary shall be responsible for the preparation of each meeting's minutes, and the distribution of draft minutes to each member. The minutes will include a record of the members present at the meeting and the result of each vote. At the subsequent meeting of the ISCAP, the Chair will read or reference the draft minutes of the previous meeting. At that time the minutes will be corrected, as necessary, and approved by the membership and certified by the Chair. The approved minutes will be maintained among the records of the ISCAP.
A. Motions. When a decision or recommendation of the ISCAP is required to resolve a matter before it, the Chair shall request or accept a motion for a vote. Any member, including the Chair, may make a motion for a vote. No second shall be required to bring any motion to a vote. A quorum must be present when a vote is taken.
B. Eligibility. Only the members, including the Chair, may vote on a motion before the ISCAP, with each agency or office represented having one vote.
C. Voting Procedures. Votes shall ordinarily be taken and tabulated by a show of hands.
D. Passing a Motion. In response to a motion, members may vote affirmatively, negatively, or abstain from voting. Except as otherwise provided in these bylaws, a motion passes when it receives a majority of affirmative votes of the members voting. However, in no instance will the ISCAP reverse an agency's decision without the affirmative vote of at least a majority of the members present.
E. Votes in a Non-meeting Context. In extraordinary circumstances, the Chair may call for a vote of the membership outside the context of a formal ISCAP meeting. An alternate member may also participate in such a vote if the primary member cannot. The Executive Secretary shall record and retain such votes in a documentary form and immediately report the results to the Chair and other primary and alternate members.
In accordance with section 5.4(b) of the Order, the ISCAP shall decide on appeals by authorized persons who have filed classification challenges under section 1.9 of the Order.
A. Jurisdiction. The ISCAP will consider appeals from classification challenges that otherwise meet the standards of the Order if:
1. The appeal is filed in accordance with these bylaws;
2. The appellant has previously challenged the classification action at the agency that originated or is otherwise responsible for the information in question in accordance with the agency's procedures or, if the agency has failed to establish procedures for classification challenges, by filing a written challenge directly with the agency head or designated senior agency official, as defined in section 1.1(j) of the Order;
3. The appellant has
(a) Received a final agency decision denying his or her challenge; or
(b) Not received (i) an initial written response to the classification challenge from the agency within 120 days of its filing, or (ii) a written response to an internal agency appeal within 90 days of the filing of the appeal;
4. There is no action pending in the federal courts regarding the information in question; and
5. The information in question has not been the subject of review by the federal courts or the ISCAP within the past two years.
B. Addressing of Appeals. Appeals should be addressed to: Executive Secretary, Interagency Security Classification Appeals Panel, Attn: Classification Challenge Appeals, c/o Information Security Oversight Office, National Archives and Records Administration, 7th and Pennsylvania Avenue, NW., Room 5W, Washington, DC 20408.
The appeal must contain enough information for the Executive Secretary to be able to obtain all pertinent documents about the classification challenge from the affected agency. No classified information should be included within the initial appeal document. The Executive Secretary will arrange for the transmittal of classified information from the agency after receiving the appeal. If it is impossible for the appellant to file an appeal without including classified information, prior arrangements must be made by contacting the Information Security Oversight Office.
C. Timeliness of Appeals. An appeal to the ISCAP must be filed within 60 days of:
1. The date of the final agency decision; or
2. The agency's failure to meet the time frames established in paragraph (A)(3)(b) of this Article.
D. Rejection of Appeal. If the Executive Secretary determines that the appeal does not meet the requirements of the Order or these bylaws, the Executive Secretary shall notify the appellant in writing that the appeal will not be considered by the ISCAP. The notification shall include an explanation of why the appeal is deficient.
E. Preparation. The Executive Secretary shall notify the Chair and the designated senior agency official(s) of the affected agency(ies) when an appeal is lodged. Under the direction of the ISCAP, the Executive Secretary shall supervise the preparation of an appeal file, pertinent portions of which will be presented to the members of the ISCAP for their review prior to a vote on the appeal. The appeal file will eventually include all records pertaining to the appeal.
F. Resolution of Appeals. The ISCAP may vote to affirm the agency's decision, to reverse the agency's decision in whole or in part, or to remand the matter to the agency for further consideration. A decision to reverse an agency's decision requires the affirmative vote of at least a majority of the members present.
G. Notification. The Executive Secretary shall promptly notify in writing the appellant, the agency head, and designated senior agency official of the ISCAP's decision.
H. Agency Appeals. Within 60 days of receipt of an ISCAP decision that reverses a final agency decision, the agency head may petition the President through the Assistant to the President for National Security Affairs to overrule the decision of the ISCAP.
I. Protection of Classified Information. All persons involved in the appeal shall make every effort to minimize the inclusion of classified information in the appeal file. Any classified information contained in the appeal file shall be handled and protected in accordance with the Order and its implementing directives. Information being challenged for classification shall remain classified unless and until a final decision is made to declassify it. In no instance will the ISCAP declassify properly classified information solely because of an agency's failure to prescribe or follow appropriate procedures for handling classification challenges.
J. Maintenance of File. The Executive Secretary shall maintain the appeal file among the records of the ISCAP.
In accordance with section 5.4(b) of the Order, the ISCAP shall approve, deny or amend agency exemptions from automatic declassification as provided in section 3.4(d) of the Order.
A. Agency Notification of Exemptions. The agency head or designated senior agency official shall notify the Executive Secretary of agency exemptions in accordance with the requirements of the Order and its implementing directives. Agencies shall provide any additional information or justification that the Executive Secretary believes is necessary or helpful in order for the ISCAP to review and decide on the exemption. The agency head may seek relief from the ISCAP from any request for information by the Executive Secretary to which the agency objects.
B. Preparation. The Executive Secretary shall notify the Chair of the agency submission. At the direction of the ISCAP, the Executive Secretary shall supervise the preparation of an exemption file, pertinent portions of which will be presented to the members of the ISCAP for their review prior to a vote on the exemptions. The exemption file will eventually include all records pertaining to the ISCAP's consideration of the agency's exemptions.
C. Resolution. The ISCAP may vote to approve an agency exemption, to deny an agency exemption, to amend an agency exemption, or to remand the matter to the agency for further consideration. A decision to deny or amend an agency exemption requires the affirmative vote of a majority of the members present.
D. Notification. The Executive Secretary shall promptly notify in writing the agency head and designated senior agency official of the ISCAP's decision.
E. Agency Appeals. Within 60 days of receipt of an ISCAP decision that denies or amends an agency exemption, the agency head may petition the President through the Assistant to the President for National Security Affairs to overrule the decision of the ISCAP.
F. Protection of Classified Information. Any classified information contained in the exemption file shall be handled and protected in accordance with the Order and its implementing directives. Information that the agency maintains is exempt from declassification shall remain classified unless and until a final decision is made to declassify it.
G. Maintenance of File. The Executive Secretary shall maintain the exemption file among the records of the ISCAP.
In accordance with section 5.4(b) of the Order, the ISCAP shall decide on appeals by parties whose requests for declassification under section 3.6 of the Order have been denied.
A. Jurisdiction. The ISCAP will consider appeals from denials of mandatory review for declassification requests that otherwise meet the standards of the Order if:
1. The appeal is filed in accordance with these bylaws;
2. The appellant has previously filed a request for mandatory declassification review at the agency that originated or is otherwise responsible for the information in question in accordance with the agency's procedures or, if the agency has failed to establish procedures for mandatory review, by filing a
3. The appellant has
(a) Received a final agency decision denying his or her request; or
(b) Not received (i) an initial decision on the request for mandatory declassification review from the agency within one year of its filing, or (ii) a final decision on an internal agency appeal within 180 days of the filing of the appeal;
4. There is no action pending in the federal courts regarding the information in question; and
5. The information in question has not been the subject of review by the federal courts or the ISCAP within the past two years.
B. Addressing of Appeals. Appeals should be addressed to: Executive Secretary, Interagency Security Classification Appeals Panel, Attn: Mandatory Review Appeals, c/o Information Security Oversight Office, National Archives and Records Administration, 7th and Pennsylvania Avenue, NW., Room 5W, Washington, DC 20408.
The appeal must contain enough information for the Executive Secretary to be able to obtain all pertinent documents about the request for mandatory declassification review from the affected agency.
C. Timeliness of Appeals. An appeal to the ISCAP must be filed within 60 days of:
1. The date of the final agency decision; or
2. The agency's failure to meet the time frames established in paragraph (A)(3)(b) of this Article.
D. Rejection of Appeal. If the Executive Secretary determines that the appeal does not meet the requirements of the Order or these bylaws, the Executive Secretary shall notify the appellant in writing that the appeal will not be considered by the ISCAP. The notification shall include an explanation of why the appeal is deficient.
E. Preparation. The Executive Secretary shall notify the Chair and the designated senior agency official(s) of the affected agency(ies) when an appeal is lodged. Under the direction of the ISCAP, the Executive Secretary shall supervise the preparation of an appeal file, pertinent portions of which will be presented to the members of the ISCAP for their review prior to a vote on the appeal. The appeal file will eventually include all records pertaining to the appeal.
F. Narrowing Appeals. To expedite the resolution of appeals and minimize backlogs, the Executive Secretary is authorized to consult with appellants with the objective of narrowing or prioritizing the information subject to the appeal.
G. Resolution of Appeals. The ISCAP may vote to affirm the agency's decision, to reverse the agency's decision in whole or in part, or to remand the matter to the agency for further consideration. A decision to reverse an agency's decision requires the affirmative vote of at least a majority of the members present.
H. Notification. The Executive Secretary shall promptly notify in writing the appellant, the agency head, and designated senior agency official of the ISCAP's decision.
I. Agency Appeals. Within 60 days of receipt of an ISCAP decision that reverses a final agency decision, the agency head may petition the President through the Assistant to the President for National Security Affairs to overrule the decision of the ISCAP.
J. Protection of Classified Information. All persons involved in the appeal shall make every effort to minimize the inclusion of classified information in the appeal file. Any classified information contained in the appeal file shall be handled and protected in accordance with the Order and its implementing directives. Information that is subject to an appeal from an agency decision denying declassification under the mandatory review provisions of the Order shall remain classified unless and until a final decision is made to declassify it. In no instance will the ISCAP declassify properly classified information solely because of an agency's failure to prescribe or follow appropriate procedures for handling mandatory review for declassification requests and appeals.
K. Maintenance of File. The Executive Secretary shall maintain the appeal file among the records of the ISCAP. All information declassified as a result of ISCAP action shall be available for inclusion within the database established by the Archivist of the United States in accordance with section 3.8 of the Order.
In its consideration of the matters before it, the ISCAP shall perform such additional advisory functions as are consistent with and supportive of the successful implementation of the Order.
As provided in section 5.4(a) of the Order, the Director of the Information Security Oversight Office will serve as Executive Secretary to the ISCAP, and the staff of the Information Security Oversight Office will provide program and administrative support for the ISCAP. The Executive Secretary will supervise the staff in this function pursuant to the direction of the Chair and ISCAP. On an as needed basis, the ISCAP may seek detailees from its member agencies to augment the staff of the Information Security Oversight Office in support of the ISCAP.
A. Integrity of ISCAP Records. The Executive Secretary shall maintain separately documentary materials, regardless of their
B. Referrals. Any Freedom of Information Act request or other access request for a document that originated within an agency other than the ISCAP shall be referred to that agency for processing.
The ISCAP has been established for the sole purpose of advising and assisting the President in the discharge of his constitutional and discretionary authority to protect the national security of the United States (section 5.4(e) of the Order). As provided in section 5.4(a) of the Order, pertinent information and data about the activities of the ISCAP shall be included in the Reports to the President issued by the Information Security Oversight Office. The Chair, in coordination with the other members of the ISCAP and the Executive Secretary, shall determine what information and data to include in each Report.
The approval and amendment of these bylaws shall require the affirmative vote of at least four of the ISCAP's members. In accordance with the Order, the Executive Secretary shall submit the approved bylaws and their amendments for publication in the
Sec. 3.3, E.O. 12356, 47 FR 14874, April 6, 1982.
These general guidelines for the systematic declassification review of foreign government information have been developed in accordance with the provisions of section 3.3 of Executive Order 12356, “National Security Information,” and § 2001.31 of Information Security Oversight Office Directive No. 1. All foreign government information that has been incorporated into the permanently valuable records of the United States Government and that has been accessioned into the National Archives of the United States shall be systematically reviewed for declassification by the Archivist of the United States. Declassification reviews shall be conducted in accordance with the provisions of these general guidelines or, if available, in accordance with specific systematic review guidelines for foreign government information provided by the agency heads who have declassification authority over that information. All foreign government information—
(a) Not identified in § 2002.6 of these general guidelines or in specific agency guidelines as requiring item-by-item declassification review and final determination by an agency declassification authority, and
(b) For which a prior declassification date has not been established, shall be declassified as that information becomes thirty years old.
(a) Information provided by a foreign government or governments, an international organization of governments, or any element thereof with the expectation, expressed or implied, that the information, the source of the information, or both, are to be held in confidence; or
(b) Information produced by the United States pursuant to or as a result of a joint arrangement with a foreign government or governments or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence.
(a) These guidelines apply to foreign government information that has been received or classified by the United
(b) Atomic energy information (including information originated prior to 1947 and not marked as such; information received from the United Kingdom or Canada marked “Atomic,” or information received from NATO marked “Atomal”) that is defined and identified as “Restricted Data” or “Formerly Restricted Data” in Sections 11y and 142d of the Atomic Energy Act of 1954, as amended, is outside the scope of these guidelines. Such information is not subject to systematic review and may not be automatically downgraded or declassified. Any document containing information within the definition of “Restricted Data” or “Formerly Restricted Data” that is not so marked shall be referred to the Department of Energy Office of Classification for review and appropriate marking, except for licensing and related regulatory matters which shall be referred to the Division of Security, U.S. Nuclear Regulatory Commission.
(a) Foreign government information transferred to the General Services Administration for accession into the National Archives of the United States shall be reviewed by the Archivist of the United States for declassification in accordance with Executive Order 12356, the directives of the Information Security Oversight Office, these general guidelines, and any specific systematic declassification guidelines provided by the agency with declassification authority over the information.
(b) Accessioned foreign government information in file series concerning intelligence activities (including special activities), or intelligence sources or methods created after 1945, and cryptology records created after 1945, shall be subject to review by the Archivist for declassification as it becomes 50 years old. All other accessioned foreign government information shall be subject to review by the Archivist for declassification as it becomes 30 years old.
(c) Agency heads who have declassification jurisidiction over permanently valuable foreign government information in agency records not yet accessioned into the National Archives of the United States are encouraged to conduct systematic declassification reviews of it in accordance with the time limits specified in paragraph (b) of this section. These reviews shall comply with the provisions of Executive Order 12356, the directives of the Information Security Oversight Office, these general guidelines, and specific agency systematic review guidelines that have been issued in consultation with the Archivist of the United States and the ISOO Director.
(d) Foreign government information falling within any of the categories listed in § 2002.6 of these guidelines shall be declassified or downgraded only upon specific authorization of the agency that has declassification authority over it. Such information shall be referred to the responsible agency(ies) for review. Information so referred shall remain classified until the responsible agency(ies) has declassified it. If the responsible agency cannot be readily identified from the document or material, referral shall be made in accordance with § 2002.7 of these guidelines.
(e) When required, the agency having declassification authority over the information shall consult with foreign governments concerning its proposed declassification.
(a) Foreign government information shall be considered declassified when published in an unclassified United States Government executive branch publication (e.g., the
(b) The unofficial publication, in the United States or abroad, of foreign government information contained in classified United States or foreign documents does not in or of itself constitute or permit the declassification of such information. Although prior unofficial publication is a factor to be considered in the systematic review process, there may be valid reasons for continued protection of the information which could preclude its declassification. In particular, the classification status of foreign government information which concerns or derives from intelligence activities (including special activities), intelligence sources or methods shall not be affected by any unofficial publication of identical or related information. The final declassification determination shall be made by the agency or agencies having declassification authority over it.
Foreign government information falling into the following categories require item-by-item review for declassification by agencies having declassification authority over it.
(a) Information exempted from declassification under any joint arrangement evidenced by an exchange of letters, memorandum of understanding, or other written record, with the foreign government or international organization of governments, or element(s) thereof, that furnished the information. Questions concerning the existence or applicability of such arrangements shall be referred to the agency or agencies having declassification authority over the records under review.
(b) Information related to the safeguarding of nuclear materials or facilities, foreign and domestic, including but not necessarily limited to vulnerabilities and vulnerability assessments of nuclear facilities and Special Nuclear Material.
(c) Nuclear arms control information (see also paragraph (k) of this section).
(d) Information regarding foreign nuclear programs (other than “Restricted Data” and “Formerly Restricted Data”), such as:
(1) Nuclear weapons testing.
(2) Nuclear weapons storage and stockpile.
(3) Nuclear weapons effects, hardness, and vulnerability.
(4) Nuclear weapons safety.
(5) Cooperation in nuclear programs including, but not limited to, peaceful and military applications of nuclear energy.
(6) Exploration, production and import of uranium and thorium from foreign countries.
(e) Information concerning intelligence activities (including special activities) or intelligence or counterintelligence sources or methods including but not limited to intelligence, counterintelligence and covert action programs, plans, policies, operations, or assessments; or which would reveal or identify:
(1) Any present, past or prospective undercover personnel, installation, unit, or clandestine human agent, of the United States or a foreign government;
(2) Any present, past or prospective method, procedure, mode, technique or requirement used or being developed by the United States or by foreign governments, individually or in combination to produce, acquire, transmit, analyze, correlate, assess, evaluate or process intelligence or counterintelligence, or to support an intelligence or counterintelligence source, operation, or activity;
(3) The present, past or proposed existence of any joint United States and foreign government intelligence, counterintelligence, or covert action activity or facility, or the nature thereof. (For guidance on protecting United States foreign intelligence liaison relationships, see Director of Central Intelligence Directive “Security Classification Guidance and Foreign Security Services,” effective January 18, 1982.)
(f) Information that could result in or lead to actions which would place an individual in jeopardy attributable to disclosure of the information, including but not limited to:
(1) Information identifying any individual or organization as a confidential source of intelligence or counterintelligence.
(2) Information revealing the identity of an intelligence or covert action agent or agents.
(3) Information identifying any individual or organization used to develop or support intelligence, counterintelligence, or covert action agents, sources or activities.
(g) Information about foreign individuals, organizations or events which if disclosed, could be expected to:
(1) Adversely affect a foreign country's or international organization's present or future relations with the United States.
(2) Adversely affect present or future confidential exchanges beween the United States and any foreign government or international organization of governments.
(h) Information related to plans (whether executed or not, whether presented in whole or in part), programs, operations, negotiations, and assessments shared by one or several foreign governments with the United States, including but not limited to those involving the territory, political regime or government of another country, and which if disclosed could be expected to adversely affect the conduct of U.S. foreign policy or the conduct of another country's foreign policy with respect to a third country or countries. This item would include contigency plans, plans for covert political, military or paramilitary activities or operations by a foreign government acting alone or jointly with the United States Government, and positions or actions taken by a foreign government alone or jointly with the United States concerning border disputes or other territorial issues.
(i) Information concerning arrangements with respect to foreign basing of cryptologic operations and/or foreign policy considerations relating thereto.
(j) Scientific information such as that concerning space, energy, climatology, communications, maritime, undersea, and polar projects, the disclosure of which could be expected to adversely affect current and/or future exchanges of such information between the United States and any foreign governments or international organizations of governments.
(k) Information on foreign policy aspects of nuclear matters, the disclosure of which could be expected to adversely affect cooperation between one or more foreign governments and the United States Government.
(l) Information concerning physical security arrangements, plans or equipment for safeguarding United States Government embassies, missions or facilities abroad, the disclosure of which could reasonably be expected to increase the vulnerability of such facilities to penetration, attack, take-over, and the like.
(m) Nuclear propulsion information.
(n) Information concerning the establishment, operation, and support of nuclear detection systems.
(o) Information concerning or revealing military or paramilitary escape, evasion, cover or deception plans, procedures, and techniques, whether executed or not.
(p) Information which could adversely affect the current or future usefullness of military defense policies, programs, weapons systems, operations, or plans.
(q) Information concerning research, development, testing and evaluation of chemical and biological weapons and defense systems; specific identification of chemical and biological agents and munitions; and chemical and biological warfare plans.
(r) Technical information concerning weapons systems and military equipment that reveals the capabilities, limitations, or vulnerabilities of such systems, or equipment that could be exploited to destroy, counter, render ineffective or neutralize such weapons or equipment.
(s) Cryptologic information, including cryptologic sources and methods, currently in use. This includes information concerning or revealing the processes, techniques, operations, and scope of signals intelligence comprising communications intelligence, electronics intelligence, and telemetry intelligence, the crytosecurity and emission security components of communications security, and the communications portion of cover and deception plans.
(t) Information concerning electronic warfare (electronic warfare support
(1) Nomenclature, functions, technical characteristics or descriptions of communications and electronic equipment, its employment/development, and its association with weapoins systems or military operations.
(2) The processes, techniques, operations or scope of activities involved in the acquisition, analysis and evaluation of such information, and the degree of success achieved by the above processes, techniques, operations or activities.
(u) Present, past or proposed protective intelligence information relating to the sources, plans, techniques, equipment and methods used in carrying out assigned duties of protecting United States Government officials or other protectees abroad and foreign officials while in the United States or United States possessions. This includes information concerning the identification of witnesses, informants and persons suspected of being dangerous to persons under protection.
(v) Information on deposits of foreign official institutions in United States banks and on foreign official institutions’ holdings, purchases and sales of long-term marketable securities in the United States.
(w) Information concerning economic and policy studies and sensitive assessments or analyses of economic conditions, policies or activities of foreign countries or international organizations of governments received through the Multilateral Development Banks and Funds or through the International Monetary Fund (IMF) and the Organization for Economic Cooperation and Development (OECD).
(x) Information described in paragraphs (a) through (w) contained in correspondence, transcripts, memoranda of conversation, or minutes of meetings between the President of the United States or the Vice President of the United States and foreign government officials.
(y) Information described in paragrpahs (a) through (w) contained in documents originated by or sent to the Assistant to the President for National Security Affairs, his Deputy, members of the National Security Council staff, or any other person on the White House or the Executive Office of the President staffs performing national security functions.
(z) Federal agency originated documents bearing Presidential, National Security Council, or White House or Executive Office of the President staffs’ comments relating to categories of information described in paragraphs (a) through (w).
(aa) Information as described in paragraphs (a) through (w) contained in correspondence to or from the President or the Vice President, including background briefing memoranda and talking points for meetings between the President or the Vice President and foreign government officials, and discussions of the timing and purposes of such meetings.
(bb) Information as described in paragraphs (a) through (w) contained in agency message traffic originated by White House or Executive Office of the President staff members but sent through agency communication networks.
(a) When the identity of the agencies having declassification authority over foreign government information is not apparent to the agency holding the information, or when reviewing officials do not possess the requisite expertise, the information shall be referred for review and a declassification determination as follows:
(1) Categories 2002.6 (b) through (d), Department of Energy or Nuclear Regulatory Commission (as appropriate).
(2) Categories 2002.6 (e) and (f), Central Intelligence Agency.
(3) Categories 2002.6 (g) through (l), Department of State.
(4) Categories 2002.6 (m) through (t), Department of Defense.
(5) Categories 2002.6 (u) and (w), Department of the Treasury.
(6) Categories 2002.6 (x) through (bb), National Security Council.
(b) Referrals to agencies shall include copies of the documents containing the
Foreign government information classified “Top Secret” may be downgraded to “Secret” after 30 years unless the agency with declassification authority over it determines on its own, or after consultation, as appropriate, with the foreign government or international organization of governments which furnished the information, that it requires continued protection at the “Top Secret” level.
Sec. 5.2(b)(7) of E.O. 12356.
The purpose of the standard forms prescribed in subpart B is to promote the implementation of the government-wide information security program. Standard forms are prescribed when their use will enhance the protection of national security information and/or will reduce the costs associated with its protection.
The use of the standard forms prescribed in subpart B is mandatory for all departments, and independent agencies or offices of the executive branch that create and/or handle national security information. As appropriate, these departments, and independent agencies or offices may mandate the use of these forms by their contractors, licensees or grantees who are authorized access to national security information.
Except as specifically provided, waivers from the mandatory use of the standard forms prescribed in subpart B may be granted only by the Director of ISOO.
Agencies may obtain copies of the standard forms prescribed in subpart B by ordering through FEDSTRIP/MILSTRIP or from the General Services Administration (GSA) Customer Supply Centers (CSCs). The national stock number of each form is cited with its description in subpart B.
(a) SF 312, SF 189, and SF 189-A are nondisclosure agreements between the United States and an individual. The prior execution of at least one of these agreements, as appropriate, by an individual is necessary before the United States Government may grant that individual access to classified information. From the effective date of this rule, September 29, 1988, the SF 312 shall be used in lieu of both the SF 189 and the SF 189-A for this purpose. In any instance in which the language in the SF 312 differs from the language in either the SF 189 or SF 189-A, agency heads shall interpret and enforce the SF 189 or SF 189-A in a manner that is fully consistent with the interpretation and enforcement of the SF 312.
(b) All employees of executive branch departments, and independent agencies or offices, who have not previously signed the SF 189, must sign the SF 312 before being granted access to classified information. An employee who has previously signed the SF 189 is permitted, at his or her own choosing, to substitute a signed SF 312 for the SF 189. In these instances, agencies shall take all reasonable steps to dispose of the superseded nondisclosure agreement or to indicate on it that it has been superseded.
(c) All Government contractor, licensee, and grantee employees, or other non-Government personnel requiring access to classified information in the performance of their duties, who have not previously signed either the SF 189 or the SF 189-A, must sign the SF 312 before being granted access to classified information. An employee who has previously signed either the SF 189 or the SF 189-A is permitted, at his or her own choosing, to substitute a signed SF 312 for either the SF 189 or the SF 189-A. In these instances, agencies, with the cooperation of the pertinent contractor, licensee or grantee, shall take all reasonable steps to dispose of the superseded nondisclosure agreement or to indicate on it that it has been superseded.
(d) Agencies may require other persons, who are not included under paragraphs (b) or (c) of this section, and who have not previously signed either the SF 189 or the SF 189-A, to execute SF 312 before receiving access to classified information. A person in such circumstances who has previously signed either the SF 189 or the SF 189-A is permitted, at his or her own choosing, to substitute a signed SF 312 for either the SF 189 or the SF 189-A. In these instances, agencies shall take all reasonable steps to dispose of the superseded nondisclosure agreement or to indicate on it that it has been superseded.
(e) The use of the “Security Debriefing Acknowledgement” portion of the SF 312 is optional at the discretion of the implementing agency.
(f) An authorized representative of a contractor, licensee, grantee, or other non-Government organization, acting as a designated agent of the United States, may witness the execution of the SF 312 by another non-Government employee, and may accept it on behalf of the United States. Also, an employee of a United States agency may witness the execution of the SF 312 by an employee, contractor, licensee or grantee of another United States agency, provided that an authorized United States Government official or, for non-Government employees only, a designated agent of the United States subsequently accepts by signature the SF 312 on behalf of the United States.
(g) The provisions of the SF 312, the SF 189, and the SF 189-A do not supersede the provisions of section 2302, title 5, United States Code, which pertain to the protected disclosure of information by Government employees, or any other laws of the United States.
(h)(1)
As used in this Agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 12356, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and unclassified information that meets the standards
(2)
(3)
(4)
(i) Each executed copy of the SF 312, SF 189 and SF 189-A, whether executed prior to or after the publication of this rule, is amended to include the following paragraphs 10 and 11.
10. These restrictions are consistent with and do not supersede, conflict with or otherwise alter the employee obligations, rights or liabilities created by Executive Order 12356; section 7211 of title 5 U.S.C. (governing disclosures to Congress); section 1034 of title 10 U.S.C., as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5 U.S.C., as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421
11. I have read this Agreement carefully and my questions, if any, have been answered. I acknowledge that the briefing officer has made available to me the Executive Order and statutes referenced in this Agreement and its implementing regulation (32 CFR 2003.20) so that I may read them at this time, if I so choose.
(ii) The first sentence of paragraph 7 of each executed copy of the SF 312, SF 189 and SF 189-A, whether executed prior to or after the publication of this rule, is amended to read:
I understand that all classified information to which I have access or may obtain access by signing this Agreement is now and will remain the property of, or under the control of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law.
(i)
(2) As used in paragraph 7 of SF 189, “information” refers to “classified information,” exclusively.
(3) As used in the third sentence of paragraph 7 of SF 189 and SF 189-A, the words “all materials which have, or may have, come into my possession,” refer to “all classified materials which have or may come into my possession,” exclusively.
(j) Each agency must retain its executed copies of the SF 312, SF 189, and SF 189-A in file systems from which an agreement can be expeditiously retrieved in the event that the United States must seek its enforcement or a subsequent employer must confirm its prior execution. The original, or a legally enforceable facsimile that is retained in lieu of the original, such as microfiche, microfilm, computer disk, or electronic storage medium, must be retained for 50 years following its date of execution. For agreements executed by civilian employees of the United States Government, an agency may store the executed copy of the SF 312 and SF 189 in the United States Office of Personnel Management's Official Personnel Folder (OPF) as a long-term (right side) document for that employee. An agency may permit its contractors, licensees and grantees to retain the executed agreements of their employees during the time of employment. Upon the termination of employment, the contractors, licensee or grantee shall deliver the original or legally enforceable facsimile of the executed SF 312, SF 189 or SF 189-A of that employee to the Government agency primarily responsible for his or her classified work. A contractor, licensee or grantee of an agency participating in the Defense Industrial Security Program shall deliver the copy or legally enforceable facsimile of the executed SF 312, SF 189 or SF 189-A of a terminated employee to the Defense Industrial Security Clearance Office. Each agency shall inform ISOO of the file systems that it uses to store these agreements for each category of affected individuals.
(k) Only the National Security Council may grant an agency's request for a waiver from the use of the SF 312. To apply for a waiver, an agency must submit its proposed alternative nondisclosure agreement to the Director of ISOO, along with a justification for its use. The Director of ISOO will request a determination about the alternative agreement's enforceability from the Department of Justice prior to making a recommendation to the National Security Council. An agency that has previously received a waiver from the use of the SF 189 or the SF 189-A need not seek a waiver from the use of the SF 312.
(l) The national stock number for the SF 312 is 7540-01-280-5499.
(a) SF 700 provides the names, addresses and telephone numbers of employees who are to be contacted if the security container to which the form pertains is found open and unattended. The form also includes the means to maintain a current record of the security container's combination and provides the envelope to be used to forward this information to the appropriate agency activity or official.
(b) SF 700 shall be used in all situations that call for the use of a security container information form. Agency-wide use of SF 700 shall begin when supplies of existing forms are exhausted or September 30, 1986, whichever occurs earlier.
(c) Parts 2 and 2A of each completed copy of SF 700 shall be classified at the highest level of classification of the information authorized for storage in the security container. A new SF 700 must be completed each time the combination to the security container is changed as required by applicable executive order(s), statute(s) or implementing security regulations.
(d) Only the Director of the Information Security Oversight Office (ISOO) may grant an agency's application for a waiver from the use of SF 700. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The ISOO Director
(e) The national stock number for the SF 700 is 7540-01-214-5372.
(a) SF 701 provides a systematic means to make a thorough end-of-day security inspection for a particular work area and to allow for employee accountability in the event that irregularities are discovered.
(b) SF 701 shall be used in all situations that call for the use of an activity security checklist. Agency-wide use of SF 701 shall begin when supplies of existing forms are exhausted or September 30, 1986, whichever occurs earlier.
(c) Completion, storage and disposition of SF 701 will be in accordance with each agency's security regulations.
(d) Only the Director of the Information Security Oversight Office (ISOO) may grant an agency's application for a waiver from the use of SF 701. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The ISOO Director will review the request and notify the agency of the decision.
(e) The national stock number for the SF 701 is 7540-01-213-7899.
(a) SF 702 provides a record of the names and times that persons have opened, closed or checked a particular container that holds classified information.
(b) SF 702 shall be used in all situations that call for the use of a security container check sheet. Agency-wide use of SF 702 shall begin when supplies of existing forms are exhausted or September 30, 1986, whichever occurs earlier.
(c) Completion, storage and disposal of SF 702 will be in accordance with each agency's security regulations.
(d) Only the Director of the Information Security Oversight Office (ISOO) may grant an agency's application for a waiver from the use of SF 702. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The ISOO Director will review the request and notify the agency of the decision.
(e) The national stock number of the SF 702 is 7540-01-213-7900.
(a) SF 703 serves as a shield to protect TOP SECRET classified information from inadvertent disclosure and to alert observers that TOP SECRET information is attached to it.
(b) SF 703 shall be use in all situations that call for the use of a TOP SECRET cover sheet. Agency-wide use of SF 703 shall begin when supplies of existing forms are exhausted or September 30, 1986, whichever occurs earlier.
(c) SF 703 is affixed to the top of the TOP SECRET document and remains attached until the document is destroyed. At the time of destruction, SF 703 is removed and, depending upon its condition, reused.
(d) Only the Director of the Information Security Oversight Office (ISOO) may grant any agency's application for a waiver from the use of SF 703. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The ISOO Director will review the request and notify the agency of the decision.
(e) The national stock number of the SF 703 is 7540-01-213-7901.
(a) SF 704 serves as a shield to protect SECRET classified information from inadvertent disclosure and to alert observers that SECRET information is attached to it.
(b) SF 704 shall be use in all situations that call for the use of a SECRET cover sheet. Agency-wide use of SF 704 shall begin when supplies of existing forms are exhausted or September 30, 1986, whichever occurs earlier.
(c) SF 704 is affixed to the top of the SECRET document and remains attached until the document is destroyed. At the time of destruction, SF 704 is removed and, depending upon its condition, reused.
(d) Only the Director of the Information Security Oversight Office (ISOO) may grant any agency's application for a waiver from the use of SF 704. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The ISOO Director will review the request and notify the agency of the decision.
(e) The national stock number of the SF 704 is 7540-01-213-7902.
(a) SF 705 serves as a shield to protect CONFIDENTIAL classified information from inadvertent disclosure and to alert observers that CONFIDENTIAL information is attached to it.
(b) SF 705 shall be use in all situations that call for the use of a CONFIDENTIAL cover sheet. Agency-wide use of SF 705 shall begin when supplies of existing forms are exhausted or September 30, 1986, whichever occurs earlier.
(c) SF 705 is affixed to the top of the CONFIDENTIAL document and remains attached until the document is destroyed. At the time of destruction, SF 705 is removed and, depending upon its condition, reused.
(d) Only the Director of the Information Security Oversight Office (ISOO) may grant any agency's application for a waiver from the use of SF 705. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The ISOO Director will review the request and notify the agency of the decision.
(e) The national stock number for the SF 705 is 7540-01-213-7903.
(a) SF 706 is used to identify and protect automatic data processing (ADP) media and other media that contain TOP SECRET information. SF 706 is used instead of the SF 703 for media other than documents.
(b) SF 706 shall be used in all situations that call for the use of a TOP SECRET Label. Agency-wide use of SF 706 shall begin when supplies of existing forms are exhausted or January 31, 1988, whichever occurs earlier.
(c) SF 706 is affixed to the medium containing TOP SECRET information in a manner that would not adversely affect operation of equipment in which the medium is used. Once the Label has been applied, it cannot be removed.
(d) Only the Director of ISOO may grant a waiver from the use of SF 706. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The Director of ISOO will review the request and notify the agency of the decision.
(e) The national stock number of the SF 706 is 7540-01-207-5536.
(a) SF 707 is used to identify and protect automatic data processing (ADP) media and other media that contain SECRET information. SF 707 is used instead of the SF 704 for media other than documents.
(b) SF 707 shall be used in all situations that call for the use of a SECRET Label. Agency-wide use of SF 707 shall begin when supplies of existing forms are exhausted or January 31, 1988, whichever occurs earlier.
(c) SF 707 is affixed to the medium containing SECRET information in a manner that would not adversely affect operation of equipment in which the medium is used. Once the Label has been applied, it cannot be removed.
(d) Only the Director of ISOO may grant a waiver from the use of SF 707. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The Director of ISOO will review the request and notify the agency of the decision.
(e) The national stock number of the SF 707 is 7540-01-207-5537.
(a) SF 708 is used to identify and protect automatic data processing (ADP) media and other media that contain CONFIDENTIAL information. SF 708 is used instead of the SF 705 for media other than documents.
(b) SF 708 shall be used in all situations that call for the use of a CONFIDENTIAL Label. Agency-wide use of SF 708 shall begin when supplies of existing forms are exhausted or January 31, 1988, whichever occurs earlier.
(c) SF 708 is affixed to the medium containing CONFIDENTIAL information in a manner that would not adversely affect operation of equipment in which the medium is used. Once the Label has been applied, it cannot be removed.
(d) Only the Director of ISOO may grant a waiver from the use of SF 708. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The Director of ISOO will review the request and notify the agency of the decision.
(e) The national stock number of the SF 708 is 7540-01-207-5538.
(a) SF 709 is used to identify and protect automatic data processing (ADP) media and other media that contain classified information pending a determination by the classifier of the specific classification level of the information.
(b) SF 709 shall be used in all situations that require the use of a CLASSIFIED Label. Agency-wide use of SF 709 shall begin when supplies of existing forms are exhausted or January 31, 1988, whichever occurs earlier.
(c) SF 709 is affixed to the medium containing classified information in a manner that would not adversely affect operation of equipment in which the medium is used. Once the Label has been applied, it cannot be removed. When a classifier has made a determination of the spedific level of classification of the information contained on the medium, either SF 706, SF 707, or SF 708 shall be affixed on top of SF 709 so that only the SF 706, SF 707, or SF 708 is visible.
(d) Only the Director of ISOO may grant a waiver from the use of SF 709. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The Director of ISOO will review the request and notify the agency of the decision.
(e) The national stock number of the SF 709 is 7540-01-207-5540.
(a) In a mixed environment in which classified and unclassified information are being processed or stored, SF 710 is used to identify automatic data processing (ADP) media and other media that contain unclassified information. Its function is to aid in distinguishing among those media that contain either classified or unclassified information in a mixed environment.
(b) SF 710 shall be used in all situations that require the use of an UNCLASSIFIED Label. Agency-wide use of SF 710 shall begin when supplies of existing forms are exhausted or January 31, 1988, whichever occurs earlier.
(c) SF 710 is affixed to the medium containing unclassified information in a manner that would not adversely affect operation of equipment in which the medium is used. Once the Label has been applied, it cannot be removed. However, the label is small enough so that it can be wholly covered by a SF 706, SF 707, SF 708 or SF 709 if the medium subsequently contains classified information.
(d) Only the Director of ISOO may grant a waiver from the use of SF 710. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The Director of ISOO will review the request and notify the agency of the decision.
(e) The national stock number of the SF 710 is 7540-01-207-5539.
(a) SF 711 is used to identify additional safeguarding controls that pertain to classified information that is stored or contained on automatic data processing (ADP) or other media.
(b) SF 711 shall be used in all situations that require the use of a DATA DESCRIPTOR Label. Agency-wide use of SF 711 shall begin when supplies of existing forms are exhausted or January 31, 1988, whichever occurs earlier.
(c) SF 711 is affixed to the ADP medium containing classified information in a manner that would not adversely affect operation of equipment in which the medium is used. SF 711 is ordinarily used in conjunction with the SF 706, SF 707, SF 708 or SF 709, as appropriate. Once the Label has been applied, it cannot be removed. The SF 711 provides spaces for information that should be completed as required.
(d) Only the Director of ISOO may grant a waiver from the use of SF 711. To apply for a waiver, an agency must submit its proposed alternative form to the Director of ISOO along with its justification for use. The Director of ISOO will review the request and notify the agency of the decision.
(e) The national stock number of the SF 711 is 7540-01-207-5541.
E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333.
This Directive is issued pursuant to Section 5.2 (c) of Executive Order (E.O.) 12958, “Classified National Security Information.” The E.O. and this Directive set forth the requirements for the safeguarding of classified national security information (hereinafter classified information) and are applicable to all U.S. Government agencies.
(a) Classified information, regardless of its form, shall be afforded a level of protection against loss or unauthorized disclosure commensurate with its level of classification.
(b) Except for NATO and other foreign government information, agency heads or their designee(s) (hereinafter referred to as agency heads) may adopt alternative measures, using risk management principles, to protect against loss or unauthorized disclosure when necessary to meet operational requirements. When alternative measures are used for other than temporary, unique situations, the alternative measures shall be documented and provided to the Director, Information Security Oversight Office (ISOO), to facilitate that office's oversight responsibility. Upon request, the description shall be provided to any other agency with which classified information or secure facilities are shared. In all cases, the alternative measures shall provide protection sufficient to reasonably deter and detect loss or unauthorized disclosure. Risk management factors considered will include sensitivity, value and crucial nature of the information; analysis of known and anticipated threats; vulnerability; and countermeasures benefits versus cost.
(c) NATO classified information shall be safeguarded in compliance with U.S.
(d) An agency head who originates or handles classified information shall refer any matter pertaining to the implementation of this Directive that he or she cannot resolve to the Director, ISOO for resolution.
(a)
(b)
(c)
(d)
(e)
Authorized persons who have access to classified information are responsible for:
(a) Protecting it from persons without authorized access to that information, to include securing it in approved equipment or facilities whenever it is not under the direct control of an authorized person;
(b) Meeting safeguarding requirements prescribed by the agency head; and
(c) Ensuring that classified information is not communicated over unsecured voice or data circuits, in public conveyances or places, or in any other manner that permits interception by unauthorized persons.
The Administrator of General Services shall, in coordination with agency heads originating classified information, establish and publish uniform standards, specifications and supply schedules for security equipment designed to provide secure storage for and destruction of classified information. Whenever new security equipment is procured, it shall be in conformance with the standards and specifications established by the Administratior of General Services, and shall, to the maximum extent possible, be of the type available through the Federal Supply System.
(a)
(b)
(i) In a GSA-approved security container with one of the following supplemental controls:
(A) Continuous protection by cleared guard or duty personnel;
(B) Inspection of the security container every two hours by cleared guard or duty personnel;
(C) An Intrusion Detection System (IDS) with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation [Acceptability of Intrusion Detection Equipment (IDE): All IDE must be UL-listed (or equivalent as defined by the agency head) and approved by the agency head. Government and proprietary installed, maintained, or furnished systems are subject to approval only by the agency head.]; or
(D) Security-In-Depth conditions, provided the GSA-approved container is equipped with a lock meeting Federal Specification FF-L-2740.
(ii) An open storage area constructed in accordance with Appendix A, which is equipped with an IDS with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation if the area is covered by Security-In-Depth or a five minute alarm response if it is not.
(iii) An IDS-equipped vault with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation.
(2)
(i) In the same manner as prescribed for Top Secret information;
(ii) In a GSA-approved security container or vault without supplemental controls; or
(iii) In either of the following:
(A) Until October 1, 2012, in a non-GSA-approved container having a built-in combination lock or in a non-GSA approved container secured with a rigid metal lockbar and an agency head approved padlock; or
(B) An open storage area. In either case, one of the following supplemental controls is required:
(
(
(
(3)
(c)
(1) Equipment in service. The classification of the combination shall be the same as the highest level of classified information that is protected by the lock. Combinations to dial-type locks shall be changed only by persons having a favorable determination of eligibility for access to classified information and authorized access to the level of information protected unless other sufficient controls exist to prevent access to the lock or knowledge of the combination. Combinations shall be changed under the following conditions:
(i) Whenever such equipment is placed into use;
(ii) Whenever a person knowing the combination no longer requires access to it unless other sufficient controls exist to prevent access to the lock; or
(iii) Whenever a combination has been subject to possible unauthorized disclosure.
(2) Equipment out of service. When security equipment is taken out of service, it shall be inspected to ensure that no classified information remains and the built-in combination lock shall be reset to a standard combination.
(d)
(a)
(b)
(1) Reproduction shall be accomplished by authorized persons knowledgeable of the procedures for classified reproduction;
(2) Unless restricted by the originating Agency, Top Secret, Secret, and Confidential information may be reproduced to the extent required by operational needs, or to facilitate review for declassification;
(3) Copies of classified information shall be subject to the same controls as the original information; and
(4) The use of technology that prevents, discourages, or detects the unauthorized reproduction of classified information is encouraged.
(a)
(b)
(1) All classified information physically transmitted outside facilities shall be enclosed in two layers, both of which provide reasonable evidence of tampering and which conceal the contents. The inner enclosure shall clearly identify the address of both the sender and the intended recipient, the highest classification level of the contents, and any appropriate warning notices. The outer enclosure shall be the same except that no markings to indicate that the contents are classified shall be visible. Intended recipients shall be identified by name only as part of an attention line. The following exceptions apply:
(i) If the classified information is an internal component of a packable item of equipment, the outside shell or body may be considered as the inner enclosure provided it does not reveal classified information;
(ii) If the classified information is an inaccessible internal component of a bulky item of equipment, the outside or body of the item may be considered to be a sufficient enclosure provided observation of it does not reveal classified information;
(iii) If the classified information is an item of equipment that is not reasonably packable and the shell or body is classified, it shall be concealed with
(iv) Specialized shipping containers, including closed cargo transporters or diplomatic pouch, may be considered the outer enclosure when used; and
(v) When classified information is hand-carried outside a facility, a locked briefcase may serve as the outer enclosure.
(2) Couriers and authorized persons designated to hand-carry classified information shall ensure that the information remains under their constant and continuous protection and that direct point-to-point delivery is made. As an exception, agency heads may approve, as a substitute for a courier on direct flights, the use of specialized shipping containers that are of sufficient construction to provide evidence of forced entry, are secured with a high security padlock, are equipped with an electronic seal that would provide evidence of surreptitious entry and are handled by the carrier in a manner to ensure that the container is protected until its delivery is completed.
(c)
(2)
(i) Any of the methods established for Top Secret; U.S. Postal Service Express Mail and U.S. Postal Service Registered Mail, as long as the Waiver of Signature and Indemnity block, item 11-B, on the U.S. Postal Service Express Mail Label shall not be completed; and cleared commercial carriers or cleared commercial messenger services. The use of street-side mail collection boxes is strictly prohibited; and
(ii) Agency heads may, on an exceptional basis and when an urgent requirement exists for overnight delivery within the U.S. and its Territories, authorize the use of the current holder of the General Services Administration contract for overnight delivery of information for the Executive Branch as long as applicable postal regulations (39 CFR chapter I) are met. Any such delivery service shall be U.S. owned and operated, provide automated in-transit tracking of the classified information, and ensure package integrity during transit. The contract shall require cooperation with government inquiries in the event of a loss, theft, or possible unauthorized disclosure of classified information. The sender is responsible for ensuring that an authorized person will be available to receive the delivery and verification of the correct mailing address. The package may be addressed to the recipient by name. The release signature block on the receipt label shall not be executed under any circumstances. The use of external (street side) collection boxes is prohibited. Classified Communications Security Information, NATO, and foreign government information shall not be transmitted in this manner.
(3)
(d)
(e)
(f)
(a)
(b)
(a)
(b)
(c)
(d)
(1) The Department of Justice, and
(2) The legal counsel of the agency where the individual responsible is assigned or employed.
(a)
(b)
Each agency head shall ensure that classified information electronically accessed, processed, stored or transmitted is protected in accordance with applicable national policy issuances identified in the Index of National Security Telecommunications and Information Systems Security Issuances (NSTISSI) and Director of Central Intelligence Directive (DCID) 6/3.
Based upon the risk management factors referenced in § 2004.2 of this directive agency heads shall determine the requirement for technical countermeasures such as Technical Surveillance Countermeasures (TSCM) and TEMPEST necessary to detect or deter exploitation of classified information through technical collection methods and may apply countermeasures in accordance with NSTISSI 7000, entitled Tempest Countermeasures for Facilities, and SPB Issuance 6-97, entitled National Policy on Technical Surveillance Countermeasures.
Agency heads may prescribe special provisions for the dissemination, transmittal, destruction, and safeguarding of classified information during military operations or other emergency situations.
This Appendix describes the construction standards for open storage areas.
1.
2.
3.
4.
a. All windows which might reasonably afford visual observation of classified activities within the facility shall be made opaque or equipped with blinds, drapes, or other coverings.
b. Windows at ground level will be constructed from or covered with materials which provide protection from forced entry. The protection provided to the windows need be no stronger than the strength of the contiguous walls. Open storage areas which are located within a controlled compound or equivalent may eliminate the requirement for forced entry protection if the windows are made inoperable either by permanently sealing them or equipping them on the inside with a locking mechanism and they are covered by an IDS (either independently or by the motion detection sensors within the area.)
The requirements described below are additional baseline safeguarding standards that may be necessary for foreign government information, other than NATO information, that requires protection pursuant to an existing treaty, agreement, or other obligation. NATO classified information shall be safeguarded in compliance with United States Security Authority for NATO Instructions I-69 and I-70. To the extent practical,
1.
2.
3.
4.
a. Documents may retain their original foreign markings if the responsible agency determines that these markings are adequate to meet the purposes served by U.S. classification markings. Otherwise, documents shall be marked, “This document contains (insert name of country) (insert classification level) information to be treated as US (insert classification level).” The notation, “Modified Handling Authorized,” may be added to either the foreign or U.S. markings authorized for foreign government information. If remarking foreign originated documents or matter is impractical, an approved cover sheet is an authorized option;
b. Documents shall be provided only to those who have an established need-to-know, and where access is required by official duties;
c. Individuals being given access shall be notified of applicable handling instructions. This may be accomplished by a briefing, written instructions, or by applying specific handling requirements to an approved cover sheet;
d. Documents shall be stored in such a manner so as to prevent unauthorized access;
e. Documents shall be transmitted in a method approved for classified information, unless this method is waived by the originating government.
5.
5 U.S.C. 552a (f) and (k).
(a) Insofar as the Privacy Act of 1974 (5 U.S.C. 552a) applies to the National Security Council (hereafter NSC), it provides the American public with expanded opportunities to gain access to records maintained by the NSC Staff which may pertain to them as individuals. These regulations are the exclusive means by which individuals may request personally identifiable records and information from the National Security Council.
(b) The NSC Staff, in addition to performing the functions prescribed in the National Security Act of 1947, as amended (50 U.S.C. 401), also serves as the supporting staff to the President in the conduct of foreign affairs. In doing so the NSC Staff is acting not as an agency but as an extension of the White House Office. In that the White House Office is not considered an agency for the purposes of this Act, the materials which are used by NSC Staff personnel in their role as supporting staff to the President are not subject to the provisions of the Privacy Act of 1974. A description of these White House Office files is, nevertheless, appended to the NSC notices of systems of files and will be published annually in the
(c) In general, Records in NSC files pertain to individual members of the public only if these individuals have been (1) employed by the NSC, (2) have corresponded on a foreign policy matter with a member of the NSC or its staff, or (3) have, as a U.S. Government official, participated in an NSC meeting or in the preparation of foreign policy-related documents for the NSC.
(a) The following regulations set forth procedures whereby individuals may seek and gain access to records concerning themselves and will guide the NSC Staff response to requests under the Privacy Act. In addition, they outline the requirements applicable to the personnel maintaining NSC systems of records.
(b) These regulations, published pursuant to the Privacy Act of 1974, Pub. L. 93-579, Section 552a (f) and (k), 5 U.S.C. (hereinafter the Act), advise of procedures whereby an individual can:
(1) Request notification of whether the NSC Staff maintains or has disclosed a record pertaining to him or her in any non-exempt system of records;
(2) Request a copy of such record or an accounting of that disclosure;
(3) Request an amendment to a record; and,
(4) Appeal any initial adverse determination of any request under the Act.
(c) These regulations also specify those systems of records which the NSC has determined to be exempt from certain provisions of the Act and thus not subject to procedures established by this regulation.
As used in these regulations:
(a)
(b)
(c)
(d)
(e)
(f)
(a) Individuals desiring to determine if they are the subject of a record or system of records maintained by the NSC Staff should address their inquiries, marking them plainly as a
(1) A specific reference to the system of records maintained by the NSC as listed in the NSC Notices of Systems and Records (copies available upon request); or
(2) A description of the record or systems of records in sufficient detail to allow the NSC to determine whether the record does, in fact, exist in an NSC system of records.
(b) All requests must contain the printed or typewritten name of the individual to whom the record pertains, the signature of the individual making the request, and the address to which the reply should be sent. In instances when the identification is insufficient to insure disclosure to the individual to whom the information pertains in view of the sensitivity of the information, NSC reserves the right to solicit from the requestor additional identifying information.
(c) Responses to all requests under the Act will be made by the Staff Secretary, or by another designated member of the NSC Staff authorized to act in the name of the Staff Secretary in responding to a request under this Act. Every effort will be made to inform the requestor if he or she is the subject of a specific record or system of records within ten working days (excluding Saturdays, Sundays and legal Federal Holidays) of receipt of the request. Such a response will also contain the procedures to be followed in order to gain access to any record which may exist and a copy of the most recent NSC notice, as published in the
(d) Whenever it is not possible to respond in the time period specified above, the NSC Staff Secretary or a designated alternate will, within ten working days (excluding Saturdays, Sundays and legal Federal Holidays), inform the requestor of the reasons for the delay (e.g., insufficient requestor information, difficulties in record location, etc.), steps that need to be taken in order to expedite the request, and the date by which a response is anticipated.
(a) Individuals requesting access to a record or system of records in which there is information concerning them must address a request in writing to the Staff Secretary of the NSC (see § 2102.1). Due to restricted access to NSC offices in the Old Executive Office Building where the files are located, requests cannot be made in person.
(b) All written requests should contain a concise description of the records to which access is requested. In addition, the requestor should include any other information which he or she feels would assist in the timely identification of the record. Verification of the requestor's identity will be determined under the same procedures used in requests for learning of the existence of a record.
(c) To the extent possible, any request for access will be answered by the Staff Secretary or a designated alternate within ten working days (excluding Saturdays, Sundays, and legal Federal holidays) of the receipt of the
(d) The NSC response will forward a copy of the requested materials unless further identification or clarification of the request is required. In the event access is denied, the requestor shall be informed of the reasons therefore and the name and address of the individual to whom an appeal should be directed.
(a) Individuals wishing to amend a record contained in the NSC systems of records pertaining to them must submit a request in writing to the Staff Secretary of the NSC in accordance with the procedures set forth herein.
(b) All requests for amendment or correction of a record must state concisely the reason for requesting the amendment. Such requests should include a brief statement which describes the information the requestor believes to be inaccurate, incomplete, or unnecessary and the amendment or correction desired.
(c) To the extent possible, every request for amendment of a record will be answered within ten working days (excluding Saturdays, Sundays, and legal Federal holidays) of the receipt of the request. In the event that a response cannot be made within this time, the requestor will be notified by mail of the reasons for the delay and the date upon which a reply can be expected. A final response to a request for amendment will include the NSC Staff determination on whether to grant or deny the request. If the request is denied, the response will include:
(1) The reasons for the decision;
(2) The name and address of the individual to whom an appeal should be directed;
(3) A description of the process for review of the appeal within the NSC; and
(4) A description of any other procedures which may be required of the individual in order to process the appeal.
(a) Individuals wishing to appeal an NSC Staff denial of a request for access or to amend a record concerning them must address a letter of appeal to the Staff Secretary of the NSC. The letter must be received within thirty days from the date of the Staff Secretary's notice of denial and, at a minimum, should identify the following:
(1) The records involved;
(2) The dates of the initial request and subsequent NSC determination; and
(3) A brief statement of the reasons supporting the request for reversal of the adverse determination.
(b) Within thirty working days (excluding Saturdays, Sundays and legal Federal holidays) of the date of receipt of the letter of appeal, the Assistant to the President for National Security Affairs (hereinafter the “Assistant”), or the Deputy Assistant to the President for National Security Affairs (hereinafter the “Deputy Assistant”), acting in his name, shall issue a determination on the appeal. In the event that a final determination cannot be made within this time period, the requestor will be informed of the delay, the reasons therefor and the date on which a final response is expected.
(c) If the original request was for access and the initial determination is reversed, a copy of the records sought will be sent to the individual. If the initial determination is upheld, the requestor will be so advised and informed of the right to judicial review pursuant to 5 U.S.C. 552a(g).
(d) If the initial denial of a request to amend a record is reversed, the records will be corrected and a copy of the amended record will be sent to the individual. In the event the original decision is upheld by the Assistant to the President, the requestor will be so advised and informed in writing of his or her right to seek judicial review of the final agency determination, pursuant to section 552a(g) of title 5, U.S.C. In addition, the requestor will be advised of his right to have a concise statement of the reasons for disagreeing with the final determination appended to the disputed records. This statement
(a) Except as provided by the Privacy Act, 5 U.S.C. 552a(b), the NSC will not disclose a record concerning an individual to another person or agency without the prior written consent of the individual to whom the record pertains.
(a) Individuals will not be charged for:
(1) The first copy of any record provided in response to a request for access or amendment;
(2) The search for, or review of, records in NSC files;
(3) Any copies reproduced as a necessary part of making a record or portion thereof available to the individual.
(b) After the first copy has been provided, records will be reproduced at the rate of twenty-five cents per page for all copying of four pages or more.
(c) The Staff Secretary may provide copies of a record at no charge if it is determined to be in the interest of the Government.
(d) The Staff Secretary may require that all fees be paid in full prior to the issuance of the requested copies.
(e) Remittances shall be in the form of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the “United States Treasury” and mailed to the Staff Secretary, National Security Council, Washington, DC 20506.
(f) A receipt for fees paid will be given only upon request. Refund of fees paid for services actually rendered will not be made.
Title 18, U.S.C. section 1001, Crimes and Criminal Procedures, makes it a criminal offense, subject to a maximum fine of $10,000 or imprisonment for not more than five years or both, to knowingly and willfully make or cause to be made any false or fraudulent statements or representations in any matter within the jurisdiction of any agency of the United States. Section (i)(3) of the Privacy Act (5 U.S.C. 552a) 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. Sections (i)(1) and (2) of 5 U.S.C. 552a provide penalties for violations by agency employees, of the Privacy Act or regulations established thereunder.
Pursuant to subsection (k) of the Privacy Act (5 U.S.C. 552a), the Staff Secretary has determined that certain NSC systems of records may be exempt in part from sections 553(c)(3), (d), (e)(1), (e)(4), (G), (H), (I), and (f) of title 5, and from the provisions of these regulations. These systems of records may contain information which is classified pursuant to Executive Order 11652. To the extent that this occurs, records in the following systems would be exempt under the provision of 5 U.S.C. 552a(k)(1):
E.O. 12065 and Information Security Oversight Office Directive No. 1.
(a) Executive Order 12065, “National Security Information,” dated June 28, 1978.
(b) Information Security Oversight Office, Directive No. 1, “National Security Information,” dated October 2, 1978.
The purpose of this regulation is to ensure, consistent with the authorities listed in § 2103.1, that national security information processed by the National Security Council Staff is protected from unauthorized disclosure, but only to the extent, and for such period, as is necessary to safeguard the national security.
This regulation governs the National Security Council Staff Information Security Program. In consonance with the authorities listed in § 2103.1, it establishes the policy and procedures for the security classification, downgrading, declassification, and safeguarding of information that is owned by, is produced for or by, or is under the control of the National Security Council Staff.
It is the policy of the National Security Council Staff to make available to the public as much information concerning its activities as is possible, consistent with its responsibility to protect the national security.
Unnecessary classification, and classification at a level higher than is necessary, shall be avoided. If there is reasonable doubt as to which designation in section 1-1 of Executive Order 12065 is appropriate, or whether information should be classified at all, the less restrictive designation should be used, or the information should not be classified.
Original classification may be extended beyond six years only by officials with Top Secret classification authority. This extension authority shall be used only when these officials determine that the basis for original classification will continue throughout the entire period that the classification will be in effect and only for the following reasons:
(a) The information is “foreign government information” as defined by the authorities in § 2301.1;
(b) The information reveals intelligence sources and methods;
(c) The information pertains to communication security;
(d) The information reveals vulnerability or capability data, the unauthorized disclosure of which can reasonably be expected to render ineffective a system, installation, or project important to the national security;
(e) The information concerns plans important to the national security, the unauthorized disclosure of which reasonably can be expected to nullify the effectiveness of the plan;
(f) The information concerns specific foreign relations matters, the continued protection of which is essential to the national security;
(g) Disclosure of the information would place a person's life in immediate jeopardy; or
(h) The continued protection of the information is specifically required by statute.
If holders of classified information believe that the information is improperly or unnecessarily classified, or that original classification has been extended for too long a period, they should discuss the matter with their immediate superiors or the classifier of the information. If these discussions do not satisfy the concerns of the challenger, the matter should be brought to the attention of the chairperson of the NSC Information Security Oversight Committee (see § 2103.51 of this part).
Derivative classification is the act of assigning a level of classification to information that is determined to be the same in substance as information that is currently classified. Thus, derivative classification may be accomplished by any person cleared for access to that level of information, regardless of whether the person has original classification authority at that level.
The Staff Secretary, Staff Counsel, and Director of Freedom of Information of the National Security Council Staff are authorized to declassify NSC documents after consultation with the appropriate NSC Staff members.
(a)
National Security Council, ATTN: Staff Secretary (Mandatory Review Request), Old Executive Office Building, Washington, DC 20506.
(2) The requestor shall be informed of the date of receipt of the request. This date will be the basis for the time limits specified in paragraph (b) of this section.
(3) If the request does not reasonably describe the information sought, the requestor shall be notified that, unless additional information is provided or the request is made more specific, no further action will be taken.
(b)
(2) If the determination is to withhold some or all of the material requested, the requestor may appeal the determination. The requestor shall be informed that such an appeal must be made in writing within sixty days of receipt of the denial and should be addressed to the chairperson of the National Security Council Classification Review Committee.
(3) The requestor shall be informed of the appellate determination within thirty days of receipt of the appeal.
(c)
(i)
(ii)
(2) Where it is anticipated that the fees chargeable under this section will amount to more than $25, and the requestor has not indicated in advance a willingness to pay fees as high as are anticipated, the requestor shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In instances where the estimated fees will greatly exceed $25, an advance deposit may be required. Dispatch of such a notice or request shall suspend the running of the period for response by the NSC Staff until a reply is received from the requestor.
(3) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the Treasury of the United States and mailed to the Staff Secretary, National Security Council, Washington, DC 20506.
(4) [Reserved]
(5) A receipt for fees paid will be given only upon request. Refund of fees paid for services actually rendered will not be made.
(6) If a requestor fails to pay within thirty days for services rendered, further action on any other requests submitted by that requestor shall be suspended.
(7) The Staff Secretary, National Security Council may waive all or part of any fee provided for in this section when it is deemed to be in either the interest of the NSC Staff or of the general public.
The Staff Secretary, Staff Counsel, and Director of Freedom of Information of the National Security Council Staff are authorized to downgrade NSC documents, after consultation with the appropriate NSC Staff members.
The Staff Secretary shall maintain records to show the number and distribution of all Top Secret documents, of all documents covered by special access programs distributed outside the originating agency, and of all Secret and Confidential documents that are marked with special dissemination or reproduction limitations.
The NCS Information Security Oversight Committee shall be chaired by the Staff Counsel of the National Security Council Staff. The Committee shall be responsible for acting on all suggestions and complaints concerning the administration of the National Security Council information security program. The chairperson, who shall represent the NSC Staff on the Interagency Information Security Committee shall also be responsible for conducting an active oversight program to ensure effective implementation of Executive Order 12065.
The NSC Classification Review Committee shall be chaired by the Staff Secretary of the National Security Council. The Committee shall decide appeals from denials of declassification requests submitted pursuant to section 3-5 of Executive Order 12065. The Committee shall consist of the chairperson, the NSC Director of Freedom of Information, and the NSC Staff member with primary subject matter responsibility for the material under review.
E.O. 12356 and Information Security Oversight Office Directive No. 1.
(a) Executive Order 12356 “National Security Information,” dated April 2, 1982, 47 FR 14874 (Apr. 6, 1982); 47 FR 15557 (Apr. 12, 1982) and Order of Designation of May 7, 1982, 47 FR 20105 (May 11,1982).
(b) Information Security Oversight Office, Directive No. 1, “National Security Information,” dated June 23, 1982, 47 FR 27836 (June 25, 1982) (Directive No. 1).
The purpose of this Regulation is to ensure, consistent with the authorities of § 2400.1 that information of the Office of Science and Technology Policy (OSTP) relating to national security is protected from unauthorized disclosure, but only to the extent and for such period as is necessary to safeguard the national security.
This Regulation governs the Office of Science and Technology Policy Information Security Program. In accordance with the provisions of Executive Order 12356 and Directive No. 1 it establishes, for uniform application throughout the Office of Science and Technology Policy, the policies and procedures for the security classification, downgrading, declassification and safeguarding of information that is owned by, produced for or by, or under the control of the office of Science and Technology Policy.
Nothing in this Regulation supersedes any requirement made by or under the Atomic Energy act of 1954, as amended. “Restricted Data” and information designated as “Formerly Restricted Data” shall be handled, protected, classified, downgraded, and declassified in conformity with the provisions of the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the Department of Energy.
Except as provided in the Atomic Energy Act of 1954, as amended, Executive Order 12356, as implemented by Directive No. 1 and this Regulation, provides the only basis for classifying information. The policy of the Office of Science and Technology Policy is to make available to the public as much information concerning its activities as is possible, consistent with its responsibility to protect the national security. Information may not be classified unless its disclosure reasonably could be expected to cause damage to the national security.
(a) National security information (hereinafter “classified information”) shall be classified at one of the following three levels:
(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.
(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.
(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security.
(b) Except as otherwise provided by statute, no other terms shall be used to identify classified information. Markings other than “Top Secret,” “Secret,” and “Confidential,” such as “For Official Use Only,” shall not be used to identify national security information. In addition, no other term or phrase shall be used in conjunction with one of the three authorized classification levels, such as “Secret Sensitive” or “Agency Confidential.” The terms “Top Secret”, “Secret”, and “Confidential” should not be used to identify nonclassified executive branch information.
(c) Unnecessary classification, and classification at a level higher than is necessary shall be scrupulously avoided.
(d) If there is reasonable doubt about the need to classify information, it shall be safeguarded as if it were classified “Confidential” pending a determination by an original classification authority, who shall make this determination within thirty (30) days. If there is reasonable doubt about the appropriate level of classification the originator of the information shall safeguard it at the higher level of classification pending a determination by an original classification authority, who shall make this determination within thirty (30) days. Upon the determination of a need for classification and/or the proper classification level, the information that is classified shall be marked as provided in § 2400.12 of this part.
(a) Authority for original classification of information as Top Secret shall be exercised within OSTP only by the
(b) The authority to classify information originally as Secret shall be exercised within OSTP only by the Director, other officials delegated in writing to have original Top Secret classification authority, and any other officials delegated in writing to have original Secret classification authority.
(c) The authority to classify information originally as Confidential shall be exercised within OSTP only by officials with original Top Secret or Secret classification authority and any officials delegated in writing to have original Confidential classification authority.
(a) The Director, OSTP is the only official authorized to delegate original classification authority.
(b) Delegations of original classification authority shall be held to an absolute minimum.
(c) Delegations of original classification authority shall be limited to the level of classification required.
(d) Original classification authority shall not be delegated to OSTP personnel who only quote, restate, extract or paraphrase, or summarize classified information or who only apply classification markings derived from source material or as directed by a classification guide.
(e) The Executive Director, OSTP, shall maintain a current listing of persons or positions receiving any delegation of original classification authority. If possible, this listing shall be unclassified.
(f) Original classification authority may not be redelegated.
(g)
(a) Information may be classified only if it concerns one or more of the categories cited in Executive Order 12356, as subcategorized below,
(1) Military plans, weapons or operations;
(2) The vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security;
(3) Foreign government information;
(4) Intelligence activities (including special activities), or intelligence sources or methods;
(5) Foreign relations or foreign activities of the United States;
(6) Scientific, technological, or economic matters relating to the national security;
(7) United States Government programs for safe-guarding nuclear materials or facilities;
(8) Cryptology;
(9) A confidential source; or
(10) Other categories of information which are related to national security and that require protection against unauthorized disclosure as determined by the Director, Office of Science and Technology Policy. Each such determination shall be reported promptly to
(b) Foreign government information need not fall within any other classification category listed in paragraph (a) of this section to be classified.
(c) Certain information which would otherwise be unclassified may require classification when combined or associated with other unclassified or classified information. Classification on this basis shall be fully supported by a written explanation that, at a minimum, shall be maintained with the file or referenced on the record copy of the information.
(d) Information classified in accordance with this section shall not be declassified automatically as a result of any unofficial publication or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information. Following an inadvertent or unauthorized publication or disclosure of information identical or similar to information that has been classified in accordance with Executive Order 12356 or predecessor orders, OSTP, if the agency of primary interest, shall determine the degree of damage to the national security, the need for continued classification, and in coordination with the agency in which the disclosure occurred, what action must be taken to prevent similar occurrences. If the agency of primary interest is other than OSTP, the matter shall be referred to that agency.
Unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods, is presumed to cause damage to the national security.
(a) Information shall be classified as long as required by national security considerations. When it can be determined, a specific date or event for declassification shall be set by the original classification authority at the time the information is originally classified.
(b) Automatic declassification determinations under predecessor Executive Orders shall remain valid unless the classification is extended by an authorized official of the originating agency. These extensions may be by individual documents or categories of information. The originating agency shall be responsible for notifying holders of the information of such extensions.
(c) Information classified under predecessor Executive Orders and marked for declassification review shall remain classified until reviewed for declassification under the provisions of Executive Order 12356.
(d) Information classified under predecessor Executive Orders that does not bear a specific date or event for declassification shall remain classified until reviewed for declassification. The authority to extend the classification of information subject to automatic declassification under predecessor Orders is limited to those officials who have classification authority over the information and are designated in writing to have original classification authority at the level of the information to remain classified. Any decision to extend this classification on other than a document-by-document basis shall be reported to the Director of the Information Security Oversight Office.
(a) At the time of original classification, the following information shall be shown on the face of all classified documents, or clearly associated with other forms of classified information in a manner appropriate to the medium involved, unless this information itself would reveal a confidential source or relationship not otherwise evident in the document or information:
(1) One of the three classification levels defined in § 2400.6 of this part;
(2) The identity of the original classification authority if other than the person whose name appears as the approving or signing official;
(3) The agency and office of origin; and
(4) The date or event for declassification, or the notation “Originating Agency's Determination Required.”
(b) Each classified document shall, by marking or other means, indicate which portions are classified, with the applicable classification level, and which portions are not classified. The
(c) Marking designations implementing the provisions of Executive Order 12356, including abbreviations, shall conform to the standards prescribed in Directive No. 1 issued by the Information Security Oversight Office.
(d) Foreign government information shall either retain its original classification or be assigned a United States classification that shall ensure a degree of protection at least equivalent to that required by the entity that furnished the information.
(e) Information assigned a level of classification under predecessor Executive Orders shall be considered as classified at that level of classification despite the omission of other required markings. Omitted markings may be inserted on a document by the officials specified in § 2400.18 of this part.
(a) In no case shall information be classified in order to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interest of national security.
(b) Basic scientific research information not clearly related to the national security may not be classified.
(c) The Director may reclassify information previously declassified and disclosed if it is determined in writing that (1) the information requires protection in the interest of national security; and (2) the information may reasonably be recovered. These reclassification actions shall be reported promptly to the Director of the Information Security Oversight Office. Before reclassifying any information, the Director shall consider the factors listed in § 2001.6 of Directive No. 1, which shall be addressed in the report to the Director of the Information Security Oversight Office.
(d) Information may be classified or reclassified after OSTP has received a request for it under the Freedom of Information Act (5 U.S.C. 552a) or the Privacy Act of 1974 (5 U.S.C. 552), or the mandatory review provisions of Executive Order 12356 (section 3.4) if such classification meets the requirements of this Order and is accomplished personally and on a document-by-document basis by the Director.
(a) Derivative classification is (1) the determination that information is in substance the same as information currently classified, and (2) the application of the same classification markings. Persons who only reproduce, extract, or summarize classified information, or who only apply classification markings derived from source material or as directed by a classification guide, need not possess original classification authority. If a person who applies derivative classification markings believes that the paraphrasing, restating, or summarizing of classified information has changed the level of or removed the basis for classification, that person must consult an appropriate official of the originating agency or office of origin who has the authority to declassify, downgrade or upgrade the information.
(b) Persons who apply derivative classification markings shall:
(1) Observe and respect original classification decisions; and
(2) Carry forward to any newly created documents any assigned authorized markings. The declassification date or event that provides the longest period of classification shall be used for documents classified on the basis of multiple sources.
(a) OSTP shall issue and maintain classification guides to facilitate the proper and uniform derivative classification of information. These guides shall be used to direct derivative classification.
(b) The classification guides shall be approved, in writing, by the Director or by officials having Top Secret original
(c) Each classification guide shall specify the information subject to classification in sufficient detail to permit its ready and uniform identification and categorization and shall set forth the classification level and duration in each instance. Additionally, each classification guide shall prescribe declassification instructions for each element of information in terms of (1) a period of time, (2) the occurrence of an event, or (3) a notation that the information shall not be automatically declassified without the approval of OSTP.
(d) The classification guides shall be kept current and shall be fully reviewed at least every two years. The Executive Director, OSTP shall maintain a list of all OSTP classification guides in current use.
(e) The Executive Director, OSTP shall receive and maintain the record copy of all approved classification guides and changes thereto. He will assist the originator in determining the required distribution.
(f) The Director may, for good cause, grant and revoke waivers of the requirement to prepare classification guides for specified classes of documents or information. The Director of the Information Security Oversight Office shall be notified of any waivers. The Director's decision to waive the requirement to issue classification guides for specific classes of documents or information will be based, at a minimum, on an evaluation of the following factors:
(1) The ability to segregate and describe the elements of information;
(2) The practicality of producing or disseminating the guide because of the nature of the information;
(3) The anticipated usage of the guide as a basis for derivative classification; and
(4) The availability of alternative sources for derivatively classifying the information in a uniform manner.
(a) Documents classified derivatively on the basis of source documents or classification guides shall bear all markings prescribed in § 2400.12 of this part and Directive No. 1 as are applicable. Information for these markings shall be taken from the source document or instructions in the appropriate classification guide. When markings are omitted because they may reveal a confidential source or relationship not otherwise evident, as described in § 2400.12 of this part, the information may not be used as a basis for derivative classification.
(b) The authority for classification shall be shown as directed in Directive No. 1.
Declassification of information shall be given emphasis comparable to that accorded classification. Information classified pursuant to Executive Order 12356 and prior orders shall be declassified or downgraded as soon as national security considerations permit. Decisions concerning declassification shall be based on the loss of sensitivity of the information with the passage of time or on the occurrence of an event which permits declassification. When information is reviewed for declassification pursuant to this regulation, that information shall be declassified unless the designated declassification authority determines that the information continues to meet the classification requirements prescribed in § 2400.9 of this part despite the passage of time. The Office of Science and Technology Policy officials shall coordinate their review of classified information with other agencies that have a direct interest in the subject matter.
Information shall be declassified or downgraded by the official who authorized the original classification, if that official is still serving the same position; the originator's successor; a supervisory official of either; or officials delegated such authority in writing by the Director, OSTP. The Executive Director, OSTP shall maintain a current listing of persons or positions receiving
If the Director of the Information Security Oversight Office (ISOO) determines that information is classified in violation of Executive Order 12356, the Director, ISOO may require the information to be declassified by the agency that originated the classification. Any such decision by the Director ISOO may be appealed by the Director, OSTP to the National Security Council. The information shall remain classified, pending a prompt decision on the appeal.
(a)
(b)
(c)
(1) Issue guidelines for systematic declassification review and, if applicable, for downgrading. These guidelines shall be developed in consultation with the Archivist and the Director of the Information Security Oversight Office and be designated to assist the Archivist in the conduct of systematic reviews;
(2) Designate experienced personnel to provide timely assistance to the Archivist in the systematic review process;
(3) Review and update guidelines for systematic declassification review and downgrading at least every five years unless earlier review is requested by the Archivist.
(d)
(e)
(a) Except as provided in paragraph (d) of this section, all information classified under Executive Order 12356 or predecessor orders shall be subject to a review for declassification by the Office of Science and Technology Policy, if:
(1) The request is made by a United States citizen or permanent resident alien, a federal agency, or a State or local government; and
(2) The request is made in writing and describes the document or material containing the information with sufficient specificity to enable the Office of Science and Technology Policy to locate it with a reasonable amount of effort.
(b) Requests should be addressed to: Executive Director, Office of Science and Technology Policy, Executive Office of the President, Washington, DC 20506.
(c) If the request does not reasonably describe the information sought to allow identification of documents containing such information, the requester shall be notified that unless additional information is provided or the request is made more specific, no further action will be taken.
(d) Information originated by a President, the White House Staff, by committees, commissions, or boards appointed by the President, or others specifically providing advice and counsel to a President or acting on behalf of a
(e) Office of Science and Technology Policy officials conducting a mandatory review for declassification shall declassify information no longer requiring protection under Executive Order 12356. They shall release this information unless withholding is otherwise authorized under applicable law.
(f) Office of Science and Technology Policy responses to mandatory review requests shall be governed by the amount of search and review time required to process the request. Normally the requester shall be informed of the Office of Science and Technology Policy determination within thirty days of receipt of the original request (or within thirty days of the receipt of the required amplifying information in accordance with paragraph (c) of this section). In the event that a determination cannot be made within thirty days, the requester shall be informed of the additional time needed to process the request. However, OSTP, shall make a final determination within one year from the date of receipt of the request except in unusual circumstances.
(g) When information cannot be declassified in its entirety, OSTP will make a reasonable effort to release, consistent with other applicable law, those declassified portions of that requested information the constitute a coherent segment.
(h) If the information may not be released in whole or in part, the requester shall be given a brief statement as to the reason for denial, and notice of the right to appeal the determination in writing within sixty days of receipt of the denial to the chairperson of the Office of Science and Technology Policy Review Committee. If appealed, the requester shall be informed in writing of the appellate determination within thirty days of receipt of the appeal.
(i) When a request is received for information originated by another agency, the Executive Director, Office of Science and Technology Policy, shall:
(1) Forward the request to such agency for review together with a copy of the document containing the information requested, where practicable, and where appropriate, with the Office of Science and Technology Policy recommendation to withhold or declassify and release any of the information;
(2) Notify the requester of the referral unless the agency to which the request is referred objects to such notice on grounds that its association with the information requires protection; and
(3) Request, when appropriate, that the agency notify the Office of Science and Technology Policy of its determination.
(j) If the request requires the rendering of services for which fees may be charged under title 5 of the Independent Offices Appropriation Act, 31 U.S.C. 483a, the Executive Director, Office of Science and Technology Policy, may calculate the anticipated amount of fees to be charged.
(1) Fees for the location and reproduction of information that is the subject of a mandatory review request shall be assessed according to the following schedule:
(i)
(ii)
(2) Where it is anticipated that the fees chargeable under this section will amount to more than $25, and the requestor has not indicated in advance a willingness to pay fees as high as are anticipated, the requester shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In instances where the estimated fees will greatly exceed $25, an advance deposit may be required. Dispatch of such a notice or request shall suspend the running of the period for response by OSTP until a reply is received from the requester.
(3) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made to the Treasury of the United States and mailed to the Executive Director, Office of Science and Technology Policy, Executive Office of the President, Washington, DC 20506.
(4) A receipt for fees paid will be given only upon request. Refund of fees paid for services actually rendered will not be made.
(5) If a requester fails to pay within thirty days for services rendered, further action on any other requests submitted by that requestor shall be suspended.
(6) The Executive Director, Office of Science and Technology Policy may waive all or part of any fee provided for in this section when it is deemed to be in either the interest of the OSTP or the general public.
The Office of Science and Technology Policy shall process requests for declassification that are submitted under the provisions of the Freedom of Information Act, as amended, or the Privacy Act of 1974, in accordance with the provisions of those Acts.
In response to a request for information under the Freedom of Information Act, the Privacy Act of 1974, or the mandatory review provisions of Executive Order 12356 and Directive No. 1, or this regulation:
(a) The Office of Science and Technology Policy shall refuse to confirm or deny the existence or non-existence of requested information whenever the fact of its existence or non-existence is itself classifiable under Executive Order 12356.
(b) When the Office of Science and Technology Policy receives any request for documents in its custody that were classified by another agency, it shall refer copies of the request and the requested documents to the originating agency for processing, and may, after consultation with the originating agency, inform the requester of the referral. In cases which the originating agency determines in writing that a response under paragraph (a) of this section is required, the Office of Science and Technology Policy shall respond to the requester in accordance with that paragraph.
(a) When it will serve a useful purpose, original classification authorities may, at the time of original classification, specify that downgrading of the assigned classification will occur on a specified date or upon the occurrence of a stated event.
(b) Classified information marked for automatic downgrading is downgraded accordingly without notification to holders.
(c) Classified information not marked for automatic downgrading may be assigned a lower classification designation by the originator or by an official authorized to declassify the same information. Prompt notice of such downgrading shall be provided to known holders of the information.
(a) A person is eligible for access to classified information provided that a determination of trustworthiness has
(b) When access to a specific classification category is no longer required for the performance of an individual's assigned duties, the security clearance will be administratively adjusted, without prejudice to the individual, to the classification category, if any, required.
(c) The Director, Office of Science and Technology Policy may create special access programs to control access, distribution, and protection of particularly sensitive information classified pursuant to Executive Order 12356 or predecessor orders if:
(1) Normal management and safeguarding procedures do not limit access sufficiently;
(2) The number of persons with access is limited to the minimum necessary to meet the objective of providing extra protection for the information;
(3) The special access program is established in writing; and
(4) A system of accounting for the program is established and maintained.
(a) The requirement in Section 4.1(a) of Executive Order 12356 that access to classified information may be granted only as is essential to the accomplishment of authorized and lawful Government purposes may be waived as provided in paragraph (b) of this section for persons who:
(1) Are engaged in historical research projects, or
(2) Previously have occupied policy-making positions to which they were appointed by the President.
(b) Waivers under paragraph (a) of this section may be granted only if the Director, Office of Science and Technology Policy:
(1) Determines in writing that access is consistent with the interest of national security;
(2) Takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with Executive Order 12356;
(3) Limits the access granted to former presidential appointees to items that the person originated, reviewed, signed, or received while serving as a presidential appointee; and
(4) Has received a written agreement from the researcher or former presidential appointee that his notes can be reviewed by OSTP for a determination that no classified material is contained therein.
Whenever classified information is not under the personal control and observation of an authorized person, it will be guarded or stored in a locked security container approved for the storage and protection of the appropriate level of classified information as prescribed in § 2001.43 of Directive No. 1.
Heads of OSTP offices shall establish procedures consistent with this Regulation for dissemination of classified material. The originating official may prescribe specific restrictions on dissemination of classified information when necessary.
(a) Classified information shall not be disseminated outside the executive branch except under conditions that ensure that the information will be given protection equivalent to that afforded within the executive branch.
(b) Except as provided by directives issued by the President through the National Security Council, classified information originating in one agency may not be disseminated outside any other agency to which it has been made available without the consent of the originating agency. For purposes of this Section, the Department of Defense shall be considered one agency.
(a) Each item of Top Secret, Secret, and Confidential information is subject to control and accountability requirements.
(b) The Security Officer will serve as Top Secret Control Officer (TSCO) for the Office of Science and Technology Policy and will be responsible for the supervision of the Top Secret control program. He/she will be assisted by an Assistant Top Secret Control Officer (ATSCO) to effect the Controls prescribed herein for all Top Secret material.
(c) The TSCO shall receive, transmit, and maintain current access and accountability records for Top Secret information. The records shall show the number and distribution of all Top Secret documents, including any reproduced copies.
(d) Top Secret documents and material will be accounted for by a continuous chain of receipts.
(e) An inventory of Top Secret documents shall be made at least annually.
(f) Destruction of Top Secret documents shall be accomplished only by the TSCO or the ATSCO.
(g) Records shall be maintained to show the number and distribution of all classified documents covered by special access programs, and of all Secret and Confidential documents which are marked with special dissemination and reproduction limitations.
(h) The Security Officer will develop procedures for the accountability and control of Secret and Confidential information. These procedures shall require all Secret and Confidential material originated or received by OSTP to be controlled. Control shall be accomplished by the ATSCO.
Documents or portions of documents and materials that contain Top Secret information shall not be reproduced without the consent of the originator or higher authority. Any stated prohibition against reproduction shall be strictly observed. Copying of documents containing classified information at any level shall be minimized. Specific reproduction equipment shall be designated for the reproduction of classified information and rules for reproduction of classified information shall be posted on or near the designated equipment. Notices prohibiting reproduction of classified information shall be posted on equipment used only for the reproduction of unclassified information. All copies of classified documents reproduced for any purpose including those incorporated in a working paper are subject to the same controls prescribed for the document from which the reproduction is made.
(a) Classified information no longer needed in current working files or for reference or record purposes shall be processed for appropriate disposition in accordance with the provisions of chapters 21 and 33 of title 44, U.S.C., which governs disposition of classified records. Classified information approved for destruction shall be destroyed in accordance with procedures and methods prescribed by the Director, OSTP, as implemented by the Security Officer. These procedures and methods must provide adequate protection to prevent access by unauthorized persons and must preclude recognition
(b) All classified information to be destroyed will be provided to the ATSCO for disposition. Controlled documents will be provided whole so that accountability records may be corrected prior to destruction by the ATSCO.
The transmittal of classified information outside of the Office of Science and Technology Policy shall be in accordance with procedures of § 2001.44 of Directive No. 1. The Security Officer shall be responsible for resolving any questions relative to such transmittal.
(a) Any person who has knowledge of the loss or possible compromise of classified information shall immediately report the circumstances to the Security Officer. The Security Officer shall notify the Director and the agency that originated the information as soon as possible so that a damage assessment may be conducted and appropriate measures taken to negate or minimize any adverse effect of the compromise.
(b) The Security Officer shall initiate an inquiry to:
(1) Determine cause,
(2) Place responsibility, and
(3) Take corrective measures and appropriate administrative, disciplinary, or legal action.
(c) The Security Officer shall keep the Director advised on the details of the inquiry.
(a) Foreign government information classified by a foreign government or international organization of governments shall retain its original classification designation or be assigned a United States classification designation that will ensure a degree of protection equivalent to that required by the government or organization that furnished the information. Original classification authority is not required for this purpose.
(b) Foreign government information that was not classified by a foreign entity but was provided with the expectation, expressed or implied, that it be held in confidence must be classified because Executive Order 12356 states a presumption of damage to the national security in the event of unauthorized disclosure of such information.
Foreign government information shall not be assigned a date or event for automatic declassification unless specified or agreed to by the foreign entity.
Officials shall respect the intent of this Regulation to protect foreign government information and confidential foreign sources.
Except as provided in this paragraph, OSTP shall process mandatory review requests for classified records containing foreign government information in accordance with § 2400.21. The agency that initially received or classified the foreign government information shall be responsible for making a declassification determination after consultation with concerned agencies. If OSTP receives a request for mandatory review and is not the agency that received or classified the foreign government information, it shall refer the request to the appropriate agency for action. Consultation with the foreign originator through appropriate channels may be necessary prior to final action on the request.
Classified foreign government information shall be protected as is prescribed by this regulation for United States classified information of a comparable level.
The OSTP Security Officer shall establish a security education program for OSTP personnel. The program shall be sufficient to familiarize all OSTP personnel with the provisions of Executive Order 12356 and Directive No. 1, and this regulation. It shall be designed to provide initial, refresher, and termination briefings to impress upon them their individual security responsibilities.
The Director, OSTP is the senior OSTP official having authority and responsibility to ensure effective and uniform compliance with and implementation of Executive Order 12356 and its implementing Directive No. 1. As such, the Director, OSTP, shall have primary responsibility for providing guidance, oversight and approval of policy and procedures governing the OSTP Information Security Program. The Director, OSTP, may approve waivers or exceptions to the provisions of this regulation to the extent such action is consistent with Executive Order 12356 and Directive -No. 1.
The Office of Science and Technology Policy Review Committee (hereinafter referred to as the Office Review Committee) is hereby established and will be responsible for the continuing review of the administration of this Regulation with respect to the classification and declassification of information or material originated or held by the Office of Science and Technology Policy. The Office Review Committee shall be composed of the Executive Director who shall serve as chairperson, the Assistant Director for National Security & Space, and the Security Officer.
Under the general direction of the Director, the Special Assistant to the Executive Director will serve as the Security Officer and will supervise the administration of this Regulation. He/she will develop programs, in particular a Security Education Program, to insure effective compliance with and implementation of the Information Security Program. Specifically he/she also shall:
(a) Maintain a current listing by title and name of all persons who have been designated in writing to have original Top Secret, Secret, and Confidential Classification authority. Listings will be reviewed by the Director on an annual basis.
(b) Maintain the record copy of all approved OSTP classification guides.
(c) Maintain a current listing of OSTP officials designated in writing to have declassification and downgrading authority.
(d) Develop and maintain systematic review guidelines.
The Head of each unit is responsible for the administration of this regulation within his area. These responsibilities include:
(a) Insuring that national security information is properly classified and protected;
(b) Exercising a continuing records review to reduce classified holdings through retirement, destruction, downgrading or declassification;
(c) Insuring that reproduction of classified information is kept to the absolute minimum;
(d) Issuing appropriate internal security instructions and maintaining the prescribed control and accountability records on classified information under their jurisdiction.
Custodians of classified material shall be responsible for providing protection and accountability for such material at all times and particularly for locking classified material in approved security equipment whenever it is not in use or under direct supervision of authorized persons. Custodians shall follow procedures which insure that unauthorized persons
(a) The Director, OSTP, shall require an annual formal review of the OSTP Information Security Program to ensure compliance with the provisions of Executive Order 12356 and Directive No. 1, and this regulation.
(b) The review shall be conducted by a group of three to five persons appointed by the Director and chaired by the Executive Director. The Security Officer will provide any records and assistance required to facilitate the review.
(c) The findings and recommendations of the review will be provided to the Director for his determination.
Persons desiring to submit suggestions or complaints regarding the Office of Science and Technology Policy Information Security Program should do so in writing. This correspondence should be addressed to: Executive Director, Office of Science and Technology Policy, Executive Office of the President, Washington, DC 20506.
E.O. 12065, National Security Regulation of June 28, 1978 (43 FR 28949, July 31, 1978); Information Security Oversight Office Directive No. 1 (43 FR 46280, October 5, 1978).
(a) Executive Order 12065, “National Security Information,” June 28, 1978, (hereinafter E.O. 12065).
(b) Information Security Oversight Office, Directive No. 1, “National Security Information,” October 2, 1978, (hereinafter ISOO Directive No. 1).
The purpose of this Regulation is to ensure, consistent with the authorities listed in § 2700.1, that national security information originated and/or held by the Office for Micronesian Status Negotiations (OMSN), which includes the Status Liaison Office, Saipan, Northern Mariana Islands (SLNO), is protected. To ensure that such information is protected, but only to the extent and for such period as is necessary, this regulation identifies the information to be protected and prescribes certain classification, declassification and safeguarding procedures to be followed.
This Regulation supplements E.O. 12065 within OMSN with regard to National Security Information. In consonance with the authorities listed in § 2700.1, it establishes general policies and certain procedures for the classification, declassification and safeguarding of information which is owned by, is produced for or by, or is under the control of OMSN.
(a)
(b)
(c)
(a)
(b)
(1) First, it must deal with one of the criteria set forth in section 1-301 of E.O. 12065;
(2) Second, the President's Personal Representative for Micronesian Status Negotiations or his delegate who has original classification authority must determine that unauthorized disclosure of the information or material can reasonably be expected to cause at least identifiable harm to the national security.
(c)
(d) Unnecessary classification, and classification at a level higher than is necessary, shall be avoided. If there is reasonable doubt as to which designation in section 1-1 of E.O. 12065 is appropriate, or whether information should be classified at all, the less restrictive designation should be used, or the information should not be classified.
(a) Information or material which is classified after December 1, 1978, shall be marked at the time of classification with the date or event for declassification or a date for review for declassification. This date or event shall be as early as national security permits and shall be no more than six years after original classification except as provided in paragraph (b) of this section.
(b) Only the President's Personal Representative for Micronesian Status Negotiations may authorize a classification period exceeding six years. Originally classified information that is so designated shall be identified with the authority and reason for extension. This authority shall be used sparingly. In those cases where extension of classification is warranted, a declassification date or event, or a date for review shall be set. This date or event shall be early as national security permits and shall be no more than twenty years after original classification except that for foreign information the date or event may be up to thirty years after original classification.
If holders of classified information believe the information is improperly or unnecessarily classified, or that original classification has been extended for too long a period, they should discuss the matter with their immediate superiors or the classifier of the information. If these discussions do not satisfy the concerns of the challenger, the matter should be brough to the attention of the chairman of the OMSN Information Security Oversight Committee, established pursuant to § 2700.51. Action on such challenges shall be taken within 30 days from date of receipt and the challenger shall be notified of the results. When requested, anonymity of the challenger shall be preserved.
Derivative classification is the act of assigning a level of classification to information which is determined to be the same in substance as information which is currently classified. Thus, derivative classification may be accomplished by any person cleared for access to that level of information, regardless of whether the person has original classification authority at that level.
OMSN shall issue classification guides pursuant to section 2-2 of E.O. 12065. These guides, which shall be used to direct derivative classification, shall identify the information to be protected in specific and uniform terms so that the information involved can be readily identified. The classification guides shall be approved in writing by the President's Personal Representative for Micronesian Status Negotiations. Such approval constitutes an original classification decision. The classification guides shall be kept current and shall be reviewed at least every two years.
The Director, OMSN, is authorized to declassify OMSN originated documents after consultation with the appropriate OMSN staff members.
Declassification of classified information shall be given emphasis comparable to that accorded to classification. The determination to declassify information shall not be made on the basis of the level of classification assigned, but on the loss of the sensitivity of the information with the passage of time, and with due regard for the public interest in access to official information. At the time of review, any determination not to declassify shall be based on a determination that despite the passage of time since classification, release of information reasonably could still be expected to cause at least identifiable damage to the national security.
(a)
(b)
(2) The requestor shall be informed of the date of receipt of the request at OMSN. This date will be the basis for the time limits specified in paragraph (c) of this section.
(3) If the request does not reasonably describe the information sought, the requestor shall be notified that, unless additional information is provided or the request is made more specific, no further action will be taken.
(4) Subject to paragraph (b)(7) of this section, if the information requested is in the custody of and under the exclusive declassification authority of OMSN, OMSN shall determine whether the information or any reasonably segregable portion of it no longer requires protection. If so, OMSN shall promptly make such information available to the requester, unless withholding it is otherwise warranted under applicable law. If the information may not be released, in whole or in part, OMSN shall give the requester a brief statement of the reasons, a notice of the right to appeal the determination to the agency review committee, and notice that such an appeal must be filed with the review committee within 60 days.
(5) When OMSN receives a request for information in a document which is in its custody, but which was classified by
(6) Requests for declassification of classified documents originated by OMSN or another agency but in the possession and control of the Administrator of General Services, pursuant to 44 U.S.C 2107 or 2107
(7) In the case of requests for documents containing foreign government information, OMSN, if it is also the agency which initially received the foreign government information, shall determine whether the foreign government information in the document may be declassified and released in accordance with agency policies or guidelines, consulting with other agencies of subject matter interest as necessary. If OMSN is not the agency which received the foreign government information, it shall refer the request to the latter agency, which shall take action on the request. In those cases where available agency policies or guidelines do not apply, consultation with the foreign originator through appropriate channels may be advisable prior to final action on the request.
(8) If any agency makes a request on behalf of a member of the public, the request shall be considered as a request by that member of the public and handled accordingly.
(c)
(2) If the determination is to withhold some or all of the material requested, the requestor may appeal the determination. The requestor shall be informed that an appeal must be made in writing within sixty days of receipt of the denial and should be addressed to the chairperson of the OMSN Classification Review Committee established pursuant to § 2700.52.
(3) No agency in possession of a classified document may, in response to a request for the document made under the Freedom of Information Act (5 U.S.C. 552) or under section 3-5 of E.O. 12065, refuse to confirm the existence or non-existence of the document, unless the fact of its existence or non-existence would itself be classifiable.
(4) The requestor shall be informed of the appellate determination within thirty days of receipt of the appeal.
(5) In considering requests for mandatory review, OMSN may decline to review again any request for material which has been recently reviewed and denied, except insofar as the request constitutes an appeal under paragraph (f) of this section.
(d)
(1) The Security Officer or his designee shall record the request, and arrange for search and review of the documents. The documents will be reviewed for declassification in accordance with these regulations or any applicable guidelines. If the documents remain classified and are not to be released, in whole or in part, the reviewing office will also prepare a letter informing the requester as described in paragraph (b)(4) of this section. The letter to the requester shall be signed by the President's Personal Representative for Micronesian Status Negotiations, his Deputy or the Status Liaison Officer. The Security Officer or his designee shall record disposition of the case and forward the letter of denial to the requester.
(2) If any request requires obtaining the views of other agencies, the receiving office shall arrange coordination of review with such other agencies.
(3) When all documents involved in the request are declassified and released, the receiving office will send a
(4) In the case of documents of agency origin requested by a Presidential Library on behalf of a member of the public, if there is a partial denial, the letter will advise the requester as described in paragraph (b)(4) of this section, but the requester will be referred to the Archivist for copies of the released document, with portions excised. The receiving office will transmit such documents, with portions marked to be excised, to Archives which will transmit them with portions excised to the Presidential Library for its records and for use in the case of further similar requests.
(5) The Security Officer or his designee shall also coordinate requests from other agencies seeking the views of OMSN as to declassification of documents originated by such other agencies but involving information of primary subject matter interest to OMSN. The Security Officer or his designee will transmit the documents to the reviewing individual for a determination as to declassification and will coordinate the reply of OMSN to the requesting agency.
(e)
(2) Appeals shall be decided within 30 days of their receipt.
(f)
(i) Search for records: $5.00 per hour when the search is conducted by a clerical employee; $8.00 per hour when the search is conducted by a professional employee. No fee shall be assessed for searches of less than one hour.
(ii) Reproduction of documents: Documents will be reproduced at a rate of $.25 per page for all copying of four pages or more. No fee shall be assessed for reproducing documents which are three pages or less, or for the first three pages of longer documents.
(2) Where it is anticipated that the fees chargeable under this section will amount to more than $25.00, and the requestor has not indicated in advance a willingness to pay fees as high as are anticipated, the requestor shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In instances where the estimated fees will greatly exceed $25.00, an advance deposit may be required. Dispatch of such a notice or request shall suspend the running of the period for response by OMSN until a reply is received from the requestor.
(3) Remittance shall be in the form either of a personal check or bank draft on a bank in the United States, or a postal money order. Remittance shall be made payable to Treasurer of the United States and mailed to the address noted in paragraph (b)(1) of this section.
(4) A receipt for fees paid will be provided only upon request. Refund of fees for services actually rendered will not be made.
(5) OMSN may waive all or part of any fee provided for in this section when it is deemed to be in either the interest of OMSN or of the general public.
The Security Officer, OMSN is authorized to downgrade OMSN originated documents after consultation with the staff member who is charged with functional responsibility for the subject matter under question.
(a)
(b)
(a)
(b)
(c)
(d)
(e)
(f)
OMSN and SLNO shall maintain records to show the number and distribution of all OMSN originated classified documents. Reproduction of classified material shall take place only in accordance with section 4-4 of E.O. 12065 and any limitations imposed by the originator. Should copies be made, they are subject to the same controls as the original document. Records showing the number of distribution of copies shall be maintained by the Office Supervisor and the log stored with the original documents. These measures shall not restrict reproduction for the purposes of mandatory review.
Officers and employees of the United States Government assigned to OMSN shall be subject to appropriate administrative sanctions if they knowingly and willingly commit a violation under section 5-5 of E.O. 12065. These sanctions may include reprimand, suspension without pay, removal, termination
The OMSN Information Security Oversight Committee shall be chaired by the Security Officer, OMSN. The Committee shall be responsible for acting on all suggestions and complaints concerning the administration of the OMSN information security program. The chairperson shall also be responsible for conducting an active oversight program to ensure effective implementation of E.O. 12065.
The OMSN Classification Review Committee shall be chaired by the President's Personal Representative for Micronesian Status Negotiations. The Committee shall decide appeals from denials of declassification requests submitted pursuant to section 3-5 of E.O. 12065. The Committee shall consist of the President's Personal Representative, Department of Defense/Legal Advisor and Political/Economic Advisor.
EO 12065, 43 FR 28949, 3 CFR, 1978 Comp., p. 190; (Information Security Oversight Office, Directive No. 1, 43 FR 46280, 32 CFR ch. II.
To establish procedures and provide guidance for the security of classified information and material within the Office of the Vice President.
(a) Executive Order 12065, June 28, 1978, Subject: National Security Information.
(b) Information Security Oversight Office, Directive No. 1, October 2, 1978, Subject: National Security Information.
The classification, declassification, safeguarding and handling of classified information within the Office of the Vice President will comply with the letter and spirit of those directives listed in § 2800.2. All personnel of the Office of the Vice President are responsible individually for complying with the provisions of these regulations are in all respects. The provisions of these regulations applicable to all personnel assigned or detailed to the Office of the Vice President.
(a)
(b)
(c)
(d)
(2) Unclassified information bearing either of the foregoing administrative designations cannot be protected from release under the national security exemption of the Freedom of Information Act (although other exemptions may be available).
(e)
(1)
(A) Be responsible for the processing of full field investigations for personnel assigned to the Vice President's staff. Department of Defense detailees are processed by the Defense Investigative Service.
(B) Inform the Staff Security Office of individuals whose full field investigations have been satisfactorily completed and approved and of any subsequent changes.
(C) Notify the Staff Security Office as soon as he/she is aware that a staff member is planning to terminate his/her employment.
(ii) The Staff Security Office will provide newly cleared persons with a security orientation briefing covering policy and procedures for handling classified information and material. After the briefing individuals will sign a Statement of Understanding of Security Procedures (Attachment 1). This statement will be kept on file by the Staff Security Office.
(iii) There is no such thing as an “Interim Security Clearance” for persons employed by or detailed to the Office of the Vice President. Under
(iv) The Staff Security Office, as part of an individual's departure debriefing, will remind them of their continuing responsibilities to protect classified information to which they have had access during the performance of their official duties. After being debriefed, the individual will sign a Security Termination Statement acknowledging his responsibilities (Attachment 2).
(2) Satisfactory completion of a background investigation does not in itself grant an individual access to classified information. Individual clearances for access to classified information or material will be controlled by the Staff Security Office and certified in writing on an individual basis.
(f)
(1) Classified information and material will only be disclosed to an individual after it has been determined that the individual possesses the required clearance and has a valid “need to know.” Persons releasing the information shall be responsible in every case for determining the recipient's eligibility for access.
(2) Access to Sensitive Compartmented Intelligence Information will be controlled by the Assistant to the Vice President for National Security Affairs.
(g)
(i) Staff members receiving classified material from any source by any means will personally deliver such material to the Staff Security Office for appropriate entry into the classified control system.
(ii) Conversely, members of the staff desiring to transmit classified material will deliver the material to the Staff Security Office for handling in accordance with paragraph (h)(5) of this section.
(2)
(ii) Filing of unclassified material in security containers is prohibited except where the unclassified material is an integral part of a file which contains classified material. If extenuating circumstances necessitate the use of a security container for storing only unclassified material, the container will be marked with a sign stating “This container is not used to store
(3)
(4)
(5)
(6)
(h)
(2)
(3)
(4)
(5)
(ii)
(iii) Staff members requiring the use of classified material at conferences or meetings held outside the Washington, DC Metropolitan area and who intend to use commercial transportation shall provide the material to the Staff Security Office far enough in advance to assure that the material will be available
(iv)
(6)
(7)
(ii) Reproduction of TOP SECRET material will be accomplished only by a member of the Staff Security Office or a designated representative of that office.
(iii) Accountability of reproduced classified material will be maintained by informing the Staff Security Office of the reproduction of SECRET and TOP SECRET material, the number of copies reproduced and their disposition.
(iv) Reproduction machines can retain the imagery of material passed through them. Therefore, to avoid inadvertent disclosure of classified information through subsequent use of machines, staff members will
(8)
(ii) CONFIDENTIAL material may be destroyed in the holder's office by tearing lengthwise and placing in a “Burn Bag” specifically designated for classified material.
(iii) Classified waste material will be separated from other office waste material and placed in “Burn Bags.” Classified waste material includes working papers, notes, drafts of classified correspondence, carbon paper, typewriter ribbons and any other material containing information requiring destruction. “Burn Bags” will be collected daily by a member of the White House Executive Protective Service who will then dispose of the bags in a secure facility.
(iv)
(9)
(i)
(j)
(k)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Pursuant to the provisions of sections 1-201 and 3-103 of E.O. 12065 of June 28, 1978, the following officials within the Office of the Vice President, are designated to originally classify and declassify information as “SECRET” and/or “CONFIDENTIAL”:
(a) Chief of Staff to the Vice President.
(b) Counsel to the Vice President.
(c) Executive Assistant to the Vice President.
(d) Assistant to the Vice President for National Security Affairs.
(e) Assistant to the Vice President for Issues Development and Domestic Policy.
(f) Additionally, the following individuals are designated to declassify “SECRET” and/or “CONFIDENTIAL”
(i) Staff Security Officer/Top Secret Control Officer.
(ii) Assistant Staff Security Officer/Assistant Top Secret Control Officer.
The Counsel to the Vice President is designated as the responsible official to chair Ad Hoc Committees as necessary to act on all suggestions and complaints with respect to the administration of the information security program.
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
All sections in this volume of the Code of Federal Regulations which were affected by documents published in the
For the period before January 1, 1986, see the “List of CFR Sections Affected, 1949-1963, 1964-1972, and 1973-1985” published in seven separate volumes.