[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
32
Part 800 to End
Revised as of July 1, 2001
National Defense
Containing a codification of documents
of general applicability and future effect
As of July 1, 2001
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250
Mail: Stop SSOP, Washington, DC 20402-0001
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Table of Contents
Page
Explanation................................................. v
Title 32:
Subtitle A--Department of Defense (Continued):
Chapter VII--Department of the Air Force 5
Subtitle B--Other Regulations Relating to National
Defense:
Chapter XII--Defense Logistics Agency 245
Chapter XVI--Selective Service System 311
Chapter XVIII--National Counterintelligence Center 385
Chapter XIX--Central Intelligence Agency 423
Chapter XX--Information Security Oversight Office,
National Archives and Records Administration 475
Chapter XXI--National Security Council 523
Chapter XXIV--Office of Science and Technology
Policy 533
Chapter XXVII--Office for Micronesian Status
Negotiations 549
Chapter XXVIII--Office of the Vice President of the
United States 559
[[Page iv]]
Finding Aids:
Table of CFR Titles and Chapters........................ 573
Alphabetical List of Agencies Appearing in the CFR...... 591
List of CFR Sections Affected........................... 601
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 806.1 refers
to title 32, part 806,
section 1.
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[[Page vi]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 2001, consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
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Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Weekly Compilation of Presidential
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[[Page viii]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2001.
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
End. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2001.
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.
[[Page x]]
[[Page 1]]
TITLE 32-NATIONAL DEFENSE
(This book contains part 800 to End)
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Part
SUBTITLE A--Department of Defense (Continued)
chapter vii--Department of the Air Force.................... 806
SUBTITLE B--Other Regulations Relating to National Defense
chapter xii--Defense Logistics Agency....................... 1280
chapter xvi-- Selective Service System...................... 1602
chapter xviii-- National Counterintelligence Center......... 1800
chapter xix-- Central Intelligence Agency................... 1900
chapter xx-- Information Security Oversight Office, National
Archives and Records Administration....................... 2001
chapter xxi-- National Security Council..................... 2102
chapter xxiv-- Office of Science and Technology Policy...... 2400
chapter xxvii-- Office for Micronesian Status Negotiations.. 2700
chapter xxviii-- Office of the Vice President of the United
States.................................................... 2800
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Subtitle A--Department of Defense (Continued)
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CHAPTER VII--DEPARTMENT OF THE AIR FORCE
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SUBCHAPTER A--ADMINISTRATION
Part Page
800 [Reserved]
806 Air Force Freedom of Information Act program 7
806b Air Force Privacy Act program............... 36
807 Sale to the public.......................... 54
809a Enforcement of order at Air Force
installations, control of civil
disturbances, support of disaster relief
operations, and special consideration
for overseas areas...................... 55
SUBCHAPTER B--SALES AND SERVICES
811 Release, dissemination, and sale of visual
information materials................... 59
813 Visual information documentation program.... 61
SUBCHAPTER C--PUBLIC RELATIONS [RESERVED]
SUBCHAPTER D--CLAIMS AND LITIGATION
841 Licensing government-owned inventions in the
custody of the Department of the Air
Force................................... 64
842 Administrative claims....................... 69
845 Counsel fees and other expenses in foreign
tribunals............................... 113
SUBCHAPTER E--SECURITY [RESERVED]
SUBCHAPTER F--AIRCRAFT
855 Civil aircraft use of United States Air
Force airfields......................... 117
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861 Department of Defense commercial air carrier
quality and safety review program....... 141
SUBCHAPTER G--ORGANIZATION AND MISSION--GENERAL
865 Personnel Review boards..................... 150
SUBCHAPTER H [RESERVED]
SUBCHAPTER I--MILITARY PERSONNEL
881 Determination of active military service and
discharge for civilian or contractual
groups.................................. 177
884 Delivery of personnel to United States
civilian authorities for trial.......... 179
887 Issuing of certificates in lieu of lost or
destroyed certificates of separation.... 185
888-888g [Reserved]
SUBCHAPTER J--CIVILIAN PERSONNEL [RESERVED]
SUBCHAPTER K--MILITARY TRAINING AND SCHOOLS
901 Appointment to the United States Air Force
Academy................................. 188
903 Air Force Academy Preparatory School........ 197
SUBCHAPTERS L-M [RESERVED]
SUBCHAPTER N--TERRITORIAL AND INSULAR REGULATIONS
935 Wake Island Code............................ 202
SUBCHAPTER O--SPECIAL INVESTIGATION [RESERVED]
SUBCHAPTERS P-S [RESERVED]
SUBCHAPTER T--ENVIRONMENTAL PROTECTION
989 Environmental impact analysis process (EIAP) 217
[[Page 7]]
SUBCHAPTER A--ADMINISTRATION
PART 800 [RESERVED]
PART 806--AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents
Sec.
806.1 Summary of revisions.
806.2 Applicability.
806.3 Public information.
806.4 Definitions.
806.5 Responsibilities.
806.6 Prompt action on requests.
806.7 Use of exemptions.
806.8 Description of requested record.
806.9 Referrals.
806.10 Records management.
806.11 FOIA reading rooms.
806.12 Record availability.
806.13 5 U.S.C. 552 (a)(2) materials.
806.14 Other materials.
806.15 FOIA exemptions.
806.16 For official use only.
806.17 Release and processing procedures.
806.18 Initial determinations.
806.19 Reasonably segregable portions.
806.20 Records of non-U.S. government source.
806.21 Appeals.
806.22 Time limits.
806.23 Delay in responding to an appeal.
806.24 Fee restrictions.
806.25 Annual report.
806.26 Addressing FOIA requests.
806.27 Samples of Air Force FOIA processing documents.
806.28 Records with special disclosure procedures.
806.29 Administrative processing of Air Force FOIA requests.
806.30 FOIA exempt information examples.
806.31 Requirements of 5 U.S.C. 552(b)(4) to submitters of
nongovernment contract-related information.
Appendix A To Part 806--References
Appendix B To Part 806--Abbreviations and Acronyms
Appendix C To Part 806--Terms
Authority: 5 U.S.C. 552.
Source: 64 FR 72808, Dec. 28, 1999, unless otherwise noted.
Sec. 806.1 Summary of revisions.
This part makes this guidance an Air Force supplement to the DoD
regulation at 32 CFR part 286. It transfers responsibility for the Air
Force Freedom of Information Act (FOIA) Program from the Office of the
Secretary of the Air Force (SAF/AAI) to Headquarters United States Air
Force (HQ USAF/SC) and Headquarters Air Force Communications and
Information Center/Corporate Information Division (HQ AFCIC/ITC);
contains significant changes and additions to implement the Electronic
Freedom of Information Act (EFOIA) Amendments of 1996; addresses
electronic records; increases time limits to 20 working days; adds
procedures for multiple tracking and expedited processing of requests;
changes annual report date and content; adds major command (MAJCOM)
inspectors general (IG), MAJCOM Directors of Inquiries (IGQ), and wing
commanders as initial denial authorities (IDAs).
Sec. 806.2 Applicability.
A list of Air Force MAJCOMs, field operating agencies (FOAs), and
Direct Reporting Units (DRUs) is at Sec. 806.26.
Sec. 806.3 Public information.
(a) Functional requests. Air Force elements may receive requests for
government information or records from the public that do not refer to
the FOIA. Often these requests are sent to a public affairs office (PAO)
or a specific unit. All releases of information from Air Force records,
whether the requester cites the FOIA or not, must comply with the
principles of the FOIA and this part. If the requested material contains
personal privacy information that the Air Force must withhold, it is
particularly important to handle that ``functional'' request as a
request under the FOIA and coordinate it with the appropriate FOIA
office and an Air Force attorney. Regardless of the nature of the
functional request, if the responding element denies the release of
information from Air Force records, then control the request as a FOIA
and follow FOIA denial procedures for records withheld (cite the
pertinent FOIA exemption and give the requester FOIA appeal rights).
(b) HQ AFCIC/ITC will make the Air Force handbook and guide for
requesting records available on the World Wide Web (WWW) from Air
ForceLINK,
[[Page 8]]
at http://www.foia.af.mil/handbook.htm.
Sec. 806.4 Definitions.
(a) Electronic reading room (ERR). Rooms established on Internet web
sites for public access to FOIA-processed (a)(2)(D) records.
(b) FOIA request. This includes FOIA requests made by members of
Congress either on their own behalf or on behalf of one of their
constituents. Process FOIA requests from members of Congress in
accordance with this Air Force supplement. Air Force-affiliated
requesters, to include military and civilian employees, should not use
government equipment, supplies, stationery, postage, telephones, or
official mail channels to make FOIA requests.
(1) Simple requests can be processed quickly with limited impact on
the responding units. The request clearly identifies the records with no
(or few) complicating factors involved. There are few or no responsive
records. Only one installation is involved and there are no outside
Office of Primary Responsibility (OPRs). There are no classified or
nongovernment records. No deliberative process/privileged materials are
involved. The responsive records contain no (or limited) personal
privacy information and do not come from a Privacy Act system of
records. No time extensions are anticipated.
(2) Complex requests take substantial time and cause significant
impact on responding units. Complications and delays are likely. Records
sought are massive in volume. Multiple organizations must review/
coordinate on requested records. Records are classified; originated with
a nongovernment source; are part of the Air Force's decision-making
process; or are privileged.
(c) Government Information Locator Service (GILS). GILS is an
automated on-line card catalog of publicly accessible information. The
Office of Management and Budget (OMB) Bulletin 95-01, December 7, 1994,
and OMB Memorandum, February 6, 1998, mandates that all federal agencies
create a GILS record for information available to the public. The DoD
GILS resides on DefenseLINK, the official DoD home page, at ``http://
www.defenselink.mil/locator/index.html.''
(d) Initial denial authority. Only approved IDAs may deny all or
parts of records. FOIA managers may: initially deny fee category claims,
requests for expedited processing, and waiver or reduction of fees;
review fee estimates; and sign ``no records'' responses. IDAs are the
deputy chiefs of staff and chiefs of comparable offices or higher at HQ
USAF and Secretary of the Air Force (SAF), and MAJCOM commanders. Deputy
Chiefs of Staff and chiefs of comparable offices or higher at HQ USAF
and SAF may name one additional position as denial authority. MAJCOM
commanders may appoint two additional positions at the headquarters and
also the wing commander at base level. MAJCOM IGs and MAJCOM Directors
of Inquiries (IGQ) may act as IDAs for IG records. MAJCOM FOIA managers
must notify HQ AFCIC/ITC in writing (by facsimile, e-mail, or regular
mail) of IDA position titles. Send position titles only--no names. HQ
AFCIC/ITC sends SAF/IGQ a copy of the correspondence designating IDA
positions for IG records. When the commander changes the IDA designee
position, MAJCOM FOIA managers will advise HQ AFCIC/ITC immediately. In
the absence of the designated IDA, the individual filling/assuming that
position acts as an IDA, however; all denial documentation must reflect
the position title of the approved or designated IDA, even if in an
acting capacity (for example, Acting Director of Communications and
Information, Headquarters Air Combat Command).
(e) Office of primary responsibility (OPR). A DoD element that
either prepared, or is responsible for, records identified as responsive
to a FOIA request. OPRs coordinate with the office of corollary
responsibility (OCR) and FOIA managers to assist IDAs in making
decisions on FOIA requests.
(f) OCR. A DoD element with an official interest in, and/or
collateral responsibility for, the contents of records identified as
responsive to a FOIA request, even though those records were either
prepared by, or are the primary responsibility of, a different DoD
element. OCRs coordinate with OPRs and
[[Page 9]]
FOIA managers to assist IDAs in making decisions on FOIA requests.
(g) Appellate authority. The SAF has designated the Deputy General
Counsel, Fiscal, Ethics, and Civilian Personnel (SAF/GCA) as the FOIA
appellate authority.
(h) Reading room. Any place where a member of the public may view
FOIA records.
Sec. 806.5 Responsibilities.
(a) The Director, Communications and Information (HQ USAF/SC) has
overall responsibility for the Air Force FOIA Program. The Corporate
Information Division (HQ AFCIC/ITC) administers the procedures necessary
to implement the Air Force FOIA Program, submits reports to the
Director, Freedom of Information and Security Review (DFOISR), and
provides guidance and instructions to MAJCOMs. Responsibilities of other
Air Force elements follow.
(b) SAF/GCA makes final decisions on FOIA administrative appeals.
(c) Installation commanders will: Comply with FOIA electronic
reading room (ERR) requirements by establishing a FOIA site on their
installation public web page and making frequently requested records
(FOIA-processed (a)(2)(D)) records available through links from that
site, with a link to the Air Force FOIA web page at http://
www.foia.af.mil. See Sec. 806.12(c).
(d) MAJCOM commanders implement this instruction and appoint a FOIA
manager, in writing. Send the name, phone number, office symbol, and e-
mail address to HQ AFCIC/ITC, 1250 Air Force Pentagon, Washington, DC
20330-1250.
(e) Air Force attorneys review FOIA responses for legal sufficiency,
provide legal advice to OPRs, disclosure authorities, IDAs, and FOIA
managers, and provide written legal opinions when responsive records (or
portions of responsive records) are withheld. Air Force attorneys ensure
factual and legal issues raised by appellants are considered by IDAs
prior to sending the FOIA appeal files to the Secretary of the Air
Force's designee for final action.
(f) Disclosure authorities and IDAs apply the policies and guidance
in this instruction, along with the written recommendations provided by
staff elements, when considering what decisions to make on pending FOIA
actions. Where any responsive records are denied, the IDA tells the
requesters the nature of records or information denied, the FOIA
exemption supporting the denial, the reasons the records were not
released, and gives the requester the appeal procedures. In addition, on
partial releases, IDAs must ensure requesters can see the placement and
general length of redactions with the applicable exemption indicated.
This procedure applies to all media, including electronic records.
Providing placement and general length of redacted information is not
required if doing so would harm an interest protected by a FOIA
exemption. When working FOIA appeal actions for the appellate authority
review:
(1) IDAs grant or recommend continued denial (in full or in part) of
the requester's appeal of the earlier withholding of responsive records,
or adverse determination (for example, IDAs may release some or all of
the previously denied documents).
(2) IDAs reassess a request for expedited processing due to
demonstrated compelling need, overturning or confirming the initial
determination made by the FOIA manager.
(3) When an IDA denies any appellate action sought by a FOIA
requester, the IDA, or MAJCOM FOIA manager (for no record, fee, fee
estimates, or fee category appeals) will indicate in writing that the
issues raised in the FOIA appeal were considered and rejected (in full
or in part). Include this written statement in the file you send to the
Secretary of the Air Force in the course of a FOIA appeal action. Send
all appeal actions through the MAJCOM FOIA office.
(g) OPRs:
(1) Coordinate the release or denial of records requested under the
FOIA with OCRs, FOIA offices, and with Air Force attorneys on proposed
denials.
(2) Provide requested records. Indicate withheld parts of records
annotated with FOIA exemption. Ensure requesters can see the placement
and general length of redactions. This procedure applies to all media,
including
[[Page 10]]
electronic records. Providing placement and general length of redacted
information is not required if doing so would harm an interest protected
by a FOIA exemption.
(3) Provide written recommendations to the disclosure authority to
determine whether or not to release records, and act as declassification
authority when appropriate.
(4) Make frequently requested records (FOIA-processed (a)(2)(D))
available to the public in the FOIA ERR via the Internet. As required by
AFIs 33-129, Transmission of Information Via the Internet, and 35-205,
Air Force Security and Policy Review Program, OPRs request clearance of
these records with the PAO before posting on the WWW, and coordinate
with JA and FOIA office prior to posting. The FOIA manager, in
coordination with the functional OPR or the owner of the records, will
determine qualifying records, after coordination with any interested
OCRs.
(5) Complete the required GILS core record for each FOIA-processed
(a)(2)(D) record.
(6) Manage ERR records posted to the installation public web page by
updating or removing them when no longer needed. Software for tracking
number of hits may assist in this effort.
(h) FOIA managers:
(1) Ensure administrative correctness of all FOIA actions processed.
(2) Control and process FOIA requests.
(3) Obtain recommendations from the OPR for records.
(4) Prepare or coordinate on all proposed replies to the requester.
FOIA managers may sign replies to requesters when disclosure authorities
approve the total release of records. If the MAJCOM part directs the OPR
to prepare the reply, the OPR will coordinate their reply with the FOIA
office.
(5) Make determinations as to whether or not the nature of requests
are simple or complex where multitrack FOIA request processing queues
exist.
(6) Approve or initially deny any requests for expedited processing.
(7) Provide interim responses to requesters, as required.
(8) Provide a reading room for inspecting and copying records.
(9) Provide training.
(10) Review publications for compliance with this part.
(11) Conduct periodic program reviews.
(12) Approve or deny initial fee waiver requests.
(13) Make the initial decision on chargeable fees.
(14) Collect fees.
(15) Send extension notices.
(16) Submit reports.
(17) Sign ``no record'' responses.
(18) Provide the requester the basis for any adverse determination
(i.e., no records, fee denials, fee category determinations, etc.) in
enough detail to permit the requester to make a decision whether or not
to appeal the actions taken, and provide the requester with appeal
procedures.
(i) On appeals, FOIA managers:
(1) Reassess a fee category claim by a requester, overturning or
confirming the initial determination.
(2) Reassess a request for expedited processing due to demonstrated
compelling need, overturning or confirming the initial determination.
(3) Reassess a request for a waiver or reduction of fees,
overturning or confirming the initial determination.
(4) Review a fee estimate, overturning or confirming the initial
determination.
(5) Confirm that no records were located in response to a request.
(j) The base FOIA manager acts as the FOIA focal point for the FOIA
site on the installation web page.
(k) When any appellate action sought by a FOIA requester is denied
by an IDA or FOIA manager for authorized actions, the IDA or FOIA
manager will indicate, in writing, that the issues raised in the FOIA
appeal were considered and rejected (in full or in part). Include this
written statement in the file you send to the Secretary of the Air Force
in the course of a FOIA appeal action. Send all appeal actions through
the MAJCOM FOIA office.
Sec. 806.6 Prompt action on requests.
(a) Examples of letters to FOIA requesters (e.g., response
determinations and interim responses) are included in Sec. 806.27.
(b) Multitrack processing. (1) Examples of letters to FOIA
requesters (e.g.,
[[Page 11]]
letters to individuals who have had their FOIA request placed in the
complex track) are included in Sec. 806.27.
(2) Simple requests can be processed quickly, with limited impact on
the responding units. The request clearly identifies the records with no
(or few) complicating factors involved. There are few or no responsive
records, only one installation is involved, there are no outside OPRs,
no classified or nongovernment records, no deliberative process/
privileged materials are involved, records contain no (or limited)
personal privacy information/did not come from Privacy Act systems of
records concerning other individuals, or time extensions not
anticipated.
(c) Complex requests will take substantial time, will cause
significant impact on responding units. Complications and delays are
likely. Records sought are massive in volume, multiple organizations
must review/coordinate on records, records are classified, records
originated with a nongovernment source, records were part of the Air
Force's decision-making process or are privileged.
(d) Expedited processing. Examples of letters to individuals whose
FOIA requests and/or appeals were not expedited are included in
Sec. 806.27.
Sec. 806.7 Use of exemptions.
(a) A listing of some AFIs that provide guidance on special
disclosure procedures for certain types of records is provided in
Sec. 806.28. Refer to those instructions for specific disclosure
procedures. Remember, the only reason to deny a request is a FOIA
exemption.
(b) Refer requests from foreign government officials that do not
cite the FOIA to your foreign disclosure office and notify the
requester.
(c) If you have a non-U.S. Government record, determine if you need
to consult with the record's originator before releasing it (see
Sec. 806.9 and Sec. 806.15(c)). This includes records created by foreign
governments and organizations such as North Atlantic Treaty Organization
(NATO) and North American Aerospace Defense (NORAD). You may need to
coordinate release of foreign government records with either the U.S.
Department of State or with the specific foreign embassy, directly
through the MAJCOM FOIA office. Coordinate release or denial of letters
of offer and acceptance (LOA) with SAF/IA through 11 CS/SCSR (FOIA),
1000 Air Force Pentagon, Washington DC 20330-1000.
Sec. 806.8 Description of requested record.
Air Force elements must make reasonable efforts to find the records
described in FOIA requests. Reasonable efforts means searching all
activities and locations most likely to have the records, and includes
staged or retired records, as well as complete and thorough searches of
relevant electronic records, such as databases, word processing, and
electronic mail files.
Sec. 806.9 Referrals.
(a) Send all referrals through the FOIA office. The receiving FOIA
office must agree to accept the referral before transfer. The FOIA
office will provide the name, phone number, mailing address, and e-mail
address of both the FOIA office point of contact and the record OPR
point of contact in their referral letter. Include the requested record.
If the requested records are massive, then provide a description of
them. Referrals to, or consultations with, DFOISR are accomplished from
the MAJCOM level. Section 806.27 has an example of a referral memo.
(b) In some cases, requested records are available from the GPO and
NTIS, 5285 Port Royal Road, Springfield VA 22161. These organizations
offer certain records for sale to the public. Current standard
releasable Air Force publications are available
electronically on the WWW at
http://afpubs.hq.af.mil/. For requesters without electronic access, NTIS
has paper copies for sale. Give requesters the web address or NTIS
address when appropriate. However, if the requester prefers to pursue
the FOIA process, consult with HQ AFCIC/ITC through the MAJCOM. Refer
FOIA requests for Air Force publications that are classified, FOUO,
rescinded, or superseded to the OPR through the appropriate FOIA office.
[[Page 12]]
Sec. 806.10 Records management.
Keep records that were fully released for 2 years and denied records
for 6 years. Include in the 6-year record file copies of records or
parts of records that were released in response to the same request.
Refer to Air Force Manual (AFMAN) 37-139, Records Disposition Schedule
(converting to AFMAN 33-339, see Sec. 806.9(b)). The functional OPR or
FOIA office may keep the records released or denied. The FOIA office
keeps the FOIA case file for each request. The FOIA case file consists
of: the initial request; tasking to OPRs; OPR's reply; memoranda for
record (MFR) of phone calls or other actions related to the FOIA
request; DD Forms 2086, Record of Freedom of Information (FOI)
Processing Cost, or 2086-1, Record of Freedom of Information (FOI)
Processing Cost for Technical Data; final response; and any of the
following, if applicable: extension letter; legal opinions; submitter
notification letters and replies; the appeal and required attachments
(except for the released or denied records if maintained by the OPR);
and all other correspondence to and from the requester.
Sec. 806.11 FOIA reading rooms.
Each FOIA office will arrange for a reading room where the public
may inspect releasable records. You do not need to co-locate the reading
room with the FOIA office. The FOIA does not require creation of a
reading room dedicated exclusively to this purpose. A ``reading room''
is any location where a requester may review records. For FOIA-processed
(a)(3) records, if requesters meet the criteria for search and review
costs, they must be paid before inspecting records. Assess reproduction
costs at the time of inspection, if appropriate.
Sec. 806.12 Record availability.
(a) HQ AFCIC/ITC will make the traditional FOIA-processed (a)(2)
materials (5 U.S.C. 552(a)(2)(A), (B), and (C)) available to the public.
Each Air Force activity must make 5 U.S.C. 552(a)(2)(D) records (``FOIA-
processed (a)(2)(D) records''--records which they determine will, or
have become, the subject of frequent or subsequent requests) available
to the public in a reading room in hard copy and electronically by
posting it to their appropriate web site. There is no requirement to
make all FOIA-released records available electronically. The FOIA
manager, in coordination with the functional OPR, or the owner of the
records, determines qualifying records, after coordination with any
interested OCRs. As required by AFIs 33-129 and 35-205, OPRs request
clearance of these records with the PAO before posting on the WWW.
(b) Normally, if the FOIA office or OPR receives, or anticipates
receiving, five or more requests for the same record in a quarter, they
will consider it a frequently requested record (FOIA-processed (a)(2)(D)
record) and make it publicly available in hard copy and electronically
as outlined in Sec. 806.12(a). OPRs may elect to make other records
publicly available if they receive, or expect to receive, less than five
requests a quarter. The purpose is to make records available in an ERR
to potential future FOIA requesters instead of waiting to receive a FOIA
request, and reduce the number of multiple FOIA requests for the same
records requiring separate responses. In making these determinations,
recognize there are some situations in which a certain type of record
becomes the subject of simultaneous FOIA requests from all interested
parties and then ceases to be of interest. Activities may typically
receive a ``flurry'' of FOIA requests for contract records immediately
after a contract is awarded, but do not receive any subsequent requests
for such bulky records after that point. In some cases, activities may
decide that placing records in the ERR would not serve the statutory
purpose of ``diverting some potential FOIA requests for previously
released records.'' The following types of records should be considered
for inclusion in the ERR (excluding individuals assigned to overseas,
sensitive, and routinely deployable units): organizational charts and
limited staff directories; lists of personnel reassigned with gaining
base; MAJCOM FOIA supplements; lists of International Merchant Purchase
Authority Card (IMPAC) card holders. Do not post lists of e-mail
addresses.
[[Page 13]]
(c) GILS. Each activity that posts FOIA-processed (a)(2)(D) records
(records which they determine will, or have become, the subject of
frequent or subsequent requests) must create a GILS record for each
FOIA-processed (a)(2)(D) record and post it to DefenseLINK. The OPR
prepares the GILS record. You can complete and submit a GILS record on-
line using a web browser. Instructions for completing the GILS record,
and an on-line form are at http://www.defenselink.mil/locator/
index.html. Follow the steps listed on the web page. The GILS site on
DefenseLINK will serve as the central index of Air Force FOIA-processed
(a)(2)(D) records.
(d) In addition, installations will post a list, or index, of
locally produced FOIA-processed (a)(2)(D) records on their web page at
their FOIA site. Each listing will point or link to the particular
record. In addition, MAJCOMs may choose to post their own index of
MAJCOM specific FOIA-processed (a)(2)(D) records to their appropriate
web site. Installation web pages will include the following phrase (or
similar words) on their FOIA site if they do not have any frequently
requested FOIA records: ``There are no frequently requested FOIA records
to post at this time.'' Include the following statement, or a similar
one, on the installation web page with the records: ``Some records are
released to the public under the FOIA, and may therefore reflect
deletion of some information in accordance with the FOIA's nine
statutory exemptions. A consolidated list of such records is on
DefenseLINK.'' Link the word ``DefenseLINK'' to www.defenselink.mil/
locator/fpr__index.html. Qualifying releasable records with exempt
information redacted must show on the record the amount of information
withheld and the exemption reason (for example, (b)(6)). Activities with
such records should provide the public an index and explanation of the
FOIA exemptions. All installation FOIA pages will include a link to the
Air Force page.
(e) FOIA web pages should be clearly accessed from the main
installation page, either by a direct link to ``FOIA'' or ``Freedom of
Information Act'' from the main page, or found under a logical heading
such as ``Library'' or ``Sites.''
Sec. 806.13 5 U.S.C. 552(a)(2) materials.
The GILS records on DefenseLINK will serve as the index for 5 U.S.C.
552(a)(2)(D) materials.
Sec. 806.14 Other materials.
HQ AFCIC/ITC makes the appropriate FOIA-processed (a)(1) materials
available for the Air Force.
Sec. 806.15 FOIA exemptions.
(a) Exemption number 1. When a requester seeks records that are
classified, or should be classified, only an initial classification
authority, or a declassification authority, can make final
determinations with respect to classification issues. The fact that a
record is marked with a security classification is not enough to support
withholding the document; make sure it is ``properly and currently
classified.'' Review the record paragraph by paragraph for releasable
information. Review declassified and unclassified parts before release
to see if they are exempt by other exemptions. Before releasing a
reviewed and declassified document, draw a single black line through all
the classification markings so they are still legible and stamp the
document unclassified. If the requested records are ``properly and
currently classified,'' and the Air Force withholds from release under
FOIA exemption (b)(1), and the requester appeals the withholding,
include a written statement from an initial classification authority or
declassification authority certifying the data was properly classified
originally and that it remains properly classified per Executive Order.
Examples of initial classification and declassification authority
statements are included in Sec. 806.27. Guidance on document
declassification reviews is in AFI 31-401, Managing the Information
Security Program, and DoD 5200.1-R, Information Security Program,
January 1997.
(b) Exemption number 3. HQ AFCIC/ITC will provide the current FOIA-
processed (b)(3) statutes list to the MAJCOMs.
(c) Exemption number 4. The Air Force, in compliance with Executive
Order 12600, will advise submitters of
[[Page 14]]
contractor-submitted records when a FOIA requester seeks the release of
such records, regardless of any initial determination of whether FOIA
exemption (b)(4) applies. (See Sec. 806.20(a) and Sec. 806.31). Due to a
change to Title 48 CFR, Federal Acquisition Regulations System,
submitter notification is not required prior to release of unit prices
contained in contracts awarded based upon solicitations issued after
January 1. 1998. For solicitations issued before January 1, 1998,
conduct a normal submitter notice. Unit prices contained in proposals
provided prior to contract award are protected from release, as are all
portions of unsuccessful proposals (before and after contract award) (10
U.S.C. 2305(g), Prohibition on Release of Contractor Proposals).
(d) Exemption number 5. (1) Attorney-client records could include,
e.g., when a commander expresses concerns in confidence to his or her
judge advocate and asks for a legal opinion. The legal opinion and
everything the commander tells the judge advocate in confidence qualify
under this privilege. Unlike deliberative process privilege, both facts
and opinions qualify under the attorney work product or attorney-client
privilege. Attorney work product records are records an attorney
prepares, or supervises the preparation of, in contemplating or
preparing for administrative proceedings or litigation.
(2) Based on court decisions in FOIA litigation, which led to the
release of results of personnel surveys, FOIA managers and IDAs should
get advice from an Air Force attorney before withholding survey results
under FOIA exemption (b)(5).
(e) Exemption number 6. (1) AFI 37-132, Air Force Privacy Act
Program (will convert to AFI 33-332) provides guidance on collecting and
safeguarding social security numbers (SSN). It states: ``SSNs are
personal and unique to each individual. Protect them as FOUO. Do not
disclose them to anyone without an official need to know.'' Before
releasing an Air Force record to a FOIA requester, delete SSNs that
belong to anyone other than the requester. In any subsequent FOIA
release to a different requester of those same records, make sure SSNs
are deleted. When feasible, notify Air Force employees when someone
submits a FOIA request for information about them. The notification
letter should include a brief description of the records requested. Also
include a statement that only releasable records will be provided and we
will protect personal information as required by the FOIA and Privacy
laws.
(2) Personal information may not be posted at publicly accessible
DoD web sites unless to do so is clearly authorized by law and
implementing regulation and policy. Personal information should not be
posted at nonpublicly accessible web sites unless it is mission
essential and appropriate safeguards have been established. See also
AFIs 33-129 and 35-205.
(3) Withhold names and duty addresses of personnel serving overseas
or in sensitive or routinely deployable units. Routinely deployable
units normally leave their permanent home stations on a periodic or
rotating basis for peacetime operations or for scheduled training
exercises conducted outside the United States or United States
territories. Units based in the United States for a long time, such as
those in extensive training or maintenance activities, do not qualify
during that period. Units designated for deployment on contingency plans
not yet executed and units that seldom leave the United States or United
States territories (e.g., annually or semiannually) are not routinely
deployable units. However, units alerted for deployment outside the
United States or United States territories during actual execution of a
contingency plan or in support of a crisis operation qualify. The way
the Air Force deploys units makes it difficult to determine when a unit
that has part of its personnel deployed becomes eligible for denial. The
Air Force may consider a unit deployed on a routine basis or deployed
fully overseas when 30 percent of its personnel have been either alerted
or actually deployed. In this context, alerted means that a unit has
received an official written warning of an impending operational mission
outside the United States or United States territories. Sensitive units
are those involved in special activities or classified missions,
including, for example,
[[Page 15]]
intelligence-gathering units that collect, handle, dispose of, or store
classified information and materials, as well as units that train or
advise foreign personnel.
(i) Each MAJCOM and FOA will establish a system and assign OPRs to
identify United States-based units in their command qualifying for the
``sensitive or routinely deployable unit'' designation, under this
exemption. Appropriate OPRs could include directors of operations, plans
and programs, and personnel.
(ii) MAJCOM FOIA managers will ensure the list of sensitive and
routinely deployable units is reviewed in January and July, and will
follow that review with a memo to the Air Force Personnel Center (HQ
AFPC/MSIMD), 550 C Street West, Suite 48, Randolph AFB, TX 78150-4750,
either validating the current list or providing a revised listing based
on the current status of deployed units at that time. This listing is in
American Standard Code for Information Interchange (ASCII) format on a
3\1/2\'' (double-sided, high-density) diskette, which contains the
unit's eight-position personnel accounting symbol (PAS) code, with one
PAS code per line (record) (8-byte record). The MAJCOM FOIA manager will
send an electronic copy of the list of nonreleasable units to HQ AFPC/
MSIMD which is included in the personnel data system. The MAJCOM and HQ
AFPC FOIA offices will use it to determine releasable lists of names and
duty addresses. This reporting requirement is exempt from licensing with
a reports control symbol (RCS) in accordance with AFI 37-124, The
Information Collections and Reports Management Program; Controlling
Internal, Public, and Interagency Air Force Information Collections
(will convert to AFI 33-324).
(f) Exemption number 7. Guidance provided in Sec. 806.15(e)(1) also
applies to SSNs in records compiled for law enforcement purposes. Do not
disclose SSNs to anyone without an official need to know.
Sec. 806.16 For official use only.
(a) Markings. Record owners may also add the following sentence to
the statement above: ``(Further distribution is prohibited without the
approval of (owner's organization, office symbol, phone).)''
(b) Dissemination and transmission. (1) When deciding whether to
send FOUO records over facsimile equipment, balance the sensitivity of
the records against the risk of disclosure. When faxing, use cover
sheets to indicate FOUO attachments (i.e., AF Form 3227, Privacy Act
Cover Sheet, for Privacy Act information). Consider the location of
sending and receiving machines and ensure authorized personnel are
available to receive FOUO information as soon as it is transmitted.
(2) For Privacy Act records, refer to AFI 33-332 for specific
disclosure rules. For releases to GAO and Congress, refer to AFI 90-401,
Air Force Relations With Congress and AFI 65-401, Relations With the
General Accounting Office. See Sec. 806.9(b) for availability.
(c) Termination, disposal and unauthorized disclosures. You may
recycle FOUO material. Safeguard the FOUO documents or information to
prevent unauthorized disclosure until recycling. Recycling contracts
must include specific responsibilities and requirements on protecting
and destroying FOUO and Privacy Act materials.
Sec. 806.17 Release and processing procedures.
(a) Individuals seeking Air Force information should address
requests to an address listed in Sec. 806.26. MAJCOM FOIA office phone
numbers and mailing addresses are available on the Air Force FOIA Web
Page at http://www.foia.af.mil.
(1) A list of Air Force FOIA processing steps, from receipt of the
request through the final disposition of an administrative appeal is at
Sec. 806.29, which also includes guidance on preparing and processing an
Air Force FOIA appeal package.
(2) Air Force host tenant relationships. The Air Force host base
FOIA manager may log, process, and report FOIA requests for Air Force
tenant units. In such cases, the host base FOIA office refers all
recommended denials and ``no records'' appeals to the Air Force tenant
MAJCOM FOIA manager. This does not apply to the Air
[[Page 16]]
National Guard (ANG), Air Force Reserves, or to disclosure authorities
for specialized records.
(b) Use FOIA procedures in this part to process any congressional
request citing FOIA, or covering a constituent letter citing FOIA. This
does not apply to requests from a Congressional Committee or
Subcommittee Chair on behalf of the committee or subcommittee.
Sec. 806.18 Initial determinations.
(a) Disclosure authorities make final decisions on providing
releasable records within the time limits and provide recommendations to
the IDA on proposed denials and partial denials after coordination with
the appropriate FOIA and JA office. Normally, disclosure authorities are
division chiefs or higher at Air Staff level. MAJCOMs will designate
their disclosure authority levels. The level should be high enough so a
responsible authority makes the disclosure according to the policies
outlined in this part. At out sourced units or functions, the disclosure
authority must be a government official. Contractors who are functional
OPRs for official government records are not authorized to make the
decision to disclose government records.
(b) On receipt, Air Force FOIA offices will promptly inform Air
Force PAOs of all FOIA requests that are potentially newsworthy, or that
are submitted by news media requesters. FOIA offices will coordinate
final replies for such cases with public affairs.
Sec. 806.19 Reasonably segregable portions.
Delete information exempt from release under the FOIA from copies of
otherwise releasable records. Do not release copies that would permit
the requester to ``read through the marking.'' Examples of records with
deletions of exempted data are in Sec. 806.30.
Sec. 806.20 Records of non-U.S. government source.
(a) The Air Force, in compliance with Executive Order 12600, will
advise submitters of contractor-submitted records when a FOIA requester
seeks the release of such records, regardless of any initial
determination as to whether FOIA exemption (b)(4) applies. See
Sec. 806.15(c) and Sec. 806.31. Due to a change to 48 CFR, submitter
notification is not required prior to release of unit prices contained
in contracts awarded based upon solicitations issued after January 1,
1998. For solicitations issued before January 1, 1998, conduct a normal
submitter notice. Unit prices contained in proposals provided prior to
contract award are protected from release, as are all portions of
unsuccessful proposals (before and after contract award) (10 U.S.C.
2305(g)).
(b) Department of State involvement. Air Force FOIA managers will
notify their MAJCOM (or equivalent) FOIA office, in writing, via fax or
e-mail when the Department of State becomes involved in any Air Force
FOIA actions. The MAJCOM FOIA office will provide 11 CS/SCSR, via fax or
e-mail, a summary of the issues involved, and the name, phone number,
mailing address and e-mail address of: their own FOIA office point of
contact; the Air Force record OPR point of contact, the DoD component
FOIA office point of contact (if any), and the Department of State point
of contact. 11 CS/SCSR will inform SAF/IA of any State Department
involvement in Air Force FOIA actions. (See Sec. 806.7(b).) An example
of a memo advising 11 CS/SCSR of State Department involvement in an Air
Force FOIA action is provided in Sec. 806.27.
Sec. 806.21 Appeals.
(a) FOIA requesters seeking Air Force records must address appeals
to the Office of the Secretary of the Air Force, through the FOIA office
of the IDA that denied the request. Requesters should attach a copy of
the denial letter to their appeal and give reasons for appealing. Air
Force IDAs may reconsider any prior denials and may grant all or part of
a requester's appeal. When any appellate action sought by a FOIA
requester is denied by an IDA, the IDA will include a statement that the
issues raised in the appeal were considered and rejected (in full or in
part) in any file sent to the Secretary of the Air Force in the course
of a FOIA appeal action. Send all appeals to IDA decisions at the wing
level
[[Page 17]]
through the MAJCOM FOIA office for sending to the Secretary of the Air
Force's designated appellate authority, SAF/GCA (and Air Force Legal
Services Agency (AFLSA/JACL)). (See Secs. 806.4(g), 806.5(b), and
Sec. 806.5(k).) Additional steps are required prior to sending an appeal
file.
(1) MAJCOM FOIA offices and record OPRs are responsible for ensuring
adequate preparation of the FOIA appeal package for reconsideration by
the IDA. FOIA offices and records OPRs will coordinate with Air Force
attorneys, who will provide written opinions on substantive issues
raised in the appeal.
(2) If a requester appeals an Air Force ``no records''
determination, Air Force elements must search again or verify the
adequacy of their first search. The package must include documents that
show the Air Force element systematically tried to find responsive
records. Tell, for example, what areas or offices were searched and how
the search was conducted--manually, by computer, by telephone, and so
forth. In the event a requester sues the Air Force to contest a
determination that no responsive records exist, formal affidavits are
required to support the adequacy of any searches conducted.
(3) FOIA requesters seeking to appeal denials involving Office of
Personnel Management's controlled civilian personnel records must appeal
to the Office of the General Counsel, Office of Personnel Management,
1900 E Street NW, Washington, DC 20415.
(4) If a requester appeals a denial of a fee waiver, fee estimate,
or fee reduction request, FOIA offices and record OPRs must account for
actual and estimated costs of processing a request, and will include
copies of the DD Forms 2086 or 2086-1 in the appeal package.
(5) When any appellate action sought by a FOIA requester is denied
by an IDA, prepare the FOIA appeal package as specified in Sec. 806.29,
and then the MAJCOM FOIA office forwards the appeal file to the
Secretary of the Air Force's designated appellate authority, SAF/GCA
(through AFLSA/JACL), for a final administrative determination.
(b) Air Force activities will process appeal actions expeditiously
to ensure they reach the Office of the Secretary of the Air Force in a
timely manner.
Sec. 806.22 Time limits.
Any FOIA appeals received after the 60-day time limit are not
processed, unless the requester provides adequate justification for
failing to comply with the time limit. If a late appeal is received, and
there is no adequate justification for failing to comply with the time
limit, the FOIA office will advise the FOIA requester their appeal has
been closed. An example of a closure letter is included in Sec. 806.27.
Sec. 806.23 Delay in responding to an appeal.
For an appeal in process and not yet forwarded to AFLSA/JACL, the
MAJCOM FOIA office is responsible for advising the requester of the
status of the appeal. For an appeal in process at AFLSA/JACL, that
office will advise the requester regarding status of the appeal.
Sec. 806.24 Fee restrictions.
For FOIA purposes, Air Force activities will consider the cost of
collecting a fee to be $15 and will not assess requesters' fees for any
amount less than $15.
Sec. 806.25 Annual report.
(a) MAJCOM FOIA managers and AFLSA/JACL send a consolidated report
for the fiscal year on DD Form 2564, Annual Report Freedom of
Information Act, to HQ AFCIC/ITC by October 30 via regular mail, e-mail,
or facsimile. AFLSA/JACL will prepare the appeals and litigation costs
sections of the report. HQ AFCIC/ITC will make the Air Force report
available on the WWW.
(b) Total requests processed. ``Processed'' includes responses that
give an estimated cost for providing the records, even if the requester
has not paid.
(c) Denied in full. Do not report ``no record'' responses as
denials.
(d) Other reasons.
(1) Referrals. Also include referrals within Air Force in this
category.
(2) Not an agency record. The ``not an agency record'' other reason
category only applies to requests for: objects or
[[Page 18]]
articles such as structures, furniture, vehicles and equipment, whatever
their historical value, or value as evidence; anything that is not a
tangible or documentary record such as an individual's memory or oral
communication; and personal records of an individual not subject to
agency creation or retention requirements, created and maintained
primarily for the convenience of an agency employee and not distributed
to other agency employees for their official use. This category does not
include ``no record'' responses.
(e) Other. The ``Other (Specify)'' block must contain the reason
with the total number for the reason. For example: ``FOIA request had no
return address-4.''
(f) 5 U.S.C. 552(b)(3) statutes invoked on initial determinations. A
corresponding statute is required for each instance entered in the
Exemption 3 block. List the statute by number, not title. For any
statute on the report that is not on DoD's list of commonly used 5
U.S.C. 552(b)(3) statutes, attach a copy of the pertinent page of the
statute that states information must be withheld from public disclosure.
HQ AFCIC/ITC makes the DoD list available to FOIA managers
electronically. Statutes on the DoD list with an asterisk indicate they
are valid 5 U.S.C. 552(b)(3) statutes from litigation. Do not enter any
of the following as 5 U.S.C. 552(b)(3) statutes:
5 U.S.C. 552
5 U.S.C. 552a
28 U.S.C. 1498
17 U.S.C. 101
18 U.S.C. 1905.
(g) Appeal determinations. Enter the total number of FOIA appeals
received and total number of FOIA appeals completed during the fiscal
year.
(h) Average. Air Force will use the ``median age'' and will not
collect or report averages.
(i) Number of initial requests received during the fiscal year. This
number includes open and closed cases.
(j) Total number of initial requests. ``Processed'' includes
responses which give an estimated cost for providing the records, even
if the requester has not paid.
(k) Total program cost. This figure includes all costs from the DD
Forms 2086 and 2086-1, as well as personnel costs for individuals
primarily involved in administering the FOIA program. To figure
personnel costs, multiply the annual salary of each person by the
percentage of time spent on FOIA.
(l) MAJCOMs and bases do not include the 25 percent. HQ AFCIC/ITC
will add to the final Air Force report to DoD.
(m) Authentication. MAJCOM SCs will sign as approving official (or
two-letter functional equivalent for FOIA offices in other functional
areas).
Sec. 806.26 Addressing FOIA requests.
(a) FOIA requests concerning Air National Guard Inspector General
records should be sent to 11 CS/SCSR (FOIA), 1000 Air Force Pentagon,
Washington, DC 20330-1000.
(b) Addressing Air Force Freedom of Information Act requests. The
Department of the Air Force, a component of the DoD, includes the Office
of the Secretary of the Air Force, the Chief of Staff of the Air Force
(who is supported by Headquarters Air Force or ``Air Staff'' elements),
the MAJCOMs, the FOAs, and DRUs. This section lists the FOIA office
addresses. A selected subordinate unit is also included in this section.
Realignment of Air Force elements is frequent; addresses listed below
are subject to change.
(c) The Department of the Air Force does not have a central
repository for Air Force records. FOIA requests are addressed to the Air
Force element that has custody of the record desired. In answering
inquiries regarding FOIA requests, Air Force personnel will assist
requesters in determining the correct Air Force element to address their
requests. If there is uncertainty as to the ownership of the record
desired, refer the requester to the Air Force element that is most
likely to have the record. Two organizations that include Air Force
elements, and hold some Air Force-related records, are also included in
the addresses listed below.
(d) MAJCOMs:
(1) Air Combat Command (ACC): HQ ACC/SCTC, 230 East Flight Line Road,
Langley AFB VA 23665-2781.
(2) Air Education and Training Command (AETC): HQ AETC/SCTS, 61
[[Page 19]]
Main Circle Suite 2, Randolph AFB TX 78150-4545.
(3) Air Force Materiel Command (AFMC): HQ AFMC/SCDP, 4225 Logistics
Avenue, Suite 6, Wright-Patterson AFB, OH 45433-5745.
(4) Air Force Reserve Command (AFRC): HQ AFRC/SCSM, 155 2nd Street,
Robins AFB, GA 31098-1635.
(5) Air Force Special Operations Command (AFSOC): HQ AFSOC/SCMN, 100
Bartley Street, Suite 201, Hurlburt Field, FL 32544-5273.
(6) Air Force Space Command (AFSPC): HQ AFSPC/SCMA, 150 Vandenberg
Street, Suite 1105, Peterson AFB, CO 80914-4400.
(7) Air Mobility Command (AMC): HQ AMC/SCYNR, 203 West Losey Street,
Room 3180, Scott AFB, IL 62225-5223.
(8) Pacific Air Forces (PACAF): HQ PACAF/SCT, 25 E Street, Suite C220,
Hickam AFB, HI 96853-5409.
(9) United States Air Forces in Europe (USAFE): HQ USAFE/SCMI, Unit
3050, Box 125, APO AE 09094-0125.
(e) FOAs:
(1) Air Force Audit Agency (AFAA): HQ AFAA/IMP, 1126 Air Force
Pentagon, Washington, DC 20330-1126.
(2) Air Force Base Conversion Agency (AFBCA): AFBCA/ESA, 1700 North
Moore Street, Suite 2300, Arlington, VA 22209-2802.
(3) Air Force Center for Environmental Excellence (AFCEE): HQ AFCEE/
MSI, 3207 North Road, Brooks AFB, TX 78235-5363.
(4) Air Force Civil Engineering Support Agency (AFCESA): HQ AFCESA/
IMD, 139 Barnes Drive Suite 1, Tyndall AFB, FL 32403-5319.
(5) Air Force Historical Research Agency (AFHRA): AFHRA/RSA, 600
Chennault Circle, Maxwell AFB, AL 36112-6424.
(6) Air Force Inspection Agency (AFIA): (Shared FOIA office/
function, AFIA and Air Force Safety Agency) AFSA/JAR, 9700 Avenue G SE,
Suite 236B, Kirtland AFB, NM 87117-5670.
(7) Air Force Medical Support Agency (AFMSA): AFMSA/CCEA, 2510
Kennedy Circle, Suite 208, Brooks AFB, TX 78235-5121.
(8) Air Force News Agency (AFNEWS): HQ AFNEWS/SCB, 203 Norton
Street, Kelly AFB, TX 78241-6105.
(9) Air Force Office of Special Investigations (AFOSI): HQ AFOSI/
SCR, P. O. Box 2218, Waldorf, MD 20604-2218.
(10) Air Force Personnel Center (AFPC): HQ AFPC/MSIMD, 550 C Street
West, Suite 48, Randolph AFB, TX 78150-4750.
(11) Air Force Center for Quality and Innovation (AFCQMI): AFCQMI/
CSP, 550 E Street East, Randolph AFB, TX 78150-4451.
(12) Air Force Safety Agency (AFSA): (Shared FOIA office/function,
AFIA, and AFSA) AFSA/JARF, 9700 Avenue G SE, Suite 236B, Kirtland AFB,
NM 87117-5670.
(13) Air Force Security Forces Center (AFSFC): AFSFC/CCQ 1720
Patrick Street, Lackland AFB, TX 78236-5226.
(14) Air Force Services Agency (AFSVA): AFSVA/SVSR, 9504 1H-35
North, Suite 250, San Antonio, TX 78233-6635.
(15) Air Force Technical Applications Center (AFTAC): AFTAC/LSCS,
1030 South Highway, Suite A1A, Patrick AFB, FL 32925-6001.
(16) Air Intelligence Agency (AIA): AIA/DOOI, 102 Hall Boulevard,
Suite 229, San Antonio, TX 78243-7029.
(17) Air Reserve Personnel Center (ARPC): ARPC/SCS, 6760 East
Irvington Place, 6600, Denver, CO 80280-6600.
(18) Air Force Weather Agency (AFWA): HQ AFWA/SCI, 106 Peacekeeper
Drive Suite 2N3, Offutt AFB, NE 68113-4039.
(19) Air Force History Support Office (AFHSO): AFHSO, 500 Duncan
Avenue Box 94, Bolling AFB, DC 20332-1111.
(f) DRUs:
(1) Air Force Operational Test and Evaluation Center (AFOTEC):
AFOTEC/SCM, 8500 Gibson Boulevard SE, Kirtland AFB, NM 87117-5558.
(2) 11th Wing: 11 CS/SCSR (FOIA), 1000 Air Force Pentagon,
Washington, DC 20330-1000 (if a person is unsure where to send a FOIA
request for Air Force records, or is seeking records from the Office of
the Secretary of the Air Force, or other Headquarters Air Force records,
use this address).
(3) United States Air Force Academy (USAFA): 10 CS/SCBD, 2304 Cadet
Drive, Suite 232, USAFA, CO 80840-5060.
(g) Selected subordinate units: Air Force Communications Agency
[[Page 20]]
(AFCA): HQ AFCA/CCQI, 203 West Losey Street, Room 1022, Scott AFB, IL
62225-5203.
(h) Organizations which include air force elements:
(1) Army and Air Force Exchange Service (AAFES): HQ AAFES/GC-E, P.O.
Box 660202, Dallas, TX 75266-0202.
(2) National Guard Bureau (NGB)/Air National Guard: NGB-AD, 2500
Army Pentagon, Washington, DC 20310-2500. (FOIA requests concerning Air
National Guard IG records should be sent to 11 CS/SCSR (FOIA), 1000 Air
Force Pentagon, Washington, DC 20330-1000)
Sec. 806.27 Samples of Air Force FOIA processing documents.
(a) This section includes suggested language in paragraph format
that tracks Air Force and DoD FOIA guidance. The rest of the body of
letters and memorandums should comply with Air Force administrative
guidance. Each MAJCOM may elect to prepare their own verbiage to meet
their specific needs, so long as FOIA processing actions are consistent
with guidance in DoD 5400.7-R and this part. In this section, language
in parentheses is for explanatory purposes only. Do not include any of
the parenthetical language of this section in your FOIA correspondence.
When optional language must be selected, the optional language will be
presented within parentheses. Use only the portions that apply to the
specific request or response.
(b) Initial receipt of Freedom of Information Act request.
We received your Freedom of Information Act (FOIA) request dated
Month year, for (summarize the request) on Month year (date
received). We will provide you our release determination by (enter date
that is 20 workdays from date you received the request). (Based on our
initial review, we believe we cannot process your request within 20
workdays.) (If ``cannot'' is used, add appropriate explanation; examples
follow.) Please contact (name and commercial telephone number) if you
have any questions and refer to case number .
(c) Interim response:
Your request will be delayed because: all or part of the responsive
records are not located at this installation; (and/or) Processing this
FOIA request will require us to collect and review a substantial number
of records (and/or) Other Air Force activities or other agencies (if
applicable) to include the submitter of the information, need to be
involved in deciding whether or not to release the responsive records.
We expect to reply to your request not later than (give a date that is
not more than 30 workdays from the initial receipt of the request); (or)
If processing the FOIA request will take more than the allowed time
limits to respond). We find we are unable to meet the time limits
imposed by the FOIA in this instance because (tell the requester the
reason for the delay) (example: the records are classified and must be
reviewed for possible declassification by other activities or agencies).
We anticipate completing your request by (date).
(When charging fees is appropriate.) The FOIA provides for the
collection of fees based on the costs of processing a FOIA request and
your fee category. Based on the information in your request, we have
determined your fee category is (commercial/educational or noncommercial
scientific institution or news media/all others). As a result, you (if
commercial category) are required to pay all document search, review and
duplication costs over $15.00. (or) As a result, you (if educational or
noncommercial scientific institution or news media) will be provided the
first 100 pages free of charge; you are required to pay any duplication
costs over and above those amounts. (or) As a result, you will be
provided the first 2 hours of search time and the first 100 pages free
of charge; you are required to pay any search and duplication costs over
and above those amounts.
(d) Request for a more specific description:
Your request does not sufficiently describe the desired records. The
FOIA applies to existing Air Force records; without more specific
information from you, we cannot identify what documents might be
responsive to your request. Please give us whatever additional details
you may have on the Air Force records you want. Can you tell us when the
records were created, and what Air Force element may have created the
records? If this request involves an Air Force contract, do you know the
contract number and dates it covered? Our address is (include name and
complete mailing address), our fax number is (give fax number), our e-
mail address is (optional--give complete e-mail address). Based on the
original request you sent us, we are unable to respond.
(e) Single letter acknowledging receipt of request and giving final
response. (If you can complete a FOIA request within the statutory 20-
workday processing period, Air Force elements may elect to send a single
letter to the requester, along with responsive
[[Page 21]]
records which are released to the requester in full).
We received your Freedom of Information Act (FOIA) request dated
Month year, for (summarize the request) on Month year (date
received). A copy (or) Copies of (describe the record(s) being released)
(is/are) releasable and (is/are) attached.
(f) Collection of fees:
The FOIA provides for the collection of fees based on the costs of
processing a FOIA request and your fee category. We have placed you in
the (enter the fee category) fee category. In your case, we have
assessed a charge of $____ for processing your request. The fee was
calculated in the following manner: (Give a detailed cost breakdown: for
example, 15 pages of reproduction at $0.15 per page; 5 minutes of
computer search time at $43.50 per minute, 2 hours of professional level
search at $25 per hour.) Please make your check payable to (appropriate
payee) and send it to (give your complete mailing address) by (date 30
days after the letter is signed). (or) The FOIA provides for the
collection of fees based on the costs of processing a FOIA request and
your fee category. We have placed you in the (enter the fee category);
however, in this case, we have waived collecting fees.
(g) Multitrack processing letters to FOIA requesters. (When using
the multitrack FOIA processing system, determine which of the following
paragraphs to include in your letters to the requester. To the extent it
may apply, include language from paragraph 2 of the sample. If a
requester asks for expedited processing, answer carefully if you decide
not to provide expedited processing, because requesters may appeal
denial of their request for expedited processing. Advise requesters
placed into the complex track in writing how they can simplify their
request to qualify for the simple track.)
We received your Freedom of Information Act (FOIA) request dated
Month year, for (summarize the request) on Month year (date
received). Because our organization has a significant number of pending
FOIA requests, which prevents us from making a response determination
within 20 workdays, we have instituted multitrack processing of
requests. Based on the information you provided, we have placed your
request in the (simple or complex) track. We have assigned number
to identify your request; should you need to contact us about your
request, please write or call (name and telephone) and use this number
to assist us in responding more promptly.
Based on our current backlog, we expect to respond to your request
not later than (give an estimated date). Our policy is to process
requests within their respective tracks in the order in which we receive
them. We do process each FOIA request as quickly as we can.
(h) If the request is placed in the complex track:
In your case, processing your request is complex because (give basic
reasons this is a complex case: request was vague or complicated; the
records sought are voluminous; multiple organizations will have to work
on this request; records are classified; responsive records came from
another command/another service/a nongovernment source; responsive
records were part of the Air Force's decision-making process, and the
prerelease review will require policy determinations from different Air
Force elements; records describe law enforcement activities; records
involve foreign policy issues; due to the nature of your request and/or
the nature of our computer system, responding to your request or
providing a response in the electronic format you requested will be
technically complex, etc.). Simplifying your request might permit
quicker processing in the following ways: (describe ways the search
could be narrowed to fewer records, or ways policy issues could be
avoided, etc.) Can you tell us when the records were created, and what
Air Force element may have created the records? If this request involves
an Air Force contract, do you know the contract number? Please give us
whatever additional details you may have on the Air Force records you
are seeking, so we can attempt to streamline the processing of your
request. Our address is (give complete mailing address), our fax number
is (give fax number), our e-mail address is (optional--give complete e-
mail address).
(i) If the requester asks that you expedite their request:
Because individuals receiving expedited processing may receive a
response before other earlier requesters, there are administrative
requirements you must meet before we can expedite a request. In your
request, you asked that we expedite processing. In order for us to
expedite a request, the requester must provide a statement certifying
the reasons supporting their request are true and correct to the best of
their knowledge.
In the second category, ``urgently needed'' means the information
itself has a particular value that it will lose if it is not
disseminated quickly. Ordinarily this means the information concerns a
breaking news story of
[[Page 22]]
general public interest. Historic information, or information sought for
litigation or commercial activities usually would not qualify for
expedited processing in the second category. Also, the fact that a news
organization has an internal broadcast or publication deadline, so long
as the deadline was unrelated to the nature of the information itself
(for example, the information was not a breaking news story of general
public interest) would not make the information ``urgently needed.''
In this case, we have determined your FOIA request (will/will not)
receive expedited processing. We came to this conclusion because you
(did/did not) demonstrate you need the information because failure to
obtain the records on an expedited basis (could or could not) reasonably
expect to pose an imminent threat to life or physical safety of an
individual (or) the information (is or is not) urgently needed in order
to inform the public about actual or alleged Federal Government activity
(or) failure to obtain the records on an expedited basis (could or could
not) reasonably expect to lead to an imminent loss of substantial due
process rights, (or) release (would or would not) serve a humanitarian
need by promoting the welfare and interests of mankind (and/or) your
request for expedited processing did not meet the statutory requirements
of the FOIA; you did not provide enough information to make a
determination of compelling need for the information you requested (and/
or) you did not properly certify your request.
(j) If you deny a request for expedited processing:
If you consider our decision not to expedite your request incorrect,
you may appeal our decision. Include in your appeal letter the reasons
for reconsidering your request for expedited processing, and attach a
copy of this letter. Address your appeal to Secretary of the Air Force
through (address of MAJCOM FOIA office). In the meantime, we will
continue to process your request in the (simple/complex) processing
track.
(k) Certification, computer systems manager (electronic records or
format requested).
(When answering a request for electronic records, based on the
configuration of your hardware and/or software, certain factors may make
a particular request complex. Have your computer system manager advise
you whether or not they can create the new record/format on a ``business
as usual'' basis. If producing the record/format would entail a
significant expenditure of resources in time and manpower that would
cause significant interference with the operation of the information
system and adversely affect mission accomplishment, you do not need to
process the request. The FOIA office needs to get a certification from
the computer systems manager to document this determination to support
their response. Possible language for this certification is provided
below.)
I, (rank/grade and name) am the computer systems manager for
(organization with electronic records responsive to FOIA request). In
consultation with (FOIA office), I have considered the FOIA request of
(requester's name), our (FOIA identifier), which asked for
(describe electronic record or format). We (do/do not) have electronic
records that are responsive to this request (or) data that we (can/
cannot) configure into the requested format. (If there are electronic
records) The existing electronic records (do/do not) contain
nonreleasable data that we (can/cannot) remove from the electronic
record. Because of the way our (computer system/database/software) (use
all that apply, specify hardware and/or software nomenclature if
possible; for example, IBM , Microsoft Excel) is configured, creating
the electronic record (or) modifying the existing record/format would
entail a significant expenditure of resources in time and manpower that
would cause significant interference with the operation of the
information system and adversely affect mission accomplishment (describe
how responding would interfere and time/manpower resources required,
give estimated reprogramming time, if possible). I have applied the DoD
``standard of reasonableness'' in considering this request. I understand
that when the capability exists to respond to a FOIA request that would
require only a ``business as usual'' approach to electronically extract
the data and compile an electronic record or reformat data to satisfy a
FOIA request, then creation of the electronic record or reformatting the
data would be appropriate. In this case, a significant expenditure of
resources and manpower would be required to compile the electronic
record (or) reformat existing data. This activity would cause a
significant interference with the operation of our automated information
system. I certify creation of the electronic record (or) reformatting
existing data in order to respond to this request would not be
reasonable, under the circumstances.
Signature
(Date Signed) (Signature Block)
(Note: Some electronic data requests may include a request for
software. You may have to release government-developed software that is
not otherwise exempt, if requested under the FOIA. Exemptions 1--
classified software, 2--testing, evaluation, or similar software, 3--
exempt by statute, 5--deliberative process/privileged software, and 7--
law enforcement operations software may apply, based on the nature of
the requested software. If the software is commercial off-the-
[[Page 23]]
shelf software, as opposed to software developed by the government, the
software may qualify to be withheld from release under FOIA exemption 4.
(l) ``No (paper or electronic) records'' or ``requested format not
available'' letters.
This is in response to your Freedom of Information Act (FOIA)
request dated Month year, for (summarize the request) on Month
year (date received), our number .
A thorough search by (identify the unit(s) that tried to locate
responsive records) did not locate any records responsive to your
request. (If the requester asked questions, and there are no responsive
records that would provide the answers to those questions): The FOIA
applies to existing Air Force records; the Air Force need not create a
record in order to respond to a request.
(or) A thorough assessment by the OPR and the computer systems
manager has determined we cannot provide the (electronic record data) in
the format you requested. (If this can be done on a ``business as usual
basis):'' (Paper copies American Standard Code for Information
Interchange (ASCII) files) of the data you requested are attached.
If you interpret this ``o records'' response as an adverse action,
you may appeal it in writing to the Secretary of the Air Force. Your
appeal should be postmarked no later than 60 calendar days from the date
of this letter. Address your letter as follows: Secretary of the Air
Force, Thru: (MAJCOM FOIA Office), (mailing address).
The FOIA provides for the collection of fees based on the costs of
processing a FOIA request and your fee category. We have placed you in
the (enter category) fee category; however, in this case, we have waived
fees. (If paper copies or ASCII files are provided: ) The FOIA provides
for the collection of fees based on the costs of processing a FOIA
request and your fee category. In your case, as a requester in the fee
category of (add appropriate category), we have assessed a charge of
$____ for processing your request. The fee was calculated in the
following manner: (Give a detailed cost breakdown: for example, 15 pages
of reproduction at $0.15 per page; 5 minutes of computer search time at
$43.50 per minute, 2 hours of professional level search at $25 per
hour.) Please make your check payable to (appropriate payee) and send it
to (give your complete mailing address) by (date 30 days after the
letter is signed).
(m) Referral or coordination letters. (These letters are to tell the
requester all or part of the request was referred to another Air Force
organization, to refer or coordinate the request to another federal
government organization, and to advise a nongovernment submitter a FOIA
request was received for information they submitted.)G56
(1) Letter to requester.
(If all or part of a request has been referred, write to the
requester:) Your Freedom of Information Act (FOIA) request dated
Month year, for (summarize the request) received on Month year (date
received), our number , was referred (or) must be coordinated with
(give mailing address of the FOIA office to which you are referring all
or part of the request, the identity of the federal government
organization you are either coordinating with or are referring all or
part of the request to, or that you must coordinate with the
nongovernment submitter of responsive information). (On referrals:) That
office will process (all/part) of your request (describe which part is
being referred if the entire request is not being referred) and they
will respond directly to you. (On coordinations:) That organization has
a significant interest in the records (or) created the records that may
answer to your request. (Before notifying a requester of a referral to
another DoD component or federal agency, consult with them to determine
if their association with the material is exempt. If so, protect the
association and any exempt information without revealing the identity of
the protected activity.) (When a nongovernment submitter is involved:)
The nongovernment submitter of information that may answer your request
needs time to respond to the possible release of information under the
FOIA.
Because we must refer (or) coordinate your request outside our
organization, your request will be delayed. We will determine whether
any records are available; as soon as is practicable, a decision will be
made whether to release or to withhold from disclosure any responsive
records under the FOIA, 5 U.S.C. 552. Your request will be processed as
expeditiously as circumstances permit.
(2) Letter to another government agency.
(If all or part of a request was referred or requires coordination,
write to the government entity): On Month year (date received), our
organization received a Freedom of Information Act (FOIA) request from
(identity of requester), Attachment 1, dated Month year, for
(summarize the request). Based on our assessment of that request, our
number , we need to (refer/coordinate) (all/part) of that request
to you (describe which part is being referred or coordinated, if it was
not the entire request). (Name and phone number of person who agreed to
the
[[Page 24]]
referral or coordination) accepted this referral (or) coordination
action was on (date). We notified the requester of this action (see
Sec. 806.31).
We (do/do not) hold records responsive to this request. (If do hold
is used:) Copies of responsive records located in our files are included
at Attachment 3 to assist you in making your assessment on the
releasability of (our/your) related records. If you need to contact us,
our phone number and address is (give name, phone and complete mailing
address), our fax number is (give fax number), our e-mail address is
(give complete e-mail address).
(3) Letter to submitter of contract-related information.
(If contractor-submitted information is involved, write to the
submitter:) On Month year (date received), our organization received
a Freedom of Information Act (FOIA) request from (identity of
requester), our number , dated Month year, for (summarize the
request). Information you submitted to the Air Force was identified as
responsive to this request, see copies attached.
To determine the releasability of the information contained in these
documents and to give you the maximum protection under the law, please
review the attached documents and give us the information outlined in
Sec. 806.31. If you feel the information is privileged or confidential,
consists of proprietary commercial or financial information, and
otherwise meets the statutory requirements for withholding the
information from release under FOIA exemption 4, 5 U.S.C. 552(b)(4),
respond to us in writing not later than working days from the date of
this letter (usually 30 calendar days). If you object to release of this
information under the FOIA, identify the items, lines, columns or
portions you believe we should withhold from release.
You will also need to provide a written explanation of how release
would adversely impact or cause harm to your competitive position, your
commercial standing, or other legally protected interests. An assertion
that ``we should deny because all of the information was submitted in
confidence'' or ``deny because all of the information was marked as
proprietary in nature'' would not justify withholding of the requested
information under the FOIA. If you need to contact us, call or write
(give name), phone number is (give commercial number), our address is
(give complete mailing address), our fax number is (give fax number),
our e-mail address is (give complete e-mail address).
(4) Letter requesting State Department coordination. (If the State
Department is involved in coordinating on a request, fax or e-mail 11
CS/SCSR so they can inform SAF/IA if appropriate).
On Month year (date received), our organization received a
Freedom of Information Act (FOIA) request from (identity of requester),
our number , dated Month year, for (summarize the request).
Because of the nature of this request, we were advised by (note the
individual and organization who told you to coordinate the request with
the State Department; this may be a MAJCOM or Combatant Command--give
telephone and facsimile numbers if known) we need to coordinate this
request with the Department of State. In accordance with DoD 5400.7-R,
Air Force Supplement, we are informing you of their involvement in this
FOIA request. (Provide any specifics available.) Air Force records are
involved in this action. If you need to contact us, our phone number is
(give commercial and DSN numbers), our address is (give complete mailing
address), our fax number is (give fax number), our e-mail address is
(give complete e-mail address).
(n) Certification of initial classification or declassification
authority (When denying a FOIA request, in whole or in part, because the
information requested is classified, the initial classification
authority, his or her successor, or a declassification authority, needs
to determine if the records are ``properly and currently classified,''
and therefore must be withheld from release under FOIA exemption (b)(1);
also, you need to determine that you cannot release any reasonably
segregable additional portions. Language that certifies such a
determination was made on a FOIA request involving classified records
follows).
(1) Sample certification format--all information remains classified.
I, (rank/grade and name) am the initial classification authority
(or) the successor to the original initial classification authority (or)
the declassification authority for (give an unclassified description of
the records concerned). In consultation with (FOIA office), I have
assessed the FOIA request of (requester's name), our (FOIA
identifier), for records that were properly classified at the time of
their creation and currently remain properly classified in accordance
with Executive Order (E.O.) 12958, National Security Information, (or)
contain information that we have determined is classified in accordance
with E.O. 12958 Section 1.5(__) (or) in accordance with E.O. 12958
Section 1.5(__) and is also exempt from declassification in accordance
with Section 1.6(__) of the E. O. (or if the record is more than 25
[[Page 25]]
years old) contain information that we have determined is exempt from
declassification in accordance with E.O. 12958 Section 3.4(b)(__).
Unauthorized release could cause (for TOP SECRET, use exceptionally
grave; for SECRET use serious; for CONFIDENTIAL do not add language;
should read cause damage) damage to national security. There are no
reasonably segregable portions that we can release. Consequently release
of this information is denied pursuant to 5 U.S.C. 552(b)(1).
Signature
(Date Signed) (Signature Block)
(2) Sample certification format--portions remain classified.
I, (rank/grade and name) am the initial classification authority
(or) the successor to the original initial classification authority (or)
the declassification authority for (give an unclassified description of
the records concerned.) In consultation with (FOIA office), I have
assessed the FOIA request of (requester's name), our (FOIA
identifier), that asked for records, (or) portions of which were
properly classified at the time of their creation. Portions of the
records currently remain properly classified in accordance with E.O.
12958. The bracketed information is currently and properly classified in
accordance with Section 1.5 (add appropriate subparagraph), E.O. 12958,
and is also exempt from declassification in accordance with Section
1.6(__) of the Executive Order (or if the record is more than 25 years
old) contain information that we have determined is exempt from
declassification in accordance with E.O. 12958 Section 3.4(b)(__).
Unauthorized release could cause (for TOP SECRET use exceptionally
grave; for SECRET use serious; for CONFIDENTIAL do not add language;
should read cause damage) damage to national security. There are no
other reasonably segregable portions that we can release. Consequently
this information is denied pursuant to 5 U.S.C. 552(b)(1).
Signature
(Date Signed) (Signature Block)
(o) Letter to a requester who has withdrawn their request or appeal.
(If a FOIA requester has withdrawn a FOIA request or appeal, sending a
final letter to the requester to close the file may be wise. Suggested
language to the requester follows):
We received your Freedom of Information Act (FOIA) request (or)
appeal dated Month year, on Month year (date received). After
sending us your request (or) appeal, you indicated by (facsimile,
letter) that you wished to withdraw your request (or) appeal. We have,
therefore, closed your file without further action.
(p) Letter to a requester who has appealed after the 60-day
deadline. (We will not process FOIA appeals received after the 60-day
time limit, unless the requester provides adequate justification for
failing to comply. If you receive a late appeal, and it gives inadequate
justification for failing to comply, the FOIA office will advise the
requester their appeal was closed; suggested language for a letter to an
untimely requester follows.)
We received your Freedom of Information Act (FOIA) appeal dated
Month year, on Month year (date received). You did not appeal within
60 days of the postmarked date of our denial letter as outlined in our
agency regulation. Therefore, we are closing our file.
(q) Letter to a requester who has appealed. (There are occasions
when, on reconsideration, an IDA grants all or part of an appeal. When
sending their appeal to higher headquarters, notify the requester.
Suggested language to a requester who has appealed follows):
We received your Freedom of Information Act (FOIA) appeal, our
number , dated Month year, on Month year (date received). We
considered the issues raised in your appeal carefully. We have decided
to grant (or) partially grant your appeal.
(If you grant all or part of the appeal): Upon reconsideration, we
are releasing the requested records (or) granting your request. (If the
appeal is only partially granted, describe what portions remain in
dispute). (If applicable): We are releasing and attaching all or
portions of the responsive records. (If applicable): We will continue
processing your appeal for the remaining withheld (records/information).
Sec. 806.28 Records with special disclosure procedures.
Certain records have special administrative procedures to follow
before disclosure. Selected publications that contain such guidance are
listed below.
(a) AFI 16-701, Special Access Programs.
(b) AFI 31-206, Security Police Investigations.
(c) AFI 31-501, Personnel Security Program Management.
(d) AFI 31-601, Industrial Security Program Management.
[[Page 26]]
(e) AFI 36-2603, Air Force Board for Correction of Military Records.
(f) AFI 36-2706, Military Equal Opportunity and Treatment Program.
(g) AFI 36-2906, Personal Financial Responsibility.
(h) AFI 36-2907, Unfavorable Information File (UIF) Program.
(i) AFI 40-301, Family Advocacy.
(j) AFI 41-210, Patient Administration Functions.
(k) AFI 44-109, Mental Health and Military Law.
(l) AFI 51-201, Administration of Military Justice.
(m) AFI 51-301, Civil Litigation.
(n) AFI 51-303, Intellectual Property-Patents, Patent Related Matters,
Trademarks, and Copyrights.
(o) AFI 51-501, Tort Claims.
(p) AFI 51-503, Aircraft, Missile, Nuclear and Space Accident
Investigations.
(q) AFI 51-504, Legal Assistance, Notary and Preventive Law Programs.
(r) AFI 51-1102, Cooperation with the Office of the Special Counsel.
(s) AFI 61-204, Disseminating Scientific and Technical Information.
(t) AFI 61-303, Licensing Inventions Made Under Cooperative Research and
Development Agreements.
(u) AFI 71-101, Volume 1, Criminal Investigations, and Volume 2,
Protective Service Matters.
(v) AFI 84-101, Historical Products, Services, and Requirements.
(w) AFI 90-301, Inspector General Complaints.
(x) AFI 91-204, Safety Investigations and Reports.
Sec. 806.29 Administrative processing of Air Force FOIA requests.
(a) This section is a checklist format of processing steps and
explanations of Air Force and DoD guidance. Each MAJCOM may elect to
prepare its own checklists to tailor FOIA processing actions within its
own organizations to meet their specific needs, so long as it remains
consistent with guidance contained in DoD 5400.7-R, DoD Freedom of
Information Act Program, and this part.
(b) Procedures: FOIA requests.
(1) Note the date the request was received, give the request a
unique identifier/number, and log the request.
(2) Assess the request to determine initial processing requirements:
(3) Determine what Air Force elements may hold responsive records.
(i) Are responsive records kept at the same or different
installations?
(ii) Is referral of (all/part) of the request required?
(4) Determine appropriate processing track (simple/complex/
expedited). (Air Force FOIA offices without backlogs do not multitrack
FOIA requests.)
Note: Requesters have a right to appeal an adverse tracking decision
(for example, when it is determined their request will not be
expedited). Also, if their request qualifies for the complex track, tell
requesters so they may limit the scope of their request in order to
qualify for the simple track. FOIA managers must assess a request before
placing it into a specific processing track, and must support their
actions should the requester appeal. If a request is determined to be
complex, or is not expedited when the requester sought expedited
processing, you must advise the requester of the adverse tracking
decision in writing. See Sec. 806.27 for sample language for this kind
of letter to a requester.
(i) Simple. Defines a request that can be processed quickly, with
limited impact on the responding units. The request clearly identifies
the records, involves no (or few) complicating factors (e.g., there are
few or no responsive records, involves only one installation and there
are no outside OPRs, involves no classified records (Exemption 1), a law
exempts the responsive records from disclosure (Exemption 3), no
contractor-submitted records (Exemption 4), no deliberative process/
privileged materials (Exemption 5), records contain no (or limited)
personal privacy information/did not come from Privacy Act systems of
records concerning other individuals (Exemption 6), release of records
would have minimal impact on law enforcement (Exemption 7); no time
extensions expected, other than the additional 10-workdays allowed in
situations outlined in the FOIA). If the requested data must come from
electronic records, response can be completed on a ``business-as-usual''
basis; requires no (or limited) reprogramming of automated information
systems and would cause no significant interference with operation of
information systems by processing a simple request/providing a
[[Page 27]]
response in the electronic format requested.
(ii) Complex. Defines a request whose processing will take
substantial time, will cause significant impact on responding units.
Complications and delays are likely (e.g., the request is vague (poor
description of records, unclear who or when records were created),
records are massive in volume, multiple organizations will receive
tasking, records are classified (Exemption 1), records came from another
command/service/a nongovernment source (Exemption 4), records are part
of the Air Force's decision-making process, and not incorporated into a
final decision (IG/audit reports, legal opinions, misconduct or mishap
investigations etc.) or are attorney-client records (Exemption 5),
records are largely personal information on another individual or came
from Privacy Act systems of records (Exemption 6), records describe law
enforcement activities or information from (and/or identities of)
confidential sources (Exemption 7); response cannot be completed on a
``business as usual'' basis and would require extensive reprogramming or
cause significant interference with operation of the automated
information systems. (Advise requester, in writing, of right to limit
the scope of their request in order to qualify for simple track.)
(iii) An expedited request is when a requester asks for expedited
processing and explains the compelling need (imminent threat to life or
physical safety; urgently needed by a person primarily engaged in
disseminating information; due process; or humanitarian need) for the
requested information. In order to receive expedited processing,
requesters must provide a statement certifying their ``demonstration''
(description) of their specific ``compelling need'' or due process/
humanitarian need is true and correct to the best of their knowledge.
When a requester seeks expedited processing, FOIA offices must respond
in writing to the requester within 10 calendar days after receipt of the
request approving or denying their request for expedited processing.
Requesters have a right to appeal an adverse decision (e.g., when it is
determined their requests will not be expedited). There are four
categories of FOIA requests that qualify for expedited processing:
(A) The requester asserts a ``compelling need'' for the records,
because a failure to obtain records quickly could reasonably be expected
to pose an imminent threat to the life or physical safety of an
individual.
(B) The requester asserts a ``compelling need'' for the records,
because the information is ``urgently needed'' by an individual engaged
in disseminating information to inform the public (primarily news media
requesters; and could also include other persons with the ability to
disseminate information).
Note: ``Urgently needed,'' in this case, means the information has a
particular value that will be lost if it is not disseminated quickly.
This normally would apply to a breaking news story of general public
interest. Information of historical interest only, or sought for
litigation or commercial activities would not qualify, nor would the
fact a news media entity had an internal broadcast deadline of its own,
which was unrelated to the ``news breaking nature'' of the information
itself, cause the requested information to qualify as ``urgently
needed.''
(C) Failure to obtain records quickly could cause imminent loss of
substantial due process rights or providing the information quickly
would serve a ``humanitarian need'' (i.e., disclosing the information
will promote the welfare and interests of mankind). While FOIA requests
falling into these third and fourth categories can qualify for expedited
processing, process them in the expedited track behind the requests
qualifying for expedited processing based on ``compelling need'' (the
first two types of expedited FOIA requests).
(5) Determine fee category of requester (commercial/educational---
noncommercial scientific institution--news media/all others) and assess
fee issues. When all assessable costs are $15.00 or less, waive fees
automatically for all categories of requesters. Assess other fee waiver
or reduction requests on a case-by-case basis.
(6) Apply fee waiver/fee reduction criteria in appropriate cases
(when requester asks for fee waiver/reduction).
(7) Find the responsive Air Force records (if any).
[[Page 28]]
(i) Send the request to the appropriate OPRs to search for
responsive records and to decide whether to recommend release of any
responsive records. Include a DD Form 2086, Record of Freedom of
Information (FOI), or a DD Form 2086-1, Record of Freedom of Information
(FOI) Processing Cost for Technical Data, in each request. The OPR must
complete and return the appropriate forms and statements to the FOIA
office.
(ii) If the OPRs find no responsive records, or if the OPRs desire
to withhold any responsive records from release to the requester, the
OPRs must provide a written certificate detailing either their
unsuccessful search, or their reasons why the documents should be
withheld from release under the FOIA; the written OPR statements must
accompany the copies of the records the OPR desires to withhold as the
FOIA action is processed (e.g., include it in any denial or appeal
file).
Note: If any part of a FOIA request is denied, and the requester
appeals that denial, include all forms, certificates and documents
prepared by the OPRs in the FOIA appeal package required in paragraph
(d)(5) of this section.
(c) Contacts with FOIA requesters and non-Air Force submitters of
data.
(1) Contacts with Air Force elements. A FOIA request is considered
``received'' (and therefore ready to process) when the FOIA office
responsible for processing the request physically receives it, when the
requester states a willingness to pay fees set for the appropriate fee
category, or, if applicable, when the requester has paid any past FOIA
debts and has reasonably described the requested records. Keep hard/
paper copies of all memoranda documenting requester contacts with Air
Force elements regarding a pending FOIA request in the requester's FOIA
file. If the requester contacts Air Force elements telephonically about
a pending FOIA request, the Air Force member participating in the
conversation must prepare notes or memorandums for record (MFR), and
keep those notes or MFRs in the requester's FOIA file. If any part of a
FOIA request is denied, and the requester appeals that denial, submit
documentation of requester contacts with Air Force elements in
chronological order in the FOIA appeal package (see paragraph (d)(1) of
this section).
(2) Contacts with the FOIA Requester. See Sec. 806.27 for samples of
language to use in various types of Air Force FOIA letters. If any part
of a FOIA request is denied, and the requester appeals that denial,
submit documents sent by Air Force elements to the requester in the FOIA
appeal package in chronological order (see paragraph (d)(5) of this
section). Letters that Air Force FOIA offices may need to send to a FOIA
requester include:
(i) An initial notification letter that the FOIA request was
received. This letter may advise the requester that processing of the
FOIA request may be delayed because:
(A) All or part of the requested records are not located at the
installation processing the FOIA request (see Sec. 806.29(c)(2)(ii)).
(B) An enormous number of records must be collected and reviewed.
(C) Other Air Force activities or other agencies, to include (if
applicable) the nongovernment submitter of information, need to be
involved in deciding whether or not to release the records.
(D) If you cannot complete processing of a FOIA request within 20
workdays, advise the requester of the reasons for the delay and give a
date (within 30 workdays after receiving the request) when the requester
can expect a final decision.
(ii) The initial notification letter may advise the requester all/
part of the request was referred to another Air Force element or
government activity.
(iii) The initial notification letter may advise the requester of
the appropriate fee category. In cases where fees are appropriate, and
requesters have not agreed to pay for responsive records and fees are
likely to be more than $15.00, seek assurances that the requester agrees
to pay appropriate fees. If more information is needed to make a fee
category determination, or to determine whether fees should be waived/
reduced, inform the requester. FOIA offices may determine fee waiver/
reduction requests before processing a FOIA request; if a fee waiver/
reduction
[[Page 29]]
request is denied, the requester may appeal that denial; he/she may also
appeal an adverse fee category determination (e.g., asked for news media
fees, but was assessed commercial fees.)
(iv) The initial notification letter may advise the requester the
request does not sufficiently describe the desired records. If possible,
help the requester identify the requested records by explaining what
kind of information would make searching for responsive records easier.
(v) If Air Force elements can complete a FOIA request within the
statutory 20-workday processing period, you may elect to send only a
single letter to the requester, along with responsive records that are
released to the requester in full.
(vi) A letter to the requester that the responding FOIA office uses
multitrack processing due to a significant number of pending requests
that prevents a response determination from being made within 20
workdays. This letter advises the FOIA requester that track the request
is in (simple/complex); in this letter, if expedited processing was
requested, the requester is advised if the request will be expedited or
not. If the request is found to be complex, you must advise the
requester he/she may alter the FOIA request to simplify processing. If
it is determined the request will not be expedited, the requester must
be told he/she can appeal. (This may be the initial letter to the
requester, for Air Force elements with multitrack processing; if that is
the case, this letter may include sections discussed in
Sec. 806.29(c)(2)(i)).
(vii) Subsequent letters to the requester on various subjects (for
example, releasing requested records; advising reasons for delays;
responding to the letters, facsimiles or calls; advising the requester
of referrals to other Air Force units or government activities; involves
a non-Air Force submitter, etc.).
(viii) A release letter to the requester, forwarding releasable
responsive records with a bill (if appropriate).
(ix) A ``no records'' response letter to the requester if there are
no responsive records, or, a denial letter, if any responsive records
are withheld from release. FOIA managers may sign ``no records'' or
``requested format not available'' responses; they may also sign a
letter that advises a requester the fee category sought was not
determined to be appropriate, or that a fee waiver/fee reduction request
was disapproved, or that a request for expedited processing has been
denied. An IDA must sign any letter or document withholding responsive
records. When denying records, you must tell the requester, in writing:
the name and title or position of the official who made the denial
determination, the basis for the denial in enough detail to permit the
requester to make a decision concerning appeal, and the FOIA exemptions
on which the denial is based. The denial letter must include a brief
statement describing what the exemptions cover. When the initial denial
is based (in whole or in part) on a security classification, this
explanation should include a summary of the applicable executive order
criteria for classification, as well as an explanation of how those
criteria apply to the particular record in question. Estimate the volume
of the records denied and provide this estimate to the requester, unless
providing such an estimate would harm an interest protected by an
exemption of the FOIA. This estimate should be in number of pages or,
for records in other media, in some other reasonable form of estimation,
unless the volume is otherwise indicated through deletions on records
disclosed in part. Indicate the size and location of the redactions on
the records released. You must also tell the requester how he/she can
appeal the denial.
(3) Contacts with non-Air Force submitters of data. Before releasing
data (information or records) submitted from outside the Air Force,
determine whether you need to write to the submitter of the data for
their views on releasability of their data. In many cases, this non-Air
Force data may fall under FOIA Exemption 4. If it appears you must
contact the submitter of the data, advise the requester in writing that
you must give the submitter of the data the opportunity to comment
before the Air Force decides whether to release the information. Give
the submitter a reasonable period of time (30
[[Page 30]]
calendar days) to object to release and provide justification for
withholding the documents. If the submitter does not respond, advise the
submitter in writing that you have not received a reply and plan to
release the records. Provide the submitter with the reasons the Air
Force will release the records, and give the submitter your expected
release date (at least 2 weeks from the date of your letter). This
permits the submitter time to seek a temporary restraining order (TRO)
in federal court, if they can convince the judge to issue such an order.
See Sec. 806.27 for samples of language to use in Air Force letters to
both the FOIA requester and nongovernment submitters. Remember to
include a copy of Sec. 806.31 as an attachment to the letter sent to the
nongovernment submitter.
(i) The notice requirements of this section need not be followed if
the Air Force determines that the information should not be disclosed,
the information has been lawfully published or officially made available
to the public, or disclosure of the information is required by law.
(ii) If the submitter objects to release of the records, but the Air
Force disclosure authority considers the records releasable, tell the
submitter before releasing the data. Include in the letter to the
submitter a brief explanation and a specific release date at least 2
weeks from the date of the letter. Advise the submitter once a
determination is made that release of the data is required under the
FOIA, failure to oppose the proposed release will lead to release of
submitted data. Also advise the requester such a release under the FOIA
will result in the released information entering the public domain, and
that subsequent requests for the same information will be answered
without any formal coordination between the Air Force and the submitter,
unless the information is later amended, changed, or modified. A person
equal to, or higher in rank than, the denial authority makes the final
decision to disclose responsive records over the submitter's objection.
(iii) When a previously released contract document has been
modified, any contract documents not in existence at the time of an
earlier FOIA request that are responsive to a later FOIA request for the
same contract, will be processed as a first-time FOIA request for those
newly created documents. Notify the nongovernment submitter of the
pending FOIA action, and give them the same opportunity to respond as is
detailed above. Passage of a significant period of time since the prior
FOIA release can also require Air Force elements to comply with the
notice requirements in this paragraph.
(d) Denying all or part of a request. When responsive records are
withheld from release (denied), the appropriate offices must prepare a
denial package for the IDA. Air Force elements must send the request,
related documents, and responsive records through their IDA's FOIA
office to the IDA for a decision. The denial package must include:
(1) The FOIA request and any modifications by the requester.
(2) A copy of the responsive records, including both records that
may be released and records recommended for denial.
(3) Written recommendations from the OPRs and an Air Force attorney.
(4) The exemptions cited and a discussion of how the records qualify
for withholding under the FOIA. This discussion should also include the
reasons for denial: to deny release of responsive records requested
under the FOIA, you must determine that disclosure of the records would
result in a foreseeable harm to an interest protected by a FOIA
exemption (or exemptions), that the record is exempt from release under
one or more of the exemptions of the FOIA, and that a discretionary
release is not appropriate.
(5) Any collateral documents that relate to the requested records.
For example:
(i) If the requested records came from a non-Air Force or non-U.S.
Federal Government submitter, include any documents from the submitter
that relate to the release or denial of the requested records. If you
are not sure whether or not the non-Air Force or non-U.S. Federal
Government submitted information is potentially exempt from release
under the FOIA, contact an Air Force attorney. FOIA Exemptions 3, 4, 5,
6, and 7 may apply.
[[Page 31]]
(ii) If the requested records came from Privacy Act systems of
records, include a written discussion of any Privacy Act issues.
(iii) If any requested records came from another Air Force element,
or release of the requested records would affect another Air Force
element, FOIA offices should coordinate with that other element. If the
FOIA request is not completely referred to the other element, include
documents from that element.
(iv) If any requested records are classified, include a written
certification from a classification authority or declassification
authority stating the data was properly classified originally, that it
remains properly classified (per E.O. 12958), and, if applicable, that
no reasonably segregable portions can be released.
(e) FOIA appeal actions.
(1) If an IDA, or a FOIA office responding on behalf of an IDA,
withholds a record from release because they determine the record is
exempt under one or more of the exemptions to the FOIA, the requester
may appeal that decision, in writing, to the Secretary of the Air Force.
The appeal should be accompanied by a copy of the denial letter. FOIA
appeals should be postmarked within 60 calendar days after the date of
the denial letter, and should contain the reasons the requester
disagrees with the initial denial. Late appeals may be rejected, either
by the element initially processing the FOIA appeal, or by subsequent
denial authorities, if the requester does not provide adequate
justification for the delay. Appeal procedures also apply to the denial
of a fee category claim by a requester, denial of a request for waiver
or reduction of fees, disputes regarding fee estimates, review on an
expedited basis of a determination not to grant expedited access to
agency records, and for ``no record'' or ``requested format not
available'' determinations when the requester considers such responses
adverse in nature.
(2) Coordinate appeals with an Air Force attorney (and the OPR, if
appropriate) so they can consider factual and legal arguments raised in
the appeal, and can prepare written assessments of issues raised in the
appeal to assist the IDA in considering the appeal. MAJCOM FOIA offices
and 11 CS/SCSR (for OPRs at HQ USAF and SAF), send all appeals to the
Secretary of the Air Force through AFLSA/JACL for consideration, unless
the IDA has reconsidered the initial denial action, and granted the
appeal.
(3) If a requester appeals a ``no records'' determination,
organizations must search again or verify the adequacy of their first
search (for example, if a second search would be fruitless, the
organization may include a signed statement from either the records OPR
or the MAJCOM FOIA manager detailing why another search was not
practical). The appeal package must include documents (to include a
certification from the records OPR) that show how the organization tried
to find responsive records. In the event a requester sues the Air Force
to contest a determination that no responsive records exist, formal
affidavits will be required to support the adequacy of any searches
conducted.
(4) General administrative matters. FOIA requesters may ultimately
sue the Air Force in federal court if they are dissatisfied with adverse
determinations. In these suits, the contents of the administrative
appeal file are evaluated to determine whether the Air Force complied
with the FOIA and its own guidance. Improper or inadequate appeal files
make defending these cases problematic. Include all the documents
related to the requester's FOIA action in the appeal file. If appeal
file documents are sensitive, or are classified up to the SECRET level,
send them separately to AFLSA/JACL, 1501 Wilson Boulevard, 7th Floor,
Arlington, VA 22209-2403. Make separate arrangements with AFLSA/JACL for
processing classified appeal file documents TOP SECRET or higher. Cover
letters on appeal packages need to list all attachments. If a FOIA
action is complicated, a chronology of events helps reviewers understand
what happened in the course of the request and appeal. If an appeal file
does not include documentation described below, include a blank sheet in
proper place and mark as ``not applicable,'' ``N/A,'' or ``not used.''
Do not renumber and
[[Page 32]]
move the other items up. If any part of the requester's appeal is
denied, the appeal package must include a signed statement by the IDA,
demonstrating the IDA considered and rejected the requester's arguments,
and the basis for that decision. This may be a separate memorandum, an
endorsement on a legal opinion or OPR opinion, or the cover letter which
forwards the appeal for final determination. Include in the cover letter
forwarding the appeal to the Secretary of the Air Force the name, phone
number and e-mail address (if any) of the person to contact about the
appeal. The order and contents of appeal file attachments follow.
(i) The original appeal letter and envelope.
(ii) The initial FOIA request, any modifications of the request by
the requester or any other communications from the requester, in
chronological order.
(iii) The denial letter.
(iv) Copies of all records already released. (An index of released
documents may be helpful, if there are a number of items. If the records
released are ``massive'' (which means ``several cubic feet'') and AFLSA/
JACL agrees, an index or description of the records may be provided in
place of the released records. Do not send appeal files without copies
of released records without the express agreement of AFLSA/JACL. Usually
AFLSA/JACL requires all the released records in appeal files. If you do
not send the released records to AFLSA/JACL when a FOIA requester has
appealed a partial denial, retain a copy of what was released for 6
years.)
(v) Copies of all administrative processing documents, including
extension letters, search descriptions, and initial OPR recommendations
about the request, in chronological order.
(vi) Copies of the denied records or portions marked to show what
was withheld. If your organization uses a single set of highlighted
records (to show items redacted from records released to the requester),
ensure the records are legible and insert a page in the appropriate
place stating where the records are located. (An index of denied
documents may be helpful, if there are a number of items. If the records
denied are ``massive'' (which means ``several cubic feet'') and AFLSA/
JACL agrees, an index or description of the records may be provided in
place of the denied records. Do not send appeal files without copies of
denied records without the express agreement of AFLSA/JACL. Usually
AFLSA/JACL requires all the denied records in appeal files. If you do
not send the denied records to AFLSA/JACL, when a FOIA requester has
appealed a denial, retain a copy of what was denied for 6 years.)
(vii) All legal opinions in chronological order. Include a point-by-
point discussion of factual and legal arguments in the requester's
appeal (prepared by an Air Force attorney and/or the OPR). If the IDA
does not state in the cover letter he/she signed, that he/she considered
and rejected the requester's arguments, asserting the basis for that
decision (e.g., the IDA concurs in the legal and/or OPR assessments of
the requester's arguments) include a signed, written statement
containing the same information from the IDA, either as a separate
document or an endorsement to a legal or OPR assessment. Include any
explanation of the decision-making process for intra-agency documents
denied under the deliberative process privilege and how the denied
material fits into that process (if applicable).
Sec. 806.30 FOIA exempt information examples.
(a) Certain responsive records may contain parts that are
releasable, along with other parts that the Air Force must withhold from
release. Carefully delete information exempt from release under the FOIA
from copies of otherwise releasable records. Do not release copies that
would permit the requester to ``read through the marking.'' In order to
assist FOIA managers in redacting records, selected items appropriate to
withhold in commonly requested Air Force records are illustrated below.
When providing releasable portions from classified paragraphs, line
through and do not delete, the classification marking preceding the
paragraph.
(b) Exemption 1. Example used is an extract from a ``simulated''
contingency plan (all information below is
[[Page 33]]
fictional and UNCLASSIFIED; parenthetical information and marking is
used for illustrative purposes only).
(U) Air Force members will safeguard all FELLOW YELLOW data (NOTE:
FELLOW YELLOW simulates an UNCLASSIFIED code name).
During the contingency deployment in Shambala, those members
assigned to force element FELLOW YELLOW will cover their movements by
employing specified camouflage and concealment activities while behind
enemy lines. Only secure communications of limited duration as specified
in the communications annex will be employed until FELLOW YELLOW
personnel return to base. (Exemption 1)
(c) Exemption 2. Example used is an extract from a ``simulated''
test administration guide (all information below is fictional and is
used for illustrative purposes only).
When administering the test to determine which technicians are
ranked fully qualified, make sure to allow only the time specified in HQ
AETC Pamphlet XYZ, which the technicians were permitted to review as
part of their test preparation. For ease in scoring this exam, correct
answers are A, A, B, B, A, B, C, C, A, B, D, D, C, C, C, D; the
corresponding template for marking the standard answer sheet is kept
locked up at all times when not in use to grade answer sheets.
(Exemption ``high'' 2)
(d) Exemption 5. Example used is a simulated IG Report of
Investigation (ROI) recommendation. All parenthetical information in
this example is fictional and is used for illustrative purposes only:
Having interviewed the appropriate personnel and having reviewed the
appropriate documents, I recommend additional training sessions for all
branch personnel on accepted Air Force standards, and the Air Force
pursue administrative or judicial disciplinary action with respect to
Terry Hardcase. (Exemption 5)
(e) Exemption 6. Example used is a simulated personnel computer
report on a military member selected for a special assignment (all
information below is fictional; information and marking is used for
illustrative purposes only.):
SSgt Doe, Kerry E. SSN: 111-11-1112 Date of Birth: 22
Jun 71
Duty Title: Special Assistant to Office Symbol: ..................
CINCPAC CINCPAC/CCSA
Duty Station: Hickam AFB HI Date Assigned: 12
11111-1111 June 1998
Marital Status: Divorced Dependents: 01 Home Address: 12
Anystreet,
Downtown ST 11112
Home Phone: (112) 223-3344
(Exemption 6)
------------------------------------------------------------------------
(f) Exemption 7. Example used is summary of a law enforcement report
on a domestic disturbance at on-base family housing (all information
below is fictional and all parenthetical information is used for
illustrative purposes only):
At 2140, the law enforcement desk, extension 222-3456, took an
anonymous call that reported a disturbance at 1234 Basestreet, quarters
allegedly occupied by two military members. SrA Patrolman (names of law
enforcement investigators usually are withheld under Exemptions 6 and
7(C)) arrived on the scene at 2155. SrA Patrolman met Nora Neighbor,
(names of witnesses usually are withheld under Exemptions 6 and 7(C))
who was very agitated. Because she feared her neighbors would retaliate
against her if they knew she reported their fight, she asked that her
name not be released before she would talk. After she was promised her
identity would remain anonymous, she stated: (Nora Neighbor became a
confidential informant; data that could identify her, and in some cases,
the information she related, should be withheld from release under
Exemptions 6, 7(C) and (D).) ``I heard cursing and heard furniture and
dishes breaking. They fight all the time. I've seen Betty Battle (unless
Betty is the requester, redact her name Exemptions 6 and 7(C)) with a
black eye, and I also saw Bob Battle (unless Bob is the requester,
redact his name Exemptions 6 and 7(C)) with bruises the day after they
had their last fight, last Saturday night. This time, there was a
tremendous crash; I heard a man scream ``My Lord NO!'' then I saw Betty
Battle come out of the house with dark stains on her clothes--she got
into her car and drove away. I could see this really well, because the
streetlight is right between our houses; I'm the wife of their NCOIC. If
only Nick, my husband, was here now, he'd know what to do! I haven't
heard anything from Bob Battle.'' (Exemptions 6 and 7)
[[Page 34]]
Sec. 806.31 Requirements of 5 U.S.C. 552(b)(4) to submitters of nongovernment contract-related information.
(a) The FOIA requires federal agencies to provide their records,
except those specifically exempted, for the public to inspect and copy.
Section (b) of the Act lists nine exemptions that are the only basis for
withholding records from the public.
(b) In this case, the fourth exemption, 5 U.S.C. 552(b)(4), may
apply to records or information the Air Force maintains. Under this
exemption, agencies must withhold trade secrets and commercial or
financial information they obtained from a person or organization
outside the government that is privileged or confidential. This
generally includes information provided and received during the
contracting process with the understanding that the Air Force will keep
it privileged or confidential.
(c) Commercial or financial matter is ``confidential'' and exempt if
its release will probably:
(1) Impair the government's ability to obtain necessary information
in the future.
(2) Substantially harm the source's competitive position or impair
some other legitimate government interest such as compliance and program
effectiveness.
(d) Applicability of exemption. The exemption may be used to protect
information provided by a nongovernment submitter when public disclosure
will probably cause substantial harm to its competitive position.
Examples of information that may qualify for this exemption include:
(1) Commercial or financial information received in confidence with
loans, bids, contracts, or proposals, as well as other information
received in confidence or privileged, such as trade secrets, inventions,
discoveries, or other proprietary data.
Note: Certain proprietary and source selection information may also
fall under exemption (b)(3), under the provisions of 10 U.S.C. 2305(g)
or 41 U.S.C. 423, if statutory requirements are met.
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, offered and received in confidence from a contractor or
potential contractor.
(3) Personal statements given during inspections, investigations, or
audits, received and kept in confidence because they reveal trade
secrets or commercial or financial information, normally considered
confidential or privileged.
(4) Financial data that private employers give in confidence for
local wage surveys used to set and adjust pay schedules for the
prevailing wage rate of DoD employees.
(5) Information about scientific and manufacturing processes or
developments that is technical or scientific or other information
submitted with a research grant application, or with a report while
research is in progress.
(6) Technical or scientific data a contractor or subcontractor
develops entirely at private expense, and technical or scientific data
developed partly with Federal funds and partly with private funds, in
which the contractor or subcontractor retains legitimate proprietary
interests per 10 U.S.C. 2320 to 2321 and 48 CFR, Chapter 2, 227.71-
227.72.
(7) Computer software copyrighted under the Copyright Act of 1976
(17 U.S.C. 106), the disclosure of which would adversely impact its
potential market value.
(e) Submitter's Written Response. If release of the requested
material would prejudice your commercial interests, give detailed
written reasons that identify the specific information and the
competitive harm public release will cause to you, your organization, or
your business. The act requires the Air Force to provide any reasonably
segregable part of a record after deleting exempt portions. If deleting
key words or phrases would adequately protect your interests, advise us
in writing which portions you believe we can safely release, and which
portions you believe we need to withhold from release. If you do not
provide details on the probability of substantial harm to your
competitive position or other commercial interests, which would be
caused by releasing your material to the requester, we may be required
to release the information. Records qualify for protection on a case by
case basis.
[[Page 35]]
(f) Pricing Information. Generally, the prices a contractor charges
the government for goods or services would be released under the FOIA.
Examples of releasable data include: bids submitted in response to an
invitation for bids (IFB), amounts actually paid by the government under
a contract, and line item prices, contract award price, and
modifications to a contract. Unit prices contained in a contract award
are considered releasable as part of the post award notification
procedure prescribed by 48 CFR 15.503, unless they are part of an
unsuccessful proposal, then 10 U.S.C. 2305(g) protects everything
including unit price.
Appendix A to Part 806--References
Title 5, United States Code, Section 552, The Freedom of Information
Act, as amended
Title 5, United States Code, Section 552a, The Privacy Act (as amended)
Title 10, United States Code, Section 2305(g), Prohibition on Release of
Contractor Proposals
Title 48, Code of Federal Regulations (CFR), Federal Acquisition
Regulations (FAR) System
OMB Bulletin 95-01, 7 December 1994
OMB Memorandum, 6 February 1998
DoD 5200.1-R, Information Security Program, January 1997
AFI 16-701, Special Access Programs
AFI 31-206, Security Police Investigations
AFI 31-401, Information Security Program Management
AFI 31-501, Personnel Security Program Management
AFI 31-601, Industrial Security Program Management
AFI 33-129, Transmission of Information Via the Internet
AFI 35-205, Air Force Security and Policy Review Program
AFI 36-2603, Air Force Board for Correction of Military Records
AFI 36-2706, Military Equal Opportunity and Treatment Program
AFI 36-2906, Personal Financial Responsibility
AFI 36-2907, Unfavorable Information File (UIF) Program
AFPD 37-1, Air Force Information Management (will convert to AFPD 33-3)
AFI 37-124, The Information Collections and Reports Management Program;
Controlling Internal, Public, and Interagency Air Force Information
Collections (will convert to AFI 33-324)
AFI 37-132, Air Force Privacy Act Program (will convert to AFI 33-332)
AFMAN 37-139, Records Disposition Schedule (will convert to AFMAN 33-
339)
AFI 40-301, Family Advocacy
AFI 41-210, Patient Administration Functions
AFI 44-109, Mental Health and Military Law
AFI 51-201, Administration of Military Justice
AFI 51-301, Civil Litigation
AFI 51-303, Intellectual Property-Patents, Patent Related Matters,
Trademarks, and Copyrights
AFI 51-501, Tort Claims
AFI 51-503, Aircraft, Missile, Nuclear and Space Accident Investigations
AFI 51-504, Legal Assistance, Notary and Preventive Law Programs
AFI 51-1102, Cooperation with the Office of the Special Counsel
AFI 61-204, Disseminating Scientific and Technical Information
AFI 61-303, Licensing Inventions Made Under Cooperative Research and
Development Agreements
AFI 65-401, Relations With the General Accounting Office
AFI 71-101, Volume 1, Criminal Investigations
AFI 71-101, Volume 2, Protective Service Matters
AFI 84-101, Historical Products, Services, and Requirements
AFI 90-301, Inspector General Complaints
AFI 90-401, Air Force Relations With Congress
AFI 91-204, Safety Investigations and Reports
Appendix B to Part 806--Abbreviations and Acronyms
AFCA--Air Force Communications Agency
AFCIC--Air Force Communications and Information Center
AFRC--Air Force Reserve Command
AFI--Air Force Instruction
AFLSA/JACL--Air Force Legal Services Agency, General Litigation Division
AFMAN--Air Force Manual
AFPC/MSIMD--Air Force Personnel Center/Records Management, FOIA, and
Privacy Act Office
AFPD--Air Force Policy Directive
ANG--Air National Guard
ASCII--American Standard Code for Information Interchange
CFR--Code of Federal Regulations
DFAS--Defense Finance and Accounting Service
DFOISR--Director, Freedom of Information and Security Review
DoD--Department of Defense
DRU--Direct Reporting Unit
EFOIA--Electronic Freedom of Information Act
ERR--Electronic Reading Room
FOA--Field Operating Agency
FOIA--Freedom of Information Act
FOUO--For Official Use Only
[[Page 36]]
GAO--General Accounting Office
GILS--Government Information Locator Service
GPO--Government Printing Office
IDA--Initial Denial Authority
IG--Inspector General
IMPAC--International Merchant Purchase Authority Card
LOA--Letters of Offer and Acceptance
MAJCOM--Major Command
MFR--Memorandum for Record
NATO--North Atlantic Treaty Organization
NORAD--North American Aerospace Defense
NTIS--National Technical Information Service
OCR--Office of Corollary Responsibility
OMB--Office of Management and Budget
OPR--Office of Primary Responsibility
PA--Privacy Act
PAO--Public Affairs Office
PAS--Personnel Accounting Symbol
RCS--Reports Control Symbol
SAF--Secretary of the Air Force
SSN--Social Security Number
USAF--United States Air Force
U.S.C.--United States Code
WWW--World Wide Web
Appendix C To Part 806--Terms
Appellate Authority--The Office of the General Counsel to the Secretary
of the Air Force (SAF/GCA).
Denial--An adverse determination on no records, fees, expedited access,
or not disclosing records.
Determination--The written decision to release or deny records or
information that is responsive to a request.
Disclosure--Providing access to, or one copy of, a record.
Disclosure Authority--Official authorized to release records, normally
division chiefs or higher.
FOIA Manager--The person who manages the FOIA Program at each
organizational level.
FOIA Request--A written request for DoD records from the public that
cites or implies the FOIA.
Functional Request--Any request for records from the public that does
not cite the FOIA.
Government Information Locator Service (GILS)--An automated on-line card
catalog of publicly accessible information.
Glomar Response--A reply that neither confirms nor denies the existence
or nonexistence of the requested record.
Initial Denial Authority (IDA)--Persons in authorized positions that may
withhold records.
Partial Denial--A decision to withhold part of a requested record.
Public Interest--The interest in obtaining official information that
sheds light on how an agency performs its statutory duties and informs
citizens about what their government is doing.
Reading Room--A place where the public may inspect and copy, or have
copied, releasable records.
Records--The products of data compilation, such as all books, papers,
maps, and photographs, machine readable materials inclusive of those in
electronic form or format, or other documentary materials, regardless of
physical form or characteristics, made or received by an agency of the
U.S. Government under Federal Law in connection with the transaction of
public business and in the agency's possession and control at the time
the FOIA request is made. Records include notes, working papers, and
drafts.
Redact--To remove nonreleasable material.
PART 806b--AIR FORCE PRIVACY ACT PROGRAM--Table of Contents
Subpart A--Overview of the Privacy Act Program
Sec.
806b.1 Basic guidelines.
806b.2 Violation penalties.
806b.3 Personal notes.
806b.4 Responsibilities.
Subpart B--Obtaining Law Enforcement Records and Promises of
Confidentiality
806b.5 Obtaining law enforcement records.
806b.6 Promising confidentiality.
Subpart C--Collecting Personal Information
806b.7 How to collect personal information.
806b.8 When to give Privacy Act statements (PAS).
806b.9 Requesting the social security number (SSN).
Subpart D--Giving Access to Privacy Act Records
806b.10 Making a request for access.
806b.11 Processing a request for access.
806b.12 Fees.
806b.13 Denying or limiting access.
806b.14 Denial authorities.
Subpart E--Amending the Record
806b.15 Amendment reasons.
806b.16 Responding to amendment requests.
806b.17 Approving or denying a record amendment.
806b.18 Seeking review of unfavorable agency determinations.
806b.19 Appeal procedures.
806b.20 Contents of Privacy Act case files.
[[Page 37]]
Subpart F--Privacy Act Notifications
806b.21 When to include a Privacy Act warning statement in
publications.
806b.22 Publishing system notices.
806b.23 Timing of notices.
Subpart G--Protecting and Disposing of Records
806b.24 Protecting records.
806b.25 Balancing protection.
806b.26 Disposing of records.
Subpart H--Privacy Act Exemptions
806b.27 Requesting an exemption.
806b.28 Exemption types.
806b.29 Authorizing exemptions.
806b.30 Approved exemptions.
Subpart I--Disclosing Records to Third Parties
806b.31 Disclosure considerations.
806b.32 Disclosing information for which consent is not required.
806b.33 Disclosing other information.
806b.34 Agencies or individuals to whom the Air Force may release
privacy information.
806b.35 Disclosing the medical records of minors.
806b.36 Disclosure accounting.
806b.37 Computer matching.
Subpart J--Training
806b.38 Who needs training.
806b.39 Training tools.
Subpart K--Privacy Act Reporting
806b.40 Privacy Act report (RCS: DD-DA&M(A)1379).
Appendix A to part 806b--Glossary of References, Abbreviations,
Acronyms, and Terms
Appendix B to part 806b--Preparing a System Notice
Appendix C to part 806b--General and Specific Exemptions
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 59 FR 53099, Oct. 21, 1994, unless otherwise noted.
Subpart A--Overview of the Privacy Act Program
Sec. 806b.1 Basic guidelines.
The Privacy Act of 1974 and this part apply only to information in
Air Force systems of records on living United States citizens and
permanent resident aliens.
(a) An official system of records must be:
(1) Authorized by law or Executive Order.
(2) Controlled by an Air Force or lower level directive.
(3) Needed to carry out an Air Force mission or function.
(b) The Air Force does not:
(1) Keep records on how a person exercises First Amendment rights.
EXCEPTIONS are when: The Air Force has the permission of that individual
or is authorized by federal statute; or the information pertains to an
authorized law enforcement activity.
(2) Penalize or harass an individual for exercising rights
guaranteed under the Privacy Act. Give reasonable aid to individuals
exercising their rights.
(c) Air Force members:
(1) Keep paper and electronic records containing personal
information and retrieved by name or personal identifier only in
approved systems published in the Federal Register.
(2) Collect, maintain, and use information in such systems only to
support programs authorized by law or Executive Order.
(3) Safeguard the records in the system and keep them the minimum
time required.
(4) Keep the records timely, accurate, complete, and relevant.
(5) Amend and correct records on request.
(6) Let individuals review and receive copies of their own records
unless the Secretary of the Air Force approved an exemption for the
system or the Air Force created the records in anticipation of a civil
action or proceeding.
(7) Provide a review of decisions that deny individuals access to or
amendment of their records.
Sec. 806b.2 Violation penalties.
An individual may file a civil suit against the Air Force for
failing to comply with the Privacy Act. The courts may find an
individual offender guilty of a misdemeanor and fine that individual
offender not more than $5,000 for:
[[Page 38]]
(a) Willfully maintaining a system of records that doesn't meet the
public notice requirements.
(b) Disclosing information from a system of records to someone not
entitled to the information.
(c) Obtaining someone else's records under false pretenses.
Sec. 806b.3 Personal notes.
If you keep personal notes on individuals to use as memory aids to
supervise or perform other official functions, and do not share them
with others, and an Air Force directive does not require their
maintenance, the Privacy Act does not apply.
Sec. 806b.4 Responsibilities.
(a) The Administrative Assistant to the Secretary of the Air Force
(SAF/AA) manages the entire program.
(b) The Office of the General Counsel to the Secretary of the Air
Force (SAF/GCA) makes final decisions on appeals.
(c) The Director of Information Management (SAF/AAI), through the
Access Programs Office of the Policy Division, (SAF/AAIA):
(1) Administers procedures outlined in this part.
(2) Submits system notices and required reports to the Defense
Privacy Office.
(3) Guides major commands (MAJCOM) and field operating agencies
(FOA).
(d) MAJCOM and FOA commanders, HQ USAF and Deputy Chiefs of Staff
(DCS), and comparable officials, and SAF offices implement this part.
Each HQ USAF and SAF office appoints a Privacy Act monitor. Send the
name, office symbol, and phone number to SAF/AAIA.
(e) MAJCOM and FOA Information Managers:
(1) Manage the program.
(2) Appoint a command Privacy Act officer.
(3) Send the name, office symbol, and phone number to SAF/AAIA.
(f) Privacy Act Officers:
(1) Guide and train.
(2) Review the program at regular intervals.
(3) Submit reports.
(4) Review all publications and forms for compliance with this part.
(5) Review system notices.
(6) Investigate complaints.
(7) Staff denial recommendations (at MAJCOMs and FOAs only).
(g) System Managers:
(1) Decide the need for, and content of systems.
(2) Manage and safeguard the system.
(3) Train personnel on Privacy Act requirements.
(4) Protect records from unauthorized disclosure, alteration, or
destruction.
(5) Prepare system notices and reports.
(6) Answer Privacy Act requests.
(7) Keep records of disclosures.
(8) Evaluate the systems annually.
(h) Privacy Act Monitors (PAM):
(1) Are the focal point in their functional area for general Privacy
Act questions and correspondence.
(2) Maintain a list of all systems of records and system managers in
their area.
(3) Act as liaison with the Privacy Act Officer.
(4) Maintain statistics for the annual Privacy Act report.
Subpart B--Obtaining Law Enforcement Records and Promises of
Confidentiality
Sec. 806b.5 Obtaining law enforcement records.
The Commander AFOSI; the Chief, Air Force Security Police Agency
(AFSPA); MAJCOM, FOA, and base chiefs of security police; AFOSI
detachment commanders; and designees of those offices may ask another
agency for records for law enforcement under 5 U.S.C. 552a(b)(7). The
requesting office must indicate in writing the specific part of the
record desired and identify the law enforcement activity asking for the
record.
Sec. 806b.6 Promising confidentiality.
Record promises of confidentiality to exempt from disclosure any
`confidential' information under subsections (k)(2), (k)(5), or (k)(7)
of the Privacy Act.
[[Page 39]]
Subpart C--Collecting Personal Information
Sec. 806b.7 How to collect personal information.
Collect personal information directly from the subject of the record
when possible. You may ask third parties when:
(a) You must verify information.
(b) You want opinions or evaluations.
(c) You can't contact the subject.
(d) The subject asks you.
Sec. 806b.8 When to give Privacy Act statements (PAS).
(a) Give a PAS orally or in writing:
(1) To anyone from whom you are collecting personal information that
will be put in a system of records.
(2) Whenever you ask someone for his or her Social Security Number
(SSN).
Note: Do this regardless of how you collect or record the answers.
You may display a sign in areas where people routinely furnish this kind
of information. Give a copy of the PAS if asked. Do not ask the person
to sign the PAS.
(3) A PAS must include four items:
(i) Authority: The legal authority, that is, the United States Code
or Executive Order authorizing the program the system supports.
(ii) Purpose: The reason you are collecting the information.
(iii) Routine Uses: A list of where and why the information will be
disclosed outside DoD.
(iv) Disclosure: Voluntary or Mandatory. (Use Mandatory only when
disclosure is required by law and the individual will be penalized for
not providing information.) Include any consequences of nondisclosure in
nonthreatening language.
Sec. 806b.9 Requesting the social security number (SSN).
(a) Do not deny people a legal right, benefit, or privilege for
refusing to give their SSNs unless the law requires disclosure, or a law
or regulation adopted before January 1, 1975, required the SSN and the
Air Force uses it to verify a person's identity in a system of records
established before that date. When you ask for an SSN to create a
record, tell the individual:
(1) The statute, regulation, or rule authorizing you to ask for the
SSN.
(2) The uses that will be made of the SSN.
(3) If he or she is legally obligated to provide the SSN.
(b) The Air Force requests an individual's SSN and provides the
individual information required by law when anyone enters military
service or becomes an Air Force civilian employee. The Air Force uses
the SSN as a service or employment number to reference the individual's
official records. When you ask someone for an SSN as identification (ID)
to retrieve an existing record, you do not have to restate this
information.
(c) Executive Order 9397, November 22, 1943, authorizes using the
SSN as a personal identifier. This order is not adequate authority to
collect an SSN to create a record. When law does not require disclosing
the SSN or when the system of records was created after January 1, 1975,
you may ask for the SSN, but the individual does not have to disclose
it. If the individual refuses to respond, use alternative means of
identifying records.
(d) SSNs are personal and unique to each individual. Protect them as
FOR OFFICIAL USE ONLY (FOUO). Do not disclose them to anyone without an
official need to know.
Subpart D--Giving Access to Privacy Act Records
Sec. 806b.10 Making a request for access.
Persons or their designated representatives may ask for a copy of
their records in a system of records. Requesters need not state why they
want access to their records. Verify the identity of the requester to
avoid unauthorized disclosures. How you verify identity will depend on
the sensitivity of the requested records. Persons without access to
notary services may use an unsworn declaration in the following format:
`I declare under penalty of perjury (if outside the United States, add
`under the laws of the United States of America') that the foregoing is
true and correct. Executed on (date). (Signature).'
[[Page 40]]
Sec. 806b.11 Processing a request for access.
Consider a request from an individual for his or her own records in
a system of records under both the Freedom of Information Act (FOIA) and
the Privacy Act regardless of the Act cited. The requester need not cite
any Act. Process the request under whichever Act gives the most
information. When necessary, tell the requester under which Act you
processed the request and why.
(a) Requesters should describe the records they want. They do not
have to name a system of records number, but they should at least name a
type of record or functional area. For requests that ask for `all
records about me,' ask for more information and tell the person how to
review the Air Force systems of records published in the Federal
Register or in AFDIR 37-144 \1\, `Privacy Act Systems of Record'
(formerly AFR 4-36).
---------------------------------------------------------------------------
\1\ Copies may be obtained at cost from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------
(b) Requesters should not use government equipment, supplies,
stationery, postage, telephones, or official mail channels for making
Privacy Act requests. Privacy Act Officers and system managers process
such requests but tell requesters that using government resources to
make Privacy Act requests is not authorized.
(c) Tell the requester if a record exists and how to review the
record. If possible, respond to requests within 10 workdays of receiving
them. If you cannot answer the request in 10 workdays, send a letter
explaining why and give an approximate completion date no more than 20
workdays after the first office received the request.
(d) Show or give a copy of the record to the requester within 30
workdays of receiving the request unless the system is exempt and the
Air Force lists the exemption in appendix C of this part; or published
as a final rule in the Federal Register. Give information in a form the
requester can understand.
(e) If the requester wants another person present during the record
review, the system manager may ask for written consent to authorize
discussing the record with another person present.
Sec. 806b.12 Fees.
Give the first 100 pages free, and charge only reproduction costs
for the remainder. Copies cost $.15 per page; microfiche costs $.25 per
fiche. Charge the fee for the first 100 pages if records show that the
Air Force already responded to a request for the same records at no
charge. Do not charge fees:
(a) When the requester can get the record without charge under
another publication (for example, medical records).
(b) For search.
(c) For reproducing a document for the convenience of the Air Force.
(d) For reproducing a record so the requester can review it.
Sec. 806b.13 Denying or limiting access.
Process access denials within five workdays after you receive a
request for access. When you may not release a record, send a copy of
the request, the record, and why you recommend denying access (including
the applicable exemption) to the denial authority through the Staff
Judge Advocate (SJA) and the Privacy Act officer. The SJA gives a
written legal opinion on the denial. The MAJCOM or FOA Privacy Act
officer reviews the file, gets written advice from the SJA and the
functional office of primary responsibility (OPR), and makes a
recommendation to the denial authority. The denial authority sends the
requester a letter with the decision. If the denial authority grants
access, release the record. If the denial authority refuses access, tell
the requester why and explain pertinent appeal rights.
(a) Before you deny a request for access to a record, make sure
that:
(1) The system has an SAF approved exemption.
(2) The exemption covers each document.
(3) Nonexempt parts are segregated.
(b) You may refuse to give out medical records if a physician
believes that doing so could harm the person's mental or physical
health. You have these options:
[[Page 41]]
(1) Ask the requester to get a letter from a physician to whom you
can send the records. Include a letter explaining to the physician that
giving the records directly to the individual could be harmful.
(2) Offer the services of a military physician other than one who
provided treatment if naming the physician poses a hardship on the
individual.
(c) Do not delete third-party information from a record when the
subject requests access, except as noted in Sec. 806b.13(d), unless the
Air Force covers the record with an established exemption (appendix C of
this part). Presume that all information in a file pertains to the
subject of the file.
(d) Do not release third-party personal data (such as SSN and home
address). This action is not a denial.
(e) Withhold records compiled in connection with a civil action or
other proceeding including any action where the Air Force expects
judicial or administrative adjudicatory proceedings. This exemption does
not cover criminal actions. Do not release attorney work products
prepared before, during, or after the action or proceeding.
Sec. 806b.14 Denial authorities.
These officials or a designee may deny access or amendment of
records. Send a letter to SAF/AAIA with the position titles of
designees. You must get SAF/AA approval before delegating this authority
to a lower level. Send requests for waiver with justification to SAF/
AAIA. Authorities are:
(a) DCSs and chiefs of comparable offices or higher level at SAF or
HQ USAF.
(b) MAJCOM or FOA commanders.
(c) HQ USAF/DPCP, Pentagon, Washington, DC 20330-5060 (for civilian
personnel records).
(d) Commander, Air Force Office of Special Investigations (AFOSI),
Washington, DC 20332-6001 (for AFOSI records).
Subpart E--Amending the Record
Sec. 806b.15 Amendment reasons.
Individuals may ask to have their records amended to make them
accurate, timely, relevant, or complete. System managers routinely
correct a record if the requester can show that it is factually wrong.
Sec. 806b.16 Responding to amendment requests.
(a) Anyone may request minor corrections orally. Requests for more
serious modifications should be in writing.
(b) After verifying the identity of the requester, make the change,
notify all known recipients of the record, and inform the individual.
(c) Acknowledge requests within 10 workdays of receipt. Give an
expected completion date unless you complete the change within that
time. Final decisions must take no longer than 30 workdays.
Sec. 806b.17 Approving or denying a record amendment.
The Air Force does not usually amend a record when the change is
based on opinion, interpretation, or subjective official judgment. This
action constitutes a denial, and requesters may appeal. If the system
manager decides not to amend or partially amend the record, send a copy
of the request, the record, and the recommended denial reasons to the
denial authority through the SJA and the Privacy Act officer. SJAs will
include a legal opinion.
(a) The MAJCOM or FOA Privacy Act officer reviews the proposed
denial, gets a legal opinion from the SJA and written advice from the
functional OPR, and makes a recommendation to the denial authority.
(b) The denial authority sends the requester a letter with the
decision. If the denial authority approves the request, amend the record
and notify all previous recipients that it has been changed. If the
authority denies the request, give the requester the statutory
authority, reason, and pertinent appeal rights.
Sec. 806b.18 Seeking review of unfavorable agency determinations.
Requesters should pursue record corrections of subjective matters
and opinions through proper channels to the Civilian Personnel Office
using grievance procedures or the Air Force Board for Correction of
Military Records (AFBCMR). Record correction
[[Page 42]]
requests denied by the AFBCMR are not subject to further consideration
under this part.
Sec. 806b.19 Appeal procedures.
(a) Individuals may request a denial review by writing to the
Secretary of the Air Force through the denial authority within 60
calendar days after receiving a denial letter. The denial authority
promptly sends a complete appeal package to SAF/AAIA, including:
(1) Original appeal letter.
(2) Initial request.
(3) Initial denial.
(4) Copy of the record.
(5) Any internal records or coordination actions relating to the
denial.
(6) Denial authority's comments on the appellant's arguments.
(7) Legal reviews.
(b) If the denial authority reverses an earlier denial and grants
access or amendment, notify the requester immediately.
(c) SAF/AAIA reviews the denial and forwards to SAF/GCA for legal
review or staffing to grant or deny the appeal. SAF/GCA tells the
requester the final Air Force decision and explains judicial review
rights.
(d) The requester may file a concise statement of disagreement with
the system manager if SAF/GCA denies the request to amend the record.
SAF/GCA explains the requester's rights when they issue the final appeal
decision.
(1) The records should clearly show that a statement of disagreement
is filed with the record or separately.
(2) The disputed part of the record must show that the requester
filed a statement of disagreement.
(3) Give copies of the statement of disagreement to the record's
previous recipients. Inform subsequent record users about the dispute
and give them a copy of the statement with the record.
(4) The system manager may include a brief summary of the reasons
for not amending the record. Limit the summary to the reasons SAF/GCA
gave to the individual. The summary is part of the individual's record,
but it is not subject to amendment procedures.
Sec. 806b.20 Contents of Privacy Act case files.
Do not keep copies of disputed records in this file. Use the file
solely for statistics and to process requests. Do not use the case files
to make any kind of determination about an individual. Document reasons
for untimely responses. These files include:
(a) Requests from and replies to individuals on whether a system has
records about them.
(b) Requests for access or amendment.
(c) Approvals, denials, appeals, and final review actions.
(d) Coordination actions and related papers.
Subpart F--Privacy Act Notifications
Sec. 806b.21 When to include a Privacy Act warning statement in publications.
Include a Privacy Act Warning Statement in each Air Force
publication that requires collecting or keeping personal information in
a system of records. Also include the warning statement when
publications direct collection of the SSN from the individual. The
warning statement will cite legal authority and the system of records
number and title. You can use the following warning statement: `This
part requires collecting and maintaining information protected by the
Privacy Act of 1974 authorized by (U.S.C. citation and or Executive
Order number). System of records notice (number and title) applies.'
Sec. 806b.22 Publishing system notices.
The Air Force must publish notices in the Federal Register of new,
amended, and deleted systems to inform the public of what records the
Air Force keeps and give them an opportunity to comment. The Privacy Act
also requires submission of new or significantly altered systems to the
Office of Management and Budget (OMB) and both houses of the Congress
before publication in the Federal Register. This includes:
(a) Starting a new system.
(b) Instituting significant changes to an existing system.
[[Page 43]]
(c) Sending out data collection forms or instructions.
(d) Issuing a request for proposal or invitation for bid to support
a new system.
Sec. 806b.23 Timing of notices.
At least 120 days before the effective start date, system managers
must send the system notice to SAF/AAIA on a 5 1/4 or 3 1/2-inch disk in
Wordstar (ASCII text file) or Microsoft Word, with a paper copy
highlighting any changes through the MAJCOM or FOA Privacy Act Officer.
See Appendix B of this part for a sample system notice.
Subpart G--Protecting and Disposing of Records
Sec. 806b.24 Protecting records.
Protect information according to its sensitivity level. Consider the
personal sensitivity of the information and the risk of loss or
alteration. Most information in systems of records is FOR OFFICIAL USE
ONLY (FOUO). Refer to AFI 37-131 \2\, `Air Force Freedom of Information
Act Program,' for protection methods.
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\2\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------
Sec. 806b.25 Balancing protection.
Balance additional protection against risk and cost. AF Form 3227,
`Privacy Act Cover Sheet', is available for use with Privacy Act
material. For example, a password may be enough protection for an
automated system with a log-on protocol. Classified computer systems or
those with established audit and password systems are obviously less
vulnerable than unprotected files or word processors in offices that are
periodically empty. Follow AFI 33-202 \3\, `The Air Force Computer
Security Program,' for procedures on safeguarding personal information
in automated records.
---------------------------------------------------------------------------
\3\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------
Sec. 806b.26 Disposing of records.
You may use the following methods to dispose of records protected by
the Privacy Act according to records retention schedules:
(a) Destroy by any method that prevents compromise, such as tearing,
burning, or shredding, so long as the personal data is not recognizable
and beyond reconstruction.
(b) Degauss or overwrite magnetic tapes or other magnetic medium.
(c) Dispose of paper products through the Defense Reutilization and
Marketing Office (DRMO) or through activities who manage a base-wide
recycling program. The recycling sales contract must contain a clause
requiring the contractor to safeguard privacy material until its
destruction and to pulp, macerate, shred, or otherwise completely
destroy the records. Originators must safeguard Privacy Act material
until it is transferred to the recycling contractor. A federal employee
or, if authorized, a contractor employee must witness the destruction.
This transfer does not require a disclosure accounting.
Subpart H--Privacy Act Exemptions
Sec. 806b.27 Requesting an exemption.
A system manager who believes that a system needs an exemption from
some or all of the requirements of the Privacy Act should send a request
to SAF/AAIA through the MAJCOM or FOA Privacy Act Officer. The request
should detail the reasons for the exemption and the section of the Act
that allows the exemption. SAF/AAIA gets approval for the request
through SAF/AA and the Defense Privacy Office.
Sec. 806b.28 Exemption types.
(a) A general exemption frees a system from most parts of the
Privacy Act.
(b) A specific exemption frees a system from only a few parts of the
Privacy Act.
Sec. 806b.29 Authorizing exemptions.
Only SAF/AA can exempt systems of records from any part of the
Privacy Act. Denial authorities can withhold records using these
exemptions only if SAF/AA previously approved and published an exemption
for the system in the Federal Register. Appendix C of
[[Page 44]]
this part lists the systems of records that have approved exemptions.
Sec. 806b.30 Approved exemptions.
Approved exemptions exist under 5 U.S.C. 552a for:
(a) Certain systems of records used by activities whose principal
function is criminal law enforcement (subsection (j)(2)).
(b) Classified information in any system of records (subsection
(k)(1)).
(c) Law enforcement records (other than those covered by subsection
(j)(2)). The Air Force must allow an individual access to any record
that is used to deny rights, privileges or benefits to which he or she
would otherwise be entitled by federal law or for which he or she would
otherwise be eligible as a result of the maintenance of the information
(unless doing so would reveal a confidential source) (subsection
(k)(2)).
(d) Statistical records required by law. Data is for statistical use
only and may not be used to decide individuals' rights, benefits, or
entitlements (subsection (k)(4)).
(e) Data to determine suitability, eligibility, or qualifications
for federal service or contracts, or access to classified information if
access would reveal a confidential source (subsection (k)(5)).
(f) Qualification tests for appointment or promotion in the federal
service if access to this information would compromise the objectivity
of the tests (subsection (k)(6)).
(g) Information which the Armed Forces uses to evaluate potential
for promotion if access to this information would reveal a confidential
source (subsection (k)(7)).
Subpart I--Disclosing Records to Third Parties
Sec. 806b.31 Disclosure considerations.
Before releasing personal information to third parties, consider the
consequences, check accuracy, and make sure that no law or directive
bans disclosure. You can release personal information to third parties
when the subject agrees orally or in writing. Air Force members consent
to releasing their home telephone number and address when they sign and
check the `Do Consent' block on the AF Form 624, `Base/Unit Locator and
PSC Directory' (see AFI 37-129 \4\, `Base and Unit Personnel Locators
and Postal Directories').
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\4\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------
(a) Before including personal information such as home addresses,
home phones, and similar information on social rosters or directories,
ask for written consent statements. Otherwise, do not include the
information.
(b) You must get written consent before releasing any of these items
of information:
(1) Marital status.
(2) Number and sex of dependents.
(3) Gross salary of military personnel (see Sec. 806b.32 for
releasable pay information).
(4) Civilian educational degrees and major areas of study.
(5) School and year of graduation.
(6) Home of record.
(7) Home address and phone.
(8) Age and date of birth.
(9) Present or future assignments for overseas or for routinely
deployable or sensitive units.
(10) Office and unit address and duty phone for overseas or for
routinely deployable or sensitive units.
Sec. 806b.32 Disclosing information for which consent is not required.
You don't need consent before releasing any of these items:
(a) Information releasable under the FOIA.
(b) Information for use within the Department of Defense by
officials or employees with a need to know.
(c) Name.
(d) Rank.
(e) Grade.
(f) Air Force specialty code (AFSC).
(g) Pay (including base pay, special pay, all allowances except
Basic Allowance for Quarters (BAQ) and Variable Housing Allowance
(VHA)).
(h) Gross salary for civilians.
(i) Past duty assignments.
(j) Present and future approved and announced stateside assignments.
(k) Position title.
[[Page 45]]
(l) Office, unit address, and duty phone number.
(m) Date of rank.
(n) Entered on active duty (EAD) date.
(o) Pay date.
(p) Source of commission.
(q) Professional military education.
(r) Promotion sequence number.
(s) Military awards and decorations.
(t) Duty status of active, retired, or reserve.
(u) Active duty official attendance at technical, scientific, or
professional meetings.
(v) Biographies and photos of key personnel.
Sec. 806b.33 Disclosing other information.
Use these guidelines to decide whether to release information:
(a) Would the subject have a reasonable expectation of privacy in
the information requested?
(b) Would disclosing the information benefit the general public? The
Air Force considers information as meeting the public interest standard
if it reveals anything regarding the operations or activities of the
agency, or performance of its statutory duties.
(c) Balance the public interest against the individual's probable
loss of privacy. Do not consider the requester's purpose, circumstances,
or proposed use.
Sec. 806b.34 Agencies or individuals to whom the Air Force may release privacy information.
The Air Force may release information without consent to these
individuals or agencies:
(a) Agencies outside the Department of Defense for a Routine Use
published in the Federal Register. The purpose of the disclosure must be
compatible with the purpose in the Routine Use. When initially
collecting the information from the subject, the Routine Uses block in
the Privacy Act Statement must name the agencies and reason.
(b) The Bureau of the Census to plan or carry out a census or survey
under 13 U.S.C. 8.
(c) A recipient for statistical research or reporting. The recipient
must give advanced written assurance that the information is for
statistical purposes only.
Note: No one may use any part of the record to decide on
individuals' rights, benefits, or entitlements. You must release records
in a format that makes it impossible to identify the real subjects.
(d) The Archivist of the United States and the National Archives and
Records Administration (NARA) to evaluate records for permanent
retention. Records stored in Federal Records Centers remain under Air
Force control.
(e) A federal, state, or local agency (other than the Department of
Defense) for civil or criminal law enforcement. The head of the agency
or a designee must send a written request to the system manager
specifying the record or part needed and the law enforcement purpose.
The system manager may also disclose a record to a law enforcement
agency if the agency suspects a criminal violation. This disclosure is a
Routine Use for all Air Force systems of records and is published in the
Federal Register.
(f) An individual or agency that needs the information for
compelling health or safety reasons. The affected individual need not be
the record subject.
(g) The Congress, a congressional committee, or a subcommittee, for
matters within their jurisdictions.
(h) A congressional office acting for the record subject. A
published, blanket Routine Use permits this disclosure. If the material
for release is sensitive, get a release statement.
(i) The Comptroller General or an authorized representative of the
General Accounting Office on business.
(j) A court order of a court of competent jurisdiction, signed by a
judge.
(k) A consumer credit agency according to the Debt Collections Act
when a published system notice lists this disclosure as a Routine Use.
(l) A contractor operating a system of records under an Air Force
contract. Records maintained by the contractor for the management of
contractor employees are not subject to the Privacy Act.
[[Page 46]]
Sec. 806b.35 Disclosing the medical records of minors.
Air Force personnel may disclose the medical records of minors to
their parents or legal guardians. The laws of each state define the age
of majority.
(a) The Air Force must obey state laws protecting medical records of
drug or alcohol abuse treatment, abortion, and birth control. If you
manage medical records, learn the local laws and coordinate proposed
local policies with the servicing SJA.
(b) Outside the United States (overseas), the age of majority is 18.
Unless parents or guardians have a court order granting access or the
minor's written consent, they will not have access to minor's medical
records overseas when the minor sought or consented to treatment between
the ages of 15 and 17 in a program where regulation or statute provides
confidentiality of records and he or she asked for confidentiality.
Sec. 806b.36 Disclosure accountings.
System managers must keep an accurate record of all disclosures made
from any system of records except disclosures to DoD personnel for
official use or disclosures under the FOIA. System managers may use AF
Form 771, `Accounting of Disclosures'.
(a) System managers may file the accounting record any way they want
as long as they give it to the subject on request, send corrected or
disputed information to previous record recipients, explain any
disclosures, and provide an audit trail for reviews. Include in each
accounting:
(1) Release date.
(2) Description of information.
(3) Reason for release.
(4) Name and address of recipient.
(b) Some exempt systems let you withhold the accounting record from
the subject.
(c) You may withhold information about disclosure accountings for
law enforcement purposes at the law enforcement agency's request.
Sec. 806b.37 Computer matching.
Computer matching programs electronically compare records from two
or more automated systems which may include the Department of Defense,
another federal agency, or a state or other local government. A system
manager proposing a match that could result in an adverse action against
a federal employee must meet these requirements of the Privacy Act:
(a) Prepare a written agreement between participants.
(1) Secure approval of the Defense Data Integrity Board.
(2) Publish a matching notice in the Federal Register before
matching begins.
(3) Ensure full investigation and due process.
(4) Act on the information, as necessary.
(b) The Privacy Act applies to matching programs that use records
from:
(1) Federal personnel or payroll systems.
(2) Federal benefit programs where matching:
(i) Determines federal benefit eligibility,
(ii) Checks on compliance with benefit program requirements,
(iii) Recovers improper payments or delinquent debts from current or
former beneficiaries.
(c) Matches used for statistics, pilot programs, law enforcement,
tax administration, routine administration, background checks and
foreign counterintelligence, and internal matching that won't cause any
adverse action are exempt from Privacy Act matching requirements.
(d) Any activity that expects to participate in a matching program
must contact SAF/AAIA immediately. System managers must prepare a notice
for publication in the Federal Register with a Routine Use that allows
disclosing the information for use in a matching program. Send the
proposed system notice to SAF/AAIA. Allow 180 days for processing
requests for a new matching program.
(e) Record subjects must receive prior notice of a match. The best
way to do this is to include notice in the Privacy Act Statement on
forms used in applying for benefits. Coordinate computer matching
statements on forms with SAF/AAIA through the MAJCOM Privacy Act
Officer.
[[Page 47]]
Subpart J--Training
Sec. 806b.38 Who needs training.
The Privacy Act requires training for all persons involved in the
design, development, operation and maintenance of any system of records.
Some persons may need more specialized training. They include
information managers, supervisors, and individuals working with medical,
financial, security, and personnel records.
Sec. 806b.39 Training tools.
Helpful aids include:
(a) AFH 37-146 \5\, `Privacy Act Training', a self-paced course.
---------------------------------------------------------------------------
\5\ See footnote 1 to section 806b.11, of this part.
---------------------------------------------------------------------------
(b) `The Privacy Act of 1974,' a 32-minute film developed by the
Defense Privacy Office. Consult your local audiovisual library.
(c) `A Manager's Overview, What You Need to Know About the Privacy
Act'. Contact SAF/AAIA for copies.
Note: Formal school training groups that develop or modify blocks of
instruction must send the material to SAF/AAIA for coordination.
Subpart K--Privacy Act Reporting
Sec. 806b.40 Privacy Act report (RCS: DD-DA&M(A)1379).
By March 1, of each year, MAJCOM and FOA Privacy Act officers must
send SAF/AAIA a report covering the previous calendar year. The report
includes:
(a) Total number of requests granted in whole.
(b) Total number of requests granted in part.
(c) Total number of requests denied and the Privacy Act exemptions
used.
(d) Total number of requests for which no record was found.
(e) Total number of amendment requests granted in whole.
(f) Total number of amendment requests granted in part.
(g) Total number of amendment requests wholly denied.
(h) Specific recommendations for changes to the Act or the Privacy
Act Program.
Appendix A to part 806b--Glossary of References, Abbreviations,
Acronyms, and Terms
Section A-References
a. Privacy Act of 1974, as amended, Pub. L. 93-579, 88 Stat 1896 (5
U.S.C. 552a).
b. 10 U.S.C 8013, `Secretary of the Air Force: Powers and Duties.'
c. Executive Order 9397, `Numbering System for Federal Accounts
Relating to Individual Persons.'
d. 32 CFR part 806b, `Air Force Privacy Act Program.'
e. DoD Directive 5400.11 \1\, `Department of Defense Privacy
Program.'
---------------------------------------------------------------------------
\1\ Copies may be obtained at cost from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------
f. DoD 5400.11-R \2\, `Department of Defense Privacy Program.'
---------------------------------------------------------------------------
\2\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
g. AFI 33-202 \3\, `The Air Force Computer Security Program'
(formerly AFR 205-16).
---------------------------------------------------------------------------
\3\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
h. AFPD 37-1 \4\, `Air Force Information Management.'
---------------------------------------------------------------------------
\4\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
i. AFI 37-131 \5\, `Air Force Freedom of Information Act Program'
(formerly AFR 4-33).
---------------------------------------------------------------------------
\5\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
j. AFI 37-129 \6\, `Base and Unit Personnel Locators and Postal
Directories' (formerly AFR 11-24).
---------------------------------------------------------------------------
\6\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
k. AFMAN 37-139 \7\, `Disposition of Records' (formerly AFR 4-20,
volume 2).
---------------------------------------------------------------------------
\7\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
l. AFDIR 37-144 \8\, `Air Force Privacy Act Systems of Records
Notices.'
---------------------------------------------------------------------------
\8\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
m. AFH 37-146 \9\, `Privacy Act Training.'
---------------------------------------------------------------------------
\9\ See footnote 1 to section B, appendix A to part 806b.
---------------------------------------------------------------------------
Section B-Definitions Abbreviations and Acronyms
a. AETC - Air Education and Training Command
b. AFA - Air Force Academy
c. AFBCMR - Air Force Board for Correction of Military Records
d. AFISA - Air Force Intelligence Services Agency
e. AFMC - Air Force Materiel Command
f. AFOSI - Air Force Office of Special Investigations
g. AFSC - Air Force Specialty Code
[[Page 48]]
h. AFSCO - Air Force Security Clearance Office
i. AFSPA - Air Force Security Police Agency
j. ASCII - American Standard Code for Information Interchange
k. BAQ - Basic Allowance for Quarters
l. CFR - Code of Federal Regulations
m. DCS - Deputy Chief of Staff
n. DoD - Department of Defense
o. DR&MO - Defense Reutilization and Marketing Office
p. EAD - Entered on Active Duty
q. FOA - Field Operating Agency
r. FOIA - Freedom of Information Act
s. FOUO - For Official Use Only
t. IG - Inspector General
u. IMC - Interim Message Change
v. LE - Logistics and Engineering
w. MAJCOM - Major Command
x. MIRS - Management Information and Research System
y. MP - Military Personnel
z. MPC - Military Personnel Center
aa. NARA - National Archives and Records Administration
bb. OMB - Office of Management and Budget
cc. OPR - Office of Primary Responsibility
dd. PA - Privacy Act
ee. PAM - Privacy Act Monitor
ff. PAS - Privacy Act Statement
gg. RCS - Reports Control Symbol
hh. SAF - Secretary of the Air Force
ii. SAF/AA - The Administrative Assistant to the Secretary of the
Air Force
jj. SAF/AAIA - Policy Division, Directorate of Information
Management
kk. SAF/GCA - Assistant General Counsel for Civilian Personnel and
Fiscal Law
ll. SG - Surgeon General
mm. SJA - Staff Judge Advocate
nn. SP - Security Police
oo. SSN - Social Security Number
pp. US - United States
qq. USAF - United States Air Force
rr. U.S.C. - United States Code
ss. VHA - Variable Housing Allowance
Section C-Terms
a. Access. Allowing individuals to review or receive copies of their
records.
b. Amendment. The process of adding, deleting, or changing
information in a system of records to make the data accurate, relevant,
timely, or complete.
c. Computer matching. A computerized comparison of two or more
automated systems of records or a system of records with non-Federal
records to establish or verify eligibility for payments under Federal
benefit programs or to recover delinquent debts for these programs.
d. Confidential source. A person or organization giving information
under an express or implied promise of confidentiality made before
September 27, 1975.
e. Confidentiality. An expressed and recorded promise to withhold
the identity of a source or the information provided by a source. The
Air Force promises confidentiality only when the information goes into a
system with an approved exemption for protecting the identity of
confidential sources.
f. Defense Data Integrity Board. Representatives from the Services
and the Department of Defense who oversee, coordinate, and approve all
DoD computer matching programs covered by the Act.
g. Denial authority. The individuals with authority to deny requests
for access or amendment of records under the Privacy Act.
h. Disclosure. Giving information from a system, by any means, to
anyone other than the record subject.
i. Federal benefit program. A federally funded or administered
program for individuals that provides cash or in-kind assistance
(payments, grants, loans, or loan guarantees).
j. Individual. A living United States citizen or a permanent
resident alien.
k. Matching agency. The agency that performs a computer match.
l. Minor. Anyone under the age of majority according to local state
law. If there is no applicable state law, a minor is anyone under age
18. Military members and married persons are not minors, no matter what
their chronological age.
m. Personal identifier. A name, number, or symbol which is unique to
an individual, usually the person's name or SSN.
n. Personal information. Information about an individual other than
items of public record.
o. Privacy Act request. An oral or written request by an individual
about his or her records in a system of records.
p. Recipient agency. An agency or contractor that receives the
records and actually performs the computer match.
q. Record. Any information about an individual.
r. Routine use. A disclosure of records to individuals or agencies
outside the Department of Defense for a use that is compatible with the
purpose for which the Air Force created the records.
s. Source agency. A federal, state, or local government agency that
discloses records for the purpose of a computer match.
t. System manager. The official who is responsible for managing a
system of records, including policies and procedures to operate and
safeguard it. Local system managers operate record systems or are
responsible for part of a decentralized system.
u. System of records. A group of records containing personal
information retrieved by
[[Page 49]]
the subject's name, personal identifier, or individual identifier
through a cross-reference system.
v. System notice. The official public notice published in the
Federal Register of the existence and content of the system of records.
Appendix B to part 806b--Preparing a System Notice
The following elements comprise a system of records notice for
publication in the Federal Register:
a. System identifier. SAF/AAIA assigns the notice number, for
example, F011 AFMC A, where `F' indicates `Air Force,' the next number
represents the series from AFMAN 37-139 regarding records disposition,
and the final letter group shows the system manager's command or DCS.
The last character `A' indicates that this is the first notice for this
series and system manager.
b. System name. Use a short, specific, plain-language title that
identifies the system's general purpose (limited to 55 characters).
c. System location. Specify the address of the primary system and
any decentralized elements, including automated data systems with a
central computer facility and input or output terminals at separate
locations. Use street address, 2-letter state abbreviations and 9-digit
ZIP Codes. Spell out office names. Do not use office symbols.
d. Categories of individuals covered by the system. Use
nontechnical, specific categories of individuals about whom the Air
Force keeps records. Do not use categories like `all Air Force
personnel' unless they are actually true.
e. Categories of records in the system. Describe in clear,
nontechnical terms, all categories of records in the system. List only
documents actually kept in the system. Do not show source documents that
are used to collect data and then destroyed. Do not list form numbers.
f. Authority for maintenance of the system. Cite the specific law or
Executive Order that authorizes the program the records support. Cite
the DoD directive or instruction or the Air Force or other instruction
that authorizes the system of records. Always include titles with the
citations.
Note: Executive Order 9397 authorizes using the Social Security
Number (SSN). Include this authority whenever the SSN is used to
retrieve records.
g. Purpose(s). Describe briefly and specifically what the Air Force
does with the information collected.
h. Routine uses of records maintained in the system including
categories of users and the purpose of such uses. The Blanket Routine
Uses published in the Air Force Directory of System Notices apply to all
system notices unless you indicate otherwise. Also list each specific
agency or activity outside DoD to whom the records may be released and
the purpose for such release.
i. Policies and practices for storing, retrieving, accessing,
retaining, and disposing of records in the system.
j. Storage. State the medium in which the Air Force keeps the
records, for example, in file folders, card files, microfiche, computer,
and so on. Storage does not refer to the storage container.
k. Retrievability. State how the Air Force retrieves the records,
for example, by name, SSN, or personal characteristics (such as
fingerprints or voiceprints).
l. Safeguards. List the kinds of officials who have immediate access
to the system. List those responsible for safeguarding the records.
Identify the system safeguards, for example, storage in safes, vaults,
locked cabinets or rooms, use of guards, visitor controls, personnel
screening, computer systems software, and so on. Describe safeguards
fully without compromising system security.
m. Retention and disposal. State how long AFMAN 37-139 requires the
activity to maintain the record. Indicate when or if the records may be
transferred to a Federal Records Center and how long the record stays
there. Specify when the Records Center sends the record to the National
Archives or destroys it. Indicate how the records may be destroyed.
n. System manager(s) and address. List the title and duty address of
the system manager. For decentralized systems, show the locations and
the position or duty title of each category of officials responsible for
any segment of the system.
o. Notification procedure. List the title and duty address of the
official authorized to tell requesters if their records are in the
system. Specify the information a requester must submit, for example.,
full name, military status, SSN, date of birth, or proof of identity,
and so on.
p. Record access procedures. Explain how individuals may arrange to
access their records. Include the titles or categories of officials who
may assist, for example, the system manager.
q. Contesting records procedures. SAF/AAIA provides this standard
caption.
r. Record source categories. Show categories of individuals or other
information sources for the system. Do not list confidential sources
protected by subsections (k)(2), (k)(5), or (k)(7) of the Act.
s. Exemptions claimed for the system. When a system has no approved
exemption, write `none' under this heading. Specifically list any
approved exemption including the subsection in the Act.
[[Page 50]]
Appendix C to Part 806b--General and Specific Exemptions
(a) General exemption. The following systems of records are exempt
under 5 U.S.C. 552a(j)(2):
(1) System identifier and name: F124 AF A, Counter Intelligence
Operations and Collection Records.
(2) System identifier and name: F124 AF C, Criminal Records.
(3) System identifier and name: F125 AF SP E, Security Police
Automated System (SPAS).
(4) System identifier and name: F124 AF D, Investigative Support
Records.
(5) System identifier and name: F125 AF A, Correction and
Rehabilitation Records.
Exemption-Portions of this system that fall within 5
U.S.C.552a(j)(2) are exempt from the following provisions of 5 U.S.C.
552a, Sections (c)(3) and (c)(4); (d)(1) through (d)(5); (e)(2) and
(e)(3); (e)(4)(G) and (e)(4)(H), (e)(5); (f)(1) through (f)(5); (g)(1)
through (g)(5); and (h) of the Act.
Authority-5 U.S.C. 552a(j)(2).
Reason-The general exemption will protect ongoing investigations and
protect from access criminal investigation information contained in this
record system so as not to jeopardize any subsequent judicial or
administrative process taken as a result of information contained in the
files.
(b) Specific exemptions. The following systems of records are
subject to the specific exemptions shown:
(1) Classified records.
(i) All records in any systems of records that are properly
classified according to Executive Orders 11652, 12065 or 12958, are
exempt from 5 U.S.C. 552a(c)(3); (d); (e)(4)(G), (H), and (I); and (f),
regardless of whether the entire system is otherwise exempt or not.
(ii) Authority. 5 U.S.C. 552a(k)(1).
(2) System identifier and name: F053 AFA C, Admissions and Registrar
Records.
(i) Exemption. Parts of this system of records (Liaison Officer
Evaluation and Selection Panel Candidate Evaluation) are exempt from 5
U.S.C. 552a(d), (e)(4)(H), and (f), but only to the extent that
disclosure would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(5).
(iii) Reasons. To ensure the frankness of information used to
determine whether cadets are qualified for graduation and commissioning
as officers in the Air Force.
(3) System identifier and name: F035 MPC R, Air Force Personnel Test
851, Test Answer Cards.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4) (G), (H), and (I); and (f).
(ii) Authority. 5 U.S.C. 552a(k)(6).
(iii) Reasons. To protect the objectivity of the promotion testing
system by keeping the test questions and answers in confidence.
(4) System identifier and name: F035 AFA A, Cadet Personnel
Management System.
(i) Exemption. Parts of this system are exempt from 5 U.S.C.
552a(d), (e)(4)(H), and (f), but only insofar as disclosure would reveal
the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(7).
(iii) Reasons. To maintain the candor and integrity of comments
needed to evaluate an Air Force Academy cadet for commissioning in the
Air Force.
(5) System identifier and name: F045 AETC C, Cadet Records.
(i) Exemption. Portions of this system (Detachment Professional
Officer Course (POC) Selection Rating Sheets; Air Force Reserve Officer
Training Corps (AFROTC) Form 0-24-Disenrollment Review; Memoranda for
Record and Staff Papers with Staff Advice, Opinions, or Suggestions) are
exempt from 5 U.S.C. 552a(c)(3); (d); (e)(4)(G) and (H), and (f), but
only to the extent that disclosure would reveal the identity of a
confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(5).
(iii) Reasons. To protect the identity of a confidential source who
furnishes information necessary to make determinations about the
qualifications, eligibility, and suitability of cadets for graduation
and commissioning in the Air Force.
(6) System identifier and name: F168 AF SG B, Family Advocacy
Program Record.
(i) Exemption. Parts of this system are exempt from 5 U.S.C.
552a(c)(3) and (d), but only to the extent that disclosure would reveal
the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
(iii) Reasons. To encourage those who know of exceptional medical or
educational conditions or family maltreatments to come forward by
protecting their identities, and the integrity of ongoing and civil law
investigations of criminal and civil law violations. Giving subjects
access to their files could result in them concealing, altering, or
fabricating evidence could hamper the identification of offenders and
alleged offenders; and could jeopardize the safety and well-being of the
family.
(7) System identifier and name: F035 AF MP A, Effectiveness/
Performance Reporting System.
(i) Exemptions-Brigadier General Selectee Effectiveness Reports and
Colonel and Lieutenant Colonel Promotion Recommendations with close out
dates on or before January 31, 1991, may be exempt from subsections of 5
U.S.C. 552a(c)(3); (d); (e)(4)(H); and (f).
(ii) Authority-5 U.S.C. 552a(k)(7).
(iii) Reasons-Subsection (c)(3) because making the disclosure
accounting available to the individual may compromise express promises
of confidentiality by revealing details about the report and identify
other record sources, which may result in circumvention of the access
exemption.
[[Page 51]]
Subsection (d) because individual disclosure compromises express
promises of confidentiality conferred to protect the integrity of the
promotion rating system.
Subsection (e)(4)(H) because of and to the extent that portions of
this record system are exempt from the individual access provisions of
subsection (d).
Subsection (f) because of and to the extent that portions of this
record system are exempt from the individual access provisions of
subsection (d).
(8) [Reserved]
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4) (G), (H), and (I); and (f).
(ii) Authority. 5 U.S.C. 552a(k)(2).
(iii) Reasons. To enforce civil laws, court orders, and the
activities of the Departments of Housing and Urban Development and
Justice.
(9) System identifier and name: F035 AP A, Files on General Officers
and Colonels Assigned to General Officer Positions.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4)(G), (H), and (I); and (f), but only to the extent that disclosure
would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(7).
(iii) Reasons. To protect the integrity of information used in the
Reserve Initial Brigadier General Screening Board, the release of which
would compromise the selection process.
(10) System identification and name: F035 AF MP P, General Officer
Personnel Data System.
(i) Exemption- Air Force General Officer Promotion and Effectiveness
Reports with close out dates on or before January 31, 1991, may be
exempt from subsections of 5 U.S.C. 552a(c)(3); (d); (e)(4)(H); and (f).
(ii) Authority-5 U.S.C. 552a(k)(7).
(iii) Reason-Subsection (c)(3) because making the disclosure
accounting available to the individual may compromise express promises
of confidentiality by revealing details about the report and identify
other record sources, which may result in circumvention of the access
exemption.
Subsection (d) because individual disclosure compromises express
promises of confidentiality conferred to protect the integrity of the
promotion rating system.
Subsection (e)(4)(H) because of and to the extent that portions of
this record system are exempt from the individual access provisions of
subsection (d).
Subsection (f) because of and to the extent that portions of this
record system are exempt from the individual access provisions of
subsection (d).
(11) System identifier and name: F035 MPC L, Historical Airman
Promotion Master Test File.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4) (G), (H), and (I); and (f).
(ii) Authority. 5 U.S.C. 552a(k)(6).
(iii) Reasons. To protect the integrity, objectivity, and equity of
the promotion testing system by keeping test questions and answers in
confidence.
(12) System identifier and name: F120 AF IG B, Inspector General
Records.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4) (G), (H), and (I); and (f). However, if a person is denied any
right, privilege, or benefit, he or she would otherwise be entitled to
as a result of keeping this material, it must be released, unless doing
so would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(2).
(iii) Reasons. Granting individuals access to information collected
while an Inspector General inquiry is in progress could interfere with
the just, thorough, and timely resolution of the complaint or inquiry
and could possibly enable individuals to conceal wrong doing or mislead
the inquiring officer. Disclosure might also subject sources, witnesses,
and their families to harassment or intimidation.
(13) System identifier and name: F124 AFOSI B, Investigative
Applicant Processing Records.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4) (G), (H), and (I); and (f), but only to the extent that
disclosure would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(5).
(iii) Reasons. To protect those who gave information in confidence
during Air Force Office of Special Investigations (AFOSI) applicant
inquiries. Fear of harassment could cause sources not to make frank and
open responses about applicant qualifications. This could compromise the
integrity of the AFOSI personnel program that relies on selecting only
qualified people.
(14) System identifier and name: F035 AFB B, Master Cadet Personnel
Record (Active/Historical).
(i) Exemptions. Parts of these systems are exempt from 5 U.S.C.
552a(d), (e)(4)(H), and (f), but only to the extent that they would
reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(7).
(iii) Reasons. To maintain the candor and integrity of comments
needed to evaluate a cadet for commissioning in the Air Force.
(15) System identifier and name: F205 AFISA A, Sensitive
Compartmented Information Personnel Records.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(a)(3); (d);
(e)(4) (G), (H), and (I); and (f), but only to the extent that
disclosure would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
[[Page 52]]
(iii) Reasons. To protect the identity of sources to whom proper
promises of confidentiality have been made during investigations.
Without these promises, sources will often be unwilling to provide
information essential in adjudicating access in a fair and impartial
manner.
(16) F124 AFA, Security and Related Investigative Records.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4) (G), (H), and (I); and (f), but only to the extent that
disclosure would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(5).
(iii) Reasons. To protect the identity of those who give information
in confidence for personnel security and related investigations. Fear of
harassment could cause sources to refuse to give this information in the
frank and open way needed to pinpoint those areas in an investigation
that should be expanded to resolve charges of questionable conduct.
(17) System identifier and name: F205 AFSCO A, Special Security Case
Files.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d),
(e)(4) (G), (H), and (I); and (f), but only to the extent that
disclosure would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(5).
(iii) Reasons. To protect the identity of those who give information
in confidence for personnel security and related investigations. Fear of
harassment could cause sources to refuse to give this information in the
frank and open way needed to pinpoint those areas in an investigation
that should be expanded to resolve charges of questionable conduct.
(18) System identifier and name: F205 AF SP A, Special Security
Files.
(i) Exemption. This system is exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(4) (G), (H), and (I); and (f), but only to the extent that
disclosure would reveal the identity of a confidential source.
(ii) Authority. 5 U.S.C. 552a(k)(5).
(ii) Reasons. To protect the identity of those who give information
in confidence for personnel security and related investigations. Fear of
harassment could cause them to refuse to give this information in the
frank and open way needed to pinpoint areas in an investigation that
should be expanded to resolve charges of questionable conduct.
(19) System identifier and name: F035 AF MP R, Applications for
Appointment and Extended Active Duty Files.
(i) Exemption. Parts of this system of records are exempt from 5
U.S.C. 552a(d), but only to the extent that disclosure would reveal the
identity of a confidential source.
(ii) Authority.5 U.S.C. 552a(k)(5).
(iii)Reasons. To protect the identity of confidential sources who
furnish information necessary to make determinations about the
qualifications, eligibility, and suitability of health care
professionals who apply for Reserve of the Air Force appointment or
interservice transfer to the Air Force.
(20) System identifier and name: F111 AF JA B, Courts-Martial and
Article 15 Records.
(i) Exemption. Portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(j)(2) from the following subsection of 5
U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H)
and (I), (e)(5), (e)(8), (f), and (g).
(ii) Exemption. Portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2) from the following subsection of 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(iii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
(iv) Reason: (1) From subsection (c)(3) because the release of the
disclosure accounting, for disclosures pursuant to the routine uses
published for this system, would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(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
[[Page 53]]
requirements of subsection (e)(3) would constitute a serious impediment
to law enforcement in that it could compromise the existence of a
confidential investigation, reveal the identity of confidential sources
of information and endanger the life and physical safety of confidential
informants.
(7) From subsections (e)(4)(G) and (H) because this system of
records is exempt from individual access pursuant to subsections (j) and
(k) of the Privacy Act of 1974.
(8) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(9) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(10) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(11) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(12) From subsection (g) because this system of records is compiled
for law enforcement purposes and has been exempted from the access
provisions of subsections (d) and (f).
(13) Consistent with the legislative purpose of the Privacy Act of
1974, the Department of the Air Force will grant access to nonexempt
material in the records being maintained. Disclosure will be governed by
the Department of the Air Force's Privacy Regulation, but will be
limited to the extent that the identity of confidential sources will not
be compromised; subjects of an investigation of an actual or potential
criminal violation will not be alerted to the investigation; the
physical safety of witnesses, informants and law enforcement personnel
will not be endangered, the privacy of third parties will not be
violated; and that the disclosure would not otherwise impede effective
law enforcement. Whenever possible, information of the above nature will
be deleted from the requested documents and the balance made available.
The controlling principle behind this limited access is to allow
disclosures except those indicated above. The decisions to release
information from these systems will be made on a case-by-case basis.
(21) System identifier and name: F036 AF DP G, Military Equal
Opportunity and Treatment.
(i) Exemption: Investigatory material compiled for law enforcement
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an
individual is denied any right, privilege, or benefit for which he would
otherwise be entitled by Federal law or for which he would otherwise be
eligible, as a result of the maintenance of the information, the
individual will be provided access to the information except to the
extent that disclosure would reveal the identity of a confidential
source. Portions of this system of records may be exempt pursuant to 5
U.S.C. 552a(d), (e)(4)(H), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2)
(iv) Reasons: (1) From subsection (d) because access to the records
contained in this system would inform the subject of an investigation of
the existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection,
and would present a serious impediment to law enforcement. In addition,
granting individuals access to information collected while an Equal
Opportunity and Treatment clarification/investigation is in progress
conflicts with the just, thorough, and timely completion of the
complaint, and could possibly enable individuals to interfere, obstruct,
or mislead those clarifying/investigating the complaint.
(2) From subsection (e)(4)(H) because this system of records is
exempt from individual access pursuant to subsection (k) of the Privacy
Act of 1974.
(3) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(4) Consistent with the legislative purpose of the Privacy Act of
1974, the Department of the Air Force will grant access to nonexempt
material in the records being maintained. Disclosure will be governed by
the Department of the Air Force's Privacy Instruction, but will be
limited to the extent that the identity of confidential sources will not
be compromised; subjects of an investigation of an actual or potential
violation will not be alerted to the investigation; the physical safety
of witnesses, informants and law enforcement personnel will not be
endangered, the privacy of third parties will not be violated; and that
the disclosure would not otherwise impede effective law enforcement.
Whenever possible, information of the above nature will be deleted from
the requested documents and the balance made available.
[[Page 54]]
The controlling principle behind this limited access is to allow
disclosures except those indicated above. The decisions to release
information from this system will be made on a case-by-case basis.
[59 FR 53099, Oct. 21, 1994, as amended at 60 FR 36224, July 14, 1995;
61 FR 2917, Jan. 30, 1996; 61 FR 17070, Apr. 9, 1997; 64 FR 72032, Dec.
23, 1999]
PART 807--SALE TO THE PUBLIC--Table of Contents
Sec.
807.1 General requirements.
807.2 Charges for publications and forms.
807.3 Requests for classified material, For Official Use Only material,
accountable forms, storage safeguard forms, Limited (L)
distribution items, and items with restrictive distribution
caveats.
807.4 Availability and nonavailability of stock.
807.5 Processing requests.
807.6 Depositing payments.
Authority: 10 U.S.C. 8013.
Source: 55 FR 36631, Sept. 6, 1990, unless otherwise noted.
Sec. 807.1 General requirements.
(a) Unaltered Air Force publications and forms will be made
available to the public with or without charge, subject to the
requirements of this part. Base Chiefs of Information Management will
set up procedures to meet these needs and will make available Master
Publications Libraries for public use according to AFR 4-61. They will
also advise requesters that these libraries are available, since in many
cases this will satisfy their needs and reduce workloads in processing
sales requests. If the item is on sale by the Superintendent of
Documents, GPO, refer the request to that outlet. Refer general public
requests for Air Force administrative publications and forms to the
National Technical Information Service (NTIS), Defense Publication
Section, US Department of Commerce, 4285 Port Royal Road, Springfield,
VA 22161-0001.
(b) The Air Force does not consider these unaltered publications and
forms as records, within the meaning of the Freedom of Information Act
(FOIA), as outlined in 5 U.S.C. 552 and implemented by part 806 of this
chapter. Refer requests that invoke the FOIA to the chief, base
information management, for processing.
(c) Units will process requests under the Foreign Military Sales
Program (FMS) as specified in AFR 4-71, chapter 11.
(d) Units will send requests from foreign governments, their
representatives, or international organizations to the MAJCOM foreign
disclosure policy office and to HQ USAF/CVAII, Washington DC 20330-5000.
Also send information copies of such requests to the base public affairs
office. Commands will supplement this requirement to include policies
pertaining to those items for which they have authority to release.
(e) Units will return a request for non-Air Force items to the
requester for submission to appropriate agency.
Sec. 807.2 Charges for publications and forms.
(a) The Air Force applies charges to all requests unless
specifically excluded.
(b) The Air Force applies charges according to part 813, Schedule of
Fees for Copying, Certifying, and Searching Records and Other
Documentary Material. Additional guidance is in part 812, User Charges,
including specific exclusion from charges as listed in Sec. 812.5. As
indicated, the list of exclusions is not all inclusive and
recommendations for additional exclusions are sent to the office of
primary responsibility for part 812 of this chapter.
(c) When a contractor requires publications and forms to perform a
contract, the Air Force furnishes them without charge, if the government
contracting officer approves these requirements.
Sec. 807.3 Requests for classified material, For Official Use Only material, accountable forms, storage safeguard forms, Limited (L) distribution items, and
items with restrictive distribution caveats.
(a) Classified material. The unit receiving the requests should tell
the requester that the Air Force cannot authorize the material for
release because it is currently and properly classified in the interest
of national security as authority by Executive Order,
[[Page 55]]
and must be protected from unauthorized disclosure.
(b) For Official Use Only (FOUO) material. The office of primary
responsibility for the material will review these requests to determine
the material's releasability.
(c) Accountable forms. The unit receiving the request will return it
to the requester stating that the Air Force stringently controls these
forms and cannot release them to unauthorized personnel since their
misuse could jeopardize Department of Defense security or could result
in fraudulent financial gain or claims against the government.
(d) Storage safeguard forms. The unit receiving these requests
returns them to the requesters stating that the Air Force specially
controls these forms and that they are not releasable outside the
Department of Defense since they could be put to unauthorized or
fraudulent use.
(e) Limited (L) distribution items are not releasable outside the
Department of Defense without special review according to AFR 700-6.
Units receiving these requests should refer them to the SCS manager
shown in the index or on the cover of the publications. Advise the
requesters of the referral.
(f) Items with restrictive distribution caveats. Some publications
have restrictive distribution caveats on the cover. Follow the
instructions stated and advise the requesters of the referral.
Sec. 807.4 Availability and nonavailability of stock.
(a) Limit quantities furnished so that stock levels required for
operational Air Force support are not jeopardized.
(b) If the item is not available from publishing distribution office
(PDO) stock, obtain it from the Air Force Publishing Distribution
Center. If the item is under revision, advise the requester that it is
being revised and that no stock is available.
(c) If stocks are not available and the item is being reprinted,
advise the requester that stocks are expected to be available in 90
calendar days and to resubmit at that time.
Sec. 807.5 Processing requests.
Payment is required before shipping the requested material. Payment
must be by check or money order.
(a) Upon receipt of the request, determine the cost involved and
request the material.
(b) Upon receipt of the item, advise the requester to resubmit the
required payment and send the material after payment is received.
(c) If the material cannot be obtained, advise the requester of the
reason.
Sec. 807.6 Depositing payments.
Obtain instructions from the local Accounting and Finance Office
regarding how checks or money orders must be prepared and required
procedures for depositing them.
PART 809a--ENFORCEMENT OF ORDER AT AIR FORCE INSTALLATIONS, CONTROL OF CIVIL DISTURBANCES, SUPPORT OF DISASTER RELIEF OPERATIONS, AND SPECIAL CONSIDERATION FOR
OVERSEAS AREAS--Table of Contents
Sec.
809a.0 Purpose.
Subpart A--Enforcement of Order at or Near Air Force Installations
809a.1 Military responsibility and authority.
809a.2 Civil responsibility and authority.
809a.3 Unauthorized entry to installations.
809a.4 Use of Government facilities.
Subpart B--Use of Military Forces in Civil Defense, Civil Disturbances,
and Disasters
809a.5 Definitions.
809a.6 Base policies and laws.
809a.7 Conditions for use of Air Force resources.
809a.8 Military Commanders' responsibilities.
Subpart C--Special Considerations for Overseas Areas
809a.9 General.
809a.10 Requirements for supplements.
Authority: Sec. 8012, 70A Stat. 488; 10 U.S.C. 8012.
[[Page 56]]
Sec. 809a.0 Purpose.
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.
[37 FR 18728, Sept. 15, 1972]
Subpart A--Enforcement of Order at or Near Air Force Installations
Sec. 809a.1 Military responsibility and authority.
(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.
[37 FR 18728, Sept. 15, 1972]
Sec. 809a.2 Civil responsibility and authority.
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.
[33 FR 4462, Mar. 13, 1968, as amended at 37 FR 18728, Sept. 15, 1972]
Sec. 809a.3 Unauthorized entry to installations.
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.
[33 FR 4462, Mar. 13, 1968, as amended at 37 FR 18728, Sept. 15, 1972]
Sec. 809a.4 Use of Government facilities.
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
[[Page 57]]
demonstrations or possible demonstrations.
[37 FR 18728, Sept. 15, 1972]
Subpart B--Use of Military Forces in Civil Defense, Civil Disturbances,
and Disasters
Sec. 809a.5 Definitions.
(a) Emergencies. These are conditions which affect public welfare
and occur as a result of enemy attack, insurrection, civil disturbances,
earthquake, fire, flood, or other public disasters which endanger life
and property or disrupt the usual process of government. The term
``emergency'' includes any or all of the conditions explained in this
section.
(b) Civil defense emergency. This is a disaster situation resulting
from devastation created by an enemy attack and requiring emergency
operations during and following attack. It may also be proclaimed by
appropriate authority in anticipation of an attack.
(c) Civil disturbances. These are goup acts of violence or disorder
prejudicial to public law and order including those which follow a major
disaster. They include riots, acts of violence, insurrections, unlawful
obstructions or assemblages, or other disorders.
(d) Major disaster. Any flood, fire, hurricane, or other catastrophe
which, in the determination of the President, is or threatens to be of
sufficient severity and magnitude to warrant disaster assistance by the
Federal Government to supplement the efforts and available resources of
the State and local governments in alleviating the damage, hardship, or
suffering caused thereby.
[33 FR 4462, Mar. 13, 1968, as amended at 37 FR 18728, Sept. 15, 1972;
37 FR 20243, Sept. 28, 1972]
Sec. 809a.6 Base policies and laws.
This subpart contains policies on the use of Air Force military
personnel in civil disturbances and disasters. The more important laws
concerning military aid to civil authorities are also summarized.
(a) The Air Force gives military assistance to civil authorities in
civil defense or civil disturbances and disasters only when such
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.
[33 FR 4462, Mar. 13, 1968]
Sec. 809a.7 Conditions for use of Air Force resources.
This part is not intended to extend Air Force responsibilities in
emergencies to generate additional resources (manpower, materiel,
facilities, etc.) requirements, or encourage participation in such
operations at the expense of the Air Force primary mission. It is a
guide for the employment of Air Force resources when:
(a) A disaster or disturbance 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.
[33 FR 4462, Mar. 13, 1968, as amended at 37 FR 18728, Sept. 15, 1972]
[[Page 58]]
Sec. 809a.8 Military Commanders' responsibilities.
(a) Civilians in the affected area will be informed of the rules of
conduct and other restrictive measures to be enforced by the military.
These will be announced by local proclamation or order, and will be
given the widest publicity by all available media.
(b) Persons not normally subject to military law, who are taken into
custody by military forces incident to civil disturbances, will be
turned over to the civil authorities as soon as possible.
(c) Military forces will ordinarily exercise police powers
previously inoperative in an affected area; restore and maintain order;
maintain essential transportation and communication; and provide
necessary relief measures.
(d) U.S. Air Force civilian employees may be used, in any
assignments in which they are capable and willing to serve. In planning
for on-base contingencies of fires, floods, hurricanes, and other
natural disasters, arrangements should be made for the identification
and voluntary use of individual employees to the extent that the needs
for their services are anticipated.
[33 FR 4462, Mar. 13, 1968, as amended at 37 FR 18728, Sept. 15, 1972]
Subpart C--Special Considerations for Overseas Areas
Sec. 809a.9 General.
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.
[37 FR 18729, Sept. 15, 1972]
Sec. 809a.10 Requirements for supplements.
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.
[37 FR 18729, Sept. 15, 1972]
[[Page 59]]
SUBCHAPTER B--SALES AND SERVICES
PART 811--RELEASE, DISSEMINATION, AND SALE OF VISUAL INFORMATION MATERIALS--Table of Contents
Sec.
811.1 Exceptions.
811.2 Release of visual information materials.
811.3 Official requests for visual information productions or
materials.
811.4 Selling visual information materials.
811.5 Customers exempt from fees.
811.6 Visual information product/material loans.
811.7 Collecting and controlling fees.
811.8 Forms prescribed and availability of publications.
Authority: 10 U.S.C. 8013.
Source: 65 FR 64619, Oct. 30, 2000, unless otherwise noted.
Sec. 811.1 Exceptions.
The regulations in this part do not apply to:
(a) Visual information (VI) materials made for the Air Force Office
of Special Investigations for use in an investigation or a
counterintelligence report. (See Air Force Instruction (AFI) 90-301, The
Inspector General Complaints, which describes who may use these
materials.)
(b) VI materials made during Air Force investigations of aircraft or
missile mishaps according to AFI 91-204, Safety Investigations and
Reports. (See AFI 90-301.)
Sec. 811.2 Release of visual information materials.
(a) Only the Secretary of the Air Force for Public Affairs (SAF/PA)
clears and releases Air Force materials for use outside Department of
Defense (DoD), according to AFI 35-205, Air Force Security and Policy
Review Program.
(b) The Secretary of the Air Force for Legislative Liaison (SAF/LL)
arranges the release of VI material through SAF/PA when a member of
Congress asks for them for official use.
(c) The International Affairs Division (HQ USAF/CVAII) or, in some
cases, the major command (MAJCOM) Foreign Disclosure Office, must
authorize release of classified and unclassified materials to foreign
governments and international organizations or their representatives.
Sec. 811.3 Official requests for visual information productions or materials.
(a) Send official Air Force requests for productions or materials
from the DoD Central Records Centers by letter or message. Include:
(1) Descriptions of the images needed, including media format,
dates, etc.
(2) Visual information record identification number (VIRIN),
production, or Research, development, test, and evaluation (RDT&E)
identification numbers, if known.
(3) Intended use and purpose of the material.
(4) The date needed and a statement of why products are needed on a
specific date.
(b) Send inquiries about motion picture or television materials to
the Defense Visual Information Center (DVIC), 1363 Z Street, Building
2730, March ARB, CA 92518-2703.
(c) Send Air Force customer inquiries about still photographic
materials to 11 CS/SCUA, Bolling AFB, Washington, DC 20332-0403 (the Air
Force accessioning point).
(d) Send non-Air Force customers' inquiries about still photographic
materials to the DVIC.
Sec. 811.4 Selling visual information materials.
(a) Air Force VI activities cannot sell materials.
(b) HQ AFCIC/ITSM may approve the loan of copies of original
materials for federal government use.
(c) Send requests to buy:
(1) Completed, cleared, productions, to the National Archives and
Records Administration, National Audiovisual Center, Information Office,
8700 Edgeworth Drive, Capitol Heights, MD 20722-3701.
(2) Nonproduction VI motion media to the DVIC. The center may sell
other Air Force VI motion picture and television materials, such as
historical and stock footage. When it sells VI motion
[[Page 60]]
media, the DVIC assesses charges, unless Sec. 811.5 exempts the
requesting activity.
(3) VI still media to the DoD Still Media Records Center (SMRC),
Attn: SSRC, Washington, DC 20374-1681. When SMRC sells VI still media,
the SMRC assesses charges, unless Sec. 811.5 exempts the requesting
activity.
Sec. 811.5 Customers exempt from fees.
Title III of the 1968 Intergovernmental Cooperation Act (42 U.S.C.
4201, 4231, and 4233) exempts some customers from paying for products
and loans. This applies if the supplier has sufficient funds and if the
exemption does not impair its mission. The requesting agency must
certify that the materials are not commercially available. When requests
for VI material do not meet exemption criteria, the requesting agency
pays the fees. Exempted customers include:
(a) DoD and other government agencies asking for materials for
official activities (see DoD Instruction 4000.19, Interservice, and
Intergovernmental Support, August 9, 1995, and DoD Directive 5040.2,
Visual Information (VI), December 7, 1987.
(b) Members of Congress asking for VI materials for official
activities.
(c) VI records center materials or services furnished according to
law or Executive Order.
(d) Federal, state, territorial, county, municipal governments, or
their agencies, for activities contributing to an Air Force or DoD
objective.
(e) Nonprofit organizations for public health, education, or welfare
purposes.
(f) Armed Forces members with a casualty status, their next of kin,
or authorized representative, if VI material requested relates to the
member and does not compromise classified information or an accident
investigation board's work.
(g) The general public, to help the Armed Forces recruiting program
or enhance public understanding of the Armed Forces, when SAF/PA
determines that VI materials or services promote the Air Force's best
interest.
(h) Incidental or occasional requests for VI records center
materials or services, including requests from residents of foreign
countries, when fees would be inappropriate. AFI 16-101, International
Affairs and Security Assistance Management, tells how a foreign
government may obtain Air Force VI materials.
(i) Legitimate news organizations working on news productions,
documentaries, or print products that inform the public on Air Force
activities.
Sec. 811.6 Visual information product/material loans.
(a) You may request unclassified and classified copies of current
Air Force productions and loans of DoD and other Federal productions
from JVISDA, ATTN: ASQV-JVIA-T-AS, Bldg. 3, Bay 3, 11 Hap Arnold Blvd.,
Tobyhanna, PA 18466-5102.
(1) For unclassified products, use your organization's letterhead,
identify subject title, PIN, format, and quantity.
(2) For classified products, use your organization's letterhead,
identify subject title, personal identification number (PIN), format,
and quantity. Also, indicate that either your organization commander or
security officer, and MAJCOM VI manager approve the need.
(b) You may request other VI materials, such as, still images and
motion media stock footage, from DVIC/OM-PA, 1363 Z Street, Building
2730, March ARB, CA 92518-2703.
Sec. 811.7 Collecting and controlling fees.
(a) The DoD records centers usually collect fees in advance.
Exceptions are sales where you cannot determine actual cost until work
is completed (for example, television and motion picture services with
per minute or per footage charges).
(b) Customers pay fees, per AFR 177-108, Paying and Collecting
Transactions at Base Level, with cash, treasury check, certified check,
cashier's check, bank draft, or postal money order.
Sec. 811.8 Forms prescribed and availability of publications.
(a) AF Form 833, Visual Information Request, AF Form 1340, Visual
Information Support Center Workload Report, DD Form 1995, Visual
Information (VI) Production Request and Report,
[[Page 61]]
DD Form 2054-1, Visual Information (VI) Annual Report, and DD Form 2537,
Visual Information Caption Sheet are prescribed by this part.
(b) Air Force publications and forms referenced in this part are
available from NTIS, 5285 Port Royal Road, Springfield, VA 22161 or
online at http://www.afpubs.hq.af.mil. DoD publications are available at
http://www.defenselink.mil/pubs.
PART 813--VISUAL INFORMATION DOCUMENTATION PROGRAM--Table of Contents
Sec.
813.1 Purpose of the visual information documentation (VIDOC) program.
813.2 Sources of VIDOC.
813.3 Responsibilities.
813.4 Combat camera operations.
813.5 Shipping or transmitting visual information documentation images.
813.6 Planning and requesting combat documentation.
813.7 Readiness reporting.
Authority: 10 U.S.C. 8013.
Source: 65 FR 64621, Oct. 30, 2000, unless otherwise noted.
Sec. 813.1 Purpose of the visual information documentation (VIDOC) program.
Using various visual and audio media, the Air Force VIDOC program
records important Air Force operations, historical events, and
activities for use as decision making and communicative tools. VIDOC of
Air Force combat operations is called COMCAM documentation. Air Force
publications are available at NTIS, 5285 Port Royal Road, Springfield,
VA 22161 or online at http://www.afpubs.hq.af.mil. DoD publications are
available at http://www.defenselink.mil/pubs.
Sec. 813.2 Sources of VIDOC.
Primary sources of VIDOC materials include:
(a) HQ AMC active and reserve combat camera (COMCAM) forces, both
ground and aerial, whose primary goal is still and motion media
documentation of Air Force and air component combat and combat support
operations, and related peacetime activities such as humanitarian
actions, exercises, readiness tests, and operations.
(b) Visual information forces with combat documentation capabilities
from other commands: HQs ACC, AETC, AFRES, and AFSPACECOM.
(c) Communications squadron base visual information centers
(BVISCs).
(d) Air Digital Recorder (ADR) images from airborne imagery systems,
such as heads up displays, radar scopes, and images from electro-optical
sensors carried aboard aircraft and weapons systems.
(e) Photography of Air Force Research, Development, Test &
Evaluation (RDT&E) activities, including high speed still and motion
media optical instrumentation.
Sec. 813.3 Responsibilities.
(a) HQ AFCIC/ITSM:
(1) Sets Air Force VIDOC policy.
(2) Oversees United States Air Force (USAF) COMCAM programs and
combat readiness.
(3) Makes sure Air Force participates in joint actions by
coordinating with the Office of the Secretary of Defense staff, Joint
Chiefs of Staff (JCS), executive departments, and other branches of the
United States Government.
(4) Approves use of Air Force COMCAM forces in non-Air Force
activities.
(b) Air components:
(1) Manage air component COMCAM and visual information support
within their areas of responsibility. Documents significant events and
operations for theater and national-level use.
(2) Sets requirements for COMCAM and VI support. Includes
requirements in operations plans (OPLAN) force lists, concept plans
(CONPLAN), operations orders (OPORD), and similar documents. See Air
Force Manual (AFMAN) 10-401, Operation Plan and Concept Plan Development
and Implementation.
(3) Coordinate with MAJCOM VI managers to plan and source VIDOC
forces for war, contingencies, and exercises.
(4) Provide input (VI and COMCAM requirements) to HQ AMC/SCMV, 203
West Losey Street, Room 3180, Scott AFB, IL 62225-5223, as required to
develop the annual VI Exercise Support Plan. Include requirements to
exercise
[[Page 62]]
VI forces to refine operational procedures and meet defined objectives.
(c) HQ AMC:
(1) Provides primary Air Force ADR theater support to the air
component commanders.
(2) Maintains a deployable theater support Unified Transportation
Command (UTC) to manage ADR requirements above the aviation wing level.
This includes the gathering, editing, copying, and distribution of ADR
images from combat aviation squadrons for operational analysis, bomb
damage assessment, collateral intelligence, training, historical, public
affairs, and other needs.
(3) Sets combat training standards and develops programs for all Air
Force COMCAM personnel (includes both formal classroom and field
readiness training).
(4) Coordinates and meets COMCAM needs in war, operations, and
concept plans.
(5) Provides the Air Force's primary COMCAM capability and assists
air component and joint commands with deliberate and crisis action
planning for USAF's COMCAM assets.
(6) Provides component and theater commands COMCAM planning
assistance and expertise for contingencies, humanitarian actions,
exercises, and combat operations.
(7) Acts as manpower and equipment force packaging (MEFPAK) manager
for COMCAM UTCs.
(8) Funds HQ AMC COMCAM personnel and equipment for contingency or
wartime deployments. (The requester funds temporary duty and supply
costs for planned events, such as non-JCS exercises and competitions.)
(9) Develops and monitors the annual Air Force-wide VI Exercise
Support Plan for the Air Staff, with assistance from air components and
supporting MAJCOMs. (Use criteria contained in Sec. 813.4(e)(1) and
provide equitable deployment opportunity for tasked commands' VI
resources.)
(d) MAJCOM VI managers:
(1) Plan and set policy for documenting activities of operational,
historical, public affairs, or other significance within their commands.
(2) Train and equip VIDOC forces to document war, contingencies,
major events, Air Force and joint exercises, and weapons tests.
(3) Make sure COMCAM and BVISC forces meet their wartime tasking and
identify and resolve deficiencies. Refer significant deficiencies and
problems and proposed resolution to HQ AFCIC/ITSM.
(4) Allow documentation of significant Air Force activities and
events, regardless of their sensitivity or classification. Protect
materials as the supported command directs. Safeguard classified images
or handle them according to Department of Defense (DoD) Directive
5200.1, DoD Information Security Program, June 7, 1982, with Changes 1
and 2, and AFI 31-401, Information Security Program Management. The
authority in charge of the event or operation approves documentation
distribution.
(5) Update UTC availability in MAJCOM information systems.
(6) Assist Air Force Operations Group, in identifying the command's
capability to support COMCAM and VI requirements.
(7) Provide inputs to HQ AMC/SCMV for the annual VI Exercise Support
Plan for JCS exercises.
(8) Make sure units that have deployable VI teams have Status of
Resources and Training System (SORTS) reportable designed operational
capability (DOC) statements that accurately reflect their mission and
taskings.
(9) Develop and oversee measurements, such as operational readiness
inspection criteria, to evaluate VI force readiness at DOC-tasked units.
Sec. 813.4 Combat camera operations.
(a) Air Force COMCAM forces document Air Force and air component
activities.
(b) The supported unified command or joint task force commander,
through the air component commander (when assigned), controls Air Force
COMCAM forces in a joint environment. If an air component is assigned,
the air component normally manages documentation of its operations. Air
Force COMCAM and visual information
[[Page 63]]
support for joint operations will be proportionate to USAF combat force
participation. In airlift operations, HQ AMC may be the supported
command.
(c) During contingencies, exercises, and other operations, the Air
Force provides its share of Unified Command headquarters COMCAM and
visual information support forces for still photographic, motion media,
graphics, and other VI services.
(d) COMCAM and VI forces take part in Air Force and joint exercises
to test procedures and over-all readiness. COMCAM and VI forces also
provide VI products to command, operations, public affairs, historical,
and other significant customers.
(e) Sourcing COMCAM forces. See AFMAN 10-401 for specific
procedures.
(1) When VI support teams are required, the lead wing's VI UTC
deploys as primary, whenever possible. If lead wing VI support is not
available, the providing command sources the requirement from other
active or reserve component forces, or coordinates with other MAJCOMs
for assistance.
(2) Air Force VI personnel who assist supported commands in
determining COMCAM and VI requirements and sourcing consider the total
USAF VI community as a resource. Planners consider employing USAF
deployable VI support teams, augmentation combat documentation teams
from AFSPACECOM, AETC, and ACC, as well as active and reserve COMCAM
teams.
Sec. 813.5 Shipping or transmitting visual information documentation images.
(a) COMCAM images. Send COMCAM images to the DoD Joint Combat Camera
Center, Room 5A518, Pentagon, Washington, DC 20330-3000, by the fastest
means possible, following the approval procedures that on-scene and
theater commanders set.
(b) Other non-COMCAM images. After use, send significant non-COMCAM
images to the appropriate DoD media records center through the Air Force
record center accessioning point.
(c) Identification of VIDOC materials. Clearly identify all VIDOC
and COMCAM material with slates, captions, and cover stories.
Sec. 813.6 Planning and requesting combat documentation.
(a) Planned combat documentation. Air components identify
documentation needs as early as possible in OPLANs, CONPLANs, and OPORDs
and send copies of these plans to HQ AMC/SCMV, 203 West Losey Street,
Room 3180, Scott AFB, IL 62225-5223. Include the contact for planning
and support.
(b) Activity documentation. MAJCOMs may request that HQ AMC document
their activities. Send information copies of requests to HQ AFCIC/ITSM,
1250 Air Force Pentagon, Washington, DC 20330-1250, and HQ AMC/SCMV.
When a supporting component command operationally controls HQ AMC COMCAM
units, other organizations that need support must coordinate requests
with the supported command.
(c) Unplanned combat documentation. Send short notice requests to
the supported operational commander as soon as possible, with
information copies to HQ AFCIC/ITSM and HQ AMC/SCMO. Identify end
product requirements, media formats, and deadlines.
(d) Humanitarian, disaster relief, and contingencies. Theater
commanders normally task the supporting component through the Joint
Operation Planning and Execution System, that in turn, requests support
from HQ AMC. HQ USAF can directly task HQ AMC to document humanitarian,
disaster relief, or contingency activities if it does not receive other
tasking(s). In these cases, coordinate with the supported unified
command.
Sec. 813.7 Readiness reporting.
All Air Force units assigned a DOC statement report readiness status
through the SORTS process. See AFI 10-201, Status of Resources and
Training System, for specific information and reporting criteria.
SUBCHAPTER C--PUBLIC RELATIONS [RESERVED]
[[Page 64]]
SUBCHAPTER D--CLAIMS AND LITIGATION
PART 841--LICENSING GOVERNMENT-OWNED INVENTIONS IN THE CUSTODY OF THE DEPARTMENT OF THE AIR FORCE--Table of Contents
Subpart A--General Information
Sec.
841.0 Purpose.
841.1 Air Force policy.
841.2 Execution of licenses.
841.3 Delegation of authority.
841.4 Definitions.
841.5 Royalties.
Subpart B--Restrictions and Conditions for Licensing and Types of
Licenses
841.6 Restrictions and conditions.
841.7 Nonexclusive licenses.
841.8 Exclusive and partially exclusive licenses.
841.9 Additional licenses.
841.10 Foreign licenses.
Subpart C--Licensing Procedures
841.11 Publication requirements.
841.12 Request for a license.
841.13 Contents of a license application.
841.14 Published notices.
841.15 Determination to grant or deny exclusive or partially exclusive
licenses.
841.16 Modification and termination.
841.17 Appeals.
Subpart D--Transfer of Custody of Government Inventions and
Confidentiality of Information
841.18 Transfer procedure.
841.19 Confidentiality of plans and reports.
Authority: 10 U.S.C. 8012.
Source: 50 FR 20563, May 17, 1985, unless otherwise noted.
Subpart A--General Information
Sec. 841.0 Purpose.
This regulation prescribes the policies, administrative
requirements, procedures, terms, and conditions for licensing of rights
in federally owned patents and patent applications vested in the United
States of America in the custody of the Department of the Air Force. It
is consistent with General Services Administration Licensing of
Federally Owned Inventions, 41 CFR 101-4, which implements Pub. L. 96-
517. It applies to all requests for a license under an Air Force
invention.
Sec. 841.1 Air Force policy.
Federally owned inventions in the custody of the Department of the
Air Force normally will best serve the public interest when they are
developed to the point of practical application and made available to
the public in the shortest possible time. Nonexclusive, partially
exclusive, or exclusive licenses for the practice of these inventions
may be granted to applicants who agree to develop and/or market the
inventions. All Air Force inventions normally will be made available for
the granting of licenses to responsible applicants.
Sec. 841.2 Execution of licenses.
Nonexclusive, partially exclusive, or exclusive licenses will be
executed on behalf of the Department of the Air Force by the Secretary
or by anyone to whom this authority is delegated.
Sec. 841.3 Delegation of authority.
The administration of this part is delegated to The Judge Advocate
General, who may redelegate the administration of this part to the
Chief, Patents Division, Office of The Judge Advocate General. All
communications received in any Air Force activity requesting information
regarding the licensing of a Government invention will be acknowledged
and sent without further action directly to HQ USAF/JACP, Washington DC
20324.
Sec. 841.4 Definitions.
(a) Air Force invention means an invention, plant, or design which
is covered by a patent or patent application in the United States, or a
patent, patent application, plant variety protection, or other form of
protection in a foreign country, title to which has been assigned to or
otherwise vested in the United States Government and in the custody of
the Department of the Air Force.
[[Page 65]]
(b) Small business firm means a small business concern as defined in
section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing regulations
of the Administrator of the Small Business Administration.
(c) Practical Application means to manufacture in the case of a
composition or product, to practice in the case of a process or method,
or to operate in the case of a machine or system; and in each case,
under such conditions as to establish that the invention is being
utilized and that its benefits are to the extent permitted by law or
Government regulations available to the public on reasonable terms.
(d) United States means the United States of America, its
territories and possessions, the District of Columbia, and the
Commonwealth of Puerto Rico.
Sec. 841.5 Royalties.
(a) Royalties may or may not be charged under nonexclusive licenses
granted to US citizens and US corporations on Government inventions;
however, the Department of the Air Force may require other
considerations when a royalty is not charged.
(b) Normally, an exclusive or partially exclusive license on an Air
Force invention will contain a royalty provision and/or other
consideration flowing to the Government.
Subpart B--Restrictions and Conditions for Licensing and Types of
Licenses
Sec. 841.6 Restrictions and conditions.
The following restrictions and conditions apply to all licenses
granted under this part:
(a) Restrictions: (1) A license may be granted only if the applicant
has supplied the Air Force with a satisfactory plan for development or
marketing of the invention, or both, and with information about the
applicant's capability to fulfill the plan.
(2) A license granting rights to use or sell under an Air Force
invention in the United States shall normally be granted only to a
licensee who agrees that any product embodying the invention or produced
through the use of the invention will be manufactured substantially in
the United States.
(b) Conditions. Licenses shall contain such terms and conditions as
the Air Force determines are appropriate for the protection of the
interests of the Federal Government and the public and are not in
conflict with law or this part. The following terms and conditions apply
to any license:
(1) The duration of the license shall be for a period specified in
the license agreement, unless sooner terminated according to provisions
therein.
(2) The license may be granted for all or less than all fields of
use of the invention or in specified geographical areas, or both.
(3) The license may extend to subsidiaries of the licensee or other
parties if provided for in the license but shall be nonassignable
without approval of the Air Force, except to the successor of that part
of the licensee's business to which the invention pertains.
(4) The license may provide the licensee the right to grant
sublicenses under the license, subject to the approval of the Air Force.
Each sublicense shall make reference to the license, including the
rights retained by the Government, and a copy of each sublicense shall
be furnished to the Air Force.
(5) The license shall require the licensee to carry out the plan for
development or marketing of the invention, or both, to bring the
invention to practical application within a period specified in the
license, and to continue to make the benefits of the invention
reasonably accessible to the public.
(6) The license shall require the licensee to report, at least
annually, on the utilization or efforts at obtaining utilization that
are made by the licensee, with particular reference to the plan
submitted.
(7) Licenses may be royalty-free or for royalties or other
consideration.
(8) When the licensee agrees that any products embodying the
invention or produced through use of the invention will be manufactured
substantially in the United States, the license shall recite such
agreement.
(9) The license shall provide for the right of the Air Force to
terminate the license, in whole or in part, if:
[[Page 66]]
(i) The Air Force determines that the licensee is not executing the
plan submitted with its requests for a license and the licensee cannot
otherwise demonstrate to the satisfaction of the Air Force that it has
taken or can be expected to take within a reasonable time effective
steps to achieve practical application of the invention;
(ii) The Air Force determines that such action is necessary to meet
requirements for public use specified by Federal regulations issued
after the date of the license and such requirements are not reasonably
satisfied by the licensee;
(iii) The licensee has willfully made a false statement of or
willfully omitted a material fact in the license application or in any
report required by the license agreement; or
(iv) The licensee commits a substantial breach of a covenant or
agreement contained in the license.
(10) The license may be modified or terminated consistent with this
part upon mutual agreement of the Air Force and the licensee.
(11) Nothing relating to the grant of a license, nor the grant
itself, shall be construed to confer upon any person, any immunity from
or defense under the antitrust laws or from a charge of patent misuse,
and the acquisition and use of rights pursuant to this subpart shall not
be immunized from the operation of state or Federal law by reason of the
source of the grant.
(12) The license shall contain a provision that the government makes
no representation or warranty as to the validity of any licensed patent
or patent application, or of the scope of any of the claims contained
therein, or that the exercise of the license will not result in the
infringement of any other patent and that the Government assumes no
liability whatsoever resulting from the exercise of the license.
Sec. 841.7 Nonexclusive licenses.
Each Air Force invention normally will be made available for the
granting of nonexclusive licenses, subject to the provisions of any
other license, including those in Sec. 841.8, and subject to the
following condition: the nonexclusive license may also provide that,
after termination of a period specified in the license agreement, the
Air Force may restrict the license to the fields of use or geographic
areas, or both, in which the licensee has brought the invention to
practical application and continues to make the benefits of the
invention reasonably accessible to the public. However, such restriction
shall be made only in order to grant an exclusive or partially exclusive
license according to this part.
Sec. 841.8 Exclusive and partially exclusive licenses.
Each Government invention may be made available for the granting of
an exclusive or partially exclusive license subject to the following
restrictions and conditions:
(a) Restrictions. Exclusive or partially exclusive licenses may be
granted on federally owned inventions as follows:
(1) Three months after notice of the invention's availability has
been announced in the Federal Register; or
(2) Without such notice where the Air Force determines that
expeditious granting of such a license will best serve the interest of
the Federal Government and the public; and
(3) In either situation specified in paragraph (a) (1) or (2) of
this section only if:
(i) Notice of a prospective license, identifying the invention and
the prospective licensee, has been published in the Federal Register,
providing opportunity for filing written objections within a 60-day
period;
(ii) After expiration of the 60-day period and consideration of any
written objections received during the period, the Air Force makes the
determinations required by Sec. 841.15 favorably to the applicant; and
(iii) The Air Force has given first preference to any small business
firms submitting plans that are determined by the agency to be within
the capabilities of the firms and as equally likely, if executed, to
bring the invention to practical application as any plans submitted by
applicants that are not small business firms.
(b) Conditions. In addition to the provisions of Sec. 841.6, the
following terms and conditions apply to domestic exclusive and partially
exclusive licenses:
[[Page 67]]
(1) The license shall be subject to the irrevocable royalty-free
right of the Government of the United States to practice and have
practiced the invention on behalf of the United States and on behalf of
any foreign government or international organization pursuant to any
existing or future treaty or agreement with the United States.
(2) The license shall reserve to the Air Force the right to require
the licensee to grant sublicenses to responsible applicants, on
reasonable terms, when necessary to fulfill health or safety needs.
(3) The license shall be subject to any licenses in force at the
time of the grant of the exclusive or partially exclusive license.
(4) The license may grant the licensee the right of enforcement of
the licensed patent pursuant to the provisions of 35 U.S.C. 29, as
determined appropriate in the public interest.
Sec. 841.9 Additional licenses.
Nothing in this part will preclude the Air Force from granting
licenses for Air Force inventions which are the result of an authorized
exchange of rights in the settlement of patent disputes. The following
exemplify circumstances wherein such licenses may be granted:
(a) In consideration of the settlement of an interference;
(b) In consideration of a release of a claim of infringement; or
(c) In exchange for or as part of the consideration for a license
under adversely held patents.
Sec. 841.10 Foreign licenses.
(a) Exclusive or partially exclusive licenses may be granted on an
Air Force invention covered by a foreign patent, patent application, or
other form of protection, provided that:
(1) Notice of a prospective license identifying the invention and
prospective licensee has been published in the Federal Register,
providing opportunity for filing written objections within a 60-day
period and following consideration of such objections;
(2) The Air Force has considered whether the interests of the
Federal Government or United States industry in foreign commerce will be
enhanced; and
(3) The Air Force has not determined that the grant of such license
will tend substantially to lessen competition or result in undue
concentration in any section of the United States in any line of
commerce to which the technology to be licensed relates, or to create or
maintain other situations inconsistent with antitrust laws.
(b) In addition to the provisions of Sec. 841.6, the following terms
and conditions apply to foreign exclusive and partially exclusive
licenses:
(1) The license shall be subject to the irrevocable, royalty-free
right of the United States Government to practice and have practiced the
invention on behalf of any foreign government or international
organization pursuant to any existing or future treaty or agreement with
the United States.
(2) The license shall be subject to any licenses in force at the
time of the grant of the exclusive license.
(3) The license may grant the licensee the right to take any
suitable and necessary action to protect the licensed property on behalf
of the United States Government.
Subpart C--Licensing Procedures
Sec. 841.11 Publication requirements.
The Department of the Air Force will cause to be published in the
Federal Register, and at least one other publication that the Air Force
deems would best serve the public interest, a list of Government
inventions in the custody of the Department of the Air Force available
for licensing under the conditions specified in subpart B.
Sec. 841.12 Request for a license.
Requests for a license under an Air Force invention should be
addressed to the Chief, Patents Division, HQ USAF/JACP, Washington DC
20324.
Sec. 841.13 Contents of a license application.
An application for a license will include:
(a) Identification of the invention for which the license is desired
including the patent application serial number or
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patent number, title, and date, if known;
(b) Identification of the type of license for which the application
is submitted;
(c) Name and address of the person, company, or organization
applying for the license and the citizenship or place of incorporation
of the applicant;
(d) Name, address, and telephone number of the representative of the
applicant to whom correspondence should be sent;
(e) Nature and type of applicant's business, identifying products or
services which the applicant has successfully commercialized, and
approximate number of applicant's employees;
(f) Source of information concerning the availability of a license
on the invention;
(g) A statement indicating whether the applicant is a small business
firm as defined in Sec. 841.4 of this subpart;
(h) A detailed description of the applicant's plan for development
or marketing of the invention, or both, which should include:
(1) A statement of the time, nature, and amount of anticipated
investment of capital and other resources which applicant believes will
be required to bring the invention to practical application;
(2) A statement as to applicant's capability and intention to
fulfill the plan, including information regarding manufacturing,
marketing, financial, and technical resources;
(3) A statement of the fields of use for which applicant intends to
practice the invention; and
(4) A statement of the geographic areas in which the applicant
intends to manufacture any products embodying the invention and
geographic areas where applicant intends to use or sell the invention,
or both;
(i) Identification of licenses previously granted to applicant under
federally owned inventions;
(j) A statement containing the applicant's best knowledge of the
extent to which the invention is being practiced by private industry or
Government, or both, or is otherwise available commercially; and
(k) Any other information which applicant believes will support a
determination to grant the license to applicant.
Sec. 841.14 Published notices.
A notice that the prospective exclusive or partially exclusive
licensee has been selected will be published by the Department of the
Air Force in the Federal Register and a copy of the notice will be sent
to the Attorney General. The notice will include:
(a) Identification of the invention;
(b) Identification of the selected licensee; and
(c) A statement that the license will be granted unless any written
objection is received within 60 days.
Sec. 841.15 Determination to grant or deny exclusive or partially exclusive licenses.
(a) After the notice is published in the Federal Register that a
prospective exclusive or partially exclusive licensee has been selected
and the 60 days for filing written objections has expired, a decision
will be made whether to grant or deny the license considering all
arguments and evidence of record. A memorandum of the decision will be
prepared and shall include:
(1) An identification of the invention, type of license desired, and
name and address of the party applying for the license;
(2) The name and address of all third parties who objected to the
granting of the license, if any;
(3) A brief statement of the reasons for the objections, if any;
(4) A discussion of the relative merits of the license application
vs. the objections filed by third parties, if any;
(5) Determinations, and reasons supporting the determinations,
whether:
(i) The interests of the Federal Government and the public will be
served by the proposed license, in view of the applicant's intentions,
plans, and ability to bring the invention to practical application or
otherwise promote the invention's utilization by the public;
(ii) The desired practical application has not been achieved or is
not likely expeditiously to be achieved under any nonexclusive license
which has been granted on the invention;
(iii) Exclusive or partially exclusive licensing is a reasonable and
necessary
[[Page 69]]
incentive to call forth the investment of risk capital and expenditures
to bring the invention to practical application or otherwise promote the
invention's utilization by the public;
(iv) The proposed terms and scope of exclusivity are not greater
than reasonably necessary to provide the incentive for bringing the
invention to practical application or otherwise promote the invention's
utilization by the public;
(v) The grant of such license will tend substantially to lessen
competition or result in undue concentration in any section of the
country in any line of commerce to which the technology to be licensed
relates, or to create or maintain other situations inconsistant with the
antitrust laws; and
(vi) The interest of the United States Government or industry in
foreign commerce will be enhanced, if the license request is under a
foreign patent, patent application, or other form of protection.
(6) The signature of the individuals making the determinations.
(b) A record of the determinations to grant or deny an exclusive or
a partially exclusive license shall be maintained by the Patents
Division.
Sec. 841.16 Modification and termination.
Before modifying or terminating a license, other than by mutual
agreement, the Air Force shall furnish the licensee and any sublicensee
of record a written notice of intention to modify or terminate the
license, and the licensee and any sublicensee shall be allowed 30 days
after such notice to remedy any breach of the license or show cause why
the license should not be modified or terminated.
Sec. 841.17 Appeals.
A party whose application for a license has been denied, a licensee
whose license has been modified or terminated, in whole or in part, or a
party who timely filed a written objection in response to the notice
required in Sec. 841.8 and Sec. 841.10 and who can demonstrate to the
satisfaction of the Air Force that such party may be damaged by the
agency action, may appeal to The Judge Advocate General, any decision or
determination concerning the grant, denial, interpretation,
modification, or termination of a license. The appeal must be in writing
and submitted within 60 days from the date the decision or determination
was mailed to the party.
Subpart D--Transfer of Custody of Government Inventions and
Confidentiality of Information
Sec. 841.18 Transfer procedure.
Under certain circumstances it may be in the best interest of the
Air Force to enter into an agreement to transfer its custody of any
invention to another Government agency for purposes of administration
including the granting of licenses pursuant to this part. Such transfers
will be made on a case-by-case basis.
Sec. 841.19 Confidentiality of plans and reports.
Title 35 U.S.C. 209 provides that any plan submitted pursuant to
Sec. 841.13 above and any report required by Sec. 841.6 may be treated
by the Air Force as commercial and financial information obtained from a
person and priviledged and confidential and not subject to disclosure
under 5 U.S.C. 552.
PART 842--ADMINISTRATIVE CLAIMS--Table of Contents
Sec.
842.0 Scope.
Subpart A--General Information
842.1 Scope of this subpart.
842.2 Definitions.
842.3 Claims authorities.
842.4 Where to file a claim.
842.5 Claims forms.
842.6 Signature on the claim form.
842.7 Who may file a claim.
842.8 Insured claimants.
842.9 Splitting a claim.
Subpart B--Functions and Responsibilities
842.10 Scope of this subpart.
842.11 Air Force claims organization.
842.12 HQ USAF claims responsibility.
842.13 Staff Judge Advocates' responsibility.
842.14 Claims and assistant claims officers.
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Subpart C--Claims Under Article 139, Uniform Code of Military Justice
(UCMJ) (10 U.S.C. 939)
842.15 Scope of this subpart.
842.16 Definitions.
842.17 Claims payable.
842.18 Claims not payable.
842.19 Limiting provisions.
842.20 Filing a claim.
Subpart D--Personnel Claims (31 U.S.C. 3701, 3721)
842.21 Scope of this subpart.
842.22 Definitions.
842.23 Delegations of authority.
842.24 Filing a claim.
842.25 Partial payments.
842.26 Statute of limitations.
842.27 Who may file a claim.
842.28 Who are proper claimants.
842.29 Who are not proper claimants.
842.30 General provisions.
842.31 Claims payable.
842.32 Claims not payable.
842.33 Reconsideration of a claim.
842.34 Right of subrogation, indemnity, and contribution.
842.35 Depreciation and maximum allowances.
Subpart E--Carrier Recovery Claims
842.36 Scope of this subpart.
842.37 Definitions.
842.38 Delegations of authority.
842.39 Statute of limitations.
Subpart F--Military Claims Act (10 U.S.C. 2733)
842.40 Scope of this subpart.
842.41 Definitions.
842.42 Delegations of authority.
842.43 Filing a claim.
842.44 Advance payments.
842.45 Statute of limitations.
842.46 Who may file a claim.
842.47 Who are proper claimants.
842.48 Who are not proper claimants.
842.49 Claims payable.
842.50 Claims not payable.
842.51 Applicable law.
842.52 Appeal of final denials.
842.53 Right of subrogation, indemnity, and contribution.
842.54 Attorney fees.
Subpart G--Foreign Claims (10 U.S.C. 2734)
842.55 Scope of this subpart.
842.56 Definitions.
842.57 Delegations of authority.
842.58 Filing a claim.
842.59 Advance payments.
842.60 Statute of limitations.
842.61 Who may file a claim.
842.62 Who are proper claimants.
842.63 Who are not proper claimants.
842.64 Payment criteria.
842.65 Claims not payable.
842.66 Applicable law.
842.67 Reconsideration of final denials.
842.68 Right of subrogation, indemnity, and contribution.
Subpart H--International Agreement Claims (10 U.S.C. 2734a and 2734b)
842.69 Scope of this subpart.
842.70 Definitions.
842.71 Delegations of authority.
842.72 Filing a claim.
Subpart I--Use of Government Property Claims (10 U.S.C. 2737)
842.73 Scope of this subpart.
842.74 Definitions.
842.75 Delegations of authority.
842.76 Filing a claim.
842.77 Statute of limitations.
842.78 Claims payable.
842.79 Claims not payable.
842.80 Reconsideration of final denial.
842.81 Settlement agreement.
Subpart J--Admiralty Claims (10 U.S.C. 9801-9804, 9806; 46 U.S.C. 740)
842.82 Scope of this subpart.
842.83 Definitions.
842.84 Delegations of authority.
842.85 Reconsidering claims against the United States.
Subpart K--Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b),
2402, 2671, 2672, 2674-2680)
842.86 Scope of this subpart.
842.87 Definitions.
842.88 Delegations of authority.
842.89 Statute of limitations.
842.90 Reconsideration of final denials.
842.91 Settlement agreements.
Subpart L--Property Damage Tort Claims in Favor of the United States (31
U.S.C. 3701, 3711-3719)
842.92 Scope of this subpart.
842.93 Delegations of authority.
842.94 Assertable claims.
842.95 Non-assertable claims.
842.96 Asserting the claim.
842.97 Referring a claim to the US Attorney or the Department of
Justice.
842.98 Statute of limitations.
842.99 Compromise, termination, and suspension of collection.
[[Page 71]]
Subpart M--Claims Under the National Guard Claims Act (32 U.S.C. 715)
842.100 Scope of this subpart.
842.101 Definitions.
842.102 Delegations of authority.
842.103 Filing a claim.
842.104 Advance payments.
842.105 Statute of limitations.
842.106 Who may file a claim.
842.107 Who are proper claimants.
842.108 Who are not proper claimants.
842.109 Claims payable.
842.110 Claims not payable.
842.111 Applicable law.
842.112 Appeal of final denials.
842.113 Government's right of subrogation, indemnity, and contribution.
842.114 Attorney fees.
Subpart N--Hospital Recovery Claims (42 U.S.C. 2651-2653)
842.115 Scope of this subpart.
842.116 Definitions.
842.117 Delegations of authority.
842.118 Assertable claims.
842.119 Nonassertable claims.
842.120 Asserting the claim.
842.121 Referring a claim to the US Attorney.
842.122 Statute of limitations.
842.123 Recovery rates in government facilities.
842.124 Waiver and compromise of United States interest.
842.125 Reconsideration of a waiver for undue hardship.
Subpart O--Nonappropriated Fund Claims
842.126 Scope of this subpart.
842.127 Definitions.
842.128 Delegations of authority.
842.129 Settlement of claims against NAFIs.
842.130 Payment of claims against NAFIs.
842.131 Tort and tort type claims.
842.132 Claims by NAFI employees.
842.133 Claims by customers, members, participants, or authorized
users.
842.134 Claims in favor of NAFIs.
842.135 Advance payments.
842.136 Claim payments and deposits.
Subpart P--Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a),
8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201-208)
842.137 Scope of this subpart.
842.138 Definitions.
842.139 Delegations of authority.
842.140 Proper claimants.
842.141 Improper claimants.
842.142 Claims payable.
842.143 Claims not payable.
Subpart Q--Advance Payments (10 U.S.C. 2736)
842.144 Scope of this subpart.
842.145 Delegation of authority.
842.146 Who may request.
842.147 When authorized.
842.148 When not authorized.
842.149 Separate advance payment claims.
842.150 Liability for repayment.
Authority: Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013,
except as otherwise noted.
Source: 55 FR 2809, Jan. 29, 1990, unless otherwise noted.
Note: Air Force Regulations are available through the National
Technical Information Service (NTIS), U.S. Department of Commerce, 5285
Port Royal Road, Springfield, VA 22161.
This part is derived from Air Force Regulation 112-1, Claims and
Tort Litigation.
Sec. 842.0 Scope.
This part establishes standard policies and procedures for
administratively processing claims resulting from Air Force activities
and for which the Air Force has assigned responsibility; tells how to
present, process, and settle claims.
Subpart A--General Information
Sec. 842.1 Scope of this subpart.
This subpart explains terms used in this part. It states basic Air
Force claims policy and identifies proper claimants.
Sec. 842.2 Definitions.
(a) Authorized agent. Any person or corporation, including a legal
representative, empowered to act on a claimant's behalf.
(b) Civilian personnel. Civilian employees of the Air Force who are
paid from appropriated or nonappropriated funds. They include prisoners
of war, interned enemy aliens performing paid labor, and volunteer
workers except for claims under the Military Personnel and Civilian
Employees' Claims Act.
(c) Claim. Any signed written demand made on or by the Air Force for
the payment of a sum certain. It does not include any obligations
incurred in the regular procurement of services, supplies, equipment, or
real estate. An oral demand made under Article 139,
[[Page 72]]
Uniform Code of Military Justice (UCMJ) is sufficient.
(d) Claimant. An individual, partnership, association, corporation,
country, state, territory, or its political subdivisions, and the
District of Columbia. The US Government or any of its instrumentalities
may be a claimant in admiralty, tort, carrier recovery and hospital
recovery claims in favor of the United States.
(e) Geographic area of claims responsibility. The base Staff Judge
Advocate's (SJA's) jurisdiction for claims. CONUS jurisdictional areas
are designated by HQ USAF/JACC on maps distributed to the field. HQ
PACAF, HQ USAFE, and HQ 9AF SJAs designate these areas within their
jurisdictions. DOD assigns areas of single service responsibility to
each military department.
(f) HQ USAF/JACC. Claims and Tort Litigation Staff, Office of The
Judge Advocate General, Headquarters, United States Air Force, Building
5683, Bolling AFB, DC 20332-6128.
(g) HQ 9AF. Headquarters Ninth Air Force, Shaw AFB, SC 29152-5002.
(h) Owner. A holder of a legal title or an equitable interest in
certain property. Specific examples include:
(1) For real property. The mortgagor, and the mortgagee if that
individual can maintain a cause of action in the local courts involving
a tort to that specific property.
(2) For personal property. A bailee, lessee, mortgagee and a
conditional vendee. A mortgagor, conditional vendor, or someone else
other than the owner, who has the title for purposes of security are not
owners.
(i) HQ PACAF. Headquarters, Pacific Air Forces, Hickam AFB, HI
96853-5001.
(j) Personal injury. The term ``personal injury'' includes both
bodily injury and death.
(k) Property damage. Damage to, loss of, or destruction of real or
personal property.
(l) Settle. To consider and pay, or deny a claim in full or in part.
(m) Single Base General Court-Martial Jurisdiction (GCM). For claims
purposes, a base legal office serving the commander who exercises GCM
authority over that base, or that base and other bases.
(n) Subrogation. The act of assuming the legal rights of another
after paying a claim or debt, for example, an insurance company
(subrogee) paying its insured's (subrogor's) claim, thereby assuming the
insured's right of recovery.
(o) HQ USAFE. Headquarters, United States Air Forces in Europe,
Ramstein Air Base, Germany, APO NY 09012-5001.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]
Sec. 842.3 Claims authorities.
(a) Appellate authority. The individual authorized to review the
final decision of a settlement authority upon appeal or reconsideration.
(b) Settlement authority. The individual or foreign claims
commission authorized to settle a claim upon its initial presentation.
Sec. 842.4 Where to file a claim.
File a claim at the base legal office of the unit or installation at
or nearest to where the accident or incident occurred. If the accident
or incident occurred in a foreign country where no Air Force unit is
located, file the claim with the Defense Attache (DATT) or Military
Assistance Advisory Group (MAAG) personnel authorized to receive claims
(DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is
unable to obtain adequate assistance in filing a claim, the claimant may
contact the nearest Air Force SJA. The SJA then advises HQ USAF/JACC
thorugh claims channels of action taken and states why the DATT or MAAG
was unable to adequately assist the claimant.
Sec. 842.5 Claims forms.
Any signed written demand on the Air Force for a sum certain is
sufficient to file a claim. The claimant should use these forms when
filing a claim:
(a) Claim processed under the Military Personnel and Civilian
Employees' Claims Act. Use AF Form 180, Claim For Loss of or Damage To
Personal Property Incident To Service, or DD Forms 1842, Claim for
Personal Property Against the United States, and 1844, Schedule of
Property and Claim Analysis Chart, to file the claim.
[[Page 73]]
(b) Claim processed under international agreements. Use any form
specified by the host country.
(c) Any other type claim. Use SF 95, Claim for Damage, Injury, or
Death.
Sec. 842.6 Signature on the claim form.
The claimant or authorized agent signs the claim form in ink using
the first name, middle initial, and last name.
(a) Claim filed by an individual. (1) A married woman signs her
name, for example, Mary A. Doe, rather than Mrs. John Doe.
(2) An authorized agent signing for a claimant shows, after the
signature, the title or capacity and attaches evidence of authority to
present a claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative; for example,
John Doe by Richard Roe, Attorney in Fact. A copy of a current and valid
power of attorney, court order, or other legal document is sufficient
evidence of the agent's authority.
(b) Claim with joint interest. Where a joint ownership or interest
in real property exists, all joint owners must sign the claim form. This
includes a husband and wife signing a claim if the claim is for property
damage. However, only the military member or civilian employee signs the
claim form for a claim under the Military Personnel and Civilian
Employees' Claims Act.
(c) Claim filed by a corporation. (1) A corporate officer signing
the form must show title or capacity and affix the corporate seal (if
any) to the claim form.
(2) If the person signing the claim is other than the corporate
officer they must:
(i) Attach to the claim form a certification by a proper corporate
officer that the individual is an agent of the corporation duly
authorized to file and settle the claim;
(ii) Affix to the claim form the corporate seal (if any) to the
certification.
(d) Claim filed by a partnership. A partner must sign the form
showing his or her title as partner and list the full name of the
partnership.
Sec. 842.7 Who may file a claim.
(a) Property damage. The owner or owners of the property or their
authorized agent may file a claim for property damage.
(b) Personal injury or death. (1) The injured person or authorized
agent may file a claim for personal injury.
(2) The duly appointed guardian of a minor child or any other person
legally entitled to do so under applicable local law may file a claim
for a minor's personal injury.
(3) The executor or administrator of the decedent's estate or any
other person legally entitled to do so under applicable local law may
file a claim based on an individual's death.
(c) Subrogation. The subrogor (insured) and the subrogee (insurer)
may file a claim jointly or individually. Pay a fully subrogated claim
only to the subrogee. A joint claim must be asserted in the names of and
signed by the real parties in interest. Make payment by sending a joint
check to the subrogee, made payable to the subroger and subrogee. If
separate claims are filed, make payment by check issued to each claimant
to the extent of each undisputed interest.
Sec. 842.8 Insured claimants.
Insured claimants must make a detailed disclosure of their insurance
coverage by stating:
(a) Their name and address.
(b) Kind, amount, and dates of coverage of insurance.
(c) Insurance policy number.
(d) Whether a claim was presented to the insurer and, if so, in what
amount.
(e) Whether the insurer paid or is expected to pay the claim.
(f) The amount of any payment made or promised.
Sec. 842.9 Splitting a claim.
(a) A claim includes all damages accruing to a claimant by reason of
an accident or incident. For example, when the same claimant has a claim
for property damage and personal injury arising out of the same
incident, each claim represents only a part of a single claim or cause
of action. Even if local law permits filing a separate
[[Page 74]]
claim for property damage and for personal injury, do not settle or pay
a separate or split claim without the advance approval of HQ USAF/JACC.
(b) Filing for an advance payment, and subsequently filing a claim,
does not constitute splitting a claim.
(c) Process the claim of a subrogor (insured) and subrogee (insurer)
for damages arising out of the same incident as a single claim where
permitted. If either claim or the combined claim exceeds, or is expected
to exceed, settlement limits, send it to the next higher settlement
authority. Do not split subrogated claims to avoid settlement limits.
Subpart B--Functions and Responsibilities
Sec. 842.10 Scope of this subpart.
It sets out the claims organization within the US Air Force and
describes the functions and responsibilities of the various claims
offices.
Sec. 842.11 Air Force claims organization.
Air Force claims channels are:
(a) Continental United States (CONUS), Azores, Panama and Iceland:
(1) Headquarters US Air Force (HQ USAF).
(2) SJAs of bases, single base GCM authorities, stations and fixed
installations, and commanders responsible for investigation and
settlement of claims.
(b) Pacific Air Forces (PACAF) and US Air Forces, Europe (USAFE):
(1) HQ USAF.
(2) SJAs of PACAF and USAFE.
(3) SJAs of organizations exercising GCM authority.
(4) SJAs of bases, stations and fixed installations, and commanders
responsible for investigating and settling claims.
(c) US Central Command (CENTCOM):
(1) HQ USAF.
(2) SJA of Headquarters Ninth Air Force (HQ 9AF).
(3) SJAs of bases, stations, and fixed installations, and commanders
responsible for investigation and settlement of claims.
(d) Maneuver and disaster claims. Air Force Judge Advocates
designated by The Judge Advocate General (TJAG) to process maneuver and
disaster claims. Once appointed, judge advocates must process claims
through claims channels.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]
Sec. 842.12 HQ USAF claims responsibility.
(a) TJAG, through the Claims and Tort Litigation Staff (HQ USAF/
JACC): (1) Establishes claims and tort litigation policies and
supervises and assists all Air Force claims activities.
(2) Trains claims officers and paralegals.
(3) Settles certain claims.
Note: The authority specifically delegated to the Deputy Judge
Advocate General to settle certain claims in no way limits the Deputy's
authority to perform the duties of TJAG when so acting pursuant to 10
U.S.C. 8072.
(4) Monitors tort litigation for and against the United States
arising out of Air Force activities.
(b) HQ USAF/JACC. (1) Supervises and inspects claims and tort
litigation activities through assistance visits, special audits, and
Claims Administrative Management Program (CAMP) reviews.
(2) Implements claims and tort litigation policies, issues
instructions, and provides guidance and assistance to subordinate claims
offices.
(3) Recommends settlement action on claims and tort litigation to
TJAG, the Secretary of the Air Force, and the United States Attorney
General.
(4) Maintains liaison with the Department of Defense (DOD),
Department of Justice (DOJ), and other government agencies on claims and
tort litigation.
(5) Settles certain claims.
(6) Certifies or reports claims to the General Accounting Office
(GAO).
(7) Prepares budget estimates for Air Force claims activities.
(8) Monitors the collection, allocation, and expenditure of Air
Force claims funds.
(9) Keeps permanent records on all claims and tort litigation for
which TJAG is responsible.
(10) Conducts and supervises claims training activities.
[[Page 75]]
Sec. 842.13 Staff Judge Advocates' responsibility.
(a) Major Command (MAJCOM). (1) All MAJCOM SJAs, whether or not
exercising claims settlement authority are responsible for the general
supervision of claims activities within their commands, including:
(i) Conduct of periodic claims audits.
(ii) Support of claims teams. Members may be detailed from personnel
assigned to the command to respond to natural disasters or serious
incidents. If resources are not available from within the command, HQ
USAF/JACC should be contacted for assistance.
(iii) Apportion claims funds allocated by HQ USAF.
(2) The PACAF, USAFE, and HQ 9AF SJA:
(i) Settles claims.
(ii) At a minimum, through assistance visits and audits, supervises
claims activities of those subordinate units and organizations assigned
to them for claims purposes.
(iii) Appoints members to foreign claims commissions.
(iv) Monitors international claims.
(v) Establishes and designates geographic areas of claims
responsibility within the command, except for DOD designated single-
service areas of responsibility.
(b) GCM: (1) The GCM SJA, whether or not he or she exercises claims
settlement authority, is responsible for the general supervision of
claims activities within the subordinate units.
(2) The GCM SJA exercising settlement authority:
(i) Settles certain claims.
(ii) Supervises directly the claims activities of their subordinate
units. This includes at least assistance visits and audits for all but
single base GCMs.
(c) Base SJAs: (1) Settle certain claims.
(2) Have primary investigative responsibility for incidents giving
rise to claims that occur in their geographic area of responsibility.
(3) Notify HQ USAF/JACC through claims channels, if there is a
question of which base can best investigate and process a particular
claim.
Sec. 842.14 Claims and assistant claims officers.
(a) Functions and responsibilities: (1) The claims officer, under
the immediate supervision of the SJA, the commander, or other appointing
authority, is responsible for all claims activity of the command,
organization, or unit. This includes investigating and reporting
accidents, incidents, and claims.
(2) The assistant claims officer performs claims duties under the
supervision of the claims officer and in the absence of the claims
officer.
(b) Appointment of claims and assistant claims officers: (1) The
Commander of each Air Force base, station, fixed installation, or
separate unit appoints a claims officer in writing.
(2) The SJA appoints assistant claims officers in writing.
(c) Qualifications of claims officers: Claims officers are
commissioned officers, designated as judge advocates of the Air Force,
or civilian attorneys employed by the United States in authorized
attorney positions at the office of the SJA.
(d) Qualifications of assistant claims officers: The assistant
claims officer may be an attorney, a senior noncommissioned officer (E-7
through E-9), or a Department of the Air Force civilian employee (GS-7
or above).
Subpart C--Claims Under Article 139, Uniform Code of Military Justice
(UCMJ) (10 U.S.C. 939)
Sec. 842.15 Scope of this subpart.
It sets out the Air Force procedures for processing Article 139,
UCMJ claims.
Sec. 842.16 Definitions.
(a) Appointing commander. The commander exercising special court-
martial jurisdiction over the offender is the appointing commander.
(b) Board of officers. One to three commissioned officers appointed
to investigate a complaint of willful property damage or wrongful taking
by Air Force personnel comprise a board of officers.
(c) Property. Property is an item that is owned or possessed by an
individual
[[Page 76]]
or business. Property includes a tangible item such as clothing,
household furnishings, motor vehicles, real property, and currency. The
term does not include intangible property or items having no independent
monetary worth. Items that should not be considered as property for the
purpose of this part include a stock, bond, check, check book, credit
card, telephone service and cable television services.
(d) Willful damage. Damage or destruction caused intentionally,
knowingly, and purposely, without justifiable excuse is willful damage.
(e) Wrongful taking. Any unauthorized taking or withholding of
property with intent to deprive the owner or person in lawful possession
either temporarily or permanently.
Sec. 842.17 Claims payable.
Claims for property willfully damaged or wrongfully taken by Air
Force military personnel as a result of riotous, violent, or disorderly
conduct. If a claim is payable under this part and also under another
part, it may be paid under this part if authorized by HQ USAF/JACC.
Sec. 842.18 Claims not payable.
Claims that are not payable are:
(a) Claims resulting from simple negligence.
(b) Claims for personal injury or death.
(c) Claims resulting from acts or omissions of Air Force military
personnel while acting within the scope of their duty.
(d) Claims of subrogees.
(e) Claims arising from private indebtedness.
(f) Claims for reimbursement for bad checks.
Sec. 842.19 Limiting provisions.
(a) Submit a complaint within 90 days of the date of the incident
unless the appointing commander finds good cause for the delay. Command
determination of the absence of good cause is final.
(b) Assessment of damages in excess of $5,000 against an offender's
pay for a single incident requires HQ USAF/JACC approval.
(c) Payment of indirect, remote, or consequential damages is not
authorized.
Sec. 842.20 Filing a claim.
Claimant complains (orally or in writing) to the commander of a
military organization or unit of the alleged offending member or members
or to the commander of the nearest military installation. However, the
complainant need not request a sum certain in writing, before settlement
is made.
Subpart D--Personnel Claims (31 U.S.C. 3701, 3721)
Sec. 842.21 Scope of this subpart.
It explains how to settle and pay claims under the Military
Personnel and Civilian Employees' Claims Act for incident to service
loss and damage of personal property. These claims are paid according to
this subpart even when another subpart may also apply.
Sec. 842.22 Definitions.
(a) Act of God. An act occasioned exclusively by violence of nature,
such as flood, earthquake, tornado, typhoon or hurricane, that is
unanticipated and over which no one has any control.
(b) Military installation. A facility used to serve a military
purpose and used or controlled by the Air Force or any other Department
of Defense (DOD) element.
(c) Other authorized places: (1) Any place authorized, or apparently
authorized by the government to receive, hold, or store personal
property, such as offices, warehouses, baggage holding areas, hospitals.
(2) Any area on a military installation designated for parking or
storing vehicles.
(3) A recreation area or any real estate the Air Force or any other
DOD element uses or controls.
(d) Personal property. Tangible property an individual owns,
including but not limited to household goods, unaccompanied baggage,
privately owned vehicles (POV), and mobile homes.
(e) Quarters: (1) Housing the government assigns or otherwise
provides in kind to the claimant, including substandard housing and
trailers, when the claimant pays the government a
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fixed rental while drawing basic allowance for quarters (BAQ).
(2) Privately owned mobile or manufactured homes parked on base in
spaces the government provides.
(3) Transient housing accommodations, wherever located, such as,
hotels, motels, guest houses, transient dormitories, or other lodgings
the government furnishes or contracts for.
(4) Housing accommodations outside the United States which the
claimant occupies according to local policies and procedures which were
not assigned by or otherwise provided for by the U.S. Government.
Quarters do not include housing occupied by foreign indigenous
employees.
(5) Garages, carports, driveways, and parking lots assigned to
quarters the government provides for the occupants of the quarters to
use.
(6) Street parking:
(i) At quarters.
(ii) In the immediate vicinity of quarters.
(iii) Reserved parking assigned to offbase housing accommodations
overseas.
(7) The area immediately adjacent to quarters when used for storage
of items not commonly stored in living areas, for example, boats,
motorcycles, motorbikes, bicycles, lawn mowers, garden equipment, and
outdoor furniture.
(f) Reconsideration. The original or a higher settlement authority's
review of a prior settlement action.
(g) Small claim. A claim for $1,000 or less.
(h) Unusual Occurrence. Something not expected to happen in the
normal course of events.
Sec. 842.23 Delegations of authority.
(a) Settlement authority: (1) These individuals have been delegated
the authority to settle claims payable for $25,000 or less if the claim
arose before 31 October 1988, or $40,000 or less if the claim arose on
or after 31 October 1988, and to deny claims in any amount:
(i) The Judge Advocate General (TJAG).
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(2) The SJAs of HQ USAFE, HQ PACAF, and 9 AF (for claims arising out
of HQ CENTCOM) have delegated authority to settle claims payable, and to
deny claims filed for $25,000 or less.
(3) The SJAs of single base GCMs and the SJAs of GCMs within PACAF
and USAFE have delegated authority to settle claims payable, and to deny
claims filed for $15,000 or less.
(4) SJAs of each Air Force Base, station, and fixed installation
have been delegated the authority to settle claims payable, and deny
claims filed for $10,000 or less.
(b) Redelegation of authority. A settlement authority may redelegate
the authority, in writing, to a subordinate judge advocate or civilian
attorney.
(c) Reconsideration authority. A settlement authority has the same
authority specified in a above. However, with the exception of TJAG, a
settlement authority may not deny a claim on reconsideration that it, or
its delegate, had previously denied.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]
Sec. 842.24 Filing a claim.
(a) How and when to file a claim. A claim is filed when a federal
military agency receives from a claimant or duly authorized agent a
properly completed AF Form 180, DD Form 1842 or other written and signed
demand for a specified sum of money.
(b) Amending a claim. A claimant may amend a claim at any time prior
to the expiration of the statute of limitations by submitting a signed
amendment. The settlement authority adjudicates and settles or forwards
the amended claim as appropriate.
(c) Separate claims. The claimant files a separate claim for each
incident which caused a loss. For transportation claims, this means a
separate claim for each shipment.
[[Page 78]]
Sec. 842.25 Partial payments.
Upon request of a claimant, a settlement authority may make a
partial payment in advance of final settlement when a claimant
experiences personal hardship due to extensive property damage or loss.
Examples where partial payments are appropriate include fires and sunken
transport ships. Partial payments are made in this manner:
(a) If a claim for only part of the loss is submitted and is readily
provable, pay it up to the amount of the settlement authority. (The
claimant may later amend the claim for the remainder of the loss.) If
the total payable amount of the claim exceeds the payment limits of the
settlement authority, send it with recommendations through claims
channels to the proper settlement authority.
(b) When the total claim is submitted and the amount payable exceeds
the settlement authority, pay a partial payment within the limits of
settlement authority and send the claim, with recommendations, through
claims channels to the proper settlement authority.
Sec. 842.26 Statute of limitations.
(a) The claimant must file the claim in writing within 2 years after
it accrues. It accrues when the claimant discovered or reasonably should
have discovered the full extent of the property damage or loss. For
transportation losses, the claim usually accrues on the date of
delivery.
(b) To compute the statutory period, the incident date is excluded
and the day the claim was filed is included.
(c) Consider a claim filed after the statute has run if both of the
following are present:
(1) The United States is at war or in an armed conflict when the
claim accrues, or the United States enters a war or armed conflict after
the claim accrues. Congress or the President establishes the beginning
and end of war or armed conflict. A claimant may not file a claim more
than 2 years after the war or armed conflict ends.
(2) Good cause is shown. A claimant may not file a claim more than 2
years after the good cause ceases to exist.
Sec. 842.27 Who may file a claim.
A claim may be filed by the:
(a) Property owner.
(b) Authorized agent with a power of attorney.
(c) Property owner's survivors, who may file in this order:
(1) Spouse.
(2) Children.
(3) Father or mother, or both.
(4) Brothers or sisters, or both.
Sec. 842.28 Who are proper claimants.
Proper claimants are:
(a) Active duty Air Force military personnel.
(b) Civilian employees of the Air Force who are paid from
appropriated funds.
(c) DOD school teachers and school administrative personnel who are
provided logistic and administrative support by an Air Force
installation commander.
(d) Air Force Reserve (AFRES) and Air National Guard (ANG) personnel
when performing active duty, full-time National Guard duty, or inactive
duty training, ANG technicians under 32 U.S.C. 709.
(e) Retired or separated Air Force military personnel who suffer
damage or loss resulting from the last storage or movement of personal
property, or for claims accruing before retirement or separation.
(f) AFROTC cadets while on active duty for summer training.
(g) United States Air Force Academy cadets.
Sec. 842.29 Who are not proper claimants.
The following individuals are not proper claimants:
(a) Subrogees and assignees of proper claimants, including insurance
companies.
(b) Conditional vendors and lienholders.
(c) Non-Air Force personnel, including American Red Cross personnel,
United Services Organization (USO) performers, employees of government
contractors, and Civil Air Patrol (CAP) members.
(d) AFROTC cadets who are not on active duty for summer training.
[[Page 79]]
(e) Active duty military personnel and civilian employees of a
military service other than the Air Force.
(f) DOD employees who are not assigned to the Air Force.
(g) Army and Air Force Exchange Service (AAFES) employees and other
employees whose salaries are paid from nonappropriated funds (see
subpart O).
(h) Military personnel of foreign governments.
Sec. 842.30 General provisions.
Payable claims must be for:
(a) Personal property which is reasonable or useful under the
circumstances of military service.
(b) Loss, damage, destruction, confiscation, or forced abandonment
which is incident to service.
(c) Losses that are not collectable from any other source, including
insurance and carriers.
(d) Property that is owned by the claimants, their immediate
families, or borrowed for their use.
(e) Losses occurring without the claimants' negligence.
Sec. 842.31 Claims payable.
Claims may be paid for:
(a) Transportation or storage loss: (1) Pay for property damage or
loss incident to:
(i) Transportation under orders, whether it was in the possession of
the government, carrier, storage warehouse, or other government
contractor. This includes Do-It-Yourself (DITY) moves.
(ii) Travel under orders, including temporary duty (TDY).
(iii) Travel on a space available basis on a military aircraft,
vessel, or vehicle.
(2) Pay for property essential to everyday use, if the claimant has
replaced the items that he or she reported as missing. Essential items
may be paid for even if someone locates the property before the claimant
files the claim.
(b) Losses at quarters and other authorized places--(1) In the
United States (including U.S. territories and possessions). Pay for
personal property damage or loss, to include food spoilage, which is
caused by fire, explosion, theft, vandalism, typhoon, hurricane, unusual
occurrences or power outages which last for an extended period of time.
The claimant must be free of negligence.
(i) Claims for damage or loss caused by other acts of god are not
paid except in those instances where the geographic area has been
declared to be a federal disaster area or HQ USAF/JACC has determined
that payment is appropriate because the severity of the act of god was
truly extraordinary.
(ii) In some areas, extreme weather, such as severe lightning
storms, hail, or high winds, occur routinely. Damage claims from these
storms are normally not paid. Failure to take reasonable care in
protecting property from such known hazards may be negligence. These
types of claims would include pitted windshields, dents, chipped paint
on vehicles, and lightning damage to television sets, stereos, computer
components, video recorders, and other electrical appliances.
(2) Outside the United States. Pay for personal property damage or
loss, to include food spoilage, which is caused by fire, explosion,
theft, vandalism, acts of god, unusual occurrences, or power outages
which last for an extended period of time. The claimant must be free of
negligence. The SJA must make an affirmative determination that the act
of god or unusual occurrence was truly extraordinary.
(c) Privately owned vehicles (POV). Pay for damage to or loss of
POVs caused by government negligence under subpart F or K. Pay under
this subpart for damage or loss incident to:
(1) Theft of POVs or their contents, or vandalism to parked POVs:
(i) Anywhere on a military installation.
(ii) At offbase quarters overseas.
(iii) At other authorized places.
(2) Government shipment:
(i) To or from oversea areas incident to PCS.
(ii) On a space available reimbursable basis.
(iii) As a replacement vehicle under the provisions of the Joint
Travel Regulations (JTR).
(3) Authorized use for government duty other than PCS moves. The
owner must have specific advance permission of the appropriate
supervisor or official. Adequate proof of the permission
[[Page 80]]
and of nonavailability of official transportation must be provided prior
to paying such claims. Claims arising while the claimant is deviating
from the principal route or purpose of the trip should not be paid, but
claims occurring after the claimant returns to the route or purpose
should be paid. Travel between quarters and place of duty, including
parking, is not authorized use for government duty.
(4) Paint spray, smokestack emission, and other similar operations
by the Air Force on a military installation caused by a contractor's
negligence. (Process the claim under subpart F or K, if government
negligence causes such losses.) If a contractor's operation caused the
damage:
(i) Refer the claim first to the contractor for settlement.
(ii) Settle the claim under this subpart if the contractor does not
pay it or excessively delays payment, and assert a claim against the
contractor.
(d) Damage to mobile or manufactured homes and contents in shipment.
Pay such claims if there is no evidence of structural or mechanical
failure for which the manufacturer is responsible.
(e) Borrowed property. Pay for loss or damage to property claimants
borrow for their use. Either the borrower or lender, if proper
claimants, may file a claim. Do not pay for property borrowed to
accommodate the lender, i.e., such as to avoid weight or baggage
restrictions in travel.
(f) Marine or aircraft incident. Pay claims of crewmembers and
passengers who are in duty or leave status at the time of the incident.
Payable items include jettisoned baggage, clothing worn at the time of
an incident, and reasonable amounts of money, jewelry, and other
personal items.
(g) Combat losses. Pay for personal property losses, whether or not
the United States was involved, due to:
(1) Enemy action.
(2) Action to prevent capture and confiscation.
(3) Combat activities.
(h) Civil activity losses. Pay for losses resulting from a
claimant's acts to:
(1) Quell a civil disturbance.
(2) Assist during a public disaster.
(3) Save human life.
(4) Save government property.
(i) Confiscated property. Pay for losses when:
(1) A foreign government unjustly confiscates property.
(2) An unjust change or application of foreign law forces surrender
or abandonmnet of property.
(j) Clothing and accessories worn on the person. Pay claims for
damage to eyeglasses, hearing aids, and dentures the government did not
supply, when the damage results from actions beyond the normal risks
associated with daily living and working. Claimants assume the risk of
normal wear and tear, and their negligence bars payment of the claim.
(k) Money losses. Pay claims for loss of money when the losses are
due to theft from quarters, other authorized places, or from the person,
if the claimant was required to be in the area and could not avoid the
theft by due care. As a general rule, $200.00 is reasonable to have in
quarters, and $100.00 is reasonable to have on the person unless:
(1) The money was in a bona fide coin collection.
(2) The claimant can justify possession of the money for a PCS move,
extended TDY, vacation, extensive shopping trip, or similar
circumstances. The claimant must show a good reason why the money had
not been deposited in a bank or converted into travelers checks or a
money order.
(3) Local commercial facilities are not available or because US
personnel do not generally use such facilities.
Sec. 842.32 Claims not payable.
A claim is not payable if:
(a) It is not incident to the claimant's service.
(b) The loss or damage is caused in whole or in part by the
negligence or wrongful act of the claimant, the claimant's spouse,
agent, or employee.
(c) It is a subrogation or assigned claim.
(d) The loss is recovered or recoverable from an insurer or other
source. When a loss is recovered or is recoverable:
(1) The amount payable by insurance should be deducted if an insurer
denied a claim because a claimant failed to report the loss or to file a
timely claim under the policy. The claim should be
[[Page 81]]
paid if the settlement authority determines the claimant had good cause
for not filing with the insurer, or
(2) The amount which the Air Force cannot recover from a carrier
because the claimant failed to give timely notice of loss or damage
should be subtracted from the settlement unless the claimant shows good
cause for failure to give notice.
(e) It is intangible property including bank books, promissory
notes, stock certificates, bonds, baggage checks, insurance policies,
checks, money orders, travelers checks and credit cards.
(f) It is government property, including issued clothing items
carried on an individual issue supply account. (Clothing not carried on
an individual issue supply account which is stolen or clothing lost or
damaged in transit may be considered as a payable item when claimed.)
(g) It is enemy property.
(h) It is a loss within the United States at offbase quarters the
government did not provide.
(i) It is damage to real property.
(j) It is an appraisal fee, unless the settlement authority requires
one to adjudicate the claim. HQ USAF/JACC must authorize payment for an
appraisal fee of more than $100.
(k) It is property acquired or shipped for persons other than the
claimant or the claimant's immediate family; however, a claim for
property acquired for bona fide gifts may be paid.
(l) It is an article held for sale, resale, or used primarily in a
private business.
(m) It is an item acquired, possessed, shipped, or stored in
violation of any U.S. Armed Force directive or regulation. This includes
an automobile for which a member fails to comply with base registration
or insurance regulations. A claim must not be paid if one or more of
these factors exist:
(1) The loss was the type the regulation or directive intended to
prevent.
(2) The violation was willful or in defiance of authority, rather
than minor or technical in nature.
(3) The violation either undermined discipline or adversely affected
command welfare.
(n) It is an item fraudulently claimed. Deny payment for an item
when investigation shows the claimant has intentionally falsified the
value, condition, extent of damage, or repair cost of it. The claim file
must show clear intent to defraud. A mere mistake is not a fraud.
(o) It is for charges for labor performed by the owner or immediate
family member.
(p) It is for financial loss due to changed or cancelled orders.
(q) It is for expenses of enroute repair of a mobile or manufactured
home.
(r) It is a loss of use of personal property.
(s) It is an attorney or agent fee.
(t) It is the cost of preparing a claim, other than estimate fees.
(u) It is an inconvenience expense, such as food, lodging, and
transportation costs due to delay in delivery of household goods or
travel to port to deliver or pick up a vehicle.
(v) It is a loss of, or damage to POV driven during PCS.
(w) It is a personal property insurance premium.
(x) It is a claim for a thesis or other similar papers, except for
the cost of materials.
(y) It is damage to, or loss of a rental vehicle which TDY or PCS
orders authorized. These claims may be payable through Accounting and
Finance as a travel expense.
(z) It is a cost to relocate a telephone or mobile or manufactured
home due to a government ordered quarters move. The member submits such
claims to the commander directing the move for payment from other
Operation and Maintenance (O&M) funds.
(aa) It is for damage to or loss of property stored at the owner's
expense unless the claimant's duty made storage necessary.
(bb) It is for damage to clothing and accessories caused by routine
wrinkles.
(cc) It is hit-and-run damage to POVs.
(dd) It is for damage to clothing and accessories caused by contact
with office furniture or getting in or out of a government vehicle
unless the damage was caused by an unknown defect.
Sec. 842.33 Reconsideration of a claim.
A claimant may request reconsideration of an initial settlement or
denial
[[Page 82]]
of a claim. The claimant sends the request in writing, to the settlement
authority within a reasonable time following the initial settlement or
denial. Sixty days is considered a reasonable time, but the settlement
authority may waive the time limit for good cause.
(a) The original settlement authority reviews the reconsideration
request. The settlement authority sends the entire claim file with
recommendations and supporting rationale to the next higher settlement
authority if all relief the claimant requests is not granted.
(b) The decision of the higher settlement authority is the final
administrative action on the claim.
Sec. 842.34 Right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs or under contract. The Air
Force does not seek contribution or indemnity from US military personnel
or civilian employees whose conduct in scope of employment gave rise to
government liability.
Sec. 842.35 Depreciation and maximum allowances.
The military services have jointly established the ``Allowance List-
Depreciation Guide'' to determine values for most items and to limit
payment for some categories of items.
Subpart E--Carrier Recovery Claims
Sec. 842.36 Scope of this subpart.
This subpart explains how to assert and settle claims against
carriers, warehousemen, and contractors for loss and damage to personal
property.
Sec. 842.37 Definitions.
(a) Bill of lading. A contract for movement and delivery of goods.
(1) Carriers issue commercial bills of lading.
(2) Transportation officers issue government bills of lading (GBL).
GBLs include the terms and conditions of commercial bills of lading with
certain exceptions.
(3) The GBL is all of the following:
(i) A receipt for goods tendered to a carrier.
(ii) A contract.
(iii) A document authorizing collection of transportation bills the
carrier presents.
(b) Carrier. Any moving company, personal property forwarder, or
freight forwarder holding a certificate or permit issued by a federal or
state regulatory agency or approved by the Department of Defense for
international shipments.
(c) Military Traffic Management Command (MTMC). The Department of
Defense management agency for military traffic, land transportation, and
common user ocean terminals. Among other responsibilities, MTMC manages
the DOD household goods moving and storage program worldwide. The Army
has single service responsibility for MTMC.
(d) Regional Storage Management Office (RSMO). The MTMC office
responsible for negotiating and administering all storage contracts
within a geographical area. The contracting officer of each RSMO makes
involuntary collections of nontemporary storage loss and damage claims.
(e) Net weight. The weight of the fully-loaded van or shipping crate
(gross weight), less the weight of the empty van or shipping crate (tare
weight).
(f) Nontemporary storage (NTS). All authorized storage not in
connection with a GBL. NTS usually exceeds 180 days and normally
includes packing and shipping of household goods to the warehouse.
(g) Storage in transit (SIT). Storage of a shipment by a carrier at
origin, enroute, or at destination. SIT is initially limited to 90 days.
The transportation officer may extend it to a maximum of 180 days.
(h) Tender of service. A carrier's offer to do business with the
Department of Defense, including the terms and conditions of the
agreement. The Personal Property Traffic Management Regulation (PPTMR),
DOD Regulation 4500.34, Appendix A, contains this agreement.
[[Page 83]]
Sec. 842.38 Delegations of authority.
(a) Settlement authority: (1) These individuals have delegated
authority to settle, compromise, suspend, or terminate action on claims
for $20,000 or less and to accept full payment on any claim:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(v) The SJAs of HQ PACAF, HQ USAFE, and HQ 9AF (for HQ CENTCOM).
(2) These individuals have delegated authority to settle,
compromise, suspend, or terminate action on claims for $15,000 or less
and to accept full payment on any claim:
(i) SJAs of GCMs in PACAF and USAFE.
(ii) SJAs of single base GCMs.
(3) SJAs of each Air Force base, station, or fixed installation have
delegated authority to settle, compromise, suspend, or terminate action
on claims for $10,000 or less and to accept full payment on any claim.
(b) Redelegation of authority. An individual with settlement
authority may redelegate this authority, in writing, to a subordinate
judge advocate or civilian attorney.
(c) Authority to reduce, withdraw, or restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
settlement authority.
Sec. 842.39 Statute of limitations.
(a) International commercial air shipments. The government must file
suit within 2 years after the delivery date. The period for notifying
these carriers of loss or damage is 3 days for luggage, and 7 days for
other goods. Setoff is not possible in these cases. Uncollectible claims
are sent to HQ USAF/JACC within 6 months from the date of delivery.
(b) All other CR claims. The government must file suit within 6
years after the cause of action accrues. It accrues when a responsible
US official, service member, or employee knew or reasonably should have
known the material facts that caused the claimed loss. The requirement
to file a claim within 9 months under commercial bills of lading does
not apply to GBLs.
Subpart F--Military Claims Act (10 U.S.C. 2733)
Sec. 842.40 Scope of this subpart.
This subpart explains how to settle claims made against the United
States for property damage, personal injury, or death caused by military
personnel or civilian employees of the Air Force acting in the scope of
their employment or otherwise incident to the Air Force's noncombat
activities.
Sec. 842.41 Definitions.
(a) Appeal. A request by the claimant or claimant's authorized agent
to reevaluate the final decision. A request for reconsideration and an
appeal are the same for the purposes of this subpart.
(b) Final denial. A letter mailed from the settlement authority to
the claimant or authorized agent advising the claimant that the Air
Force denies the claim.
(c) Noncombat activity. Activity, other than combat, war or armed
conflict, that is particularly military in character and has little
parallel in the civilian community.
Sec. 842.42 Delegations of authority.
(a) Settlement authority: (1) The Secretary of the Air Force has
delegated authority to:
(i) Settle claims for $100,000 or less.
(ii) Settle claims for more than $100,000, paying the first $100,000
and reporting the excess to the General Accounting Office for payment.
(iii) Deny a claim in any amount.
(2) The Judge Advocate General has delegated authority to settle
claims for $100,000 or less and deny claims in any amount.
(3) The following individuals have delegated authority to settle
claims for $25,000 or less and deny claims in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director of Civil Law.
[[Page 84]]
(iii) The Chief, Deputy Chief and Branch Chiefs, Claims and Tort
Litigation Staff.
(4) The SJA of 9AF for CENTCOM, and the SJAs of PACAF and USAFE have
delegated authority to settle claims payable or deny claims filed for
$25,000 or less.
(5) SJAs of single base GCMs, and GCMs in PACAF and USAFE, and each
Air Force base, station, or fixed installation have delegated authority
to settle claims payable, or deny claims filed for $15,000 or less.
(b) Redelegation of authority. A settlement authority may redelegate
his or her authority for claims not exceeding $25,000, to a subordinate
judge advocate or civilian attorney in writing.
(c) Appellate authority. Upon appeal, a settlement authority has the
same authority specified above. However, no appellate authority below
the Office of the Secretary of the Air Force may deny an appeal of a
claim it had previously denied.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
(e) Settlement negotiations. A settlement authority may settle a
claim in any sum within its delegated settlement authority, regardless
of the amount claimed. Send uncompromised claims in excess of the
delegated authority to the level with settlement authority. Unsuccessful
negotiations at one level do not bind higher authority.
(f) Special exceptions. Do not settle claims for the following
without HQ USAF/JACC approval:
(1) Legal malpractice.
(2) On the job personal injury or death of an employee of a
government contractor or subcontractor.
(3) Assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution committed by an investigative or law
enforcement officer.
(4) On-base animal bite cases.
(5) Personal injury from asbestos or radon.
(6) Claims based upon an act or omission of an employee of the
government, exercising due care, in the execution of a statute or
regulation.
(7) Claims based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the government.
(8) Claims for damage to property of a state, commonwealth,
territory, or the District of Columbia caused by ANG personnel engaged
in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are
assigned to a unit maintained by that state, commonwealth, territory or
the District of Columbia.
(9) Claims not payable because payment is not in the best interests
of the United States, is contrary to public policy, or is otherwise
contrary to the basic intent of the MCA.
(10) Claims presented by a national, or a corporation controlled by
a national, of a country at war or engaged in armed conflict with the
United States, or any country allied with such enemy country.
(11) Medical malpractice.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]
Sec. 842.43 Filing a claim.
(a) How and when filed. A claim is filed when a federal military
agency receives from a claimant or duly authorized agent a properly
completed Standard Form 95 or other signed and written demand for money
damages in a sum certain. A claim belonging to another agency is
promptly transferred to that agency.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. To amend a claim, the claimant or his or her authorized
agent must submit a written, signed demand.
Sec. 842.44 Advance payments.
Subpart Q sets forth procedures for advance payments.
Sec. 842.45 Statute of limitations.
(a) A claim must be filed in writing within 2 years after it
accrues. It accrues when the claimant discovers or reasonably should
have discovered the existence of the act that resulted in the claimed
loss. The same rules governing accrual pursuant to the Federal
[[Page 85]]
Tort Claims Act should be applied with respect to the Military Claims
Act.
(b) The statutory time period excludes the day of the incident and
includes the day the claim was filed.
(c) Consider claims filed after the statute has run when:
(1) The United States is at war or in an armed conflict when the
claim accrues, or
(2) The United States enters a war or armed conflict after the claim
accrues, and
(3) Good cause is shown. A claim is barred by the statute of
limitations if it is filed more than 2 years after the good cause ceases
to exist or the war or armed conflict ends. Congress or the President
establishes the beginning and end of war or armed conflict.
Sec. 842.46 Who may file a claim.
(a) Owners of the property or their authorized agents may file
claims for property damage.
(b) Injured persons or their duly authorized agents may file claims
for personal injury.
(c) Duly appointed guardians of minor children or any other persons
legally entitled to do so under applicable local law may file claims for
minors' personal injuries.
(d) Executors or administrators of a decedent's estate or another
person legally entitled to do so under applicable local law, may file
claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid
in full by them. The parties may file claims jointly or individually, to
the extent of each party's interest, for losses partially paid by
insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal
capacity and present evidence of authority to present the claims.
Sec. 842.47 Who are proper claimants.
(a) Citizens and inhabitants of the United States.
(b) U.S. military personnel and civilian employees.
Note: These personnel are not proper claimants for personal injury
or death incident to service.
(c) Persons in foreign countries who are not inhabitants of the
foreign country.
(d) States, state agencies, counties, or municipalities, or their
political subdivisions.
(e) Prisoners of war or interned enemy aliens.
Note: These individuals are proper claimants for personal property
damage but not for personal injury.
(f) Property owners, their representatives, and those with certain
legal relationships with the record owner, including mortgagors,
mortgagees, trustees, bailees, lessees and conditional vendees.
(g) Subrogees to the extent they have paid for the claim in
question.
Sec. 842.48 Who are not proper claimants.
(a) Governments of foreign nations, their agencies, political
subdivisions, or municipalities.
(b) Agencies and departments of the U.S. Government.
(c) Nonappropriated fund instrumentalities.
(d) Subrogees of Sec. 842.48(a), (b), and (c) of this part.
(e) Inhabitants of foreign countries.
Sec. 842.49 Claims payable.
(a) Claims arising from negligent or wrongful acts or omissions
committed by United States military or civilian personnel while acting
in the scope of their employment.
(b) Claims arising from noncombat activities of the United States,
whether or not such injuries of damages arose out of the negligent or
wrongful acts or omissions by United States military or civilian
employees acting within the scope of their employment.
(c) Claims for damage to bailed property under Sec. 842.49(a) or (b)
of this part, where all of the following are present:
(1) The United States armed forces assumed the duties of a bailee.
(2) The bailor did not assume the risk of loss by express agreement.
(3) Authorized United States armed forces military or civilian
personnel acting in their official capacity properly accepted the
property.
(d) Claims for loss or damage to:
[[Page 86]]
(1) Insured or registered mail under Sec. 842.49(a), (b), or (c)
while in the possession of the United States armed forces military or
civilian personnel.
(2) Minimum fee insured mail, but only if it has an insurance number
or requirement for hand-to-hand receipt while in the possession of the
United States armed forces military or civilian personnel.
(3) Any mail in the possession of the US Postal Service or a
Military Postal Service due to an unlawful or negligent inspection,
search, or seizure conducted in an oversea military postal facility,
under orders of armed forces personnel.
(e) Claims for property damage of US military personnel under
conditions listed in paragraphs (a) and (b) of this section, where the
damage occurred on a military installation and is not payable under the
Military Personnel and Civilian Employees' Claims Act.
(f) Claims filed by DOD military or civilian health care providers
or legal personnel for their personal liability by settlement or
judgment, to include reasonable costs of such litigation, for their
common law tortious acts committed within the scope of their employment
under circumstances described in 10 U.S.C. 1089(f) and 10 U.S.C.
1054(f).
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990]
Sec. 842.50 Claims not payable.
Exclusions listed in Sec. 842.50 (a) through (l) of this part, are
based on the wording of 28 U.S.C. 2680. The remainder are based either
on statute or court decisions. The interpretation of these exclusions is
a Federal question decided under Federal law. Where State law differs
with Federal law, Federal law prevails. A claim is not payable under
this subpart if it:
(a) Is based on an act or omission of an employee of the government,
exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation is valid. Do not deny claims
solely on this exception without the prior approval of HQ USAF/JACC.
(b) Is based on the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
Federal agency or an employee of the government, whether or not the
discretion involved is abused. Do not deny claims solely on this
exception without the prior approval of HQ USAF/JACC.
(c) Arises out of the loss, miscarriage, or negligent transmission
of letters or postal matter, except those claims payable under
Sec. 842.49.
(d) Arises with respect to the assessment or collection of any tax
or customs duty, or the detention of any goods or merchandise by any
officer of customs or excise, or any other law enforcement officer.
(e) Is cognizable under the Suits in Admiralty Act or under the
Public Vessels Act.
(f) Arises out of an act or omission of any employee of the
government in administering the provisions of the Trading With the Enemy
Act.
(g) Is for damages caused by the imposition or establishment of a
quarantine by the United States.
(h) Arises out of an assault or battery, unless the assault or
battery arises out of the acts or omissions of investigative or law-
enforcement officers of the US Government, or arises out of the
performance of medical, dental or related health care functions.
(i) Arises out of false imprisonment, false arrest, malicious
prosecution or abuse of process, unless such actions were committed by
an investigative or law enforcement officer of the United States who is
empowered by law to execute searches, seize evidence, or make arrests
for violations of federal law.
(j) Arises out of libel, slander, misrepresentation, or deceit.
(k) Arises out of interference with contract rights.
(l) Arises from the fiscal operations of the Department of the
Treasury or from the regulation of the monetary system.
(m) Arises out of the combat activities of the military or naval
forces, or the Coast Guard, during time of war.
(n) Arises from activities of the Tennessee Valley Authority.
(o) Arises from the activities of the Panama Canal Company.
[[Page 87]]
(p) Arises from the activities of a Federal land bank, a Federal
intermediate credit bank, or a bank for cooperatives.
(q) Is for the personal injury or death of a member of the Armed
Forces of the United States, including the Coast Guard, incurred
incident to service.
(r) Is for the personal injury or death of a government employee for
whom benefits are provided by the FECA.
(s) Is for the personal injury or death of an employee, including
nonappropriated fund employees, for whom benefits are provided by the
Longshore and Harbor Workers' Compensation Act (LHWCA).
(t) Is for the personal injury or death of any government contractor
employee for whom benefits are provided under any worker's compensation
law, or under any contract or agreement providing employee benefits
through insurance, local law, or custom when the United States pays them
either directly or as part of the consideration under the contract. Only
HQ USAF/JACC may settle these claims.
(u) Is for taking of property as by technical trespass or overflight
of aircraft and of a type contemplated by the Fifth Amendment to the US
Constitution, or otherwise constitutes a taking.
(v) Is for damage from or by flood or flood waters at any place.
(w) Is for damage to property or for any death or personal injury
occurring directly or indirectly as a result of the exercise or
performance of, or failure to exercise or perform, any function or duty
by any Federal agency or employee of the government to carry out the
provisions of the Federal Civil Defense Act of 1950 during the existence
of a civil defense emergency.
(x) Is for patent or copyright infringement.
(y) Is for damage to property of a state, commonwealth, territory,
or the District of Columbia caused by ANG personnel engaged in training
or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a
unit maintained by that state, commonwealth, territory, or the District
of Columbia unless the express approval for payment is received from HQ
USAF/JACC.
(z) Is for damage to property or for any death or personal injury
arising out of the activities of any federal agency or employee of the
government in carrying out the provisions of the Federal Disaster Relief
Act of 1954.
(aa) Arises from activities that present a political question.
(bb) Results wholly from the negligent, or wrongful act of the
claimant or agent.
(cc) Is for reimbursement for medical, hospital, or burial expenses
furnished at the expense of the United States.
(dd) Arises from contractual transactions, express or implied,
including rental agreements, sales agreements, leases and easements,
which are payable or enforceable under such contracts or arise out of
irregular procurement and implied contract.
(ee) Arises from private, as distinguished from government,
transactions.
(ff) Is based solely on compassionate grounds.
(gg) Is for rent, damage, or other expenses or payments involving
the regular acquisition, use, possession, or disposition of real
property of interests therein by and for the Air Force.
(hh) Is not in the best interests of the United States, is contrary
to public policy, or is otherwise contrary to the basic intent of the
MCA; for example, claims by inhabitants of unfriendly foreign countries
or by or based on injury or death of individuals considered to be
unfriendly to the United States. Claims considered not payable under
this paragraph are forwarded, with recommendations for disposition,
through claims channels to HQ USAF/JACC.
(ii) Is presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
United States, or any country allied with such enemy country unless the
appropriate settlement authority determines that the claimant is, and at
the time of the incident was, friendly to the United States. A prisoner
of war or an interned enemy alien is not excluded as to a claim for
damage, loss, or destruction of personal property in the custody of the
Government otherwise payable. Claims
[[Page 88]]
considered not payable under this paragraph are forwarded with
recommendations for disposition, through claims channels, to HQ USAF/
JACC.
(jj) Is for personal injury or death of military or civilian
personnel of a foreign country, if their personal injury or death was
suffered incident to their service.
(kk) Is for damage to or loss of bailed property when the bailor
specifically assumes such risk.
(ll) Is for property damage, personal injury, or death occurring in
a foreign country to an inhabitant of that country.
(mm) Is for the loss of a rental fee for personal property.
(nn) Arises out of matters which are in litigation against the
United States.
(oo) Is payable under any one of the following statutes and
implementing regulations:
(1) Federal Tort Claims Act.
(2) Foreign Claims Act.
(3) International Agreements Claims Act.
(4) Air Force Admiralty Claims Act and the Admiralty Extension Act.
(5) National Guard Claims Act.
(6) Military Personnel and Civilian Employees' Claims Act.
Sec. 842.51 Applicable law.
This paragraph provides the existing law governing liability,
measurement of liability and the effects of settlement upon awards.
(a) Extent of liability. Where the claim arises is important in
determining the extent of liability.
(1) When a claim arises in the United States, the law of the place
where the act or omission occurred governs liability. The settlement
authority considers the local law on such issues as dangerous
instrumentalities, assumption of risk, res ipsa loquitur, last clear
chance, discovered peril, and comparative and contributory negligence.
Absolute liability is never imposed.
(2) Claims in foreign countries. (i) In claims arising in a foreign
country, where the claim is for personal injury, death, or damage to or
loss of real or personal property caused by an act or omission alleged
to be negligent, wrongful, or otherwise involving fault of military
personnel or civilian officers or employees of the United States acting
within the scope of their employment, liability or the United States is
determined according to general principles of tort law common to the
majority of American jurisdictions, as evidenced by Federal case law and
standard legal publications, except as to the principle of absolute
liability.
(ii) The law of the foreign country governing the legal effect of
contributory or comparative negligence by the claimant will be applied
in determining the relative merits of the claim. In the unusual
situation where foreign law governing contributory or comparative
negligence does not exist, use traditional rules of contributory
negligence. Foreign rules and regulations governing the operation of
motor vehicles (rules of the road) are applied to the extent those rules
are not specifically superseded or preempted by United States military
traffic regulations.
(3) When adjudicating claims based upon negligence, the principle of
absolute liability is not applicable, even though otherwise prescribed
by applicable local law.
(4) The meaning and construction of the MCA is a Federal question to
be determined by Federal law.
(b) General information: (1) The measure of daages in claims arising
in the United States or its possessions is determined according to the
law of the place where the act or omission occurred. The measure of
damages in claims arising overseas is determined according to general
principles of American tort law.
(2) Apportion damages against the United States in the same manner
as they are apportioned in suites against private persons if local law
applies comparative negligence.
(3) Do not deduct proceeds from private insurance policies except to
the extent allowed by local law. However, proceeds are deducted if the
policy was paid for by the United States.
(4) Deduct compensation and benefits from the Department of Veterans
Affairs, or monetary value received from any U.S. Government associated
source from the damages which may be awarded. Deduct sick and annual
leave payments if local law allows.
(5) Do not approve:
[[Page 89]]
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at U.S. expense.
(iii) Cost of burial expenses paid by the United States.
(c) Settlement by insurer or joint tort-feasor. When settlement is
made by an insurer or joint tort-feasor and an additional award is
warranted, an award may be made if both of the following are present:
(1) The United States is not protected by the release executed by
the claimant.
(2) The total amount received from such source is first deducted.
Sec. 842.52 Appeal of final denials.
(a) A claimant may appeal the final denial of the claim. The
claimant sends the request, in writing, to the settlement authority
within a reasonable time following the final denial. Sixty days is
considered a reasonable time, but the settlement authority may waive the
time limit for good cause.
(b) Upon receipt of the appeal, the original settlement authority
reviews the appeal.
(c) Where the settlement authority does not reach a final agreement
on an appealed claim, he or she sends the entire claim file to the next
higher settlement authority, who is the appellate authority for that
claim.
(d) The decision of the appellate authority is the final
administrative action on the claim.
Sec. 842.53 Right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs, or under contract. Do not
seek contribution or indemnity from US military personnel or civilian
employees whose conduct gave rise to government liability.
Sec. 842.54 Attorney fees.
In the settlement of any claim pursuant to 10 U.S.C. 2733 and this
subpart, attorney fees will not exceed 20 percent of any award provided
that when a claim involves payment of an award over $1,000,000, attorney
fees on that part of the award exceeding $1,000,000 may be determined by
the Secretary of the Air Force. For the purposes of this paragraph, an
award is deemed to be the cost to the United States of any trust or
structured settlement, and not its future value.
Subpart G--Foreign Claims (10 U.S.C. 2734)
Sec. 842.55 Scope of this subpart.
This subpart tells how to settle and pay claims against the United
States presented by inhabitants of foreign countries for property
damage, personal injury, or death caused by military and civilian
members of the US Armed Forces in foreign countries.
Sec. 842.56 Definitions.
(a) Foreign country. A national state other than the United States,
including any place under jurisdiction of the United States in a foreign
country.
(b) Inhabitant of a foreign country. A person, corporation, or other
business association whose usual place of abode is in a foreign country.
The term ``inhabitant'' has a broader meaning than such terms as
``citizen'' or ``national'', but does not include persons who are merely
temporarily present in a foreign country. It does not require foreign
citizenship or domicile.
(c) Appointing authority. An Air Force official authorized to
appoint members to foreign claims commissions (FCC).
Sec. 842.57 Delegations of authority.
(a) Settlement authority: (1) The Secretary of the Air Force has the
authority to:
(i) Settle claims for payment of $100,000 or less.
(ii) Settle claims for more than $100,000, pay the first $100,000,
and report the excess to the General Accounting Office for payment.
(iii) Deny claims in any amount.
(2) The Judge Advocate General has delegated authority to:
(i) Settle claims for payment of $100,000 or less.
(ii) Deny claims in any amount.
(3) The Deputy Judge Advocate General, Director of Civil Law, and
the Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation
Staff are
[[Page 90]]
each a foreign claims commission and have delegated authority to:
(i) Settle claims for payment of $50,000 or less.
(ii) Deny a claim in any amount.
(4) The SJAs of PACAF, USAFE, 9AF (for CENTCOM) and AFSPACECOM (for
Greenland and Canada) are each a foreign claims commission and have
delegated authority to approve claims for payment arising within their
geographic area of responsibility for $50,000 or less, or deny claims of
$50,000 or less.
(5) The SJAs of Numbered Air Forces in PACAF and USAFE; the SJA of
HQ TUSLOG; the SJA of 12AF (for South America); and the SJAs of Lajes
AB, Azores, Patrick AFB, FL, and Howard AFB, Panama are each a foreign
claims commission and have delegated authority to:
(i) Recommend payment in any amount.
(ii) Settle claims for payment of $25,000 or less.
(iii) Deny claims for $50,000 or less.
(6) The SJAs of each Air Force base, station and fixed installation
in PACAF, USAFE, and CENTCOM, are each a foreign claims commission and
have delegated authority to:
(i) Recommend payment in any amount.
(ii) Settle claims for payment of $10,000 or less.
(iii) Deny claims for $25,000 or less.
(b) Authority to appoint FCCs. (1) The Chief, Claims and Tort
Litigation Staff, has the delegated authority to appoint a judge
advocate or civilian attorney as a FCC and to redelegate all or a part
of his or her settlement authority to that FCC.
(2) A settlement authority appointed as a FCC in paragraph (a) of
this section may appoint one or more subordinate judge advocates or
civilian attorneys as FCCs, and may redelegate all or part of that
settlement authority to those FCCs, in writing. Every FCC must have
authority to settle claims for at least $10,000.
(c) Authority to reduce, withdraw, or restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority, in writing, except no one may reduce or withdraw
the authority of a FCC to settle claims for $10,000 or less.
(d) Settlement negotiations. A settlement authority may settle a
claim in any sum within its settlement authority, regardless of the
amount claimed. Send uncompromised claims in excess of the delegated
authority through claims channels to the level with settlement
authority. Unsuccessful negotiations at one level do not bind higher
authority.
(e) Special exceptions. Do not settle claims for medical malpractice
without HQ USAF/JACC approval.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990; 56
FR 1574, Jan. 16, 1991]
Sec. 842.58 Filing a claim.
(a) How and when filed. A claim is filed when a federal agency
receives from a claimant or authorized agent a properly completed SF 95
or other signed and written demand for money damages in a sum certain. A
claim belonging to another agency is promptly transferred to the
appropriate agency.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. An amendment must be in writing and signed by the
claimant or authorized agent.
Sec. 842.59 Advance payments.
Subpart Q outlines procedures for advance payments.
Sec. 842.60 Statute of limitations.
(a) A claim must be filed in writing within 2 years after it
accrues. It accrues when the claimant discovers or reasonably should
have discovered the existence of the act that resulted in the claimed
loss or injury.
(b) In computing the statutory time period, the day of the incident
is excluded and the day the claim was filed is included.
(c) War or armed conflict does not toll the statute of limitations.
Sec. 842.61 Who may file a claim.
(a) Owners of the property or their authorized agents for property
damage.
(b) Injured persons or other authorized agents for personal injury.
(c) Executors or administrators of a decedent's estate, or any other
person
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legally entitled to do so under applicable local law, for an
individual's death.
(d) Authorized agents (including the claimant's attorney) must show
their title or legal capacity and present evidence of authority to
present the claim.
Sec. 842.62 Who are proper claimants.
Claimants include inhabitants of a foreign country who are:
(a) Foreign nationals.
(b) US nationals, unless they reside there primarily because they
are:
(1) Employed directly by the United States.
(2) Employed by a US civilian contractor to further performance of a
contract with the United States.
(3) Sponsored by or accompanying someone employed as described in
Sec. 842.62(b) (1) or (2) of this part.
(c) US corporations with a place of business in the country in which
the claim arose.
(d) Foreign governments and their political subdivisions, including
a municipal and prefectural government.
(e) Foreign companies and business entities.
Sec. 842.63 Who are not proper claimants.
Persons who are not proper claimants include:
(a) Insurers and other subrogees.
(b) Dependents accompanying US military and US national civilian
employees.
(c) Foreign military personnel suffering property damage, personal
injury, or death from a joint military mission with the United States or
from conduct of a US military member or employee acting in the scope of
employment unless an international agreement specifically provides for
recovery.
(d) Civilian employees of the United States, including local
inhabitants, injured in the scope of their employment.
(e) National governments and their political subdivisions engaging
in war or armed conflict with the United States or its allies.
(f) A national or nationally controlled corporation of a country
engaging in war or armed conflict with the United States or its allies,
unless the FCC or local military commander determines the claimant is
friendly with the United States.
Sec. 842.64 Payment criteria.
The following criteria is considered before determining liability.
(a) The incident causing the damage or injury must occur outside the
United States. It must be caused by noncombatant activities of the US
Armed Forces or by civilian employees or military members of the Armed
Forces.
(b) Negligence is not a prerequisite.
(c) Scope of employment is considered in the following situations.
(1) It is a prerequisite to US responsibility if the employee
causing the damage or injury is a local inhabitant, a prisoner of war,
or an interned enemy alien. These persons are ``employees'' within the
meaning of the Foreign Claims Act (FCA) only when in the service of the
United States. Ordinarily, a slight deviation as to time or place does
not constitute a departure from the scope of employment. The purpose of
the activity and whether it furthers the general interest of the United
States is considered. If the claim arose from the operation or use of a
US Armed Forces vehicle or other equipment by such a person, pay it
provided local law imposes liability on the owner of the vehicle or
other equipment in the circumstances involved.
(2) It is immaterial when the claim arises from the acts or
omissions of any US Armed Forces member or employee not listed in
Sec. 842.64(c)(1) of this part. The Act imposes responsibility on the
United States when it places a US citizen or non-US citizen employee in
a position to cause the injury or damage. If the cause is a criminal act
clearly outside the scope of employment, ordinarily pay the claim and
consider disciplinary action against the offender.
Sec. 842.65 Claims not payable.
A claim is not payable when it:
(a) Has been paid or denied by a competent tribunal under the North
Atlantic Treaty Organization (NATO), Status of Forces Agreement (SOFA),
or any similar SOFA or treaty.
(b) Is purely contractual in nature.
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(c) Is for attorney fees, punitive damages, a judgment or interest
on a judgment, bail, or court costs.
(d) Accrues from a private contractual relationship between US
personnel and third parties about property leases, public utilities,
hiring of domestic servants, and debts of any description. This claim is
sent for action to the commander of the person concerned (see 32 CFR
part 818).
(e) Is based solely on compassionate grounds.
Note: A Solatium payment is paid from O&M funds as an investigative
expense.
(f) Is a bastardy claim.
(g) Is for patent or copyright infringement.
(h) Is waived under an international agreement.
(i) Is for rent, damage, or other payments involving regular
acquisition, possession, and disposition of real property by or for the
Air Force.
(j) Is filed by a Communist country or its inhabitants, unless
authorized by HQ USAF/JACC.
(k) Is for real property taken by a continuing trespass.
(l) Is for personal injury or death of a person covered by:
(1) The Federal Employees' Compensation Act (5 U.S.C. 8101, et
seq.).
(2) The Longshore and Harbor Workers' Compensation Act (33 U.S.C.
901, et seq.).
(3) A US contract or agreement providing employee benefits through
insurance, local law, or custom, where the United States pays for them
either directly or as part of the consideration under the contract. (See
42 U.S.C. 1651 and 42 U.S.C. 1701.) The Judge Advocate General or Chief,
Claims and Tort Litigation Staff, HQ USAF/JACC, may authorize an award
where local benefits are not adequate. Local benefits are deducted from
any award.
(m) Results from an action by an enemy, or directly or indirectly
from an act of the armed forces of the United States in combat, except
that a claim may be allowed if it arises from an accident or malfunction
incident to the operation of an aircraft of the armed forces of the
United States, including its airborne ordnance, indirectly related to
combat, and occurring while preparing for or going to, or returning from
a combat mission.
(n) Is based on negligence of a concessionaire or other independent
contractor.
(o) Arises out of personal activities of dependents, guests,
servants, or pets of members and employees of the US Armed Forces. (This
includes situations where local law imposes strict liability or where
the head of a household is held vicariously liable for their
negligence.)
(p) Is the subject of litigation against the United States or its
employees. This restriction does not apply to joint criminal/civil
proceedings in a foreign court. Claims settlement may be authorized by
HQ USAF/JACC in appropriate cases on request.
(q) Is covered under US admiralty laws, unless authorized by The
Judge Advocate General or Chief, Claims and Tort Litigation Staff.
(r) Is one for which a foreign government is responsible under SOFA,
treaty, or other agreement. However, HQ USAF/JACC may authorize payment
of a claim where the foreign government refuses to recognize its legal
responsibilities and the claimant has no other means of compensation.
Sec. 842.66 Applicable law.
This paragraph provides guidance to determine the applicable law for
assessment of liability.
(a) A claim is settled under the law and standards in effect in the
country where the incident occurred. In calculating the amount of any
lump sum award, the present value of any periodic payment upon which the
award is based, is computed, unless the law of the place of occurrence
prohibits it.
(b) Contributory negligence committed by the claimant, claimant's
agent, or employee is not used as a bar to recovery unless local law or
custom requires it. If the comparative negligence doctrine is used, the
percentage of negligence of each party is reflected in the apportionment
of liability. The amount of damage sustained by both parties is
apportioned according to local law.
(c) The following principles of the collateral source doctrine are
applied
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in settling a claim except where local law provides otherwise:
(1) Any sums the claimant recovers from collateral sources,
including proceeds of property insurance the claimant paid for are not
deducted from the claim except when those sums are from:
(i) The US Government.
(ii) A US military member or employee.
(iii) A Joint tort-feasor.
(iv) An Insurer of Sec. 842.66(c)(1)(i), (ii), or (iii), above.
(2) Do not deduct insurance or any other payments where the US
military member or employee would have to make reimbursement.
Sec. 842.67 Reconsideration of final denials.
This paragraph provides the procedures used to reconsider a final
denial.
(a) An FCC may reopen, reverse, or reconsider, in whole or in part,
any claim it previously decided if the request for reconsideration is
received in a reasonable time. Sixty days is considered a reasonable
time, but the FCC may waive the time limit for good cause.
(b) An FCC reconsiders the final action on a claim when there is:
(1) New and material evidence concerning the claim.
(2) Obvious error in facts or calculation of the original
settlement.
(3) Fraud or collusion in the original submission of the claim.
(c) The FCC must state the reason for reconsideration in its
opinion. A court decision is not in itself sufficient basis for
reconsidering a claim, but the facts that resulted in the judgment may
warrant reconsideration. The amount of a court judgment is not binding
on a FCC's determination of damage, but the commission may consider the
judgment as evidence of the local law on the subject.
Sec. 842.68 Right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of indemnity and
contribution permitted by the law of the situs or under contract.
Contribution or indemnity should not be sought:
(a) From US military personnel or civilian employees whose conduct
gave rise to government liability.
(b) Where recovery action would be harmful to international
relations.
Subpart H--International Agreement Claims (10 U.S.C. 2734a and 2734b)
Sec. 842.69 Scope of this subpart.
This subpart governs Air Force actions in investigating, processing,
and settling claims under international agreements.
Sec. 842.70 Definitions.
The following are general definitions. See the relevant
international agreement for the specific meaning of a term to use with a
specific claim.
(a) Civilian component. Civilian personnel accompanying a force of a
contracting party, who are employed by that force. Indigenous employees,
contractor employees, or members of the American Red Cross are not a
part of the civilian component unless specifically included in the
agreement.
(b) Contracting party. A nation signing the governing agreement.
(c) Force. Personnel belonging to the land, sea, or air armed
services of one contracting party when in the territory of another
contracting party in connection with their official duties.
(d) Legally responsible. A term of art providing for settlement of
claims under cost sharing international agreements consistent with the
law of the receiving State. Often these claims are caused by local
inhabitant employees, not part of the civilian component, under a
respondeat superior theory.
(e) Receiving state. The country where the force or civilian
component of another party is located.
(f) Sending state. The country sending the force or civilian
component to the receiving State.
(g) Third parties. Those other than members of the force and
civilian component of the sending or receiving States. Dependents,
tourists, and other noninhabitants of a foreign country are third
parties unless the agreement specifically excludes them.
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Sec. 842.71 Delegations of authority.
(a) Reimbursement authority. The following individuals have
delegated authority to reimburse or pay a pro rata share of a claim or
object to a claim in any amount:
(1) The Secretary of the Air Force.
(2) The Judge Advocate General.
(3) The Deputy Judge Advocate General.
(4) The Chief of Civil Law.
(5) Chief, Deput Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(6) The SJAs and Deputy SJAs of PACAF, USAFE, 5th Air Force, Lajes
Field, and 9th Air Force (for CENTCOM).
(b) Redelegation of authority. A settlement authority may redelegate
his or her authority to a subordinate judge advocate or civilian
attorney in writing.
(c) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
Sec. 842.72 Filing a claim.
(a) Claims arising in a foreign country. (1) If a third party
claimant tries to file an international agreement claim with Air Force,
direct that person to the appropriate receiving State office.
(2) If the Air Force receives a claim, send it to the US sending
State office for delivery to the receiving State.
(b) Claims arising in the United States. The claimant files tort
claims arising from the act or omission of military or civilian
personnel of another contracting party at any US military installation.
The installation receiving the claim either:
(1) Investigates it if the foreign personnel are assigned there.
(2) Sends it to the installation where the foreign personnel are
assigned.
Subpart I--Use of Government Property Claims (10 U.S.C. 2737)