5 U.S.C. 301, 10 U.S.C. 113.
This part:
(a) Implements the DoD Humans Goals Charter; 29 U.S.C. 791, 792, 793, and 795; guidance from the Equal Employment Opportunity Commission (EEOC); guidance from the Office of Personnel Management (OPM); Executive Order 11830; General Services Administration Order ADM 5420.71A; Executive Orders 11141; 11246 Part II, 11375, and 12086; Office of Management and Budget (OMB) Circular No. A-11; 42 U.S.C. 2000E-16; Executive Order 11478; 38 U.S.C. 2014; 29 U.S.C. 631(b) and 633a; 5 U.S.C. chapters 43 and 72; Secretary of Defense Policy on Sexual Harassment, July 17, 1981; Assistant Secretary of Defense (Manpower, Reserve Affairs and Logistics) Multiple Addressee Memorandum, August 16, 1981; and 29 U.S.C. 206(d) by establishing the Civilian Equal Employment Opportunity (EEO) Program, to include affirmative action programs, consistent with guidance from the Equal Employment Opportunity Commission (EEOC), Office of Personnel Management (OPM), and the DoD Human Goals Charter.
(b) Consolidates in a single document provisions of Secretary of Defense Multiple Addressee Memorandum, June 23, 1981; DoD Directive 1100.11, DoD Directive 1450.1, DoD Directive 5120.46, and DoD Directive 1100.15, therefore cancelling each document.
(c) Authorizes, as an integral part of the Civilian EEO Program, the establishment of Special Emphasis Programs (SEPs) entitled the Federal Women's Program (FWP), the Hispanic Employment Program (HEP), and the Program for People with Disabilities (PPD), the Asian/Pacific Islander Employment Program (AEP), the American Indian/Alaskan Native Employment Program (AIEP), and the Black Employment Program (BEP).
(d) Establishes the Defense Equal Opportunity Council (DEOC), the Civilian EEO Review Board, the SEP Boards.
(e) Authorizes the issuance of DoD Instructions and Manuals to implement this part and guidance from standard-setting agencies such as EEOC and OPM, consistent with DoD 5025.1-M.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD) and activities supported administratively by OSD, the Military Departments, the Organization of the Joint Chiefs of Staff (as an element of the OSD for the purposes of this program), the Unified and Specified Commands, the Defense Agencies, the Army and Air Force Exchange Service, the National Guard Bureau, the Uniformed Services University of the Health Sciences, the Office of Civilian Health and Medical Programs of the Uniformed Services, and the DoD Dependents Schools (hereafter referred to collectively as “DoD Components”).
(b) Applies worldwide to all civilian employees and applicants for civilian employment within the Department of Defense in appropriated and non-appropriated fund positions.
(c) Does not apply to military personnel, for whom equal opportunity is covered by DoD Directive 1350.2
(d) Covers Federal employment issues under section 504 of the Rehabilitation Act of 1973, as amended, even though DoD Directive 1020.1
(a)
(b)
(c)
(d)
(1) A physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation;
(2) A physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or
(3) None of the impairments defined above but is treated by an employer as having an impairment.
(a)
(b)
(c)
(d)
(e)
(a) Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career; or
(b) Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person, or
(c) Such conduct interferes with an individual's performance or creates an intimidating, hostile, or offensive environment.
It is DoD Policy to:
(a) Recognize equal opportunity programs, including affirmative action programs, as essential elements of readiness that are vital to the accomplishment of the DoD national security mission. Equal employment opportunity is the objective of affirmative action programs.
(b) Develop and implement affirmative action programs to achieve the objective of a civilian work force in which the representation of minorities, women, and people with disabilities at all grade levels, in every occupational series, and in every major organization element is commensurate with the representation specified in EEOC and OPM guidance. Such programs, which shall be designed to identify, recruit, and select qualified personnel, shall be coordinated with the cognizant legal offices.
(c) Ensure that Civilian EEO Program activities for minorities, women, and people with disabilities are integrated fully into the civilian personnel management system.
(d) Assess progress in DoD Component programs in accordance with the affirmative action goals of the Department of Defense.
(e) Prohibit discrimination based on race, color, religion, sex, national origin, mental or physical disability, or age.
(f) Eliminate barriers and practices that impede equal employment opportunity for all employees and applicants for employment, including sexual harassment in the work force and at work sites and architectural, transportation, and other barriers affecting people with disabilities.
(a) The
(1) Represent the Secretary of Defense in all matters related to the DoD Civilian EEO Program, consistent with DoD Directive 5124.2
(2) Establish and chair the DEOC.
(3) Establish a Civilian EEO Review Board.
(4) Develop policy and provide program oversight for the Civilian EEO Program.
(5) Ensure full implementation of this part, monitor progress of affirmative action program elements, and advise the Secretary of Defense on matters relating to the Civilian EEO Program.
(6) Ensure that realistic goals that provide for significant continuing increases in the percentages of minorities, women, and people with disabilities in entry, middle, and higher grade positions in all organizations and occupations are set and accomplished until the overall DoD objective is met and sustained.
(7) Prepare a new DoD Human Goals Charter each time a new Secretary of Defense is appointed.
(8) Ensure fair, impartial, and timely investigation and resolution of complaints of discrimination in employment, including complaints of sexual harassment.
(9) Establish DoD SEPs for the FWP, HEP, HIP, AEP, AIEP, and BEP.
(10) Establish DoD Special Emphasis Program Boards to assist with implementation of SEPs under this part.
(11) Establish DoD Civilian EEO Award Programs to provide for the annual issuance of Secretary of Defense Certificates of Merit to DoD Components and individuals for outstanding achievement in the major areas covered by this part, and to review all awards and management training programs within the Department of Defense to ensure that minorities, women, and people with disabilities receive full and fair consideration consistent with their qualifications and the applicable program criteria.
(12) Issue implementing instructions and other documents, as required, to achieve the goals of the DoD Civilian EEO Program and to provide policy direction and overall guidance to the DoD Components.
(13) Represent the Department of Defense on programmatic EEO matters with EEOC, OPM, the Department of Justice, other Federal Agencies, and Congress.
(14) Represent the Department of Defense on the Interagency Committee on Handicapped Employees under E.O. 11830, as amended, and the Council on Accessible Technology under General Services Administration Order ADM 5420.71A.
(15) Represent the Department of Defense at meetings and conferences of non-Federal organizations concerned with EEO programs, and coordinate DoD support of such organizations' activities with the Assistant Secretary of Defense (Public Affairs) and with DoD General Counsel in accordance with DoD Directive 5410.18
(16) Serve as the DoD liaison with the Office of Federal Contract Compliance Programs (OFCCP), Department of Labor (DoL), for the purpose of providing contract information, forwarding complaints of discrimination filed against DoD contractors, and implementing administrative sanctions imposed against DoD contractors for
(17) Ensure that the DoD FAR Supplement contains appropriate contract provisions for EEO for Government contractors and subcontractors under Executive Orders 11141, 11246 Part II, 11375, and 12086; Section 402 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and DoL implementing regulations.
(b) The
(1) Ensure that all EEO policies are disseminated widely and that they are understood and implemented at all levels within their Components.
(2) Ensure that their Components comply with EEOC and OPM guidance and this part and that minorities, women, and people with disabilities receive full and fair consideration for civilian employment in all grade levels, occupations, and major organizations, with special emphasis on mid-level and higher grades and executive-level jobs, including the Senior Executive Service (SES) and SES candidate pools.
(3) Treat equal opportunity and affirmative action programs as essential elements of readiness that are vital to accomplishment of the national security mission.
(4) Designate a Director of Civilian Equal Opportunity and allocate sufficient staff and other resources to ensure a viable EEO program under this Directive. This includes assignment of staff to be responsible for EEO and affirmative action programs generally and SEP Managers for the SEPs established under this part at the Component level.
(5) Establish DoD SEPs, for the FWP, HEP, PPD, AEP, AIEP, and BEP at Headquarters level and at all field activities levels unless exemptions are granted to field activities. Authority to grant exceptions to field activities of DoD Components is delegated to the Component Heads who, in turn, may redelegate this authority.
(6) Require that EEO be included in critical elements in the performance appraisals of all supervisors, managers, and other Component personnel, military and civilian, with EEO responsibilities.
(7) Ensure fair, impartial, and timely investigation and resolution of complaints of discrimination in employment, including complaints of sexual harassment.
(8) Set realistic Component goals and motivate subordinate managers and supervisors to set and meet their own goals until overall DoD and Component goals are met and sustained.
(9) Evaluate employment policies, practices, and patterns within their respective Components and identify and correct and institutional barriers that restrict opportunities for recruitment, employment, advancement, awards, or training for minorities, women, and people with disabilities and ensure that EEO officers and civilian personnel officers provide leadership in eliminating these barriers.
(10) Ensure that installations and activities establish focused external recruitment programs to produce employment applications from minorities, women, and people with disabilities who are qualified to compete effectively with internal DoD candidates for employment at all levels and in all occupations.
(11) Establish a continuing EEO educational program (including training in the prevention of sexual harassment) for civilian and military personnel who supervise civilian employees.
(12) Establish EEO Awards Programs to recognize individuals and organizational units for outstanding achievement in one or all of the major EEO areas covered by this part.
(13) Review all award and management training programs to ensure that minorities, women, and people with disabilities are considered, consistent with their qualifications and program criteria.
(14) At military installations having a civilian work force and military units, ensure that the Civilian EEO Program is managed by and conducted for civilian personnel only and that the Military Equal Opportunity Program is managed by and conducted for military personnel only. Any exceptions to this
(a) Officials designated in this Directive shall allocate resources necessary to develop methods and procedures to ensure that all elements of this part are fully implemented and are in compliance with the spirit and intent of the DoD Human Goals Charter, laws, executive orders, regulatory requirements, and other Directive and Instructions governing the Civilian EEO Program within the Department of Defense.
(b) Heads of DoD Components, in accordance with EEOC and OPM guidance and subject to oversight by and supplemental guidance from the ASD(FM&P), or designee shall:
(1) Develop procedures for and implement an affirmative action program for minorities and women, consistent with section 717 of the Civil Rights Act of 1964, as amended; E.O. 11478; guidance from EEOC; and guidance from OPM.
(2) Develop procedures for and implement an affirmative action program for people with disabilities consistent with section 501 of Rehabilitation Act of 1973, as amended, and guidance from EEOC.
(3) Develop procedures for and implement an affirmative action program for disabled veterans, consistent with DoD Directive 1341.6.
(4) Develop procedures for and implement systems for investigation and resolution of complaints of employment discrimination under section 717 of the Civil Rights Act of 1964, as amended; sections 501, 503, and 504 of the Rehabilitation Act of 1973, as amended and DoD Directive 1020.1; section 402 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; the Age Discrimination in Employment Act of 1967, as amended; guidance from EEOC; and applicable case law.
(5) Develop procedures for and implement a Federal Equal Opportunity Recruitment Program for minorities and women and a comparable special recruitment program for people with disabilities in accordance with the Civil Service Reform Act of 1978; EEOC instruction concerning affirmative action programs for people with disabilities; guidance from OPM; external recruitment programs to obtain employment applications from minorities, women, and people with disabilities who are competitive with internal DoD candidates for employment at all levels.
(6) Develop procedures for and implement all SEPs established under this part at the Component level. These SEPs shall be integral parts of the Civilian EEO Program and shall be conducted in accordance with the provisions of this part and applicable EEOC and OPM guidance.
(7) Develop procedures for and implement a program to eliminate sexual harassment in Component work places, consistent with DoD Policy on Sexual Harassment memorandums, and to ensure compliance with the Equal Pay Act.
(8) Develop procedures for and implement a program of employment preference for spouses of military personnel, in accordance with DoD Instruction 1404.12.
(9) Develop procedures for and implement a selective placement program for people with disabilities in accordance with guidance from OPM. This program shall be consistent with the program established in paragraph (b)(2) of this section, and coordinated with the Component's PPD manager.
(10) Develop procedures for and implement staffing initiatives, training and development programs, and upward mobility programs designed to increase the representation of qualified minorities, women, and people with disabilities on certificates of eligibility and accompanying lists of individuals eligible for special appointments that are provided to selecting officials at all levels within the Component. These
(11) Develop procedures for and implement a program to evaluate all supervisors and managers with EEO responsibilities on their contributions to and support of the Component's EEO program. Specifically, Component SES and General Manager personnel, when appropriate, shall have their EEO responsibilities defined as a critical element in their performance appraisals in accordance with the Civil Service Reform Act of 1978.
(12) Develop procedures for an implement a program to participate in and conduct ceremonies, where appropriate, at all levels of the Component to observe nationally proclaimed or other specially-designated community activities that particularly affect minorities, women, and people with disabilities and that support the Civilian EEO Program. Military and civilian personnel should both participate whenever possible. Example of special observances include Dr. Martin Luther King Jr.'s Birthday, Black History Month, National Women's History Week, Women's Equality Day, Hispanic Heritage Week, National Disability Employment Awareness Month, and the Decade of Disabled Persons.
(13) Develop procedures for and implement a program to revise documents and change practices and policies that discriminate against civilian personnel on the basis or race, color, sex, religion, national origin, mental or physical disability, or age.
(14) Develop procedures for and implement and affirmative action program for the continued Federal employment of minorities, women, and people with disabilities who have lost their jobs in DoD Components because of contracting decisions made under OMB Circular No. A-76. (Under OMB Circular Federal employees have, in general, the right of first refusal of employment under these contracts.)
(15) Develop procedures for and implement a program for computer support of employees with disabilities consistent with DoD participation in activities of the Council on Accessible Technology in accordance with General Services Administration Order ADM 5420.71A.
(a) EEO Managers, including SEP Managers and other staff who are responsible for EEO and affirmative action programs, shall function at a level that is sufficiently responsible with the assigned organization to enable them to communicate effectively the goals and objectives of the program and to enable them to obtain the understanding, support, and commitment of managers and other officials at all levels within the organization.
(b) It shall be the responsibility of EEO Managers, SEP Managers, and other program staff to develop, coordinate, implement, and recommend to managers, other officials, and covered groups the policy, guidance, information, and activities necessary to attain the goals of the SEPs and the overall DoD Civilian EEO Program.
(a) The DEOC shall be chaired by the ASD (FM&P) and shall coordinate policy for and review civilian and military equal opportunity programs, monitor progress of program elements, and advise the secretary of Defense on pertinent matters. One of the mandates of the DEOC shall be to pursue an aggressive course of action to increase the numbers of minorities, women, and people with disabilities in management and executive positions at grades 13 and above, including the SES and, at the request of the Secretary of Defense, Schedule C, and other noncareer executive positions in the SES and on the Executive Schedule. Members of the DEOC shall include the assistant Secretary of Defense (Reserve Affairs), Director of Administration and Management, and the Assistant Secretaries with responsibility for personnel policy and reserve affairs in the Military Departments.
(b) The Civilian EEO Review Board shall be chaired by the ASD(FM&P), or
(c) The DoD SEP Boards shall be chaired by the DoD SEP Managers. These Boards shall be comprised of designated SEP Managers from the DoD Components and such other individuals as may be necessary to advise and assist in EEO activities and policy development in the Department of Defense. The Boards shall work with career management officials, other key management officials, and union representatives in developing policies, programs, and objectives.
(d) The DEOC, Civilian EEO Review Board, and each SEP Board established at the DoD level shall have a Charter that describes its organization, management, functions, and operating procedures, consistent with DoD Directive 5105.18.
(e) Civilian EEO Review Boards and SEP Boards may be established at Component, command, and installation levels as well as the DoD level to assist in program activities.
(f) Members of covered groups should be represented on Civilian EEO Review Boards, SEP Boards, and subcommittees at all levels; and consideration should be given to participation by military personnel and by Federal employees who are union representatives.
(a) The ASD(FM&P) shall:
(1) Submit an annual report to the Secretary of Defense on the status of the DoD EEO program. This report shall be developed from existing documents, such as affirmative action plan accomplishment reports, civil rights budget reports, semiannual discrimination complaint reports, and Federal Equal Opportunity Recruitment Program reports, plus statistical data obtained from the Defense Manpower Data Center and reports of visits to DoD installations.
(2) Submit consolidated DoD annual reports on discrimination complaints to the EEOC in accordance with EEOC guidance. This reporting requirement is assigned Interagency Report Control Number 0288-EEO-NA.
(b) Heads of DoD Components shall:
(1) Submit annual reports on discrimination complaints to the ASD(FM&P), or designee, in accordance with guidance from the EEOC. This reporting requirement is assigned Interagency Report Control Number 0288-EEO-NA.
(2) Submit copies of affirmative action program plan, affirmative action program plan updates, and affirmative action plan accomplishment reports for minorities, women, and people with disabilities to the ASD(FM&P), or designee, in addition to copies of annual reports for the Federal Equal Opportunity Recruitment Program.
(3) Ensure that designated officials submit information for an annual report on computer support of employees with disabilities and for reports on individual computer accommodations for employees with disabilities. These reporting requirements are assigned RCS DD-FM&P (A) 1731 and RCS DD-FM&P (AR) 1732.
This part is effective May 21, 1987.
42 U.S.C. 3601
This part:
(a) Revises 32 CFR part 192.
(b) Revises the references, policies, and procedures covering off-base housing and fair housing enforcement.
(c) Outlines discrimination complaint inquiries or investigative procedures and hearing requirements.
(d) Deletes the requirement for each Military Department to submit a semi-annual housing discrimination report to the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)).
(e) Requires each Military Service to report to the ASD(FM&P) any housing discrimination cases and their results in their Annual Military Equal Opportunity Assessment Report to the ASD(FM&P).
(f) Requires each Military Department to maintain all completed or resolved housing discrimination cases.
(g) Emphasizes liaison with other Government (local, State, or Federal) agencies.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense (IG, DoD), the Uniformed Services University of the Health Sciences (USUHS), the Defense Agencies, and DoD Field Activities (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps. DoD civilian employees (as defined in § 192.3) will be offered the same services that members of the Armed Forces receive.
(2) DoD civilian employees (and their dependents) who are transferred from one place of residence to another because of job requirements or recruited for job opportunities away from their current place of residence in the United States, and all DoD U.S. citizen appropriated fund and nonappropriated fund civilian employees and their dependents outside the United States.
It is DoD policy that under DoD Directive 1350.2
(a)
(1) Title VIII of P.L. 90-284 contains the following:
(i) The fair housing provisions.
(ii) Outlines the responsibilities of the Secretary of Housing and Urban Development (HUD) with regard to Public Law 90-284.
(iii) Requires all Executive Departments and Agencies to administer housing and urban development programs and activities under their jurisdiction in a manner that shall reflect “affirmatively” the furthering of title VIII.
(2) Title IX of Public Law 90-284 makes it a crime to intimidate willfully or interfere with any person by force or threat because of that person's activities in support of fair housing.
(3) Title 42 U.S.C. 1982 prohibits discrimination in housing in the United States. This statute protects DoD personnel.
(4) Public Law 100-430 amends title VIII of Public Law 90-284 by revising the procedures for the enforcement of fair housing requirements and adding protected classes of individuals.
(5) Title VIII of Public Law 90-284, as amended by Public Law 100-430, does not limit the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. Additionally, provisions of such title VIII regarding familial status do not apply with respect to housing intended for, and solely occupied by, persons 62 years of age or older or intended and operated for occupancy, but at least one person 55 years of age or older. For guidance regarding housing occupied by those 55 years of age or older, use the statutory provision at section 805 b(2)(c), 102 Stat. 1623, of Public Law 100-430.
(b)
(1) That policy includes the objective of eliminating discrimination against DoD personnel in off-base housing. That objective is not achieved simply by finding a place to live in a particular part of town or in a particular facility for a specific person.
(2) The intent is achieved when a person meeting the ordinary standards of character and financial responsibility is able to obtain off-base housing equally as any other person anywhere in the area surrounding a military installation, without suffering discrimination based on race, color, religion,
(i) The accomplishment of this objective shall not be hampered by requiring the submission of a formal complaint of discrimination. A suspected discriminatory act, with or without the filing of a formal complaint, is a valid basis for investigation and, if discrimination is substantiated, imposition of restrictive sanctions.
(ii) On substantiation that an agent practiced discrimination, restrictive sanctions shall be imposed for a minimum of 180 days.
(iii) The fact that Public Law 90-284, 42 U.S.C. 1982, and Public Law 100-430 may or may not provide a remedy in a given case of discrimination affecting DoD personnel does not relieve a commander of the responsibility to ensure equal treatment and equal opportunity for such personnel or to impose restrictive sanctions against the agent and/or facility, when appropriate.
(iv) Military installations shall develop information programs to apprise Service members of the DoD policy and program for equal opportunity in off-base housing. Commanders should use local community resources, such as civil rights organizations, religious and service groups, and local information media, in support of their programs.
The
(a) Ensure nondiscrimination in referring DoD personnel to off-base housing facilities.
(b) Continue efforts (as described in DoD 4165.63-M
(c) Ensure that an office and staff required by DoD 4165.63-M are available in conjunction with the cognizant staff judge advocate or other legal authority to advise Service members on the following:
(1) The procedures in this part.
(2) The application of Public Law 90-284, 42 U.S.C. 1982, and Public Law 100-430 in specific situations.
(3) The rights of individuals to pursue remedies through civilian channels, without recourse and in addition to the procedures prescribed in this part, including the right to:
(i) Make a complaint directly to the Department of HUD and/or to the Department of Justice (DoJ) in the United States.
(ii) Bring a private civil action in any court of competent jurisdiction.
(d) Periodically review off-base housing procedures and policies to ensure effectiveness and compliance with this part. (Appendix A to this part is a checklist to help commanders with this review.)
(e) Cooperate with other Government Agencies investigating housing discrimination complaints filed by Service members.
(f) Ensure that each Military Service reports any housing discrimination cases and their results in the Annual Military Equal Opportunity Assessment Report required by DoD Instruction 1350.3.
(a) Appendix B to this part contains the detailed procedures for assisting Service members, investigating housing complaints, and reporting requirements for housing discrimination complaints.
(b) The complaint and investigative report required in section B., appendix B to this part is exempt from formal approval and licensing under DoD 7750.5-M.
A. Are all assigned personnel informed of the Equal Opportunity in Off-Base Housing Program requirements before obtaining housing off base?
B. Is there an effective information program ensuring equal opportunity in off-base housing information program?
C. Are community resources being used to support the equal opportunity in off-base housing information program?
D. Are housing discrimination complaints being processed within the required time?
E. Are complainants being informed in writing of the results of housing discrimination inquiry and/or investigating actions?
F. Are housing surveys being conducted periodically to obtain new listings?
G. Are restrictive sanctions being imposed immediately for a minimum of 180 days on agents found to be practicing discrimination?
H. Are the services of command representatives provided to assist applicants in their search for housing?
I. Are HHS personnel and equal opportunity personnel aware of and sensitive to housing problems encountered by DoD personnel?
J. Are equal opportunity in off-base housing reports being submitted accurately and on time?
DoD personnel seeking off-base housing shall be processed as follows:
1. Seen by an HRS when available (optional for DoD civilian personnel).
2. Provided assistance in seeking temporary and permanent off-base housing, as follows:
a. Counseling on the equal opportunity in off-base housing program with particular emphasis placed on reporting any indication of discrimination against DoD personnel in their search for housing.
b. Counseling and personal assistance shall include the following services:
(1) Offering to check by telephone the availability of selected listings. A record shall be made and retained for future reference of the date, time, and nature of any conversation confirming the availability of a facility. The race, color, religion, sex, national origin, handicap, or familial status of the applicant shall not be divulged. Caution must be exercised to ensure that a pattern of “confirmation only for minorities” does not develop.
(2) Offering the services of a command representative (such as a unit sponsor or other designated person, when available) to accompany and assist the applicant in the search for housing.
(3) Explaining various discriminatory methods that may be employed by agents. For instance, an agent may arbitrarily refuse to accept or consider the applicant as a tenant, falsely indicate the unit sought has been rented to another applicant, or refuse to make the unit available under the same terms and conditions as are ordinarily applied to applicants for the facilities. In such instances the following shall apply:
(a) The agent shall be queried on the reasons why the unit is not available. After all reasonable steps have been taken to ascertain whether any valid nondiscriminatory reason can be shown for the agent's rejection of the applicant, and if there appears to be no such reason, a reasonable effort shall be made to persuade the agent to make the unit available to the applicant.
(b) The incident shall be reported immediately by the command representative and the applicant to the HRS for appropriate command action.
Commanders shall ensure that all DoD personnel are informed of the scope and provisions of the DoD Equal Opportunity in Off-Base Housing Program and advised to report immediately to the HRS (when available) any form of discrimination encountered when seeking housing within a Civilian Community. Incidents should be reported to base agencies or command representatives when an HRS is not available (i.e., equal opportunity officer, unit commander, supervisor). A verbal or written statement of discriminatory policy by an agent is considered to be an act or incident of discrimination, and the investigative procedures outlined in this appendix shall be followed.
1.
a. Immediately notify the commander.
b. Promptly interview the complainant to determine the details and circumstances of the alleged discriminatory act.
c. Immediately telephone or visit the facility and/or agent concerned, if the complaint is received shortly after the time of the alleged act and it concerns the change in availability of a vacancy (i.e., “just rented,” etc.). Attempt to determine if a vacancy exists without making reference to the complaint received. Request the commander to authorize the use of verifiers, as necessary. (See this appendix, subsection B.2.)
d. Advise the complainant of the provisions and procedures in this Instruction and of the right to pursue further actions through HUD, DoJ, and local or State agencies. Coordinate efforts with the Office of Judge Advocate or other cognizant legal counsel to determine
e. Document the complainant's action for future reference and inform the commander of the results of the HRS preliminary inquiry and actions taken. The commander shall take action to assist the complainant in obtaining suitable housing. If, due to previous discriminatory practices in the community, suitable housing cannot be obtained by the complainant in a reasonable amount of time, the complainant and the commander may use this fact to justify a request for priority in obtaining military housing or for humanitarian reassignment. Reassignment action is a last resort and must be justified fully through command personnel channels.
2.
a. When selecting and using verifiers, the following applies:
(1) Verification of the vacancy shall be made expediently after alleged act of discrimination.
(2) Verifiers may be volunteers. (The equal opportunity office is a possible source for identifying individuals to be used as verifiers.)
(3) The purpose of verification is to isolate the attribute of race, color, religion, sex, national origin, age, handicap, or familial status that is the suspected basis for the alleged discrimination against the complainant. Except for those attributes that are considered to be the source of the discrimination complaint, the verifier should possess attributes that are similar to the complainant. If two verifiers are used, one may possess similar attributes to the complainant. Ideally, two verifiers should be used.
b. Instructions provided to the verifiers by HRS personnel should include the following:
(1) Explanation of the equal opportunity in off-base housing and off-base housing referral programs.
(2) Verifiers are to obtain information only on agent and/or facility operating policies, practices, and procedures for subsequent determination of complaint validity.
(3) Verifiers are not to make a verbal or written contract for the housing unit, pay any money, or say they want the housing unit.
(4) Verifiers shall be knowledgeable concerning family composition, pets, and housing requirements of the complainant; they shall ask for identical housing requirements.
(5) The following information shall be obtained by the verifier, if possible:
(a)
(b)
(6) The verifier's statement shall be completed immediately after the verification visit, if possible. It shall be accurate, objective, and factual. Include the following in the statement:
(a) Date, time of visit, persons contacted, positions of persons contacted. Include any other pertinent information obtained during visit; i.e., length of time employed at facility, in addition to the information in this appendix, subparagraph B.2.b.(5), above.
(b) When reconstructing a conversation, write in the first person and try to use direct quotes. Do not use pronouns such as “he,” “she,” or “they.” Clearly identify who said what to whom.
(c) Sign and date statement. Give full name, address, telephone number (duty or home), race, color, religion, sex, national origin, age, handicap or familial status, as relevant to the complaint.
3.
a.
(1)
(2)
b.
(1) Any necessary explanatory remarks, including comments on the facts and evidence presented.
(2) Information known about pending complaints brought by other parties on the same facility and/or agent.
(3) Comments on the civil rights laws relevant to the particular case.
4.
a. If the commander determines that more information is required, or for any reason further inquiry is deemed necessary, an officer shall be appointed from sources other than the HRS to conduct a formal inquiry or investigation, as the situation warrants. The officer, if not an attorney, shall be afforded the advice and assistance of a Staff Judge Advocate or other cognizant legal counsel.
b. If, in the commander's judgment, the inquiry or investigation fails to support the complaint the case shall be considered closed and the commander shall:
(1) Inform the complainant in writing of all actions taken and advise the complainant of rights to pursue further actions to include the following:
(a) The right to submit a complaint to the HUD and the DoJ.
(b) The right to bring a private civil action in a State or Federal court of competent jurisdiction.
(c) The availability of legal assistance from their local Staff Judge Advocate or other cognizant legal counsel in pursuing civil redress.
(2) Summarize in the report file the practices giving rise to the complaint, the actions and results of the inquiry or investigation, and if discriminatory practices were found, written assurances from the agent on future facility and/or agent practices. The following statement, completed by the complainant, shall be included, as part of the case file: “I am (am not) satisfied with the efforts taken by the commander on my behalf to achieve satisfactory resolution of my off-base housing discrimination complaint.” If the complainant indicates a lack of satisfaction, the reasons must be included in the case file.
(3) Inform the agent of the results of the inquiry by command correspondence if an informal hearing was held. Such correspondence should reiterate DoD policy and requirements for equal opportunity in off-base housing.
(4) Forward unsubstantiated complaint reports and HUD Form 903 to the HUD and the DoJ if requested by the complainant.
(5) Retain a copy of the report file for 2 years for future reference.
c. If the inquiry or investigation supports the complainant's charge of discrimination and the discriminatory act is determined by the commander to conflict with DoD policy, the commander shall:
(1) Impose restrictive sanctions against the agent and/or facility for a minimum of 180 days. Sanctions shall remain in effect until the requirements in this appendix, subparagraphs B.6.a.(1) or B.6.a.(2), below, are met. Restrictive sanctions shall be imposed when a suspected discriminatory act, despite the absence of a formal complaint, is investigated and found valid. The fact that a validated discrimination complaint and/or incident has been or is scheduled to be forwarded to another Agency (the HUD, the DoJ, etc.) is not cause for withholding sanction action pending the outcome of that Agency's further review or investigation. When imposing a restrictive sanction, the commander shall:
(a) Remove the facility listing(s) from HRO files.
(b) Impose restrictive sanctions against all facilities owned or operated by the agent concerned.
(c) Place the facility on the restrictive sanction list maintained by the HRS. The restrictive sanction list shall be prepared on official letterhead stationery, signed by the commander, and include the authority for and conditions of the restrictive sanctions.
(d) Inform the agent concerned by command correspondence that:
(1) Restrictive sanctions have been imposed.
(2) The reasons, nature, and minimum duration of the restrictions.
(3) The action required for the removal of sanctions at the conclusion of the minimum period.
(e) Provide all DoD personnel reporting to the HRS with a copy of the restrictive sanction list, and advise members of the Armed Forces that they may not rent, lease, purchase, or reside in any of the listed facilities. Obtain a signed acknowledgment of receipt of the restrictive sanction list from the HRS using a DD Form 1746, “Application for Assignment to Housing.”
(f) Advise other military installations of the restrictive sanction action taken when the sanctioned facility is located within the commuting area of their military installations.
(2) Inform the complainant in writing of all actions taken and advise the complainant that his or her case will receive continuing action to include, if the complainant requests, forwarding the case file to the HUD and/or the DoJ for action.
(3) Before forwarding the report to the respective Military Department, prepare a memorandum outlining the following:
(a) The base efforts made to obtain housing relief for the complainant.
(b) The impact of restrictive sanctions on the off-base housing program and DoD personnel and their dependents.
(c) Any other considerations deemed relevant.
(4) Include a statement completed by the complainant for the case file. (See this appendix, subparagraph B.4.b.(3), above.)
(5) If the act of discrimination falls within existing regulations, forward a copy of the complaint and investigation report directly to the HUD within 180 days after the occurrence of the alleged discriminating act, using HUD Form 903. The original report shall be sent to the appropriate HUD Regional Office or the U.S. Department of Housing and Urban Development Office of Fair Housing and Equal Opportunity, 451 7th Street SW., Washington, DC 20410. A copy of the complaint and investigation report shall be forwarded to the Civil Rights Division, Department of Justice, Washington, DC 20530.
(6) When more than one complaint alleging discrimination in the same facility or by the same agent has been received, consolidate the complaints for the inquiry, legal review, and commander's memorandum.
d. When a commander receives a complaint alleging further discrimination in a facility or by an agent after a completed case file has been closed, the commander shall forward the summary of the facts on the subsequent complaint, outlined in this enclosure, subparagraph B.4.c.(6), above. Include brief comments indicating the extent to which the new complaint affects the previous action.
5.
a. Cooperate with the HUD, the DoJ, and the local and State agency representatives during their investigation and processing of the case, should those entities seek assistance.
b. Periodically determine the status of the case by maintaining liaison with the HUD office concerned. Contact shall be maintained until such time as the case is resolved by the HUD.
c. Ensure that the complainant is kept informed directly by the HUD and/or the DoJ.
d. Ensure that DoD personnel comply with the restrictive sanctions imposed on the facility and/or the agent. Housing personnel will comply with the following:
(1) Military personnel moving into or changing their place of residence in the commuting area of a military installation or activity may not enter into a rental, purchase, or lease arrangement with an agent or a facility that is under restrictive sanction.
(2) Implement procedures for ensuring that DoD personnel seeking housing are made aware of, and are counselled on, current restrictive sanctions.
(3) Sanctions are not applicable to the DoD personnel who may be residing in a facility when the sanction is imposed or to the extension or renewal of a rental or lease agreement originally entered into before the imposition of the sanction. Relocation of a military tenant within a restricted facility is prohibited without the written approval of the commander.
(4) If it is determined that a member of the Armed Forces has intentionally taken residency in a restricted facility contrary to instructions received by Housing Referral personnel, the commander shall take appropriate disciplinary action against that number.
(5) Periodically publish a current listing of restricted facilities in the base bulletin (or other appropriate means of internal distribution). Minimally, such publication shall occur when there has been an addition or deletion to the list.
6.
a. A facility and/or agent may be removed from restrictive sanction only if one of the following actions is taken:
(1) The restrictive sanction may be removed before completion of the 180 day restrictive period if an approved waiver request is obtained from the senior installation commander concerned, or designee. Consideration shall be given to lifting an imposed sanction only in exceptional circumstances and in conjunction with a written assurance of nondiscrimination from the agent concerned.
(2) After completion of 180 days on restrictive sanction, if the agent provides written assurance of future nondiscrimination to the HRS.
b. The commander shall inform the HRS, the equal opportunity office, and the agent in writing of the removal from restrictive sanction.
7.
Commanders of installations or activities outside the United States shall ensure that all DoD personnel, on reporting to the HRS, are clearly informed of the scope and provisions of the DoD Equal Opportunity in Off-Base Housing Program and advised to report immediately to the HRS any form of discrimination encountered as a tenant, prospective tenant, or purchaser. Incidents reported to base agencies or representatives other than the HRS (i.e., equal opportunity officer, unit commander, supervisor) shall be brought to the immediate attention of the HRS for appropriate action. On receiving a complaint of discrimination, the commander and HRS shall:
1. Consult with the Staff Judge Advocate or other cognizant legal counsel to determine if the laws of the country concerned (or any subdivision thereof) prohibit any of the actions outlined in this appendix, section B., above.
2. Take actions outlined in this appendix, section B, above, except that a HUD Form 903 shall not be completed because reports of cases arising outside the United States are not forwarded to the HUD or the DoJ. Complainants should understand that the fair housing provisions of the P.L. 90-284, “Civil Rights Act,” Title 42, United States, 1982, and Public Law 100-430, “Fair Housing Amendments Act of 1988,” September 13, 1988, are not applicable in areas outside the United States.
3. Determine, with legal advice, whether redress for the discriminatory act should be sought from authorities in the host country. Redress shall be based on the laws of the country (or subdivision thereof) concerned.
1. A copy of each complaint and investigative report that substantiates a housing discrimination shall be submitted to the appropriate Military Department (manpower and reserve affairs and/or the equal opportunity office) not later than 45 days from the date the case is completed. Under normal circumstances, the commander of the installation concerned shall complete the required investigation and processing complaints within 45 days from the date that a housing complaint is filed by a complainant.
2. A copy of complaint and investigative reports that do not substantiate allegations of housing discrimination shall be kept on file at the installation level for a 24-month period beginning from the date the case was completed.
5 U.S.C. 301.
This part sets forth policy, responsibilities, and authority in matters pertaining to Department of Defense highway needs and, when appropriate, to the highway needs of other Federal agencies, during peacetime and emergencies in the United States and its territories and possessions.
The provisions of this part apply to all components of the Department of Defense.
In order to insure that the national defense is served by adequate, safe and efficient highway transportation, it shall be the policy of the DoD to (a) integrate the highway needs of the national defense into the civil highway programs of the various State and Federal agencies, and (b) cooperate with those agencies in matters pertaining to the use of public highways and in planning their development and construction.
(a) The Secretary of the Army, as the Single Manager for Military Traffic, Land Transportation, and Common-User Ocean Terminals (see DoD Directive 5160.53, Single Manager Assignment for Military Traffic, Land Transportation, and Common-User Ocean Terminals, March 24, 1967 (32 FR 5295)), is hereby designated as the Executive Agent for the Department of Defense (hereinafter referred to as the Executive Agent), in matters pertaining to public highways to serve the national defense in meeting both peacetime and mobilization highway transportation needs in the United States, its territories and possessions; and highway needs of other Federal agencies, when appropriate. The Executive Agent, or his designee, under the policy guidance of the Assistant Secretary of Defense (Installations and Logistics), will:
(1) Coordinate the defense transportation interest in public highways, including the implementation of subsection (h), section 210 of Title 23 U.S. Code, and integrate foreseen DoD highway needs and operational requirements into the highway programs of the United States, its territories and possessions.
(2) Review and analyze DoD access road needs, and, when appropriate, those of other Federal agencies from the standpoint of approved transportation engineering practices, statutory provisions, and policies and procedures of the Bureau of Public Roads, Department of Transportation.
(3) Represent the DoD in matters pertaining to highways to serve the national defense in liaison with the Bureau of Public Roads, the American Association of State Highway Officials, and other appropriate Government and non-Government agencies.
(4) Certify on behalf of the Secretary of Defense to the appropriate Government agency, the public highway needs of the DoD and, when appropriate, the needs of other Federal agencies, as being important to the national defense. (See section 210, Title 23, U.S. Code.)
(5) Advise and assist the Assistant Secretary of Defense (Comptroller) in matters pertaining to the (i) preparation and justification of budget requirements for defense access road needs, and (ii) transfer of funds appropriated for this purpose to the Bureau of Public Roads.
(6) Develop and maintain an efficient relationship between the design of military vehicles and State and Federal standards for the design of public highways to ensure the effective and efficient utilization of such highways by military vehicles.
(7) Provide highway traffic engineering services to DoD components, when requested.
(8) Insure effective cooperation between the Department of Defense and state highway authorities in matters pertaining to special defense utilization of public highways.
(b) The other DoD Components will:
(1) Maintain official liaison with the Executive Agent in matters pertaining to the provision of public highways to serve the national defense and the access road needs of new or expanded DoD installations and activities.
(2) Furnish the Executive Agent with information and data on current and potential access-road and highway-system needs on request.
(c) The Secretaries of the Military Departments, or their designees, are authorized to act for the Secretary of Defense under the provisions of subsection (h) of section 210, Title 23, U.S. Code, in determining, in connection with the funding of contracts for the construction of classified military installations and facilities for ballistic missiles, that construction estimates and the bids of contractors did not include allowances for repairing road damages.
(d) The Secretaries of the Military Departments and the Directors of DoD Agencies will program, budget, and finance for the responsibilities assigned by this part and their access road requirements (see Pub. L. 90-180, Military Construction Appropriation Act, fiscal year 1968, and successor statutes) in accordance with applicable program and financial guidelines and procedures.
Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws referred to in appendix A.
The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act of 1964 (referred to in this part as the “Act”) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from any component of the Department of Defense.
(a)
(b)
(c) The term
(d) The term
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
(e) The term
(f) The term
(g) The term
(h) The term
(i) The term
This part applies to any program for which Federal financial assistance is authorized under a law administered by any component of the Department of Defense, including the federally assisted programs and activities listed in appendix A of this part. This directive applies to money paid, property transferred, or other Federal financial assistance extended under any such program after January 7, 1965 pursuant to an application approved prior to such date. This directive does not apply to: (a) Any Federal financial assistance by way of insurance guaranty contracts, (b) money paid, property transferred, or other assistance extended under any such program before January 7, 1965, (c) any assistance to any individual who is the ultimate beneficiary under any such program, or (d) any employment practice, under any such program, of any employer, employment agency, or labor organization, except as noted in § 195.4(b)(5) of this part. The fact that a program or activity is not listed in appendix A shall not mean, if title VI of the Act is otherwise applicable, that such program is not covered. Other programs under statutes now in force or hereinafter enacted may be added to this list by notice published in the
(a)
(b)
(i) Deny an individual any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
(iii) In determining the site or location of facilities, a recipient may not make selections with the purpose of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this part applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part.
(iv) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
(v) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(vi) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or
(vii) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program;
(viii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
(3) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
(4)(i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.
(5) Where a primary objective of the Federal financial assistance is not to provide employment, but nevertheless discrimination on the grounds of race, color or national origin in the employment practices of the recipient or other persons subject to this Directive tends, on the grounds of race, color, or national origin of the intended beneficiaries, to exclude intended beneficiaries from participation in, to deny them benefits of, or to subject them to discrimination under any program to which this Directive applies, the recipient or other persons subject to this Directive are prohibited from (directly or through contractual or other arrangements) subjecting an individual to discrimination on the grounds of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising; employment, layoff or termination; upgrading, demotion or transfer; rates of pay and/or other forms of compensation; and use of facilities), to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of the beneficiaries. Any action taken by a component pursuant to this provision with respect to a state or local agency subject to Standards for a Merit System of Personnel Administration, 45 CFR part 70, shall be consistent with those standards and shall be coordinated with the U.S. Civil Service Commission.
(6) The enumeration of specific forms of prohibited discrimination in this section does not limit the generality of the prohibition in paragraph (a) of this section.
(a) The Assistant Secretary of Defense (Manpower) shall be responsible for insuring that the policies of this part are effectuated throughout the Department of Defense. He may review from time to time as he deems necessary the implementation of these policies by the components of the Department of Defense.
(b) The Secretary of each Military Department is responsible for implementing this part with respect to programs and activities receiving financial assistance from his Military Department; and the Assistant Secretary of Defense (Manpower) is responsible for similarly implementing this part
(c) The Assistant Secretary of Defense (Manpower) or, after consultation with the Assistant Secretary of Defense (Manpower), the Secretary of each Military Department or other responsible Department official designated by the Assistant Secretary of Defense (Manpower) may assign to officials of other departments or agencies of the Government, with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of Title VI of the Act and this part (other than responsibility for final decision as provided in § 195.11), including the achievement of effective coordination and maximum uniformity within the Department and within the Executive Branch of the Government in the application of Title VI and this part to similar programs and in similar situations.
(a)
(ii) In the case where the Federal financial assistance is to provide or is in the form of personal property, or real property or interest therein or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services and benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. In any case in which Federal financial assistance is extended without an application having been made, such extension shall be subject to the same assurances as if an application had been made. The responsible Department official shall specify the form of the foregoing assurances for each program, and the extent to which like assurances will be required of subguarantees, contractors and subcontractors, transferees, successors in interest, and other participants in the program. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(2) In the case of real property, structures or improvements thereon, or interest therein, which was acquired through a program of Federal financial assistance, or in the case where Federal financial assistance is provided in the form of a transfer of real property or interest therein from the Federal Government, the instrument effecting or recording the transfer, shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. Where no transfer of property is involved, but property is improved under a program of Federal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. Where the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant where, in the discretion of the responsible Department official, such a condition and right of reverter is appropriate to the program under which the real property
(3) The assurance required in the case of a transfer of surplus personal property shall be inserted in a written agreement by and between the Department of Defense component concerned and the recipient.
(b)
(c)
(2) The assurance required with respect to an institution of higher education, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution unless the applicant establishes, to the satisfaction of the responsible Department official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for which Federal financial assistance is sought, or the beneficiaries of or participants in such program. If in any such case the assistance sought is for the construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith.
(d)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section, the responsible Department official will so inform the recipient and the complainant, if any, in writing.
(e)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(e)
(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(f)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible Department official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible Department official determines that those requirements have been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Department official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this subsection are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
All issuances heretofore issued by any officer of the Department of Defense or its components which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this part applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance under such program for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this part. Nothing in this part, however, shall be deemed to supersede any of the following (including future amendments thereof):
(a) Executive Orders 10925 and 11114 and issuances thereunder,
(b) The “Standards for a Merit System of Personnel Administration,” issued jointly by the Secretaries of Defense, of Health, Education, and Welfare, and of Labor, 28 FR 734, or
(c) Executive Order 11063 and issuances thereunder, or any other issuances, insofar as such Order or issuances prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination on any other ground.
The Secretary of each Military Department shall submit regulations implementing this part to the Assistant Secretary of Defense (Manpower).
1. The Army and Air National Guard (Title 32, United States Code).
2. Various programs involving loan or other disposition of surplus property (various general and specialized statutory provisions including: 40 United States Code 483, 484, 512; 49 United States Code 1101-1119; 10 United States Code 2541, 2542, 2543, 2572, 2662, 7308, 7541, 7542, 7545, 7546, 7547).
3. National Program for Promotion of Rifle Practice (10 United States Code 4307 and annual Department of Defense Appropriation Act).
4. National Defense Cadet Corps Program (10 United States Code 3540(b), 4651).
5. Office of Civil Defense assistance to programs of adult education in civil defense subjects (50 United States Code App. 2281 (e), (f)).
6. Office of Civil Defense radiological instruments grants (50 United States Code App. 2281(h)).
7. Office of Civil Defense program (with Public Health Service) for development of instructional materials on medical self-help (50 United States Code App. 2281 (e), (f)).
8. Office of Civil Defense university extension programs for civil defense instructor training (50 United States Code App. 2281 (e)).
9. Office of Civil Defense programs for survival supplies and equipment, survival training, emergency operating center construction, and personnel and administrative expenses (50 United States Code App. 2281(i), 2285).
10. Office of Civil Defense Shelter Provisioning Program (50 United States Code App. 2281(h)).
11. Office of Civil Defense assistance to students attending Office of Civil Defense schools (50 United States Code App. 2281(e)).
12. Office of Civil Defense loans of equipment or materials from OCD stockpiles for civil defense, including local disaster purposes (50 United States Code App. 2281).
13. Navy Science Cruiser Program (SecNav Instruction 5720.19A).
14. Civil Air Patrol (10 United States Code 9441).
15. Research grants made under the authority of Pub. L. 85-934 (42 United States Code 1892).
16. Contracts with nonprofit institutions of higher education or with nonprofit organizations whose primary purpose is the conduct of scientific research, wherein title to equipment purchased with funds under such contracts may be vested in such institutions or organizations under the authority of Pub. L. 85-934 (42 United States Code 1891).
17. Army Corps of Engineers participation in cooperative investigations and studies concerning erosion of shores of coastal and lake waters (33 United States Code 426).
18. Army Corps of Engineers assistance in the construction of works for the restoration and protection of shores and beaches (33 United States Code 426e-h).
19. Public park and recreational facilities at water resource development projects under the administrative jurisdiction of the Department of the Army (16 United States Code 460d and Federal Water Project Recreation Act, Pub. L. 89-72, 79 Stat. 218, July 9, 1965).
20. Payment to States of proceeds of lands acquired by the United States for flood control, navigation, and allied purposes (33 United States Code 701-c-3).
21. Grants of easements without consideration, or at a nominal or reduced consideration, on lands under the control of the Department of the Army at water resource development projects (33 United States Code 558c and 702d-1; 10 United States Code 2668 and 2669); 43 United States Code 961; 40 United States Code 319).
22. Army Corps of Engineers assistance in the construction of small boat harbor projects (33 United States Code 540 and 577, and 47 Stat. 42, Feb. 10, 1932).
23. Emergency bank protection works constructed by the Army Corps of Engineers for protection of highways, bridge approaches, and public works (33 United States Code 701r).
24. Assistance to States and local interests in the development of water supplies for municipal and industrial purposes in connection with Army Corps of Engineers reservoir projects (Water Supply Act of 1958, 43 United States Code 390b).
25. Army Corps of Engineers contracts for remedial works under authority of section 111 of Act of July 3, 1958 (33 United States Code 633).
20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
The purpose of these Title IX regulations is to effectuate Title IX of the Education Amendments of 1972, as amended (except sections 904 and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in these Title IX regulations. The effective date of these Title IX regulations shall be September 29, 2000.
As used in these Title IX regulations, the term:
(1) A grant or loan of Federal financial assistance, including funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.
(1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or professional education); or
(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.
(1) An institution offering at least two but less than four years of college-level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees, but that may or may not offer academic study.
(a)
(b)
(c)
(1) Evaluate, in terms of the requirements of these Title IX regulations, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any discrimination that resulted or may have resulted from adherence to these policies and practices.
(d)
(a)
(b)
(2) In the case of Federal financial assistance extended to provide personal property, such assurance shall obligate the recipient for the period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient for the period during which Federal financial assistance is extended.
(c)
(2) The designated agency official will specify the extent to which such assurances will be required of the applicant's or recipient's subgrantees, contractors, subcontractors, transferees, or successors in interest.
If a recipient sells or otherwise transfers property financed in whole or in part with Federal financial assistance to a transferee that operates any education program or activity, and the Federal share of the fair market value of the property is not upon such sale or transfer properly accounted for to the Federal Government, both the transferor and the transferee shall be deemed to be recipients, subject to the provisions of §§ 196.205 through 196.235(a).
(a)
(b)
(c)
The obligation to comply with these Title IX regulations is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for members of one sex than for members of the other sex.
(a)
(b)
(a)
(2) Each recipient shall make the initial notification required by paragraph (a)(1) of this section within 90 days of September 29, 2000 or of the date these Title IX regulations first apply to such recipient, whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by student, alumnae, or alumni groups for or in connection with such recipient; and
(ii) Memoranda or other written communications distributed to every student and employee of such recipient.
(b)
(2) A recipient shall not use or distribute a publication of the type described in paragraph (b)(1) of this section that suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by these Title IX regulations.
(c)
Except as provided in §§ 196.205 through 196.235(a), these Title IX regulations apply to every recipient and to each education program or activity operated by such recipient that receives Federal financial assistance.
(a)
(b)
These Title IX regulations do not apply to an educational institution whose primary purpose is the training of individuals for a military service of the United States or for the merchant marine.
(a)
(b)
(c)
(a) Admissions to educational institutions prior to June 24, 1973, are not covered by these Title IX regulations.
(b)
(c)
(d)
(e)
(a)
(1) Admitted students of only one sex as regular students as of June 23, 1972; or
(2) Admitted students of only one sex as regular students as of June 23, 1965, but thereafter admitted, as regular students, students of the sex not admitted prior to June 23, 1965.
(b)
(a)
(b)
(1) State the name, address, and Federal Interagency Committee on Education Code of the educational institution submitting such plan, the administratively separate units to which the plan is applicable, and the name, address, and telephone number of the person to whom questions concerning the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively separate unit admits students of both sexes as regular students and, if so, when it began to do so.
(3) Identify and describe with respect to the educational institution or administratively separate unit any obstacles to admitting students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as practicable each obstacle so identified and indicate the schedule for taking these steps and the individual directly responsible for their implementation.
(5) Include estimates of the number of students, by sex, expected to apply for, be admitted to, and enter each class during the period covered by the plan.
(c)
(d)
(a) This section, which applies to all provisions of these Title IX regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference;
(2) Any program or activity of a secondary school or educational institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational institution or in an education program or activity, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided to students of the other sex;
(4) Any scholarship or other financial assistance awarded by an institution of higher education to an individual because such individual has received such award in a single-sex pageant based upon a combination of factors related to the individual's personal appearance, poise, and talent. The pageant, however, must comply with other nondiscrimination provisions of Federal law.
(c)
(1) All of the operations of any entity described in paragraphs (c)(1)(i) through (iv) of this section, any part of which is extended Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution, or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title 20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(
(
(B) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(iv) Any other entity that is established by two or more of the entities described in paragraphs (c)(1)(i), (ii), or (iii) of this section.
(2)(i)
(ii) For example, all of the operations of a college, university, or other postsecondary institution, including but not limited to traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities are part of a “program or activity” subject to these Title IX regulations if the college, university, or other institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Medical procedures, benefits, services, and the use of facilities, necessary to save the life of a pregnant woman or to address complications related to an abortion are not subject to this section.
(2) Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion. Accordingly, subject to paragraph (d)(1) of this section, no person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, employment, or other educational program or activity operated by a recipient that receives Federal financial assistance because such individual has sought or received, or is seeking, a legal abortion, or any benefit or service related to a legal abortion.
(a)
(b)
(i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the basis of sex.
(2) A recipient shall not administer or operate any test or other criterion for admission that has a disproportionately adverse effect on persons on the
(c)
(1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant that treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice that so discriminates or excludes;
(3) Subject to § 196.235(d), shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss” or “Mrs.” A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.
A recipient to which §§ 196.300 through 196.310 apply shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity that admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of §§ 196.300 through 196.310.
(a)
(b)
(a)
(b)
(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit, or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
(c)
(d)
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure itself that the operator or sponsor of such other education program or activity takes no action affecting any applicant, student, or employee of such recipient that these Title IX regulations would prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if such action occurs.
(a)
(b)
(2) Housing provided by a recipient to students of one sex, when compared to that provided to students of the other sex, shall be as a whole:
(i) Proportionate in quantity to the number of students of that sex applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c)
(2)(i) A recipient which, through solicitation, listing, approval of housing, or otherwise, assists any agency, organization, or person in making housing available to any of its students, shall take such reasonable action as may be necessary to assure itself that such housing as is provided to students of one sex, when compared to that provided to students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency, organization,
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
(a) A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.
(b)(1) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.
(3) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards that do not have such effect.
(5) Portions of classes in elementary and secondary schools, or portions of education programs or activities, that deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.
(6) Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.
A recipient that is a local educational agency shall not, on the basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such recipient; or
(b) Any other school or educational unit operated by such recipient, unless such recipient otherwise makes available to such person, pursuant to the same policies and criteria of admission, courses, services, and facilities comparable to each course, service, and facility offered in or through such schools.
(a)
(b)
(c)
(a)
(1) On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance that is of any particular type or source, apply different criteria, or otherwise discriminate;
(2) Through solicitation, listing, approval, provision of facilities, or other services, assist any foundation, trust, agency, organization, or person that provides assistance to any of such recipient's students in a manner that discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning eligibility for such assistance that treats persons of one sex differently from persons of the other sex with regard to marital or parental status.
(b)
(2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
(i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.
(c)
(2) A recipient may provide separate athletic scholarships or grants-in-aid for members of each sex as part of separate athletic teams for members of each sex to the extent consistent with this paragraph (c) and § 196.450.
(a)
(1) Shall assure itself that such employment is made available without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or person that discriminates on the basis of sex in its employment practices.
(b)
Subject to § 196.235(d), in providing a medical, hospital, accident, or life insurance benefit, service, policy, or plan to any of its students, a recipient shall not discriminate on the basis of sex, or provide such benefit, service, policy, or plan in a manner that would violate §§ 196.500 through 196.550 if it were provided to employees of the recipient.
(a)
(b)
(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation as long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section, shall ensure that the separate portion is comparable to that offered to non-pregnant students.
(4) Subject to § 196.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan, or policy that such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began.
(a)
(b)
(c)
(i) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the designated agency official may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
(d)
Nothing in these Title IX regulations shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.
(a)
(2) A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner and shall not limit, segregate, or classify applicants or employees in any way that could adversely affect any applicant's or employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by §§ 196.500 through 196.550, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for employment on the basis of attendance at any educational institution or entity that admits as students only or predominantly members of one sex, if the giving of such preferences has the effect of discriminating on the basis of sex in violation of these Title IX regulations.
(b)
(1) Recruitment, advertising, and the process of application for employment;
(2) Hiring, upgrading, promotion, consideration for and award of tenure, demotion, transfer, layoff, termination, application of nepotism policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in compensation;
(4) Job assignments, classifications, and structure, including position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy, childbirth, false pregnancy, termination of pregnancy, leave for persons of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
(8) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, selection for tuition assistance, selection for sabbaticals and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational programs; and
(10) Any other term, condition, or privilege of employment.
A recipient shall not administer or operate any test or other criterion for any employment opportunity that has a disproportionately adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not have such disproportionately adverse effect, are shown to be unavailable.
(a)
(b)
A recipient shall not make or enforce any policy or practice that, on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a rate less than that paid to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority systems, career ladders, or tenure systems for similar jobs, position descriptions, or job requirements that classify persons on the basis of sex, unless sex is a bona fide occupational qualification for the positions in question as set forth in § 196.550.
(a)
(b)
(1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit plan that does not provide for equal periodic benefits for members of each sex and for equal contributions to the plan by such recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or retirement plan that establishes different optional or compulsory retirement ages based on sex or that otherwise discriminates in benefits on the basis of sex.
(a)
(1) Concerning the potential marital, parental, or family status of an employee or applicant for employment that treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.
(b)
(c)
(d)
(a)
(b)
A recipient shall not in any advertising related to employment indicate preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the particular job in question.
(a)
(b)
A recipient may take action otherwise prohibited by §§ 196.500 through 196.550 provided it is shown that sex is a bona fide occupational qualification for that action, such that consideration of sex with regard to such action
Within 60 days of September 29, 2000, each Federal agency that awards Federal financial assistance shall publish in the
The investigative, compliance, and enforcement procedural provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (“Title VI”) are hereby adopted and applied to these Title IX regulations. These procedures may be found at 32 CFR 195.7 through 195.12.
10 U.S.C. 301.
This part identifies and updates the policies and procedures for the programs that permit U.S. citizens to perform historical research in records created by or in the custody of the OSD consistent with Executive Order 12958, DoD 5200.01-R
This part applies to:
(a) The Office of the Secretary of Defense and organizations for which the Washington Headquarters Services provides administrative support (hereafter referred to collectively as the “OSD Components”).
(b) All historical researchers.
(c) Former OSD Presidential Appointees seeking access to records containing information they originated, reviewed, signed, or received while serving in an official capacity.
It is DoD policy, pursuant to E.O. 12958, that:
(a) Anyone accessing classified material must possess the requisite security clearance.
(b) Information requested by historical researchers shall be accessed at a DoD activity or facility under the control of the National Archives and Records Administration (NARA). Usually such access will occur at either the Washington National Records Center (WNRC) in Suitland, Maryland, or NARA's Archives II in College Park, Maryland.
(c) Access to records by historical researchers shall be limited to the specific records within the scope of the proposed historical research over which the Department of Defense has classification authority. Access shall also be limited to any other records for which the written consent of other Agencies that have classification authority over information contained in or revealed by the records has been obtained.
(d) Access to unclassified OSD Component files by historical researchers shall be permitted consistent with the restrictions of the exemptions of the Freedom of Information Act that are contained in E.O. 12958 and explained in the appendix B to this part (5 U.S.C. 552). The procedures for access to classified information shall be used if the requested unclassified information is contained in OSD files whose overall markings are classified.
(e) Under E.O. 12958, or its successor, persons permanently assigned within the Executive Branch may be authorized access to classified information for official projects under DoD classification authority, provided such access is essential to the accomplishment of a lawful and authorized Government purpose and a written determination of the trustworthiness of the persons has been made.
(f) Under E.O. 12958 and paragraph C6.2.2. of DoD 5200.01-R, persons not permanently assigned within the Executive Branch who are engaged in historical research projects or persons permanently assigned within the Executive Branch engaged in personal, i.e. unofficial projects, may be authorized access to classified information under DoD classification authority. The authorization shall be based on a written determination of the researcher's trustworthiness, on the proposed access being in the interests of national security, and on the researcher signing a copy of the letter (appendix E to this part) by which he or she agrees to safeguard the information and to authorize a review of any notes and manuscript for a determination that they contain no classified information.
(g) Access for former Presidential appointees is limited to records they originated, reviewed, signed, or received while serving as Presidential appointees.
(h) Contractors working for Executive Branch Agencies may be allowed access to classified OSD Component files. No copies of still classified documents will be released directly to a contractor. All copies of classified documents needed for a classified project will be forwarded to the office of the Contracting Government Agency responsible for monitoring the project. The monitoring office will be responsible for ensuring that the contractor safeguards the documents. The information is only used for the project for which it was requested, and that the contractor returns the documents upon completion of the final project. All copies of documents needed for an unclassified project will undergo a mandatory declassification review before the copies are released to the contractor to use in the project.
(i) The records maintained in OSD Component office files and at the WNRC cannot be segregated, requiring that authorization be received from all agencies whose classified information is or is expected to be in the requested files for access to be permitted.
(j) All researchers must hold security clearances at the classification level of the requested information. In addition, all DoD employed requesters, to include DoD contractors, must have Critical Nuclear Weapons Design Information (CNWDI) access and all other Executive Branch and non-Executive
(a) The Director of Administration and Management, Office of the Secretary of Defense, (DA&M, OSD), or designee shall, according to the Deputy Secretary of Defense Memorandum dated August 25, 1993, be the approval authority for access to DoD classified information in OSD Component files and in files at the National Archives, Presidential libraries, and other similar institutions.
(b) The Heads of the OSD Components, when requested, shall:
(1) Determine whether access is for a lawful and authorized Government purpose or in the interest of national security.
(2) Determine whether the specific records requested are within the scope of the proposed historical research.
(3) Determine the location of the requested records.
(4) Provide a point of contact to the OSD Records Administrator.
(c) The OSD Records Administrator shall:
(1) Exercise overall management of the Historical Research Program.
(2) Maintain records necessary to process and monitor each case.
(3) Obtain all required authorizations.
(4) Obtain, when warranted, the legal opinion of the General Counsel of the Department of Defense regarding the requested access.
(5) Perform a mandatory declassification review on documents selected by the researchers for use in unclassified projects.
(6) Provide to prospective researchers the procedures necessary for requesting access to OSD Component files.
(d) The Researcher shall provide any information and complete all forms necessary to process a request for access.
The procedures for processing and/or researching for access to OSD Component files are in appendices B, C, and D to this part.
See Chapter III of DoD 5400.07-R for further information.
Section 1.4. Classification Categories. Information shall not be considered for classification unless it concerns:
(a) Military plans, weapons systems, or operations;
(b) Foreign government information;
(c) Intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(d) Foreign relations or foreign activities of the United States, including confidential sources;
(e) Scientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism;
(f) United States Government programs for safeguarding nuclear materials or facilities;
(g) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism; or
(h) Weapons of mass destruction.
1. The Head of each OSD Component, when requested, shall:
a. Make a written determination that the requested access is essential to the accomplishment of a lawful and authorized Government purpose, stating whether the requested records can be made available; if disapproved, cite specific reasons.
b. Provide the location of the requested records, including accession and box numbers if the material has been retired to the WNRC.
c. Provide a point of contact for liaison with the OSD Records Administrator if any requested records are located in OSD Component working files.
2. The OSD Records Administrator shall:
a. Process all requests from Executive Branch employees requesting access to OSD Component files for official projects.
b. Determine which OSD Component(s) originated the requested records and, if necessary, request an access determination (paragraph 1.a. of this appendix) from the OSD Component(s) and the location of the requested records, including accession and box numbers if the records are in retired files.
c. Request authorization for access from other Agencies as necessary:
(1) By the terms of the “Interagency Agreement on Access for Official Agency Historians,” hereafter referred to as “the Agreement”, historians employed by a signatory Agency may have access to the classified information of any other Agency signatory to the Agreement found in OSD files. The Central Intelligence Agency (CIA) and National Security Council (NSC) are not signatories to the Agreement. Authorization for access must be obtained from these Agencies, as well as from any other non-signatory Agency whose classified information is expected to be found in the files to be accessed.
(2) If the official historian is employed by an Agency that is not a signatory to the Agreement, authorization for access must be obtained from the CIA, NSC, Department of State (DoS), and any other non-DoD Agency whose classified information is expected to be found in the files to be accessed.
(3) If the requester is not an official historian, authorization for access must be obtained from the CIA, NSC, DoS, and any other non-DoD Agency whose classified information is expected to be found in the files to be accessed.
(4) Make a written determination as to the researcher's trustworthiness based on the researcher having been issued a security clearance.
(5) Compile all information on the request for access to classified information to include evidence of an appropriately issued personnel security clearance and forward the information to the DA&M, OSD, or designee, who shall make the final access determination.
(6) Notify the researcher of the authorization and conditions for access to the requested records or of the denial of access and the reason(s).
(7) Ensure all conditions for access and release of information for use in the project are met.
(8) Make all necessary arrangements for the researcher to visit the WNRC and review the requested records if they have been retired there.
(9) Assign a member of his staff to supervise the researcher's copying of pertinent documents at the WNRC. Provide a copier and toner cartridge or appropriate consumable supplies to be used by the researcher to copy the documents.
(10) If the records are maintained in an OSD Component's working files, arrange for the researcher to review the material and make copies of pertinent documents in the OSD Component's office.
(11) Notify the National Archives or Presidential library concerned of the authorization and conditions for access, if the researcher desiring to research material in those facilities is not an official historian or is an official historian employed by an Agency that is not a signatory to the Agreement.
3. The researcher shall:
a. Submit a request for access to OSD files to the OSD Records Administrator, 1155 Defense, Pentagon, Washington, DC 20301-1155.
The request must contain the following information:
(1) The name(s) of the researcher(s) and any assistant(s), level of security clearance, and the office to which the researcher is assigned.
(2) Provide a statement on the purpose of the project, including whether the final product is to be classified or unclassified.
(3) Provide an explicit description of the information being requested and if known, the originating office, so that the identification and location of the information may be facilitated.
(4) An appropriate higher authority must sign the request.
b. Ensure his or her security manager or personnel security office verifies his or her security clearances in writing to the Security Manager for the office of the OSD Records Administrator.
c. Submit notes taken during research, as follows:
(1) Use letter-sized paper (approximately 8
(2) Indicate at the top of each page of notes the document's originator, date, subject (if the subject is classified, indicate the classification), folder number or other identification, accession number and box number in which the document was found, and the security classification of the document. All notes are considered classified at the level of the document from which they were taken.
(3) Number each page of notes consecutively.
(4) Leave the last 1
(5) Ensure the notes are legible, in English, and in black ink.
(6) All notes must be given to the facility staff at the end of each day. The facility staff will forward the notes to the OSD Records Administrator for a declassification review and release determination.
d. Maintain the file integrity of the records being reviewed, ensuring no records are removed and all folders are replaced in the correct box in their proper order.
e. Make copies of any documents pertinent to the project, ensuring that staples are carefully removed and that the documents are restapled before they are replaced in the folder. Subparagraph E3.1.3. of this appendix, also applies to the copying of documents. The copying of documents at the WNRC must be accomplished under the supervision of a member of the OSD Records Administrator staff (appendix D to this part).
f. Submit, prior to unclassified presentation or publication, the completed manuscript, along with any copies of documents used and notes taken, to the OSD Records Administrator for onward transmission to the Chief, Security Review, Executive Services Directorate for review.
g. If the requester is an official historian of an Agency signatory to the Agreement, requests for access to the records at the National Archives or a Presidential library should be addressed directly to the pertinent facility with an information copy to the OSD Records Administrator.
(1) The historian's security clearances must be verified to the National Archives or the Presidential library.
(2) Paragraphs 1.c. through 1.f. of this appendix apply to research in files at the National Archives, a Presidential library, or other facility.
(3) All notes and documents must be given to the facility staff for forwarding to the office of the OSD Records Administrator.
1. The OSD Records Administrator shall:
a. Determine the location of the records being requested by the DoS for the FRUS series under Public Law No. 102-138.
b. Request authorization from the CIA, NSC, and any other non-DoD Agency not signatory to the Agreement for the State historians to have access to such non-DoD Agency classified information expected to be interfiled with the requested OSD records.
c. Obtain written verification from the DoS Diplomatic Security staff of all security clearances, including “Q” clearances.
d. Make all necessary arrangements for the State historians to access and review OSD files.
e. Make all necessary arrangements for the State historians to copy documents selected for use in their research.
(1) According to appendix F to this part, provide a staff member to supervise the copying and the copier to be used to copy the documents.
(2) Compile a list of the documents that were copied by the DoS.
f. Release all documents copied by the DoS for use in the FRUS still classified.
g. Submit to the respective Agency a list of CIA and NSC documents copied and released to the State historians.
h. Process requests from the DoS Historian's office for members of the Advisory Committee on Historical Diplomatic Documentation, who possess the appropriate security clearances, to have access to documents copied and used by the State historians to compile the FRUS series volumes or to the files that were reviewed to obtain the copied document. Make all necessary arrangements for the Committee to review any documents that are at the WNRC.
2. The DoS Historian shall:
a. Submit requests for access to OSD files to the OSD Records Administrator, 1155 Defense, Pentagon, Washington, DC 20301-1155. The request should list the names and security clearances for the historians doing the research and an explicit description, including the accession and box numbers, of the files being requested.
b. Submit requests for access for members of the Advisory Committee on Historical Diplomatic Documentation to documents copied by the State historians for the series or the files reviewed to obtain the documents to the OSD Records Administrator.
c. Request that the DoS Diplomatic Security staff verify all security clearances in writing to the Security Manager for the office of the OSD Records Administrator.
d. According to appendix F to this part, supply the toner cartridge, paper, and other supplies required to copy the documents.
e. Give all copies of the documents to the member of the office OSD Records Administrator's staff who is supervising the copying as the documents are copied.
f. Submit any DoD documents desired for use or pages of the manuscript containing DoD classified information to the Chief, Security Review, Executive Services Directorate, 1155, Defense, Pentagon, Washington, DC 20301-1155 for a declassification review prior to publication.
1. The Head of each OSD Component, when required, shall:
a. Make recommendations to the DA&M, OSD, or his designee, as to approval or disapproval of requests to OSD files stating whether release of the requested information is in the interest of national security and whether the information can be made available; if disapproval is recommended, specific reasons should be cited.
b. Provide the location of the requested information, including the accession and box numbers for any records that have been retired to the WNRC.
c. Provide a point of contact for liaison with the OSD Records Administrator if any requested records are located in Component working files.
2. The OSD Records Administrator shall:
a. Process all requests from non-Executive Branch researchers for access to OSD files. Certify that the requester has the appropriate clearances.
b. Obtain prior authorization to review their classified information from the DoS, CIA, NSC, and any other Agency whose classified information is expected to be interfiled with OSD records.
c. Make a determination as to which OSD Component originated the requested records, and as necessary, obtain written recommendations (paragraph 1.a. of this section) for the research to review the classified information.
d. Obtain a copy of the letter in Enclosure 6 of this AI signed by the researcher(s) and any assistant(s).
e. If the requester is a former Presidential appointee (FPA), after completion of the actions described in paragraph 1.b. through 1.b.(4) of this appendix, submit a memorandum to DoD, Human Resources, Security Division, requesting the issuance (including an interim) or reinstatement of an inactive security clearance for the FPA and any assistant and a copy of any signed form letters (paragraph 1.b. of this appendix). DoD, Human Resources, Security Division, will contact the researcher(s) and any assistant(s) to obtain the forms required to reinstate or obtain a security clearance and initiate the personnel security investigation. Upon completion of the adjudication process, notify the OSD Records Administrator in writing of the reinstatement, issuance, or denial of a security clearance.
f. Make a written determination as to the researcher's trustworthiness, based on his or her having been issued a security clearance.
g. Compile all information on the request for access to classified information to include either evidence of an appropriately issued or reinstated personnel security clearance and forward the information to the DA&M, OSD, or his designee, who shall make the final determination on the applicant's eligibility for access to classified OSD files. If the determination is favorable, the DA&M, OSD, or his designee, shall then execute an authorization for access, which will be valid for not more than 2 years.
h. Notify the researcher of the approval or disapproval of the request. If the request has been approved, the notification shall identify the files authorized for review and shall specify that the authorization:
(1) Is approved for a predetermined time period.
(2) Is limited to the designated files.
(3) Does not include access to records and/or information of other Federal Agencies, unless such access has been specifically authorized by those Agencies.
i. Make all necessary arrangements for the researcher to visit the WNRC and review any requested records that have been retired there, to include written authorization, conditions for the access, and a copy of the security clearance verification.
j. If the requested records are at the WNRC, make all necessary arrangements for the copying of documents; provide a copier and toner cartridge for use in copying documents and a staff member to supervise the copying of pertinent documents by the researcher.
k. If the requested records are maintained in OSD Component working files, make arrangements for the researcher to review the requested information and if authorized, copy pertinent documents in the OSD Component's office. Provide the OSD Component with a copy of the written authorization and
l. Compile a list of all the documents copied by the researcher.
m. Perform a mandatory declassification review on all notes taken and documents copied by the researcher.
n. If the classified information to be reviewed is on file at the National Archives, a Presidential library or other facility, notify the pertinent facility in writing of the authorization and conditions for access.
3. The researcher shall:
a. Submit a request for access to OSD Component files to the OSD Records Administrator, 1155 Defense, Pentagon, Washington, DC 20301-1155. The request must contain the following:
(1) As explicit a description as possible of the information being requested so that identification and location of the information may be facilitated.
(2) A statement as to how the information will be used, including whether the final project is to be classified or unclassified.
(3) State whether the researcher has a security clearance, including the level of clearance and the name of the issuing Agency.
(4) The names of any persons who will be assisting the researcher with the project. If the assistants have security clearances, provide the level of clearance and the name of the issuing Agency.
b. A signed copy of the letter (appendix E to this part) by which the requester agrees to safeguard the information and to authorize a review of any notes and manuscript for a determination that they contain no classified information. Each project assistant must also sign a copy of the letter.
c. If the requester is an FPA, complete the forms necessary (see paragraph 1.b. of this appendix) to obtain a security clearance. Each project assistant will also need to complete the forms necessary to obtain a security clearance. If the FPA or assistant have current security clearances, their personnel security office must provide verification in writing to the Security Manager for the office of the OSD Records Administrator.
d. Maintain the integrity of the files being reviewed, ensuring that no records are removed and that all folders are replaced in the correct box in their proper order.
e. If copies are authorized, all copies must be given to the custodian of the files at the end of each day. The custodian will forward the copies of the documents to the OSD Records Administrator for a declassification review and release to the requester.
(1) For records at the WNRC, if authorized, make copies of documents only in the presence of a member of the OSD Records Administrator's staff (appendix G to this part).
(2) As they are copied, all documents must be given to the OSD Records Administrator's staff member supervising the copying.
(3) Ensure all staples are carefully removed and that the documents are restapled before the documents are replaced in the folder. Paragraph 1.c. of this appendix also applies to the copying of documents.
f. Submit all notes (classified and unclassified) made from the records to the OSD Records Administrator for a declassification and release review through the custodian of the files at the end of each day's review as described in paragraphs 1.c.(3) through 1.c.(5) of appendix B to this part.
g. Submit the notes and final manuscript to the OSD Records Administrator for forwarding to the Chief, Security Review, Executive Services Directorate, for a security review and clearance under DoD Directive 5230.09 prior to unclassified publication, presentation, or any other public use.
I understand that the classified information to which I have requested access for historical research purposes is concerned with the national defense or foreign relations of the United States, and the unauthorized disclosure of it could reasonably be expected to cause damage, serious damage, or exceptionally grave damage to the national security depending on whether the information is classified Confidential, Secret, or Top Secret, respectively. If granted access, I therefore agree to the following conditions governing access to the Office of the Secretary of Defense (OSD) files:
1. I will abide by any rules and restrictions promulgated in your letter of authorization, including those of other Agencies whose information is interfiled with that of the OSD.
2. I agree to safeguard the classified information, to which I gain possession or knowledge because of my access, in a manner consistent with Part 4 of Executive Order 12958, “National Security Information,” and the applicable provisions of the Department of Defense regulations concerning safeguarding classified information, including DoD 5200.1-R, “Information Security Program.”
3. I agree not to reveal to any person or Agency any classified information obtained as a result of this access except as authorized in the terms of your authorization letter or a follow-on letter, and I further agree that I shall not use the information for purposes other than those set forth in my request for access.
4. I agree to submit my research notes for security review, to determine if classified information is contained in them, before their removal from the specific area assigned to me for research. I further agree to submit my manuscript for a similar review before its publication or presentation. In each of these reviews, I agree to comply with any decision of the reviewing official in the interests of the security of the United States, including the retention or deletion of any classified parts of such notes and manuscript whenever the Federal Agency concerned deems such retention or deletion necessary.
5. I understand that failure to abide by the conditions in this statement shall constitute sufficient cause for canceling my access to classified information and for denying me any future access, and may subject me to criminal provisions of Federal Law as referred to in item 6.
6. I have been informed that provisions of title 18 of the United States Code impose criminal penalties, under certain circumstances, for the unauthorized disclosure, loss, copying, or destruction of defense information.
THIS STATEMENT IS MADE TO THE UNITED STATES GOVERNMENT TO ENABLE IT TO EXERCISE ITS RESPONSIBILITY FOR THE PROTECTION OF INFORMATION AFFECTING THE NATIONAL SECURITY. I UNDERSTAND THAT ANY MATERIAL FALSE STATEMENT THAT I MAKE KNOWINGLY AND WILFULLY SHALL SUBJECT ME TO THE PENALTIES OF TITLE 18, U.S. CODE, SECTION 1001.
1. The records will be reviewed and copied at the WNRC, Suitland, Maryland.
2. The requested records have been reviewed under the declassification provisions of E.O. 12958. Part of NARA's government-wide procedures for the review process requires that certain types of documents be tabbed for easy identification. Any tabs removed during the research and copying must be replaced.
3. When documents are being copied, a DoD/WHS/declassification and historical research branch staff member must be present at all times.
4. OSD will supply the copier, but the DoS must supply the toner cartridge, paper, staples, staple remover, stapler, and Post-It Notes. The copier is a Cannon Personal Copier-Model PC 425. It takes one of two cartridges—Cannon E20, which makes 2,000 copies and Cannon E40, which makes 4,000 copies.
5. The number of boxes to be reviewed will determine which of the following two procedures will apply. The Declassification and Historical Research Branch staff will make that determination at the time the request is processed. When the historian completes the review of the boxes, he or she must contact the Declassification and Historical Research Branch to establish a final schedule for copying the needed documents. To avoid a possible delay, a tentative schedule will be established at the time that the review schedule is set.
a. For a small number of boxes—the review and copying will take place simultaneously.
b. For a large number of boxes—the historian will review the boxes and mark the documents that are to be copied using Post-It Notes or WNRC Reproduction Tabs.
6. The documents must be given to the Declassification and Historical Research Branch staff member for transmittal to the Declassification and Historical Research Branch Office for processing.
7. The Declassification and Historical Research Branch will notify the historian when the documents are ready to be picked-up.
1. The records will be reviewed and copied at the WNRC, Suitland, Maryland.
2. The requested records have been reviewed under the declassification provisions of E.O. 12958. Part of NARA's government-wide procedures for the review process requires that certain types of documents be tabbed for easy identification. Any tabs removed during the research and copying must be replaced.
3. The researcher will mark the documents that he or she wants to copy using Post-It Notes or WNRC Reproduction Tabs.
4. Any notes taken during the review process must be given to the WNRC staff for transmittal to the Declassification Branch.
5. When documents are being copied, a DoD/WHS/declassification and historical research branch staff member must be present at all times. In agreeing to permit the copying of documents from OSD classified files at the WNRC, the WNRC is requiring that the Declassification and Historical Research Branch be held solely responsible for the copying process. The staff member is only there to monitor the copying and ensure that all record management and security procedures are followed.
6. The Declassification and Historical Research Branch will supply the copier and toner cartridge.
7. The researcher will need to bring paper, staples, staple remover, stapler, and Post-It Notes.
8. When the researcher completes the review of the boxes, he or she must contact the Declassification and Historical Research Branch to establish a final schedule for copying the needed documents.
9. The documents must be given to the Declassification and Historical Research Branch staff member for transmittal to the Declassification and Historical Research Branch Office for processing.
10. When the documents are ready to be picked up or mailed, the Declassification and Historical Research Branch will notify the office.
11. All questions pertaining to the review, copying, or transmittal of OSD documents must be addressed to the OSD action officer.
12. The WNRC staff can only answer questions regarding the use of their facility.
5 U.S.C. 301; 10 U.S.C. chapter 55.
(a)
(b)
(2)
(c)
(ii)
(2)
(ii)
(iii)
(iv)
(A) Supervise and administer the programs and missions to:
(
(
(
(
(
(
(
(
(
(
(
(
(
(B) Direct and control of the office, activities, and functions of OCHAMPUS Europe (OCHAMPUSEUR).
The Director, OCHAMPUS, may also establish similar offices for OCHAMPUS Southern Hemisphere (OCHAMPUSSO) and OCHAMPUS Pacific (OCHAMPUSPAC).
(C) Develop for issuance, subject to approval by the ASD(HA), such policies or regulations as required to administer and manage CHAMPUS effectively.
(v)
(d)
(e)
(f)
(1)
(ii)
(2)
(ii)
(g)
(h)
(i)
(j)
(k)
(l)
(1)
(2)
(m)
(n)
(o)
(2)
(3)
(p)
(1)
(i)
(ii)
(2)
(3)
(4)
(5)
(q)
(r)
(a)
(b)
Technically, “Absent Treatment” is an obsolete term. The current Christian Science terminology is “treatment through prayer and spiritual means,” which is employed by an authorized Christian Science practitioner either with the beneficiary being present or absent. However, to be considered for coverage under CHAMPUS, the beneficiary must be present physically when a Christian Science service is rendered, regardless of the terminology used.
Unless a specific action is deemed gross and flagrant, a pattern of inappropriate practice will normally be required to find that abuse has occurred. Also, any practice or action that constitutes fraud, as defined by this part, would also be abuse.
Acupuncture is not covered by CHAMPUS.
There is no CHAMPUS benefit entitlement during any interim waiting period.
(ii) The authorized individual professional provider rendering the medical care is qualified to perform such medical services by reason of his or her training and education and is licensed or certified by the state where the service is rendered or appropriate national organization or otherwise meets CHAMPUS standards; and
(iii) The services are furnished economically. For purposes of this part, “economically” means that the services are furnished in the least expensive level of care or medical environment adequate to provide the required medical care regardless of whether or not that level of care is covered by CHAMPUS.
(1) Circumstances in which liability benefits are paid to an injured party only when the insured party's tortious acts are the cause of the injuries; and
(2) Uninsured and underinsured coverage, in which there is a third-party tortfeasor who caused the injuries (i.e., benefits are not paid on a no-fault basis), but the insured party is not the tortfeasor.
Services of chiropractors are not covered by CHAMPUS.
(i)
(ii)
(i) Caesarean delivery; hysterectomy.
(ii) Pregnancy terminating before expiration of 26 weeks, except a voluntary abortion.
(iii) False labor or threatened miscarriage.
(iv) Nephritis or pyelitis of pregnancy.
(v) Hyperemesis gravidarum.
(vi) Toxemia.
(vii) Aggravation of a heart condition or diabetes.
(viii) Premature rupture of membrane.
(ix) Ectopic pregnancy.
(x) Hemorrhage.
(xi) Other conditions as may be determined by the Director, OCHAMPUS, or a designee.
Also refer to § 199.4(e)(7) of this part.
Staff consultations required by rules and regulations of the medical staff of a hospital or other institutional provider do not qualify as consultation.
(1) Can be rendered safely and reasonably by a person who is not medically skilled; or
(2) Is or are designed mainly to help the patient with the activities of daily living.
(1) Enrolling members, former members and their dependents, and
(2) Verifying members', former members' and their dependents' eligibility for health care benefits in the direct care facilities and for CHAMPUS.
(1) Providing support for the activities of daily living in the home is not available or is unsuitable; or
(2) Members of the patient's family are unwilling to provide the care.
(i) Medicaid.
(ii) Coverage specifically designed to supplement CHAMPUS benefits.
(iii) Entitlement to receive care from the Uniformed Services medical facilities;
(iv) Entitlement to receive care from Veterans Administration medical care facilities; or
(v) Part C of the Individuals with Disabilities Education Act for services and items provided in accordance with Part C of the IDEA that are medically or psychologically necessary in accordance with the Individual Family Service Plan and that are otherwise allowable under the CHAMPUS Basic Program or the Extended Care Health Option (ECHO).
(1) Can withstand repeated use;
(2) Is primarily and customarily used to serve a medical purpose; and
(3) Generally is not useful to an individual in the absence of an illness or injury.
(2) A referral relationship exists when a CHAMPUS beneficiary is sent, directed, assigned or influenced to use a specific CHAMPUS-authorized provider, or a specific individual or entity eligible to be a CHAMPUS-authorized provider.
(3) An accreditation relationship exists when a CHAMPUS-authorized accreditation organization evaluates for accreditation an entity that is an applicant for, or recipient of CHAMPUS-authorized provider status.
Claims for eligible CHAMPUS beneficiaries whose sponsor is classified as MIA are processed as dependents of an active duty service member.
Services of a naturopath are not covered by CHAMPUS.
(1) Has directly or indirectly a 5 percent or more ownership interest in the entity; or
(2) Is the owner of a whole or part interest in any mortgage, deed of trust, note, or other obligation secured (in whole or in part) by the entity or any of the property or assets thereof, which whole or part interest is equal to or exceeds 5 percent of the total property and assets of the entity; or
(3) Is an officer or director of the entity if the entity is organized as a corporation; or
(4) Is a partner in the entity if the entity is organized as a partnership.
The fact that the U.S. Food and Drug Administration has approved a drug for testing on humans would not qualify it within this definition.
(1) 40 dB HL or greater in one or both ears when tested at 500, 1,000, 1,500, 2,000, 3,000, or 4,000Hz; or
(2) 26 dB HL or greater in one or both ears at any three or more of those frequencies; or
(3) A speech recognition score less than 94 percent.
(1) Develops process standards and outcome standards for health care delivery programs, or knowledge standards and skill standards for health care professional certification testing, using experts both from within and outside of the health care program area or individual specialty to which the standards are to be applied;
(2) Creates measurable criteria that demonstrate compliance with each standard;
(3) Publishes the organization's standards, criteria and evaluation processes so that they are available to the general public;
(4) Performs on-site evaluations of health care delivery programs, or provides testing of individuals, to measure the extent of compliance with each standard;
(5) Provides on-site evaluation or individual testing on a national or international basis;
(6) Provides to evaluated programs and tested individuals time-limited written certification of compliance with the organization's standards;
(7) Excludes certification of any program operated by an organization which has an economic interest, as defined in this section, in the accreditation organization or in which the accreditation organization has an economic interest;
(8) Publishes promptly the certification outcomes of each program evaluation or individual test so that it is available to the general public; and
(9) Has been found by the Director, OCHAMPUS, or designee, to apply standards, criteria, and certification processes which reinforce CHAMPUS provider authorization requirements and promote efficient delivery of CHAMPUS benefits.
(i) Well controlled studies of clinically meaningful endpoints, published in refereed medical literature.
(ii) Published formal technology assessments.
(iii) The published reports of national professional medical associations.
(iv) Published national medical policy organization positions; and
(v) The published reports of national expert opinion organizations.
(2) The hierarchy of reliable evidence of proven medical effectiveness, established by (1) through (5) of this paragraph, is the order of the relative weight to be given to any particular source. With respect to clinical studies, only those reports and articles containing scientifically valid data and published in the refereed medical and scientific literature shall be considered as meeting the requirements of reliable evidence. Specifically not included in the meaning of reliable evidence are reports, articles, or statements by providers or groups of providers containing only abstracts, anecdotal evidence or personal professional opinions. Also not included in the meaning of reliable evidence is the fact that a provider or a number of providers have elected to adopt a drug, device, or medical treatment or procedure as their
(1) An indemnity supplemental insurance plan must meet all of the following criteria:
(i) It provides insurance coverage, regulated by state insurance agencies, which is available only to beneficiaries of CHAMPUS.
(ii) It is premium based and all premiums relate only to the CHAMPUS supplemental coverage.
(iii) Its benefits for all covered CHAMPUS beneficiaries are predominantly limited to non-covered services, to the deductible and cost-shared portions of the pre-determined allowable charges, and/or to amounts exceeding the allowable charges for covered services.
(iv) It provides insurance reimbursement by making payment directly to the CHAMPUS beneficiary or to the participating provider.
(v) It does not operate in a manner which results in lower deductibles or cost-shares than those imposed by law, or that waives the legally imposed deductibles or cost-shares.
(2) A supplemental insurance plan offered by a Health Maintenance Organization (HMO) must meet all of the following criteria:
(i) The HMO must be authorized and must operate under relevant provisions of state law.
(ii) The HMO supplemental plan must be premium based and all premiums must relate only to CHAMPUS supplemental coverage.
(iii) The HMO's benefits, above those which are directly reimbursed by CHAMPUS, must be limited predominantly to services not covered by CHAMPUS and CHAMPUS deductible and cost-share amounts.
(iv) The HMO must provide services directly to CHAMPUS beneficiaries through its affiliated providers who, in turn, are reimbursed by CHAMPUS.
(v) The HMO's premium structure must be designed so that no overall reduction in the amount of the beneficiary deductibles or cost-shares will result.
TRICARE is secondary payer to all third-party payers. Under limited circumstances described in § 199.8(c)(2) of this part, TRICARE payment may be authorized to be paid in advance of adjudication of the claim by certain third-party payers. TRICARE advance payments will not be made when a third-party provider is determined to be a primary medical insurer under § 199.8(c)(3) of this part.”
Unless the veteran is eligible for “retired pay,” “retirement pay,” or “retainer pay,” which refers to payments of a continuing nature and are payable at fixed intervals from the government for military service neither the veteran nor his or her dependents are eligible for benefits under CHAMPUS.
For
At 66 FR 45172, Aug. 28, 2001, § 199.2, was amended in part by revising the definition of “Director, OCHAMPUS”; however, this amendment could not be incorporated due to inaccurate amendatory instruction.
(a)
(b)
(2)
(i)
(A) Must be unremarried; and
(B) Must not be covered by an employer-sponsored health plan; and
(C) Must have been married to a member or former member who performed at least 20 years of service which can be credited in determining the member's or former member's eligibility for retired or retainer pay; and
(D) Must not be eligible for Part A of Title XVIII of the Social Security Act (Medicare) except as provided in paragraphs (b)(3), (f)(3)(vii), (f)(3)(viii), and (f)(3)(ix) of this section; and
(E) Must not be the dependent of a NATO member;
(F) Must meet the requirements of paragraph (b)(2)(i)(F)(
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(ii)
(A) A legitimate child; or
(B) An adopted child whose adoption has been legally completed on or before the child's twenty-first (21st) birthday; or
(C) A legitimate stepchild; or
(D) An illegitimate child of a
(E) An illegitimate child of a
(F) An illegitimate child of a
(G) An illegitimate child of a
(H) An individual who falls into one of the following classes:
(
Courses of education offered by institutions listed in the “Education Directory,” “Higher Education” or “Accredited Higher Institutions” issued periodically by the Department of Education meet the criteria approved by the Administering Secretary or the Secretary of Education. For determination of approval of courses offered by a foreign institution, by an institution not listed in either of the above directories, or by an institution not approved by a state agency pursuant to 38 U.S.C. chapters 34 and 35, a statement may be obtained from the Department of Education, Washington, D.C. 20202.
(
(
(
(
An institution of higher learning is a college, university, or similar institution, including a technical or business school, offering post-secondary level academic instruction that leads to an associate or higher degree, if the school is empowered by the appropriate State education authority under State law to grant an associate, or higher, degree. When there is no State law to authorize the granting of a degree, the school may be recognized as an institution of higher learning if it is accredited for degree programs by a recognized accrediting agency. The term also shall include a hospital offering educational programs at the post-secondary level regardless of whether the hospital grants a post-secondary degree. The term also shall include an educational institution that is not located in a State, that offers a course leading to a standard college degree, or the equivalent, and that is recognized as such by the Secretary of Education (or comparable official) of the country, or other jurisdiction, in which the institution is located (38 U.S.C. chapter 34, section 1661, and chapter 35, section 1701.
Courses of education offered by institutions listed in the “Education Directory,” “Higher Education” or “Accredited Higher
(
(
(iii)
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(iv) An unmarried person who is placed in the legal custody of a member or former member by a court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months. The unmarried person shall be considered a dependent of the member or former member under this section provided he or she otherwise meets the following qualifications:
(A) Has not reached the age of 21 unless he or she otherwise meets the requirements of a student set out in paragraph (b)(2)(ii)(H)(
(B) Is dependent on the member or former member for over one-half of the person's support;
(C) Resides with the member or former member unless separated by the necessity of military service or to receive institutional care as a result of disability or incapacitation or under such other authorized circumstances; and,
(D) Is not a dependent of a member or former member under any other provision of law or regulation.
(3)
(i) Medicare eligible, who is:
(A) 65 years of age or older; and
(B) Entitled to Medicare Part A; and
(C) Enrolled in Medicare Part B, except for a person who attained age 65 prior to April 1, 2001, is not required to enroll in Part B; and
(ii) Otherwise qualified under one of the following categories:
(A) A retired uniformed service member who is entitled to retired or retainer pay, or equivalent pay including survivors who are annuitants; or
(B) A dependent of a member of the uniformed services described in one of the following:
(
(
(
(
Dependent under Section 711 of the National Defense Authorization Act for Fiscal Year 2001 includes spouse, unremarried widow/widower, child, parent/parent-in-law, unremarried former spouse, and unmarried person in the legal custody of a member or former member, as those terms of dependency are defined and periods of eligibility are set forth in 10 U.S.C. 1072(2).
(4)
(ii)
(iii)
(5)
(ii)
(iii)
(A) The date of issuance of the order referred to in paragraph (b)(5)(i) of this section; or
(B) 90 days before the date on which the period of active duty is to begin.
(iv)
(c)
(2) Beginning dates of eligibility for each class of spouse (
(i) A spouse of a member for:
(A) Medical benefits authorized by the Dependents' Medical Care Act of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1, 1966;
(C) Inpatient medical benefits under the Basic Program
(ii) A spouse of a former member:
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Extended Care Health Option.
(iii) A former spouse:
(A) For medical benefits under the Basic Program, dates of beginning eligibility are as indicated for each category of eligible former spouse identified within paragraph (b)(2)(i) of this section.
(B) Ineligible for benefits under the Extended Care Health Option.
(3) Beginning dates of eligibility for spouses who are victims of abuse (
(i) An abused spouse meeting the requirements of paragraph (b)(2)(iii)(A)(
(A) For medical and dental care for problems associated with the physical or emotional abuse under the Basic Program for a period of up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(B) For all medical and dental benefits under the Basic Program for the period that the spouse is in receipt of transitional compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(C) For medical and dental care for problems associated with the physical or emotional abuse under the Extended Care Health Option for a period up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5 for the period that the spouse is in receipt of
(ii) An abused spouse meeting the requirements of paragraphs (b)(2)(iii)(A)(
(A) For all benefits under the CHAMPUS Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(4) Beginning dates of eligibility for spouses of certain deceased reservists,
(i) A spouse meeting the requirements of paragraph (b)(2)(i) of this section, including an eligible former spouse:
(A) For benefits under the Basic Program, November 14, 1986.
(B) Ineligible for benefits under the Extended Care Health Option.
(ii) An abused spouse of certain deceased reservists, meeting the requirements of paragraphs (b)(2)(iii) of this section, including an eligible former spouse,
(A) For benefits under the Basic Program, November 14, 1986.
(B) For benefits under the Extended Care Health Option, November 14, 1986.
(iii) An abused spouse of certain deceased reservists, including an eligible former spouse, meeting the requirements of paragraphs (b)(2)(iii) of this section:
(A) For benefits under the Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(5) Beginning dates of eligibility for each class of dependent children, (
(i) Legitimate child, adopted child, or legitimate stepchild of a
(A) Medical benefits authorized by the Dependents' Medical Care Act of 1956, December 7, 1956;
(B) Outpatient medical benefits under the Basic Program, October 1, 1966;
(C) Inpatient medical benefits under the Basic Program
(ii) Legitimate child, adopted child or legitimate stepchild of
(A) For medical benefits under the Basic Program, January 1, 1967.
(B) Ineligible for benefits under the Extended Care Health Option.
(iii) Illegitimate child of a male or female
(A) All benefits for which otherwise entitled, August 31, 1972.
(B) Extended Care Health Option benefits limited to dependent children of
(iv) Illegitimate child of:
(A) A male member or former member whose paternity
(B) A female member or former member who resides with, or in a home provided by the member or former member, or who was residing in a home provided by the member or former member at the time of the member's or former member's death, and who is or continues to be dependent on the member for over one-half of his or her support, or was so dependent on the member or former member at the time of death;
(C) A spouse of a member or former member who resides with or in a home provided by the member or former member, or the parent who is the spouse of the member or former member or was the spouse of a member or former member at the time of death, and who is and continues to be dependent upon the member or former member for over one-half of his or her support, or was so dependent on the member or former member at the time of death; for:
(
(
(6) Beginning dates of eligibility for children of certain deceased reservists who meet the requirements of paragraph (b)(2)(ii)(H)(
(i) Benefits under the Basic program, November 14, 1986.
(ii) Not eligible for benefits under the Extended Care Health Option.
(7) Beginning dates of eligibility for children who are victims of abuse,
(i) An abused child meeting the requirements of paragraph (b)(
(A) Medical and dental care for problems associated with the physical or emotional abuse under the Basic Program for a period of up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(B) For all medical and dental benefits under the Basic Program for the period that the child is in receipt of transitional compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(C) Medical and dental care for problems associated with the physical or emotional abuse under the Extended Care Health Option for a period up to one year (12 months) following the person's separation from the Uniformed Service, November 14, 1986.
(D) For all medical and dental benefits described in section 199.5 for the period that the child is in receipt of transitional compensation under section 1059 of title 10 U.S.C., October 17, 1998.
(ii) An abused child meeting the requirements of paragraphs (b)(2)(iii)(A)(
(A) For all benefits under the CHAMPUS Basic Program, October 23, 1992.
(B) Ineligible for benefits under the Extended Care Health Option.
(8) Beginning dates of eligibility for incapacitated children who meet the requirements of paragraph (b)(2)(ii)(H)(
(i) All benefits for which otherwise entitled, October 23, 1992.
(ii) Extended Care Health Option benefits limited to children of
(9) Beginning dates of eligibility for a child who meets the requirements of paragraph (b)(2)(ii)(H)(
(i) Has been placed in custody by a court:
(A) All benefits for which entitled, July 1, 1994.
(B) Extended Care Health Option benefits limited to children of
(ii) Has been placed in custody by a recognized adoption agency:
(A) All benefits for which entitled, October 5, 1994.
(B) Extended Care Health Option benefits limited to children of
(iii) Has been placed in the home of a member by a placement agency or by any other source authorized by State or local law to provide adoption placement, in anticipation of the legal adoption of the member:
(A) All benefits for which entitled, January 6, 2006.
(B) Extended Care Health Option benefits limited to children of members only, January 6, 2006.
(10) Beginning dates of eligibility for a retiree for:
(i) Medical benefits under the Basic Program January 1, 1967.
(ii) Retirees and their dependents are not eligible for benefits under the Extended Care Health Option.
(d)
No CHAMPUS eligibility arises as the result of the marriage of two active duty members.
(e)
(i) A member who is involuntarily separated from active duty.
(ii) A member of a Reserve component who is separated from active duty to which called or ordered in support of a contingency operation if the active duty is active duty for a period of more than 30 consecutive days.
(iii) A member who is separated from active duty for which the member is involuntarily retained under 10 U.S.C. 12305 in support of a contingency operation; or
(iv) A member who is separated from active duty served pursuant to a voluntary agreement of the member to remain on active duty for a period of less than 1 year in support of a contingency operation.
(2) A spouse (as described in paragraph (b)(2)(i) of this section except former spouses) and child (as described in paragraph (b)(2)(ii) of this section) of a member described in paragraph (e)(1) of this section is also eligible for TAMP benefits under TRICARE.
(3) TAMP benefits under TRICARE begin on the day after the member is separated from active duty, and, if such separation occurred on or after November 6, 2003, and end 180 days after such date. TRICARE benefits available to both the member and eligible family members are generally those available to family members of members of the uniformed services under this Part. Each branch of service will determine eligibility for its members and eligible family members and provide data to DEERS.
(f)
(1)
(ii) When an active duty member is placed on desertion status (eligibility is reinstated when the active duty member is removed from desertion status and returned to military control).
A member serving a sentence of confinement in conjunction with a sentence of punitive discharge is still considered on active duty until such time as the discharge is executed.
(2)
(ii) A retiree also loses eligibility when no longer entitled to retired, retainer, or equivalent pay.
A retiree who waives his or her retired, retainer or equivalent pay is still considered a retiree for the purposes of CHAMPUS eligibility.
(3)
An unadopted stepchild loses eligibility as of 12:01 a.m. of the day following the day the divorce becomes final.
(ii) Annulment, except for certain classes of former spouse as provided in paragraph (b)(2)(i) of this section and the member or former member's
An unadopted stepchild loses eligibility as of 12:01 a.m. of the day following the day the annulment becomes final.
(iii) Adoption, except for adoptions occurring after the death of a member or former member.
(iv) Marriage of a child, except when the marriage is terminated by death, divorce, or annulment before the child is 21 or 23 if an incapacitated child as provided in paragraph (b)(2)(ii)(H)(
(v) Marriage of a widow or widower, except for the child of the widow or widower who was the stepchild of the deceased member or former member at the time of death. The stepchild continues CHAMPUS eligibility as other classes of dependent children.
(vi) Attainment of entitlement to hospital insurance benefits (Part A) under Medicare except as provided in paragraphs (b)(3), (f)(3)(vii), (f)(3)(viii), and (f)(3)(ix) of this section. (This also applies to individuals living outside the United States where Medicare benefits are not available.)
(vii) Attainment of age 65, except for dependents of active duty members, beneficiaries not entitled to part A of Medicare, beneficiaries entitled to Part A of Medicare who have enrolled in Part B of Medicare, and as provided in paragraph (b)(3) of this section. For those who do not retain CHAMPUS, CHAMPUS eligibility is lost at 12:01 a.m. on the first day of the month in which the beneficiary becomes entitled to Medicare.
If the person is not eligible for Part A of Medicare, he or she must file a Social Security Administration, “Notice of Disallowance” certifying to that fact with the Uniformed Service responsible for the issuance of his or her identification card so a new card showing CHAMPUS eligibility can be issued. Individuals entitled only to supplementary medical insurance (Part B) of Medicare, but not Part A, or Part A through the Premium HI provisions (provided for under the 1972 Amendments to the Social Security Act) retain eligibility under CHAMPUS (refer to § 199.8 for additional information when a double coverage situation is involved).
(viii) End stage renal disease. All beneficiaries, except dependents of active duty members, lose their CHAMPUS eligibility when Medicare coverage becomes available to a person because of chronic renal disease unless the following conditions have been met. CHAMPUS eligibility will continue if:
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions of 42 U.S.C. 426-1(a);
(C) The individual is enrolled in Part B of Medicare; and
(D) The individual has applied and qualified for continued CHAMPUS eligibility through the Defense Enrollment Eligibility Reporting System (DEERS).
(ix) Individuals with certain disabilities. Each case relating to Medicare eligibility resulting from being disabled requires individual investigation. All beneficiaries except dependents of active duty members lose their CHAMPUS eligibility when Medicare coverage becomes available to a disabled person unless the following conditions have been met. CHAMPUS eligibility will continue if:
(A) The individual is under 65 years old;
(B) The individual became eligible for Medicare under the provisions of 42 U.S.C. 426(b)(2);
(C) The individual is enrolled in Part B of Medicare; and
(D) The individual has applied and qualified for continued CHAMPUS eligibility through the Defense Enrollment Eligibility Reporting System (DEERS).
(x) Disabled students, that is children age 21 or 22, who are pursuing a full-time course of higher education and who, either during the school year or between semesters, suffer a disabling illness or injury with resultant inability to resume attendance at the institution remain eligible for CHAMPUS medical benefits for 6 months after the
(g)
(1)
(2)
(h)
(i)
(j)
(2) Ineligibility for CHAMPUS benefits may be presumed in the absence of prescribed eligibility evidence in the DEERS file.
(3) The Director, OCHAMPUS, shall issue guidelines as necessary to implement the provisions of this section.
(a)
(1)(i)
(ii)
(2)
(3)
(4)
(5)
(i) Disclosure of such information is authorized specifically by the beneficiary;
(ii) Disclosure is necessary to permit authorized governmental officials to investigate and prosecute criminal actions, or
(iii) Disclosure is authorized or required specifically under the terms of the Privacy Act or Freedom of Information Act (refer to § 199.1(m) of this part).
(6)
(7)
(8)
(9)
(i)
(B) For CHAMPUS beneficiaries who are not enrolled in TRICARE Prime, an NAS is required for services in connection with nonemergency hospital inpatient mental health care if such services are available at a military treatment facility (MTF) located within a 40-mile radius of the residence of the beneficiary, except that a NAS is not required for services otherwise available at an MTF located within a 40-mile radius of the beneficiary's residence when another insurance plan or program provides the beneficiary's primary coverage for the services. This requirement for an NAS does not apply to beneficiaries enrolled in TRICARE Prime, even when those beneficiaries use the point-of-service option under § 199.17(n)(3).
(ii)
(iii)
(iv)
(v)
(vi) In the case of any service subject to an NAS requirement under paragraph (a)(9) of this section and also subject to a preadmission (or other pre-service) authorization requirement under § 199.4 or § 199.15, the administrative processes for the NAS and pre-service authorization may be combined.
(vii) With the exception of maternity services, the Assistant Secretary of Defense for Health Affairs (ASD(HA)) may require an NAS prior to TRICARE cost-sharing for additional services from civilian sources if such services are to be provided to a beneficiary who lives within a 40-mile catchment area of an MTF where such services are available and the ASD(HA):
(A) Demonstrates that significant costs would be avoided by performing specific procedures at the affected MTF or MTFs; or
(B) Determines that a specific procedure must be provided at the affected MTF or MTFs to ensure the proficiency levels of the practitioners at the MTF or MTFs; or
(C) Determines that the lack of NAS data would significantly interfere with TRICARE contract administration; and
(D) Provides notification of the ASD(HA)'s intent to require an NAS under this authority to covered beneficiaries who receive care at the MTF or MTFs that will be affected by the decision to require an NAS under this authority; and
(E) Provides at least 60-day notification to the Committees on Armed Services of the House of Representatives and the Senate of the ASD(HA)'s intent to require an NAS under this authority, the reason for the NAS requirement, and the date that an NAS will be required.
(10) [Reserved]
(11)
(12)
(ii)
(B) In cases of noncompliance with preauthorization requirements, a payment reduction shall be made in accordance with § 199.15(b)(4)(iii).
(C) For purposes of paragraph (a)(12)(ii)(B) of this section, a day of services without the appropriate preauthorization is any day of services provided prior to:
(
(
(D) Services for which payment is disallowed under paragraph (a)(12)(ii)(B) of this section may not be billed to the patient (or the patient's family).
(E) Preadmission authorization for inpatient mental health services is not required in the following cases:
(
(
(
(13)
(b)
(i)
(ii)
(iii)
(iv)
(v)
(2)
(ii)
(iii)
(iv)
(v)
(vi)
If durable medical equipment is to be used on an outpatient basis or continued in outpatient status after use as an inpatient, benefits will be provided as set forth in paragraph (d) of this section and cost-sharing will be on an outpatient basis (refer to paragraph (a)(4) of this section).
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(3)
(ii)
(iii)
(iv)
If the durable medical equipment is to be used on an outpatient basis or continued in outpatient status after use as an inpatient, benefits will be provided as set forth in paragraph (d) of this section, and cost-sharing will be on an outpatient basis (refer to paragraph (a)(4) of this section).
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(A) Nursing care provided by or under the supervision of a registered professional nurse;
(B) Bed and board in connection with the furnishing of such nursing care;
(C) Physical or occupational therapy or speech-language pathology services furnished by the SNF or by others under arrangements with them by the facility;
(D) Medical social services;
(E) Such drugs, biological, supplies, appliances, and equipment, furnished for use in the SNF, as are ordinarily furnished for the care and treatment of inpatients;
(F) Medical services provided by an intern or resident-in-training of a hospital with which the facility has such an agreement in effect; and
(G) Such other services necessary to the health of the patients as are generally provided by SNFs, or by others under arrangements with them made by the facility.
(xv)
(4)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(A) Patient has a diagnosable psychiatric disorder.
(B) Patient exhibits patterns of disruptive behavior with evidence of disturbances in family functioning or social relationships and persistent psychological and/or emotional disturbances.
(C) RTC services involve active clinical treatment under an individualized treatment plan that provides for:
(
(
(
(
(D) Unless therapeutically contraindicated, the family and/or guardian must actively participate in the continuing care of the patient either through direct involvement at the facility or geographically distant family therapy. (In the latter case, the treatment center must document that there has been collaboration with the family and/or guardian in all reviews.)
(viii)
(B) The timetable for development of the individualized treatment plan shall be as follows:
(
(
(
(C) The elements of the individualized treatment plan must include:
(
(
(
(
(
(
(D) Preauthorization requests should be made not fewer than two business days prior to the planned admission. In general, the decision regarding preauthorization shall be made within one business day of receipt of a request for preauthorization, and shall be followed with written confirmation. Preauthorizations are valid for the period of time, appropriate to the type of care involved, stated when the preauthorization is issued. In general, preauthorizations are valid for 30 days.
(ix)
(5)
(B)
(
(
(
(
(C)
(D)
(ii)
(iii)
(iv)
(v)
(A) They represent a cost to the facility rendering treatment;
(B) They are furnished to a patient receiving treatment, and are related directly to that treatment; and
(C) They are ordinarily furnished by the facility for the care and treatment of inpatients.
(vi)
(A) If ordinarily furnished by the facility for the care and treatment of patients; and
(B) If specifically related to, and in connection with, the condition for which the patient is being treated; and
(C) If ordinarily furnished to a patient for use in the hospital or other authorized institution (except in the case of a temporary or disposable item); and
(D) Use of durable medical equipment is limited to those items provided while the patient is an inpatient. If such equipment is provided for use on an outpatient basis, the provisions of paragraph (d) of this section apply.
(vii)
(viii)
(6)
(i)
(A) Patient poses a serious risk of harm to self and/or others.
(B) Patient is in need of high dosage, intensive medication or somatic and/or psychological treatment, with potentially serious side effects.
(C) Patient has acute disturbances of mood, behavior, or thinking.
(ii)
(A) The patient must be at immediate risk of serious harm to self and or others based on a psychiatric evaluation performed by a physician (or other qualified mental health professional with hospital admission authority); and
(B) The patient requires immediate continuous skilled observation and treatment at the acute psychiatric level of care.
(iii)
(B) The timetable for development of the individualized treatment plan shall be as follows:
(
(
(
(C) The elements of the individualized treatment plan must include:
(
(
(
(
(
(
(D) The request for preauthorization must be received by the reviewer designated by the Director, OCHAMPUS prior to the planned admission. In general, the decision regarding preauthorization shall be made within one business day of receipt of a request for preauthorization, and shall be followed with written confirmation. In the case of an authorization issued after an admission resulting from approval of a request made prior to the
(E) Authorization prior to admission is not required in the case of a psychiatric emergency requiring an inpatient acute level of care, but authorization for a continuation of services must be obtained promptly. Admissions resulting from a bona fide psychiatric emergency should be reported within 24 hours of the admission or the next business day after the admission, but must be reported to the Director, OCHAMPUS or a designee, within 72 hours of the admission. In the case of an emergency admission authorization resulting from approval of a request made within 72 hours of the admission, the effective date of the authorization shall be the date of the admission. However, if it is determined that the case was not a bona fide psychiatric emergency admission (but the admission can be authorized as medically or psychologically necessary), the effective date of the authorization shall be the date of the receipt of the request.
(iv)
(7)
(i)
(ii)
(iii)
(8)
(ii)
(B) The criteria for waiver shall be those set forth in paragraph (b)(4)(vii) of this section. In applying those criteria to the context of waiver request reviews, special emphasis is placed on assuring that the record documents that:
(
(
(
(
(C) Where family or social issues complicate transfer to a lower level of intensity, the RTC is responsible for determining and arranging the supportive and adjunctive resources required to permit appropriate transfer. If the RTC fails adequately to meet this responsibility, the existence of such family or social issues shall be an inadequate basis for a waiver of the benefit limit.
(D) It is the responsibility of the patient's primary care provider to establish, through actual documentation from the medical record and other sources, that the conditions for waiver exist.
(iii) RTC day limits do not apply to services provided under the Program for Persons with Disabilities (§ 199.5) or services provided as partial hospitalization care.
(9)
(A) Adults, aged 19 and over—30 days in a fiscal year or 30 days in an admission (excluding days provided prior to October 1, 1991).
(B) Children and adolescents, aged 18 and under—45 days in a fiscal year or 45 days in an admission (excluding days provided prior to October 1, 1991).
(ii) It is the patient's age at the time of admission that determines the number of days available.
(iii)
(B) The criteria for waiver of the acute inpatient limit shall be those set forth in paragraph (b)(6)(i) of this section. In applying those criteria in the context of waiver request review, special emphasis is placed on determining whether additional days of acute inpatient mental health care are medically/psychologically necessary to complete necessary elements of the treatment plan prior to implementing appropriate discharge planning. A waiver may also be granted in cases in which a patient exhibits well-documented new symptoms, maladaptive behavior, or medical complications which have appeared in the inpatient setting requiring a significant revision to the treatment plan.
(C) The clinician responsible for the patient's care is responsible for documenting that a waiver criterion has been met and must establish an estimated length of stay beyond the date of the inpatient limit. There must be evidence of a coherent and specific plan for assessment, intervention and reassessment that reasonably can be accomplished within the time frame of the additional days of coverage requested under the waiver provision.
(D) For patients in care at the time the inpatient limit is reached, a waiver must be requested prior to the limit. For patients being readmitted after
(iv) Acute care day limits do not apply to services provided under the Program for Persons with Disabilities (§ 199.5) or services provided as partial hospitalization care.
(10)
(ii)
(A) The patient is suffering significant impairment from a mental disorder (as defined in § 199.2) which interferes with age appropriate functioning.
(B) The patient is unable to maintain himself or herself in the community, with appropriate support, at a sufficient level of functioning to permit an adequate course of therapy exclusively on an outpatient basis (but is able, with appropriate support, to maintain a basic level of functioning to permit partial hospitalization services and presents no substantial imminent risk of harm to self or others).
(C) The patient is in need of crisis stabilization, treatment of partially stabilized mental health disorders, or services as a transition from an inpatient program.
(D) The admission into the partial hospitalization program is based on the development of an individualized diagnosis and treatment plan expected to be effective for that patient and permit treatment at a less intensive level.
(iii)
(iv)
(v)
(A) the criteria for waiver are set forth in paragraph (b)(10)(ii) of this section. In applying these criteria in the context of waiver request review, special emphasis is placed on determining whether additional days of partial hospitalization are medically/psychologically necessary to complete essential elements of the treatment plan prior to discharge. Consideration is also given in cases in which a patient exhibits well-documented new symptoms or maladaptive behaviors which have appeared in the partial hospitalization setting requiring significant revisions to the treatment plan.
(B) The clinician responsible for the patient's care is responsible for documenting the need for additional days and must establish an estimated length of stay beyond the date of the 60-day limit. There must be evidence of a coherent and specific plan for assessment, intervention and reassessment
(C) For patients in care at the time the partial hospitalization program limit is reached, a waiver must be requested prior to the limit. For patients being preadmitted after having received 60 days in the fiscal year, the waiver review will be conducted at the time of the preadmission authorization.
(vi)
(A)
(B)
(C)
(D)
(vii)
(viii)
(ix)
(x)
(xi)
(c)
(i)
(ii)
(2)
(i)
The Director, OCHAMPUS, or a designee, shall determine such additional procedures that may fall within the intent of this definition of “surgery.”
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
A separate professional charge for the oral administration of approved antineoplastic drugs is not covered.
(xv) [Reserved]
(xvi)
(3)
(i)
(A) One hundred (100) percent of the CHAMPUS-determined allowable charge for the major surgical procedure (the procedure for which the greatest amount is payable under the applicable reimbursement method); and
(B) Fifty (50) percent of the CHAMPUS-determined allowable charge for each of the other surgical procedures;
(C) Except that:
(
(
(ii)
This provision is not meant to imply that when extra time and special effort are required due to postsurgical or postdelivery complications, the attending physician may not request special consideration for a higher than usual charge.
(iii)
(A) If the surgical assistance occurred in a hospital that has a residency program in a specialty appropriate to the surgery;
(B) If the surgery was performed by a team of surgeons;
(C) If there were multiple surgical assistants; or
(D) If the surgical assistant was a partner of or from the same group of practicing physicians as the attending surgeon.
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(A)
(
(
(
(
(
(
(
(
(B)
(
(C)
(D)
(x)
(A) The services are prescribed and monitored by a physician;
(B) The purpose of the prescription is to reduce the disabling effects of an illness, injury, or neuromuscular disorder; and
(C) The prescribed treatment increases, stabilizes, or slows the deterioration of the beneficiary's ability to perform specified purposeful activity in the manner, or within the range considered normal, for a human being.
(xi)
(A) The following services are covered when required as a part of the specific well-child care program and when rendered by the attending pediatrician, family physician, certified nurse practitioner, or certified physician assistant.
(
(
(
(
(
(
(
(
(
(
(
(
(B) Additional services or visits required because of specific findings or because the particular circumstances of the individual case are covered if medically necessary and otherwise authorized for benefits under CHAMPUS.
(C) The Deputy Assistant Secretary of Defense, Health Services Financing, will determine when such services are separately reimbursable apart from the health supervision visit.
(xii) [Reserved]
(xiii)
(A)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(d)
(2)
(3)
(ii)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(C)
(D)
(
(
(
(E)
(iii)
Generally, the allowable charge of a medical supply item will be under $100. Any item over this amount must be reviewed to determine whether it would not qualify as a DME item. If it is, in fact, a medical supply item and does not represent an excessive charge, it can be considered for benefits under paragraph (d)(3)(iii) of this section.
(iv)
(v)
The inpatient cost-sharing provisions for ambulance transfers only apply to otherwise covered transfers between hospitals, i.e., acute care, general, and special hospitals; psychiatric hospitals; and long-term hospitals.
(A) Ambulance service cannot be used instead of taxi service and is not payable when the patient's condition would have permitted use of regular private transportation; nor is it payable when transport or transfer of a patient is primarily for the purpose of having the patient nearer to home, family, friends, or personal physician. Except as described in paragraph (d)(3)(v)(C)(
(B) Vehicles such as medicabs or ambicabs function primarily as public passenger conveyances transporting patients to and from their medical appointments. No actual medical care is provided to the patients in transit.
(C) Except as described in paragraph (d)(3)(v)(C)(1)(
(
(
(vi)
(A) Drugs administered by a physician or other authorized individual professional provider as an integral part of a procedure covered under paragraph (b) or (c) of this section (such as chemotherapy) are not covered under this subparagraph inasmuch as the benefit for the institutional services or the professional services in connection with the procedure itself also includes the drug used.
(B) CHAMPUS benefits may not be extended for drugs not approved by the U.S. Food and Drug Administration for commercial marketing. Drugs grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be covered under CHAMPUS as if FDA approved.
(vii) Prosthetics, prosthetic devices, and prosthetic supplies, as determined by the Secretary of Defense to be necessary because of significant conditions resulting from trauma, congenital anomalies, or disease. Additionally, the following are covered:
(A) Any accessory or item of supply that is used in conjunction with the device for the purpose of achieving therapeutic benefit and proper functioning;
(B) Services necessary to train the recipient of the device in the use of the device;
(C) Repair of the device for normal wear and tear or damage;
(D) Replacement of the device if the device is lost or irreparably damaged or the cost of repair would exceed 60 percent of the cost of replacement.
(viii)
(e)
(2)
Covered abortion services are limited to medical services or supplies only for the single circumstance outlined above and do not include abortion counseling or referral fees. Payment is not allowed for any services involving preparation for, or normal followup to, a noncovered abortion. The Director, OCHAMPUS, or a designee, shall issue guidelines describing the policy on abortion.
(3)
(i)
(
(
(
(
(B)
(
(
(
(
(ii)
(A)
(
(
(
(
(
(B)
(
(
(4)
(i)
(ii)
(A)
(B)
(C)
(iii)
(B)
(iv)
(v)
(A) Active treatment has taken place during the period of the benefit limit and substantial progress has been made according to the plan of treatment.
(B) Further progress has been delayed due to the complexity of the illness.
(C) Specific evidence has been presented to explain the factors that interfered with further treatment progress during the period of the benefit limit.
(D) The waiver request includes specific time frames and a specific plan of treatment which will complete the course of treatment.
(5)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B) [Reserved]
(ii)
(6)
(i)
(A) Eyeglasses or lenses that perform the function of the human lens, lost as a result of intraocular surgery or ocular injury or congenital absence.
Notwithstanding the general requirement for U.S. Food and Drug Administration approval of any surgical implant set forth in paragraph (d)(3)(vii) of this section, intraocular lenses are authorized under CHAMPUS if they are either approved for marketing by FDA or are subject to an investigational device exemption.
(B) “Pinhole” glasses prescribed for use after surgery for detached retina.
(C) Lenses prescribed as “treatment” instead of surgery for the following conditions:
(
(
(
(
(ii)
(7)
(8)
If a surgical procedure primarily restores function, whether or not there is also a concomitant improvement in physical appearance, the surgical procedure does not fall within the provisions set forth in this paragraph (e)(8).
(i)
(A) Correction of a congenital anomaly; or
(B) Restoration of body form following an accidental injury; or
(C) Revision of disfiguring and extensive scars resulting from neoplastic surgery.
(D) Reconstructive breast surgery following a medically necessary mastectomy performed for the treatment of carcinoma, severe fibrocystic disease, other nonmalignant tumors or traumatic injuries.
(E) Penile implants and testicular prostheses for conditions resulting from organic origins (i.e., trauma, radical surgery, disease process, for correction of congenital anomaly, etc.). Also, penile implants for organic impotency.
Organic impotence is defined as that which can be reasonably expected to occur following certain diseases, surgical procedures, trauma, injury, or congenital malformation. Impotence does not become organic because of psychological or psychiatric reasons.
(F) Generally, benefits are limited to those cosmetic, reconstructive, or plastic surgery procedures performed no later than December 31 of the year following the year in which the related accidental injury or surgical trauma occurred, except for authorized postmastectomy breast reconstruction for which there is no time limitation between mastectomy and reconstruction. Also, special consideration for exception will be given to cases involving
(ii)
(B) Cosmetic, reconstructive, or plastic surgery procedures performed primarily for psychological reasons or as a result of the aging process also are excluded.
(C) Procedures performed for elective correction of minor dermatological blemishes and marks or minor anatomical anomalies also are excluded.
(iii)
(iv)
(A) Any procedure performed for personal reasons to improve the appearance of an obvious feature or part of the body that would be considered by an average observer to be normal and acceptable for the patient's age or ethnic or racial background.
(B) Cosmetic, reconstructive, or plastic surgical procedures that are justified primarily on the basis of a psychological or psychiatric need.
(C)
(D) Face lifts and other procedures related to the aging process.
(E)
(F) Panniculectomy; body sculpture procedures.
(G) Repair of sagging eyelids (without demonstrated and medically documented significant impairment of vision).
(H) Rhinoplasties (without evidence of accidental injury occurring within the previous 6 months that resulted in significant obstruction of breathing).
(I) Chemical peeling for facial wrinkles.
(J) Dermabrasion of the face.
(K) Elective correction of minor dermatological blemishes and marks or minor anatomical anomalies.
(L) Revision of scars resulting from surgery or a disease process, except disfiguring and extensive scars resulting from neoplastic surgery.
(M) Removal of tattoos.
(N) Hair transplants.
(O) Electrolysis.
(P) Any procedures related to transsexualism or such other conditions as gender dysphoria except as provided in paragraph (e)(7) of this section.
(Q) Penile implant procedure for psychological impotency, transsexualism, or such other conditions as gender dysphoria.
(R) Insertion of prosthetic testicles for transsexualism, or such other conditions as gender dysphoria.
(9)
(10)
(i)
(A) Dental care which is medically necessary in the treatment of an otherwise covered medical (not dental) condition, is an integral part of the treatment of such medical condition and is essential to the control of the primary medical condition. The following is a list of conditions for which CHAMPUS benefits are payable under this provision:
(
(
(
(
(
(
(
(
The test of whether dental trauma is covered is whether the trauma is solely dental trauma. Dental trauma, in order to be covered, must be related to, and an integral part of medical trauma; or a result of medically necessary treatment of an injury or disease.
(B) Dental care required in preparation for medical treatment of a disease or disorder or required as the result of dental trauma caused by the medically necessary treatment of an injury or disease (iatrogenic).
(
(
(C) Dental care is limited to the above and similar conditions specifically prescribed by the Director, OCHAMPUS, as meeting the requirements for coverage under the provisions of this section.
(ii)
(B) The adding or modifying of bridgework and dentures.
(C) Orthodontia, except when directly related to and an integral part of the medical or surgical correction of a cleft palate or when required in preparation for, or as a result of, trauma to the teeth and supporting structures caused by medically necessary treatment of an injury or disease.
(iii)
(iv)
(A) Excision of tumors and cysts of the jaws, cheeks, lips, tongue, and roof and floor of the mouth, when such conditions require a pathological (histological) examination.
(B) Surgical procedures required to correct accidental injuries of the jaws, cheeks, lips, tongue, and roof and floor of the mouth.
(C) Treatment of oral or facial cancer.
(D) Treatment of fractures of facial bones.
(E) External (extra-oral) incision and drainage of cellulitis.
(F) Surgery of accessory sinuses, salivary glands, or ducts.
(G) Reduction of dislocations and the excision of the temporomandibular joints, when surgery is a necessary part of the reduction.
(H) Any oral surgical procedure that falls within the cosmetic, reconstructive, or plastic surgery definition is subject to the limitations and requirements set forth in paragraph (e)(8) of this section.
Extraction of unerupted or partially erupted, malposed or impacted teeth, with or without the attached follicular or development tissues, is not a covered oral surgery procedure except when the care is indicated in preparation for medical treatment of a disease or disorder or required as a result of dental trauma caused by the necessary medical treatment of an injury or illness. Surgical preparation of the mouth for dentures is not covered by CHAMPUS.
(v)
(vi)
(11)
(i)
(ii)
(iii)
(B)
(C)
(D)
(E)
(F)
(iv)
(A) When a possible drug abuse situation is identified, all claims for drugs for that specific beneficiary or provider will be suspended pending the results of a review.
(B) If the review determines that a drug abuse situation does in fact exist, all drug claims held in suspense will be denied.
(C) If the record indicates previously paid drug benefits, the prior claims for that beneficiary or provider will be reopened and the circumstances involved reviewed to determine whether or not drug abuse also existed at the time the earlier claims were adjudicated. If drug abuse is later ascertained, benefit payments made previously will be considered to have been extended in error and the amounts so paid recouped.
(D) Inpatient stays primarily for the purpose of obtaining drugs and any other services and supplies related to drug abuse also are excluded.
(v)
(vi)
(12) [Reserved]
(13)
(i)
(A)
(B)
(C)
(ii)
(iii)
(14)
(A) The patient is referred for the diagnostic procedure by a physician.
(B) The CT scan procedure is consistent with the preliminary diagnosis or symptoms.
(C) Other noninvasive and less costly means of diagnosis have been attempted or are not appropriate.
(D) The CT scan equipment is licensed or registered by the appropriate state agency responsible for licensing or registering medical equipment that emits ionizing radiation.
(E) The CT scan equipment is operated under the general supervision and direction of a physician.
(F) The results of the CT scan diagnostic procedure are interpreted by a physician.
(ii)
(15)
(i)
(A) The patient is 100 pounds over the ideal weight for height and bone structure and has an associated severe medical condition. These associated medical conditions are diabetes mellitus, hypertension, cholecystitis, narcolepsy, pickwickian syndrome (and other severe respiratory disease), hypothalmic disorders, and severe arthritis of the weight-bearing joints.
(B) The patient is 200 percent or more of the ideal weight for height and bone structure. An associated medical condition is not required for this category.
(C) The patient has had an intestinal bypass or other surgery for obesity and, because of complications, requires a second surgery (a takedown). The surgeon in many cases, will do a gastric bypass, gastric stapling, or gastroplasty to help the patient avoid regaining the weight that was lost. In this situation, payment is authorized even though the patient's condition technically may not meet the definition of morbid obesity because of the weight that was already lost following the initial surgery.
(ii)
(B) CHAMPUS payment may not be made for surgical procedures other than the gastric bypass, gastric stapling, or gastroplasty, even if morbid obesity is present.
(16)
(ii)
(A) Inpatient cost-share formula applies to maternity care ending in childbirth in, or on the way to, a hospital inpatient childbirth unit, and for maternity care ending in a non-birth outcome not otherwise excluded by this part.
(B) Ambulatory surgery cost-share formula applies to maternity care ending in childbirth in, or on the way to, a birthing center to which the beneficiary is admitted and from which the beneficiary has received prenatal care, or a hospital-based outpatient birthing room.
(C) Outpatient cost-share formula applies to maternity care which terminates in a planned childbirth at home.
(D) Otherwise covered medical services and supplies directly related to “Complications of pregnancy,” as defined in § 199.2 of this part, will be cost-shared on the same basis as the related maternity care for a period not to exceed 42 days following termination of the pregnancy and thereafter cost-shared on the basis of the inpatient or outpatient status of the beneficiary when medically necessary services and supplies are received.
(17)
(i)
(A) Adjunctive treatment for Raynaud's Syndrome.
(B) Adjunctive treatment for muscle re-education of specific muscle groups or for treating pathological muscle abnormalities of spasticity, or incapacitating muscle spasm or weakness.
(ii)
(iii)
(iv)
(v)
(18)
(i)
(A) Myocardial Infarction.
(B) Coronary Artery Bypass Graft.
(C) Coronary Angioplasty.
(D) Percutaneous Transluminal Coronary Angioplasty
(E) Chronic Stable Angina (see limitations below).
(F) Heart valve surgery.
(G) Heart or Heart-lung Transplantation.
(ii)
(iii)
(iv)
(v)
(vi)
(19)
(i)
(A) Physician services.
(B) Nursing care provided by or under the supervision of a registered professional nurse.
(C) Medical social services provided by a social worker who has at least a bachelor's degree from a school accredited or approved by the Council on Social Work Education, and who is working under the direction of a physician. Medical social services include, but are not limited to the following:
(
(
(
(
(D) Counseling services provided to the terminally ill individual and the family member or other persons caring for the individual at home. Counseling, including dietary counseling, may be provided both for the purpose of training the individual's family or other care-giver to provide care, and for the purpose of helping the individual and those caring for him or her to adjust to the individual's approaching death. Bereavement counseling, which consists of counseling services provided to the individual's family after the individual's death, is a required hospice service but it is not reimbursable.
(E) Home health aide services furnished by qualified aides and homemaker services. Home health aides may provide personal care services. Aides also may perform household services to maintain a safe and sanitary environment in areas of the home used by the patient. Examples of such services are changing the bed or light cleaning and laundering essential to the comfort and cleanliness of the patient. Aide services must be provided under the general supervision of a registered nurse. Homemaker services may include assistance in personal care, maintenance of a safe and healthy environment, and services to enable the individual to carry out the plan of care. Qualifications for home health aides can be found in 42 CFR 484.36.
(F) Medical appliances and supplies, including drugs and biologicals. Only drugs that are used primarily for the relief of pain and symptom control related to the individual's terminal illness are covered. Appliances may include covered durable medical equipment, as well as other self-help and personal comfort items related to the palliation or management of the patient's condition while he or she is under hospice care. Equipment is provided by the hospice for use in the beneficiary's home while he or she is under hospice care. Medical supplies include those that are part of the written plan of care. Medical appliances and supplies are included within the hospice all-inclusive rates.
(G) Physical therapy, occupational therapy and speech-language pathology services provided for purposes of symptom control or to enable the individual to maintain activities of daily living and basic functional skills.
(H) Short-term inpatient care provided in a Medicare participating hospice inpatient unit, or a Medicare participating hospital, skilled nursing facility (SNF) or, in the case of respite care, a Medicaid-certified nursing facility that additionally meets the special hospice standards regarding staffing and patient areas. Services provided in an inpatient setting must conform to the written plan of care. Inpatient care may be required for procedures necessary for pain control or acute or chronic symptom management. Inpatient care may also be furnished to provide respite for the individual's family or other persons caring for the individual at home. Respite care is the only type of inpatient care that may be provided in a Medicaid-certified nursing facility. The limitations on custodial care and personal comfort items applicable to other CHAMPUS services are not applicable to hospice care.
(ii)
(iii)
(iv)
(v)
(vi)
(A) There must be written certification in the medical record that the CHAMPUS beneficiary is terminally ill with a life expectancy of six months or less if the terminal illness runs its normal course.
(
(
(
(
(
(
(
(
(B) The terminally ill beneficiary must elect to receive hospice care for each specified period of time; i.e., the two 90-day periods, a subsequent 30-day period, and a final period of unlimited duration. If the individual is found to be mentally incompetent, his or her representative may file the election statement. Representative means an individual who has been authorized under State law to terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill individual who is found to be mentally incompetent.
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C) The beneficiary must waive all rights to other CHAMPUS payments for the duration of the election period for:
(
(
(
(
(
(
(D) A written plan of care must be established by a member of the basic interdisciplinary group assessing the patient's needs. This group must have at least one physician, one registered professional nurse, one social worker, and one pastoral or other counselor.
(
(
(
(
(
(
(
(
(E) Complete medical records and all supporting documentation must be submitted to the CHAMPUS contractor within 30 days of the date of its request. If records are not received within the designated time frame, authorization of the hospice benefit will be denied and any prior payments made will be recouped. A denial issued for this reason is not an initial determination under § 199.10, and is not appealable.
(vii)
(20) [Reserved]
(21)
(i)
(A) Part-time or intermittent skilled nursing care furnished by a registered nurse or a licensed practical (vocational) nurse under the supervision of a registered nurse;
(B) Physical therapy, speech-language pathology, and occupational therapy;
(C) Medical social services under the direction of a physician;
(D) Part-time or intermittent services of a home health aide who has successfully completed a state-established or other training program that meets the requirements of 42 CFR Part 484;
(E) Medical supplies, a covered osteoporosis drug (as defined in the Social Security Act 1861(kk), but excluding other drugs and biologicals) and durable medical equipment;
(F) Medical services provided by an interim or resident-in-training of a hospital, under an approved teaching program of the hospital in the case of an HHA that is affiliated or under common control of a hospital; and
(G) Services at hospitals, SNFs or rehabilitation centers when they involve equipment too cumbersome to bring to the home but not including transportation of the individual in connection with any such item or service.
(ii)
(A) The person for whom the services are provided is an eligible TRICARE beneficiary.
(B) The HHA that is providing the services to the beneficiary has in effect a valid agreement to participate in the TRICARE program.
(C) Physician certifies the need for home health services because the beneficiary is homebound.
(D) The services are provided under a plan of care established and approved by a physician.
(
(
(E) The beneficiary must need skilled nursing care on an intermittent basis or physical therapy or speech-language pathology services, or have continued need for occupational therapy after the need for skilled nursing care, physical therapy, or speech-language pathology services has ceased.
(F) The beneficiary must receive, and an HHA must provide, a patient-specific, comprehensive assessment that:
(
(
(
(G) TRICARE is the appropriate payer.
(H) The services for which payment is claimed are not otherwise excluded from payment.
(I) Any other conditions of coverage/participation that may be required under Medicare's HHA benefit;
(22)
(23) A speech generating device (SGD) as defined in § 199.2 of this part is covered as a voice prosthesis. The prosthesis provisions found in paragraph (d)(3)(vii) of this section apply.
(24) A hearing aid, but only for a dependent of a member of the uniformed services on active duty and only if the dependent has a profound hearing loss as defined in § 199.2 of this part. Medically necessary and appropriate services and supplies, including hearing examinations, required in connection with this hearing aid benefit are covered.
(25) Rehabilitation therapy as defined in § 199.2 of this part to improve, restore, or maintain function, or to minimize or prevent deterioration of function, of a patient when prescribed by a physician. The rehabilitation therapy must be medically necessary and appropriate medical care, rendered by an authorized provider, necessary to the establishment of a safe and effective maintenance program in connection with a specific medical condition, and must not be custodial care or otherwise excluded from coverage.
(26)
(i)
(ii)
(B)
(
(
(
(
(
(
(
(
(27) TRICARE will cost share forensic examinations following a sexual assault or domestic violence. The forensic examination includes a history of the event and a complete physical and collection of forensic evidence, and medical and psychological follow-up care. The examination for sexual assault also includes, but is not limited to, a test kit to retrieve forensic evidence, testing for pregnancy, testing for sexually transmitted disease and HIV, and medical services and supplies for prevention of sexually transmitted diseases, HIV, pregnancy, and counseling services.
(f)
(2)
(i)
(A) For care rendered all eligible beneficiaries prior to April 1, 1991, or when the active duty sponsor's pay grade is E-4 or below, regardless of the date of care:
(
(
(B) For care rendered on or after April 1, 1991, for all CHAMPUS beneficiaries except dependents of active duty sponsors in pay grades E-4 or below.
(
(
(C) CHAMPUS-
(D)
(E) For any family the outpatient deductible amounts will be applied sequentially as the CHAMPUS claims are processed.
(F) If the fiscal year outpatient deductible under either paragraphs (f)(2)(i)(A) or (f)(2)(i)(B) of this section has been met by a beneficiary or a family through the submission of a claim or claims to a CHAMPUS fiscal intermediary in another geographic location from the location where a current claim is being submitted, the beneficiary or sponsor must obtain a deductible certificate from the CHAMPUS fiscal intermediary where the applicable beneficiary or family fiscal year deductible was met. Such deductible certificate must be attached to the current claim being submitted for benefits. Failure to obtain a deductible certificate under such circumstances will result in a second beneficiary or family fiscal year deductible being applied. However, this second deductible may be reimbursed once appropriate documentation, as described in paragraph (f)(2)(i)(F) of this section, is supplied to the CHAMPUS fiscal intermediary applying the second deductible.
(G) Notwithstanding the dates specified in paragraphs (f)(2)(i)(A) and (f)(B)(2)(i) of this section in the case of dependents of active duty members of rank E-5 or above with Persian Gulf Conflict service, dependents of service members who were killed in the Gulf, or who died subsequent to Gulf service, and of members who retired prior to October 1, 1991, after having served in the Gulf War, the deductible shall be the amount specified in paragraph (f)(2)(i)(A) of this section for care rendered prior to October 1, 1991, and the amount specified in paragraph (f)(2)(i)(B) of this section for care rendered on or after October 1, 1991.
(H) The Director, TRICARE Management Activity, may waive the annual individual or family fiscal year deductible for dependents of a Reserve Component member who is called or ordered to active duty for a period of more than 30 days or a National Guard member who is called or ordered to fulltime federal National Guard duty for a period of more than 30 days in support of a contingency operation (as defined in 10 U.S.C. 101(a)(13)). For purposes of this paragraph, a dependent is a lawful husband or wife of the member and a child is defined in paragraphs (b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(1), (2), and (4) of § 199.3.
(ii)
The Secretary of Defense (after consulting with the Secretary of Health and Human Services and the Secretary of Transportation) prescribes the fair charges for inpatient hospital care provided through Uniformed Services medical facilities. This determination is made each fiscal year.
(A)
(B)
(C)
(D)
(iii)
(iv)
(v)
(vi)
(3)
(i)
(ii)
(A)
(B)
(C)
(iii)
(iv)
(4)
(i)
(ii)
(iii)
(5)
(i)
(ii)
(6)-(7) [Reserved]
(8)
(ii)
(A) In the case of services provided by individual health care professionals and other noninstitutional providers, the cost-share shall be the usual percentage of the CHAMPUS allowable charge determined under § 199.14(e).
(B) In the case of services provided by institutional providers normally paid on the basis of a pre-set amount (such as DRG-based amount under § 199.14(a)(1) or per-diem amount under § 199.14(a)(2)), if the discount rate is lower than the pre-set rate, the cost-share amount that would apply for a beneficiary other than an active duty dependent pursuant to the normal pre-set rate would be reduced by the same percentage by which the pre-set rate was reduced in setting the discount rate.
(9)
(ii)
(iii)
(A) A claim for services regarding which the provider has waived the beneficiary's liability may be disallowed in full, or, alternatively, the amount payable for such a claim may be reduced by the amount of the beneficiary liability waived.
(B) Repeated noncompliance with this requirement is a basis for exclusion of a provider.
(10)
(i)
(ii)
(iii)
Under the Defense Authorization Act for Fiscal Year 2001, the cap for beneficiaries other than dependents of active duty members was reduced from $7,500 to $3,000 effective October 30, 2000. Prior to this, the Defense Authorization Act for Fiscal Year 1993 reduced this cap from $10,000 to $7,500 on October 1, 1992. The cap remains at $1,000 for dependents of active duty members.
(11)
(g)
(1)
(2)
(3)
(4)
If it is determined that the diagnostic x-ray, laboratory, and pathological services and machine tests performed during such admission were medically necessary and would have been covered if performed on an outpatient basis, CHAMPUS benefits may be extended for such diagnostic procedures only, but cost-sharing will be computed as if performed on an outpatient basis.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(i) A drug, device, or medical treatment or procedure is unproven:
(A) If the drug or device cannot be lawfully marketed without the approval or clearance of the United States Food and Drug Administration (FDA) and approval or clearance for marketing has not been given at the time the drug or device is furnished to the patient.
Although the use of drugs and medicines not approved by the FDA for commercial marketing, that is for use by humans, (even though permitted for testing on humans) is excluded from coverage as unproven, drugs grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be covered by CHAMPUS as if FDA approved.
Certain cancer drugs, designated as Group C drugs (approved and distributed by the National Cancer Institute) and Treatment Investigational New Drugs (INDs), are not covered under CHAMPUS because they are not approved for commercial marketing by the FDA. However, medical care related to the use of Group C drugs and Treatment INDs can be cost-shared under CHAMPUS when the patient's medical condition warrants their administration and the care is provided in accordance with generally accepted standards of medical practice.
CHAMPUS can also consider coverage of
(B) If a medical device (as defined by 21 U.S.C. 321(h)) with an Investigational Device Exemption (IDE) approved by the Food and Drug Administration is categorized by the FDA as experimental/investigational (FDA Category A).
CHAMPUS will consider for coverage a device with an FDA-approved IDE categorized by the FDA as non-experimental/investigational (FDA Category B) for CHAMPUS beneficiaries participating in FDA approved clinical trials. Coverage of any such Category B device is dependent on its meeting all other requirements of the laws and rules governing CHAMPUS and upon the beneficiary involved meeting the FDA-approved IDE study protocols.
(C) Unless reliable evidence shows that any medical treatment or procedure has been the subject of well-controlled studies of clinically meaningful endpoints, which have determined its maximum tolerated dose, its toxicity, its safety, and its efficacy as compared with standard means of treatment or diagnosis. (See the definition of
(D) If reliable evidence shows that the consensus among experts regarding the medical treatment or procedure is that further studies or clinical trials are necessary to determine its maximum tolerated doses, its toxicity, its safety, or its effectiveness as compared with the standard means of treatment or diagnosis (see the definition of reliable evidence in § 199.2 for the procedures used in determining if a medical treatment or procedure is unproven).
(ii) CHAMPUS benefits for rare diseases are reviewed on a case-by-case basis by the Director, Office of CHAMPUS, or a designee. In reviewing the case, the Director, or a designee, may consult with any or all of the following sources to determine if the proposed therapy is considered safe and effective:
(A) Trials published in refereed medical literature.
(B) Formal technology assessments.
(C) National medical policy organization positions.
(D) National professional associations.
(E) National expert opinion organizations.
(iii)
(A) Treatment that is not related to the unproven drug, device or medical treatment or procedure; e.g., medically necessary in the absence of the unproven treatment.
(B) Treatment which is necessary follow-up to the unproven drug, device or medical treatment or procedure but which might have been necessary in the absence of the unproven treatment.
(iv)
(A) Radial keratotomy (refractive keratoplasty).
(B) Cellular therapy.
(C) Histamine therapy.
(D) Stem cell assay, a laboratory procedure which allows a determination to be made of the type and dose of cancer chemotherapy drugs to be used, based on in vitro analysis of their effects on cancer cells taken from an individual.
(E) Topical application of oxygen.
(F) Immunotherapy for malignant disease, except when using drugs approved by the FDA for this purpose.
(G) Prolotherapy, joint sclerotherapy, and ligamentous injections with sclerosing agents.
(H) Transcervical block silicone plug.
(I) Whole body hyperthermia in the treatment of cancer.
(J) Portable nocturnal hypoglycemia detectors.
(K) Testosterone pellet implants in the treatment of females.
(L) Estradiol pellet implants.
(M) Epikeratophakia for treatment of aphakia and myopia.
(N) Bladder stimulators.
(O) Ligament replacement with absorbable copolymer carbon fiber scaffold.
(P) Intraoperative radiation therapy.
(Q) Gastric bubble or balloon.
(R) Dorsal root entry zone (DREZ) thermocoagulation or micorcoagulation neurosurgical procedure.
(S) Brain electrical activity mapping (BEAM).
(T) Topographic brain mapping (TBM) procedure.
(U) Ambulatory blood pressure monitoring.
(V) Bilateral carotoid body resection to relieve pulmonary system.
(W) Intracavitary administration of cisplatin for malignant disease.
(X) Cervicography.
(Y) In-home uterine activity monitoring for the purpose of preventing preterm labor and/or delivery.
(Z) Sperm evaluation, hamster penetration test.
(AA) Transfer factor (TF).
(BB) Continuous ambulatory esophageal pH monitoring (CAEpHM) is considered unproven for patients under age 12 for all indications, and for patients over age 12 for sleep apnea.
(CC) Adrenal-to-brain transplantation for Parkinson's disease.
(DD) Videofluoroscopy evaluation in speech pathology.
(EE) Applied kinesiology.
(FF) Hair analysis to identify mineral deficiencies from the chemical composition of the hair. Hair analysis testing may be reimbursed when necessary to determine lead poisoning.
(GG) Iridology (links flaws in eye coloration with disease elsewhere in the body).
(HH) Small intestinal bypass (jejunoileal bypass) for treatment of morbid obesity.
(II) Biliopancreatic bypass.
(JJ) Gastric wrapping/gastric banding.
(KK) Calcium EAP/calcium orotate and selenium (also known as Nieper therapy)—Involves inpatient care and use of calcium compounds and other non-FDA approved drugs and special diets. Used for cancer, heart disease, diabetes, and multiple sclerosis.
(LL) Percutaneous balloon valvuloplasty for mitral and tricuspid valve stenosis.
(MM) Amniocentesis performed for ISO immunization to the ABO blood antigens.
(NN) Balloon dilatation of the prostate.
(OO) Helium in radiosurgery.
(PP) Electrostimulation of salivary production in the treatment of xerostomia secondary to Sjogren's syndrome.
(QQ) Intraoperative monitoring of sensory evoked potentials (SEP). To include visually evoked potentials, brainstem auditory evoked response, somatosensory evoked potentials during spinal and orthopedic surgery, and sensory evoked potentials monitoring of the sciatic nerve during total hip replacement. Recording SEPs in unconscious head injured patients to assess the status of the somatosensory system. The use of SEPs to define conceptional or gestational age in preterm infants.
(RR) Autolymphocyte therapy (ALT) (immunotherapy used for treating metastatic kidney cancer patients).
(SS) Radioimmunoguided surgery in the detection of cancer.
(TT) Gait analysis (also known as a walk study or electrodynogram)
(UU) Use of cerebellar stimulators/pacemakers for the treatment of neurologic disorders.
(VV) Signal-averaged ECG.
(WW) Peri-urethal Teflon injections to manage urinary incontinence.
(XX) Extraoperative electrocorticography for stimulation and recording
(YY) Quantitative computed tomography (QCT) for the detection and monitoring of osteoporosis.
(ZZ) [Reserved]
(AAA) Percutaneous transluminal angioplasty in the treatment of obstructive lesions of the carotoid, vertebral and cerebral arteries.
(BBB) Endoscopic third ventriculostomy.
(CCC) Holding therapy—Involves holding the patient in an attempt to achieve interpersonal contact, and to improve the patient's ability to concentrate on learning tasks.
(DDD) In utero fetal surgery.
(EEE) Light therapy for seasonal depression (also known as seasonal affective disorder (SAD)).
(FFF) Dorsal column and deep brain electrical stimulation of treatment of motor function disorder.
(GGG) Chelation therapy, except with products and for indications approved by the FDA.
(HHH) All organ transplants
(III) Implantable infusion pumps,
(JJJ) Services related to the candidiasis hypersensitivity syndrome, yeast syndrome, or gastrointestinal candidiasis (i.e., allergenic extracts of Candida albicans for immunotherapy and/or provocation/neutralization).
(KKK) Treatment of chronic fatigue syndrome.
(LLL) Extracorporeal immunoadsorption using protein A columns for conditions other than acute idopathic thrombocytopenia purpura.
(MMM) Dynamic posturography (both static and computerized).
(NNN) Laparoscopic myomectomy.
(OOO) Growth factor, including platelet-derived growth factors, for treating non-healing wounds. This includes Procurene
(PPP) High dose chemotherapy with stem cell rescue (HDC/SCR) for any of the following malignancies:
(
(
(
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(i) Well-child care.
(ii) Immunizations for individuals age six and older, as recommended by the CDC.
(iii) Rabies shots.
(iv) Tetanus shot following an accidental injury.
(v) Rh immune globulin.
(vi) Genetic tests as specified in paragraph (e)(3)(ii) of this section.
(vii) Immunizations and physical examinations provided when required in the case of dependents of active duty military personnel who are traveling outside the United States as a result of an active duty member's assignment and such travel is being performed under orders issued by a Uniformed Service.
(viii) Screening mammography for asymptomatic women 40 years of age and older, and for high risk women 35 years of age and older, when provided under the terms and conditions contained in the guidelines adopted by the Deputy Assistant Secretary of Defense, Health Services Financing.
(ix) Cancer screening Papanicolaou (PAP) test for women who are at risk for sexually transmissible diseases, women who have or have had multiple sexual partners (or if their partner has or has had multiple sexual partners), women who smoke cigarettes, and women 18 years of age and older when provided under the terms and conditions contained in the guidelines adopted by the Deputy Assistant Secretary of Defense, Health Services Financing.
(x) Other cancer screenings authorized by 10 U.S.C. 1079.
(xi) Health promotion and disease prevention visits (which may include all of the services provided pursuant to § 199.18(b)(2)) may be provided in connection with immunizations and cancer screening examinations authorized by paragraphs (g)(37)(ii) of this section or (g)(37)(viii) through (x) of this section.
(xii) Physical examinations for beneficiaries ages 5 through 11 that are required in connection with school enrollment, and that are provided on or after October 30, 2000.
(38)
(39)
(40)
(41)
In accordance with section 744 of the DoD Appropriation Act for 1981 (Pub. L. 96-527), CHAMPUS coverage for wigs or hairpieces is permitted effective December 15, 1980, under the conditions listed below. Continued availability of benefits will depend on the language of the annual DoD Appropriation Acts.
(i)
(ii)
(A) Alopecia resulting from conditions other than treatment of malignant disease.
(B) Maintenance, wig or hairpiece supplies, or replacement of the wig or hairpiece.
(C) Hair transplants or any other surgical procedure involving the attachment of hair or a wig or hairpiece to the scalp.
(D) Any diagnostic or therapeutic method or supply intended to encourage hair regrowth.
(42)
(43)
(44)
(45) [Reserved]
(46)
(47)
(48)
(49)
(50)
(51)
(52)
(i) The procedure without electronic transmission of data or biotelemetry is otherwise an explicit or derived benefit of this section; and
(ii) The addition of electronic transmission of data or biotelemetry to the procedure is found by the Director,
(iii) That each data transmission or biotelemetry device incorporated into a procedure that is otherwise an explicit or derived benefit of this section, has been classified by the U.S. Food and Drug Administration, either separately or as a part of a system, for use consistent with the defined circumstances in paragraph (g)(52)(ii) of this section.
(53)
(54)
(55)
(56)
(57)
(58)
(59)
(60)
(61)
(62)
(63)
(64)
(65)
(66)
(67)
(68)
(69)
In order to be approved under CHAMPUS, an institution must, in addition to meeting CHAMPUS standards, provide a level of care for which CHAMPUS benefits are payable.
(70)-(71) [Reserved]
(72)
(73)
(74)
The fact that a physician may prescribe, order, recommend, or approve a service or supply does not, of itself, make it medically necessary or make the charge an allowable expense, even though it is not listed specifically as an exclusion.
(h)
(2)
(3)
(i) The beneficiary did not know and could not reasonably have been expected to know that the services were
(ii) The provider knew or could reasonably have been expected to know that the items or services were excludable by reason of being not medically necessary.
(4)
(5)
(i) The PRO or fiscal intermediary had informed the provider that the services provided were excludable or that similar or reasonably comparable services were excludable.
(ii) The utilization review group or committee for an institutional provider or the beneficiary's attending physician had informed the provider that the services provided were excludable.
(iii) The provider had informed the beneficiary that the services were excludable.
(iv) The provider had received written materials, including notices, manual issuances, bulletins, guides, directives or other materials, providing notification of PRO screening criteria specific to the condition of the beneficiary. Attending physicians who are members of the medical staff of an institutional provider will be found to have also received written materials provided to the institutional provider.
(v) The services that are at issue are the subject of what are generally considered acceptable standards of practice by the local medical community.
(vi) Preadmission authorization was available but not requested, or concurrent review requirements were not followed.
For
(a)
(2) The purpose of the ECHO is to provide an additional financial resource for an integrated set of services and supplies designed to assist in the reduction of the disabling effects of the ECHO-eligible dependent's qualifying condition. Services include those necessary to maintain, minimize or prevent deterioration of function of an ECHO-eligible dependent.
(b)
(i) A spouse, child, or unmarried person (as described in § 199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a member of the Uniformed Services on active duty for a period of more than 30 days.
(ii) An abused dependent as described in § 199.3(b)(2)(iii).
(iii) A spouse, child, or unmarried person (as described in § 199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)), of a member of the Uniformed Services who dies while on active duty for a period of more than 30 days and whose death occurs on or after October 7, 2001. In such case, an eligible surviving spouse remains eligible for benefits under the ECHO for a period of 3 years from the date the active duty sponsor dies. Any other eligible surviving dependent remains eligible for benefits under the ECHO for a period of three years from the date the
(A) Attains 21 years of age, or
(B) Attains 23 years of age or ceases to pursue a full-time course of study prior to attaining 23 years of age, if, at 21 years of age, the eligible surviving dependent is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by Secretary of Defense and was, at the time of the sponsor's death, in fact dependent on the member for over one-half of such dependent's support.
(iv) A spouse, child, or unmarried person (as defined in paragraphs § 199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a deceased member of the Uniformed Services who, at the time of the member's death was receiving benefits under ECHO, and the member at the time of death was eligible for receipt of hostile-fire pay, or died as a result of a disease or injury incurred while eligible for such pay. In such a case, the surviving dependent remains eligible for benefits under ECHO through midnight of the dependent's twenty-first birthday.
(2)
(i)
(ii)
(iii)
(iv)
(v)
(3)
(i) The sponsor ceases to be an active duty member for any reason other than death; or
(ii) Eligibility based upon the abused dependent provisions of paragraph (b)(1)(ii) of this section expires; or
(iii) Eligibility based upon the deceased sponsor provisions of paragraphs (b)(1)(iii) or (iv) of this section expires; or
(iv) Eligibility based upon a beneficiary's participation in the Transitional Assistance Management Program ends; or
(v) The Director, TRICARE Management Activity or designee determines that the beneficiary no longer has a qualifying condition.
(4)
(c)
(1) Diagnostic procedures to establish a qualifying condition or to measure
(2) Medical, habilitative, rehabilitative services and supplies, durable equipment that is related to the qualifying condition. Benefits may be provided in the beneficiary's home or other environment as appropriate.
(3) Training that teaches the use of assistive technology devices or to acquire skills that are necessary for the management of the qualifying condition. Such training is also authorized for the beneficiary's immediate family. Vocational training, in the beneficiary's home or a facility providing such, is also allowed.
(4) Special education as provided by the Individuals with Disabilities Education Act and defined at 34 CFR 300.26 and that is specifically designed to accommodate the disabling effects of the qualifying condition.
(5) Institutional care within a state, as defined in § 199.2, in private nonprofit, public, and state institutions and facilities, when the severity of the qualifying condition requires protective custody or training in a residential environment. For the purpose of this section protective custody means residential care that is necessary when the severity of the qualifying condition is such that the safety and well-being of the beneficiary or those who come into contact with the beneficiary may be in jeopardy without such care.
(6) Transportation of an ECHO beneficiary, and a medical attendant when necessary to assure the beneficiary's safety, to or from a facility or institution to receive authorized ECHO services or items.
(7)
(i) TRICARE-authorized home health agencies must provide and bill for all authorized ECHO respite care services through established TRICARE claims' mechanisms. No special billing arrangements will be authorized in conjunction with coverage that may be provided by Medicaid or other federal, state, community or private programs.
(ii) For authorized ECHO respite care, TRICARE will reimburse the allowable charges or negotiated rates.
(iii) The Government's cost-share incurred for these services accrue to the maximum monthly benefits of $2,500.
(8)
(ii)
(iii)
(d)
(2)
(3)
(4)
(5)
(6)
(7)
(i) The beneficiary is a patient in an institution or facility that ordinarily provides the same type of equipment to its patients at no additional charge in the usual course of providing services; or
(ii) The item is available to the beneficiary from a Uniformed Services Medical Treatment Facility; or
(iii) The item has deluxe, luxury, immaterial or nonessential features that increase the cost to the Department relative to a similar item without those features; or
(iv) The item is duplicate equipment as defined in § 199.2.
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(e)
(1)
(2)
(3)
(i) Physically reside within the 50 United States, the District of Columbia, Puerto Rico, the Virgin Islands, or Guam; and
(ii) Are homebound, as defined in § 199.2; and
(iii) Require medically necessary skilled services that exceed the level of coverage provided under the Basic Program's home health care benefit; and/or
(iv) Require frequent interventions by the primary caregiver(s) such that respite care services are necessary to allow primary caregiver(s) the opportunity to rest; and
(v) Are case managed to include a reassessment at least every 90 days, and receive services as outlined in a written plan of care; and
(vi) Receive all home health care services from a TRICARE-authorized home health agency, as described in § 199.6(b)(4)(xv), in the beneficiary's primary residence.
(4)
(5)
(ii)
(f)
(2)
(ii) The Sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this section will be applied to the first allowed ECHO charges in any given month. The Government's share will be paid, up to the maximum amount specified in paragraph (f)(3) of this section, for allowed charges after the sponsor's cost-share has been applied.
(iii) The provisions of § 199.18(d)(1) and (e)(1) regarding elimination of copayments for active duty family members enrolled in TRICARE Prime do not eliminate, reduce, or otherwise affect the sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this section.
(iv) The sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this section does not accrue to the Basic Program's Catastrophic Loss Protection under 10 U.S.C. 1079(b)(5) as shown at §§ 199.4(f)(10) and 199.18(f).
(3)
(ii)
(B) When a beneficiary moves to a different locality within the 50 United States, the District of Columbia, Puerto Rico, the Virgin Islands, or Guam, the annual fiscal year cap will be recalculated to reflect the maximum established under paragraph (f)(3)(ii)(A) of this section for the beneficiary's new location and will apply to the EHHC benefit for the remaining portion of that fiscal year.
(g)
(2)
(ii) Allocating equipment expense. The ECHO beneficiary (or sponsor or guardian acting on the beneficiary's behalf) may, only at the time of the request for authorization of equipment, specify how the allowable cost of the equipment is to be allocated as an ECHO benefit. The entire allowable cost of the authorized equipment may be allocated in the month of purchase provided the allowable cost does not exceed the ECHO maximum monthly benefit of $2,500 or it may be prorated regardless of the allowable cost. Prorating permits the allowable cost of ECHO-authorized equipment to be allocated such that the amount allocated each month does not exceed the maximum monthly benefit.
(A)
(
(
(B)
(C)
(
(D)
(E)
(3)
(i) Is contracted for by a public facility as a part of a publicly funded long-term inpatient care program; and
(ii) Is provided based upon the ECHO beneficiary's being eligible for the publicly funded program which has contracted for the care; and
(iii) Is authorized by the public facility as a part of a publicly funded program; and
(iv) Would cause a cost-share liability in the absence of TRICARE eligibility; and
(v) Produces an ECHO beneficiary cost-share liability that does not exceed the maximum charge by the provider to the public facility for the contracted level of care.
(4)
(ii) For authorized ECHO home health care and respite care, TRICARE will reimburse the allowable charges or negotiated rates.
(iii) The maximum monthly Government reimbursement for EHHC, including EHHC respite care, will be based on the actual number of hours of EHHC services rendered in the month, but in no case will it exceed one-twelfth of the annual maximum Government cost-share as determined in this section.
(h)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(B) The domicile of the beneficiary shall be the basis for the determination of public facility availability when the sponsor and beneficiary are separately domiciled due to the sponsor's move to a new permanent duty station or due to legal custody requirements.
(C) Written certification, in accordance with information requirements, formats, and procedures established by the director, TRICARE Management Activity or designee that requested ECHO services or items cannot be obtained from public facilities because the services or items are not available and adequate, is a prerequisite for ECHO benefit payment for training, rehabilitation, special education, assistive technology, and institutional care in private nonprofit, public, and state institutions and facilities, and if appropriate, transportation to and from such institutions and facilities.
(
(
(
(
(4) Repair or maintenance of beneficiary owned durable equipment is exempt from the public facility use certification requirements.
(5) The requirements of this paragraph (h)(3)(v)(A) notwithstanding, no public facility use certification is required for services and items that are provided under Part C of the Individuals with Disabilities Education Act in accordance with the Individualized Family Services Plan and that are otherwise allowable under the ECHO.
(i)
(j)
(a)
(1)
(2)
Only the Secretary of Defense, the Secretary of Health and Human Services, or the Secretary of Transportation, or their designees, may authorize (in emergency situations) payment to civilian facilities in the United States that are not in compliance with title VI of the Civil Rights Act of 1964. For the purpose of the Civil Rights Act only, the United States includes the 50 states, the District of Columbia, Puerto Rico, Virgin Islands, American Samoa, Guam, Wake Island, Canal Zone, and the territories and possessions of the United States.
(3)
(4) [Reserved]
(5)
(6)
(7)
(8)
(i)
(B) A SNF or a HHA, in order to be an authorized provider under TRICARE, must enter into a participation agreement with TRICARE for all claims.
(C) Corporate services providers authorized as CHAMPUS providers under the provisions of paragraph (f) of this section must enter into a participation agreement as provided by the Director, OCHAMPUS, or designee.
(ii)
(B)
(iii)
(9)
(10)
(11)
(ii)
(iii)
(12)
(i) The cognizant state licensing authority;
(ii) The Joint Commission on Accreditation of Healthcare Organizations, or the appropriate Qualified Accreditation Organization as defined in § 199.2;
(iii) Standards of practice established by national medical organizations; and
(iv) This part.
(13)
(i) Not charge a beneficiary for the following:
(A) Services for which the provider is entitled to payment from CHAMPUS;
(B) Services for which the beneficiary would be entitled to have CHAMPUS payment made had the provider complied with certain procedural requirements.
(C) Services not medically necessary and appropriate for the clinical management of the presenting illness, injury, disorder or maternity;
(D) Services for which a beneficiary would be entitled to payment but for a reduction or denial in payment as a result of quality review; and
(E) Services rendered during a period in which the provider was not in compliance with one or more conditions of authorization;
(ii) Comply with the applicable provisions of this part and related CHAMPUS administrative policy;
(iii) Accept the CHAMPUS determined allowable payment combined with the cost-share, deductible, and other health insurance amounts payable by, or on behalf of, the beneficiary, as full payment for CHAMPUS allowed services;
(iv) Collect from the CHAMPUS beneficiary those amounts that the beneficiary has a liability to pay for the CHAMPUS deductible and cost-share;
(v) Permit access by the Director, OCHAMPUS, or designee, to the clinical record of any CHAMPUS beneficiary, to the financial and organizational records of the provider, and to reports of evaluations and inspections conducted by state, private agencies or organizations;
(vi) Provide the Director, OCHAMPUS, or designee, prompt written notification of the provider's employment of an individual who, at any time during the twelve months preceding such employment, was employed in a managerial, accounting, auditing, or similar capacity by an agency or organization which is responsible, directly or indirectly for decisions regarding Department of Defense payments to the provider;
(vii) Cooperate fully with a designated utilization and clinical quality management organization which has a contract with the Department of Defense for the geographic area in which the provider renders services;
(viii) Obtain written authorization before rendering designated services or items for which CHAMPUS cost-share may be expected;
(ix) Maintain clinical and other records related to individuals for whom CHAMPUS payment was made for services rendered by the provider, or otherwise under arrangement, for a period of 60 months from the date of service;
(x) Maintain contemporaneous clinical records that substantiate the clinical rationale for each course of treatment, periodic evaluation of the efficacy of treatment, and the outcome at completion or discontinuation of treatment;
(xi) Refer CHAMPUS beneficiaries only to providers with which the referring provider does not have an economic interest, as defined in § 199.2; and
(xii) Limit services furnished under arrangement to those for which receipt of payment by the CHAMPUS authorized provider discharges the payment liability of the beneficiary.
(14)
(15)
(b)
(i)
(ii) Billing practices.
(A) Each institutional billing, including those institutions subject to the CHAMPUS DRG-based reimbursement method or a CHAMPUS-determined all-inclusive rate reimbursement method, must be itemized fully and sufficiently descriptive for the CHAMPUS to make a determination of benefits.
(B) Institutional claims subject to the CHAMPUS DRG-based reimbursement method or a CHAMPUS-determined all-inclusive rate reimbursement method, may be submitted only after the beneficiary has been discharged or transferred from the institutional provider's facility or program.
(C) Institutional claims for Residential Treatment Centers and all other institutional providers, except those listed in (B) above, should be submitted to the appropriate CHAMPUS fiscal intermediary at least every 30 days.
(2)
(i)
(ii)
(iii)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(4)
(i)
(A) Is engaged primarily in providing to inpatients, by or under the supervision of physicians, diagnostic and therapeutic services for the medical or surgical diagnosis and treatment of illness, injury, or bodily malfunction (including maternity).
(B) Maintains clinical records on all inpatients (and outpatients if the facility operates an outpatient department or emergency room).
(C) Has bylaws in effect with respect to its operations and medical staff.
(D) Has a requirement that every patient be under the care of a physician.
(E) Provides 24-hour nursing service rendered or supervised by a registered professional nurse, and has a licensed practical nurse or registered professional nurse on duty at all times.
(F) Has in effect a hospital utilization review plan that is operational and functioning.
(G) In the case of an institution in a state in which state or applicable local law provides for the licensing of hospitals, the hospital:
(
(
(H) Has in effect an operating plan and budget.
(I) Is accredited by the JCAH or meets such other requirements as the Secretary of Health and Human Services, the Secretary of Transportation, or the Secretary of Defense finds necessary in the interest of the health and safety of patients who are admitted to and furnished services in the institution.
(ii)
(iii)
(iv)
(A) There are two major categories of psychiatric hospitals:
(
(
(B) In order for the services of a psychiatric hospital to be covered, the hospital shall comply with the provisions outlined in paragraph (b)(4)(i) of this section. All psychiatric hospitals shall be accredited under the JCAHO Accreditation Manual for Hospitals (AMH) standards in order for their services to be cost-shared under CHAMPUS. In the case of those psychiatric hospitals that are not JCAHO-accredited because they have not been in operation a sufficient period of time to be eligible to request an accreditation survey by the JCAHO, the Director, OCHAMPUS, or a designee, may grant temporary approval if the hospital is certified and participating under Title XVIII of the Social Security Act (Medicare, Part A). This temporary approval expires 12 months from the date on which the psychiatric hospital first becomes eligible to request an accreditation survey by the JCAHO.
(C) Factors to be considered in determining whether CHAMPUS will cost-share care provided in a psychiatric hospital include, but are not limited to, the following considerations:
(
(
(
(
(D) Although psychiatric hospitals are accredited under the JCAHO AMH standards, their medical records must be maintained in accordance with the JCAHO Consolidated Standard Manual for Child, Adolescent, and Adult Psychiatric, Alcoholism, and Drug Abuse Facilities and Facilities Serving the Mentally Retarded, along with the requirements set forth in § 199.7(b)(3). The hospital is responsible for assuring that patient services and all treatment are accurately documented and completed in a timely manner.
(v)
(A) In order for the service of long-term hospitals to be covered, the hospital must comply with the provisions outlined in paragraph (b)(4)(i) of this section. In addition, in order for services provided by such hospitals to be covered by CHAMPUS, they must be primarily for the treatment of the presenting illness.
(B) Custodial or domiciliary care is not coverable under CHAMPUS, even if rendered in an otherwise authorized long-term hospital.
(C) The controlling factor in determining whether a beneficiary's stay in a long-term hospital is coverable by CHAMPUS is the level of professional care, supervision, and skilled nursing care that the beneficiary requires, in addition to the diagnosis, type of condition, or degree of functional limitations. The type and level of medical services required or rendered is controlling for purposes of extending
(vi)
(A) Has policies that are developed with the advice of (and with provisions for review on a periodic basis by) a group of professionals, including one or more physicians and one or more registered nurses, to govern the skilled nursing care and related medical services it provides.
(B) Has a physician, a registered nurse, or a medical staff responsible for the execution of such policies.
(C) Has a requirement that the medical care of each patient must be under the supervision of a physician, and provides for having a physician available to furnish necessary medical care in case of an emergency.
(D) Maintains clinical records on all patients.
(E) Provides 24-hour skilled nursing service that is sufficient to meet nursing needs in accordance with the policies developed as provided in paragraph (b)(4)(iv)(A) of this section, and has at least one registered professional nurse employed full-time.
(F) Provides appropriate methods and procedures for the dispensing and administering of drugs and biologicals.
(G) Has in effect a utilization review plan that is operational and functioning.
(H) In the case of an institution in a state in which state or applicable local law provides for the licensing of this type facility, the institution:
(
(
(I) Has in effect an operating plan and budget.
(J) Meets such provisions of the most current edition of the Life Safety Code
(K) Is an authorized provider under the Medicare program, and meets the requirements of Title 18 of the social Security Act, sections 1819(a), (b), (c), and (d) (42 U.S.C. 1395i-3(a)-(d)).
If a pediatric SNF is certified by Medicaid, it will be considered to meet the Medicare certification requirement in order to be an authorized provider under TRICARE.
(vii)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C)
(
(
(D)
(
(
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(F)
(
(
(viii)
(ix)
An infirmary in a boarding school also may qualify under this provision, subject to review and approval by the Director, OCHAMPUS or a designee.
(x)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(xi)
(A)
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(xii)
(A)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C)
(
(
(D)
(
(
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(F)
(
(
(
(xiii)
(A) Is primarily engaged in providing the care and services described under § 199.4(e)(19) and makes such services available on a 24-hour basis.
(B) Provides bereavement counseling for the immediate family or terminally ill individuals.
(C) Provides for such care and services in individuals' homes, on an outpatient basis, and on a short-term inpatient basis, directly or under arrangements made by the hospice program, except that the agency or organization must:
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(xiv)
(A)
(
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(B)
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(C)
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(D)
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(F)
(
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(xv)
(A) Engaged in providing skilled nursing services and other therapeutic services, such as physical therapy, speech-language pathology services, or
(
(
(B) Policies established by a professional group associated with the agency or organization (including at least one physician and one registered nurse) to govern the services and provides for supervision of such services by a physician or a registered nurse.
(C) Maintains clinical records for all patients.
(D) Licensed in accordance with State and local law or is approved by the State or local licensing agency as meeting the licensing standards, where applicable.
(E) Enters into an agreement with TRICARE in order to participate and to be eligible for payment under the program. In this agreement the HHA and TRICARE agree that the HHA will:
(
(
(F) Abide by the following consolidated billing requirements:
(
(
(
(
(
(
(
(
(
(
(
(G) Meet such other requirements as the Secretary of Health and Human Services and/or Secretary of Defense may find necessary in the interest of the health and safety of the individuals who are provided care and services by such agency or organization.
(xvi)
(c)
(ii)
(iii)
(iv)
(v)
(2)
(ii)
(iii)
(iv)
(v) Subject to section 1079(a) of title 10, U.S.C., chapter 55, a physician or other health care practitioner who is eligible to receive reimbursement for services provided under Medicare (as defined in section 1086(d)(3)(C) of title 10 U.S.C., chapter 55) shall be considered approved to provide medical care authorized under section 1079 and section 1086 of title 10, U.S.C., chapter 55 unless the administering Secretaries have information indicating Medicare, TRICARE, or other Federal health care program integrity violations by the physician or other health care practitioner. Approval is limited to those classes of provider currently considered TRICARE authorized providers as outlined in 32 CFR 199.6. Services and supplies rendered by those providers who are not currently considered authorized providers shall be denied.
(3)
(i)
(B) Doctors of Osteopathy (D.O.).
(ii)
(A) Doctors of Dental Medicine (D.M.D.).
(B) Doctors of Dental Surgery (D.D.S.).
(iii)
(A)
(
(
(
(B)
(C)
(D)
(
(
(
(
(E)
(
(
(
(F)
(
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Patients' organic medical problems must receive appropriate concurrent management by a physician.
(G)
(
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(
(H)
(
(
(
(
(
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(I)
(
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(
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(J)
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(K)
(
(
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(iv)
(A)
(
(
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(
(
(
(
(
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(B)
(
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(
(
(
(
(
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(
No dual status will be recognized by the Office of CHAMPUS. Pastoral counselors must elect to become one of the categories of extramedical CHAMPUS provides specified above. Once authorized as either a pastoral counselor, or a certified marriage and family therapist, claims review and reimbursement will be in accordance with the criteria established for the elected provider category.
(C)
(
(
(
(
(
(
(
(D) The following additional information applies to each of the above categories of extramedical individual providers:
(
(
(E)
(d)
(1)
(2)
(3)
(4)
(5)
(6)
(e)
(ii) A Program for Persons with Disabilities (PFPWD) provider with TRICARE-authorized status on the effective date for the Extended Care Health Option (ECHO) Program shall be deemed to be a TRICARE-authorized provider until the expiration of all outstanding PFPWD benefit authorizations for services or items being rendered by the provider.
(2)
(A) A not-for-profit entity or a public facility; and
(B) Located within a state; and
(C) Be certified as eligible for Medicaid payment in accordance with a state plan for medical assistance under Title XIX of the Social Security Act (Medicaid) as a Medicaid Nursing Facility, or Intermediate Care Facility for the Mentally Retarded, or be a
(ii)
(A) A TRICARE-authorized provider of services as defined in this section; or
(B) An individual, corporation, foundation, or public entity that predominantly renders services of a type uniquely allowable as an ECHO benefit and not otherwise allowable as a benefit of § 199.4, that meets all applicable licensing or other regulatory requirements of the state, county, municipality, or other political jurisdiction in which the ECHO service is rendered, or in the absence of such licensing or regulatory requirements, as determined by the Director, TRICARE Management Activity or designee.
(iii)
(3)
(f)
(ii) Payment for otherwise allowable services may be made to a CHAMPUS-authorized corporate services provider subject to the applicable requirements, exclusions and limitations of this part.
(iii) The Director, OCHAMPUS, or designee, may create discrete types within any allowable category of provider established by this paragraph (f) to improve the efficiency of CHAMPUS management.
(iv) The Director, OCHAMPUS, or designee, may require, as a condition of authorization, that a specific category or type of provider established by this paragraph (f):
(A) Maintain certain accreditation in addition to or in lieu of the requirement of paragraph (f)(2)(v) of this section;
(B) Cooperate fully with a designated utilization and clinical quality management organization which has a contract with the Department of Defense for the geographic area in which the provider does business;
(C) Render services for which direct or indirect payment is expected to be made by CHAMPUS only after obtaining CHAMPUS written authorization; and
(D) Maintain Medicare approval for payment when the Director, OCHAMPUS, or designee, determines that a category, or type, of provider established by this paragraph (f) is substantially comparable to a provider or supplier for which Medicare has regulatory conditions of participation or conditions of coverage.
(v) Otherwise allowable services may be rendered at the authorized corporate services provider's place of business, or in the beneficiary's home under such circumstances as the Director, OCHAMPUS, or designee, determines to be necessary for the efficient delivery of such in-home services.
(vi) The Director, OCHAMPUS, or designee, may limit the term of a participation agreement for any category or type of provider established by this paragraph (f).
(vii) Corporate services providers shall be assigned to only one of the following allowable categories based upon the predominate type of procedure rendered by the organization;
(A) Medical treatment procedures;
(B) Surgical treatment procedures;
(C) Maternity management procedures;
(D) Rehabilitation and/or habilitation procedures; or
(E) Diagnostic technical procedures.
(viii) The Director, OCHAMPUS, or designee, shall determine the appropriate procedural category of a qualified organization and may change the category based upon the provider's CHAMPUS claim characteristics. The category determination of the Director, OCHAMPUS, designee, is conclusive and may not be appealed.
(2)
(i) Be a corporation or a foundation, but not a professional corporation or professional association; and
(ii) Be institution-affiliated or freestanding as defined in § 199.2; and
(iii) Provide:
(A) Services and related supplies of a type rendered by CHAMPUS individual professional providers or diagnostic technical services and related supplies of a type which requires direct patient contact and a technologist who is licensed by the state in which the procedure is rendered or who is certified by a Qualified Accreditation Organization as defined in § 199.2; and
(B) A level of care which does not necessitate that the beneficiary be provided with on-site sleeping accommodations and food in conjunction with the delivery of services; and
(iv) Complies with all applicable organizational and individual licensing or certification requirements that are extant in the state, county, municipality, or other political jurisdiction in which the provider renders services; and
(v) Be approved for Medicare payment when determined to be substantially comparable under the provisions of paragraph (f)(1)(iv)(D) of this section or, when Medicare approved status is not required, be accredited by a qualified accreditation organization, as defined in § 199.2; and
(vi) Has entered into a participation agreement approved by the Director, OCHAMPUS, or designee, which at least complies with the minimum participation agreement requirements of this section.
(3)
(i) The merger of the provider corporation or foundation into another corporation or foundation, or the consolidation of two or more corporations or foundations resulting in the creation of a new corporation or foundation, constitutes a change of ownership.
(ii) Transfer of corporate stock or the merger of another corporation or foundation into the provider corporation or foundation does not constitute change of ownership.
(iii) The surviving corporation or foundation shall notify the Director, OCHAMPUS, or designee, in writing of the change of ownership promptly after the effective date of the transfer or change in ownership.
(4)
(5)
For
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(i)
(ii)
(iii)
(iv)
(b)
(1)
(i)
(ii)
(iii)
(iv)
If name of patient is different from sponsor, explain (for example, stepchild or illegitimate child).
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(A) Date each service was rendered.
(B) Procedure code or narrative description of each procedure or service for each date of service.
(C) Individual charge for each item of service or each supply for each date.
(D) Detailed description of any unusual complicating circumstances related to the medical care provided that the physician or other individual professional provider may choose to submit separately.
(x)
(A) An itemized billing showing each item of service or supply provided for each day covered by the claim.
The Director, OCHAMPUS, or a designee, may approve, in writing, an alternative billing procedure for RTCs or other special institutions, in which case the itemized billing requirement may be waived. The particular facility will be aware of such approved alternate billing procedure.
(B) Any absences from a hospital or other authorized institution during a period for which inpatient benefits are being claimed must be identified specifically as to date or dates and provide details on the purpose of the absence. Failure to provide such information will result in denial of benefits and, in an ongoing case, termination of benefits for the inpatient stay at least back to the date of the absence.
(C) For hospitals subject to the CHAMPUS DRG-based payment system (see paragraph (a)(1)(ii)(D) of § 199.14), the following information is also required:
(
(
(
(
(
(
(D) Claims submitted by hospitals (or other authorized institutional providers) must include the name of the individual actually rendering the care, along with the individual's professional status (e.g., M.D., Ph.D., R.N., etc.).
(xi)
(A) Name of drug.
When the physician or pharmacist so requests, the name of the drugs may be submitted to the CHAMPUS fiscal intermediary directly by the physician or pharmacist.
(B) Strength of drug.
(C) Name and address of pharmacy where drug was purchased.
(D) Prescription number of drug being claimed.
(xii)
(xiii)
(3)
(i) All care rendered and billed must be appropriately documented in writing. Failure to document the care billed will result in the claim or specific services on the claim being denied CHAMPUS cost-sharing.
(ii) A pattern of failure to adequately document medical care will result in episodes of care being denied CHAMPUS cost-sharing.
(iii) Cursory notes of a generalized nature that do not identify the specific treatment and the patient's response to the treatment are not acceptable.
(iv) The documentation of medical records must be legible and prepared as
(A) General requirements for acute medical/surgical services:
(
(
(
(
(B) Requirements specific to mental health services:
(
(
(
(
(
(
(
(
(
(
(
A pattern of failure to meet the above criteria may result in provider sanctions prescribed under § 199.9.
(4)
(i)
(ii)
(iii)
(iv)
(5)
(A) Disclosure of such information is authorized specifically by the beneficiary;
(B) Disclosure is necessary to permit authorized governmental officials to investigate and prosecute criminal actions; or
(C) Disclosure is authorized or required specifically under the terms of DoD Directive 5400.7 and 5400.11, the Freedom of Information Act, and the Privacy Act (refer to paragraph (m) of § 199.1 of this part).
(ii) For the purposes of determining the applicability of and implementing the provisions of §§ 199.8 and 199.9, or any provision of similar purpose of any other medical benefits coverage or entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries, without consent or notice to any beneficiary or sponsor, may release to or obtain from any insurance company or other organization, governmental agency, provider, or person, any information with respect to any beneficiary when such release constitutes a routine use duly published in the
(iii) Before a beneficiary's claim of benefits is adjudicated, the beneficiary or the provider(s) must furnish to CHAMPUS that information which is necessary to make the benefit determination. Failure to provide the requested information will result in denial of the claim. A beneficiary, by submitting a CHAMPUS claim(s) (either a participating or nonparticipating claim), is deemed to have given consent to the release of any and all medical records or documentation pertaining to the claims and the episode of care.
(c)
(i)
(ii)
(iii)
If the care was rendered to a minor and a custodial parent or legal guardian requests information prior to the minor turning 18 years of age, medical records may still be released pursuant to the signature of the parent or guardian, and claims information may still be released to the parent or guardian in response to the request, even though the beneficiary has turned 18 between the time of the request and the response. However, any follow-up request or subsequent request from the parent or guardian, after the beneficiary turns 18 years of age, will necessitate the authorization of the beneficiary (or the beneficiary's legal guardian as appointed by a cognizant court), before records and information can be released to the parent or guardian.
(iv)
(v)
(B) When the institutional provider obtains the signature of the beneficiary (or the signature of the parent or guardian when the beneficiary is under 18 years) on a CHAMPUS claim form at admission, the following participating claims may be submitted without the beneficiary's signature.
(
(
(C) Claims filed by providers using CHAMPUS-approved signature-on-file and claims submission procedures.
(2)
(i)
(A) Certifies that the specific medical care listed on the claim form was, in fact, rendered to the specific beneficiary for which benefits are being claimed, on the specific date or dates indicated, at the level indicated and by the provider signing the claim unless the claim otherwise indicates another individual provided the care. For example, if the claim is signed by a psychiatrist and the care billed was rendered by a psychologist or licensed social worker, the claim must indicate both the name and profession of the individual who rendered the care.
(B) Certifies that the provider has agreed to participate (providing this agreement has been indicated on the claim form) and that the CHAMPUS-determined allowable charge or cost will constitute the full charge or cost for the medical care listed on the specific claim form; and further agrees to accept the amount paid by CHAMPUS or the CHAMPUS payment combined with the cost-shared amount paid by, or on behalf of the beneficiary, as full payment for the covered medical services or supplies.
(
(
(ii)
(iii)
(d)
(1)
(i) One year after the services are provided; or
(ii) 90 days from the date the claim was returned to the provider or beneficiary.
(2)
(i)
(B)
(C)
(D)
(E)
(ii)
(A) Such requests for an exception must include a complete explanation of the circumstances of the late filing, together with all available documentation supporting the request, and the specific claim denied for late filing.
(B) Each request for an exception to the claims filing deadline is reviewed individually and considered on its own merits.
(e)
(1)
(2)
(3)
(f)
(1)
(i)
(ii)
(2)
(3)
(4)
(g)
(h)
(1)
(2)
(3)
(i) Name and address of beneficiary.
(ii) Name and address of provider.
(iii) Services or supplies covered by claim for which CEOB applies.
(iv) Dates services or supplies provided.
(v) Amount billed; CHAMPUS-determined allowable charge or cost; and amount of CHAMPUS payment.
(vi) To whom payment, if any, was made.
(vii) Reasons for any denial.
(viii) Recourse available to beneficiary for review of claim decision (refer to § 199.10 of this part).
The Director, OCHAMPUS, or a designee, may authorize a CHAMPUS fiscal intermediary to waive a CEOB to protect the privacy of a CHAMPUS beneficiary.
(4)
(i)
(j)
For
(a)
(2) The provision in paragraph (a)(1) of this section is made applicable specifically to retired members, dependents, and survivors by 10 U.S.C. 1086(g). The underlying intent, in addition to preventing waste of Federal resources, is to ensure that TRICARE beneficiaries receive maximum benefits while ensuring that the combined payments of TRICARE and other health and insurance plans do not exceed the total charges.
(b)
(1)
(2)
(3)
(4)
(i) Plans administered under title XIX of the Social Security Act (Medicaid);
(ii) Coverage specifically designed to supplement CHAMPUS benefits (a health insurance policy or other health benefit plan that meets the definition and criteria under supplemental insurance plan as set forth in § 199.2(b));
(iii) Entitlement to receive care from Uniformed Services medical care facilities;
(iv) Certain Federal Government programs, as prescribed by the Director, OCHAMPUS, that are designed to provide benefits to a distinct beneficiary population and for which entitlement does not derive from either premium payment of monetary contribution (for example, the Indian Health Service); or
(v) State Victims of Crime Compensation Programs.
(c)
(1)
(2)
(i) The claim is submitted for health care services furnished to a covered beneficiary; and,
(ii) The claim is identified as involving services for which a third-party payer, other than a primary medical insurer, may be liable.
(3)
(4)
(5)
(6)
(d)
(ii)
(iii)
(A) For items or services or portions or segments of items or services for which payment may be made under Medicare, the CHAMPUS payment will be the amount of the beneficiary's actual out of pocket liability, minus the amount payable by Medicare, also minus amount payable by other third party payers, subject to the limit under paragraph (d)(1)(ii) of this section.
(B) For items or services or segments of items or services for which no payment may be made under Medicare, the
(C) For Medicare beneficiaries who enroll in Medicare Part D, the Part D plan is primary and TRICARE is secondary payer. TRICARE will pay the beneficiary's out-of-pocket costs for Medicare and TRICARE covered medications, including the initial deductible and Medicare Part D cost-sharing amounts up to the initial coverage limit of the Medicare Part D plan. The Medicare Part D plan, although the primary plan, pays nothing during any coverage gap period. When the beneficiary becomes responsible for 100 percent of the drug costs under a Part D coverage gap period, the beneficiary may use the TRICARE pharmacy benefit as the secondary payer. TRICARE will cost share during the coverage gap to the same extent as it does under Section 199.21 for beneficiaries not enrolled in Medicare Part D plan. The beneficiary is responsible for the applicable TRICARE pharmacy cost-sharing amounts (and deductible if using a retail non-network pharmacy). Part D plan sponsors may offer a defined standard benefit, or an actuarially equivalent standard benefit. Part D plan sponsors may also offer alternative prescription drug coverage, which may consist of basic alternative coverage or enhanced alternative coverage. Therefore depending on the Part D plan that a beneficiary chooses, monthly premiums, coinsurances, co-pays, deductibles and benefit design may vary from plan to plan. TRICARE payment of the beneficiary's initial deductible, if any, along with payment of any beneficiary cost share count towards total spending on drugs, and may have the effect of moving the beneficiary more quickly through the initial phase of coverage to the coverage gap. Irrespective of the phase of the benefit in which a beneficiary may be, if a beneficiary is accessing a pharmacy under contract with his or her Part D plan, the provider will bill the Part D plan first, then TRICARE. If the beneficiary chooses to use his or her TRICARE pharmacy benefit during a coverage gap under Part D, the beneficiary may do so, but the beneficiary is responsible for the TRICARE cost-shares.
(iv)
(A) In the case of a Medicare-eligible beneficiary receiving typical physician office visit services, Medicare payment generally will be made. CHAMPUS payment will be determined consistent with paragraph (d)(1)(iii)(A) of this section.
(B) In the case of a Medicare-eligible beneficiary residing and receiving medical care overseas, Medicare payment generally may not be made. CHAMPUS payment will be determined consistent with paragraph (d)(1)(iii)(B) of this section.
(C) In the case of a Medicare-eligible beneficiary receiving skilled nursing facility services a portion of which is payable by Medicare (such as during the first 100 days) and a portion of which is not payable by Medicare (such as after 100 days), CHAMPUS payment for the first portion will be determined consistent with paragraph (d)(1)(iii)(A) of this section and for the second portion consistent with paragraph (d)(1)(iii)(B) of this section.
(v)
(vi)
(vii)
(viii)
(2)
(3)
(4)
(5)
(6)
(ii)
(A) The beneficiary has primary coverage other than TRICARE; or
(B) The benefit is offered under a cafeteria plan under section 125 of the Internal Revenue Code and is offered to all similarly situated employees, including non-TRICARE eligible employees; or
(C) The benefit is offered under a cafeteria plan under section 125 of the Internal Revenue Code and, although offered only to TRICARE-eligible employees, the employer does not provide any payment for the benefit nor receive any direct or indirect consideration or compensation for offering the benefit; the employer's only involvement is providing the administrative support for the benefits under the cafeteria plan, and the employee's participation in the plan is completely voluntary.
(iii)
(iv)
(B) Penalties for violation of this paragraph (d)(6) include a civil monetary penalty of up to $5,000 for each violation. The provisions of section 1128A of the Social Security Act, 42 U.S.C. 1320a-7a, (other than subsections (a) and (b)) apply to the civil monetary penalty in the same manner as the provisions apply to a penalty or proceeding under section 1128A.
(v)
(A) The term “employer” includes any State or unit of local government and any employer that employs at least 20 employees.
(B) The term “group health plan” means a group health plan as that term is defined in section 5000(b)(1) of the Internal Revenue Code of 1986 without regard to section 5000(d) of the Internal Revenue Code of 1986.
(C) The term “similarly situated” means sharing common attributes, such as part-time employees, or other bona fide employment-based classifications consistent with the employer's usual business practice. (Internal Revenue Service regulations at 26 CFR 54.9802-1(d) may be used as a reference for this purpose). However, in no event shall eligibility for or entitlement to TRICARE (or ineligibility or non-entitlement to TRICARE) be considered a bona fide employment-based classification.
(D) The term “TRICARE-eligible employee” means a covered beneficiary under section 1086 of title 10, United States Code, Chapter 55, entitled to health care benefits under the TRICARE program.
(vi)
(e)
(a)
(2) This section also sets forth provisions for invoking administrative remedies in situations requiring administrative action to enforce provisions of law, regulation, and policy in the administration of CHAMPUS and to ensure quality of care for CHAMPUS beneficiaries. Examples of such situations may include a case in which it is discovered that a provider fails to meet requirements under this part to be an authorized CHAMPUS provider; a case in which the provider ceases to be qualified as a CHAMPUS provider because of suspension or revocation of the provider's license by a local licensing authority; or a case in which a provider meets the minimum requirements under this part but, nonetheless, it is determined that it is in the best interest of the CHAMPUS or CHAMPUS beneficiaries that the provider should not be an authorized CHAMPUS provider.
(3) The administrative remedies set forth in this section are in addition to, and not in lieu of, any other remedies or sanctions authorized by law or regulation. For example, administrative action under this section may be taken in a particular case even if the same case will be or has been processed under the administrative procedures established by the Department of Defense to implement the Program Fraud Civil Remedies Act.
(4) Providers seeking payment from the Federal Government through programs such as CHAMPUS have a duty to familiarize themselves with, and comply with, the program requirements.
(5) CHAMPUS contractors and peer review organizations have a responsibility to apply provisions of this regulation in the discharge of their duties, and to report all known situations involving fraud, abuse, or conflict of interest. Failure to report known situations involving fraud, abuse, or conflict of interest will result in the withholding of administrative payments or other contractual remedies as determined by the Director, OCHAMPUS, or a designee.
(b)
(1) A pattern of waiver of beneficiary (patient) cost-share or deductible.
In a case of a legitimate bad debt write-off of patient cost-share or deductible, the provider's record should include documentation as to what efforts were made to collect the debt, when the debt was written off, why the debt was written off, and the amount of the debt written off.
(2) Improper billing practices. Examples include, charging CHAMPUS beneficiaries rates for services and supplies that are in excess of those charges routinely charged by the provider to the general public, commercial health insurance carriers, or other federal health benefit entitlement programs for the same or similar services. (This includes dual fee schedules—one for
(3) A pattern of claims for services which are not medically necessary or, if medically necessary, not to the extent rendered. For example, a battery of diagnostic tests are given when, based on the diagnosis, fewer tests were needed.
(4) Care of inferior quality. For example, consistently furnishing medical or mental health services that do not meet accepted standards of care.
(5) Failure to maintain adequate medical or financial records.
(6) Refusal to furnish or allow the Government (for example, OCHAMPUS) or Government contractors access to records related to CHAMPUS claims.
(7) Billing substantially in excess of customary or reasonable charges unless it is determined by OCHAMPUS that the excess charges are justified by unusual circumstances or medical complications requiring additional time, effort, or expense in localities when it is accepted medical practice to make an extra charge in such cases.
(8) Unauthorized use of the term “Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)” in private business. While the use of the term “CHAMPUS” is not prohibited by federal statute, misrepresentation or deception by use of the term “CHAMPUS” to imply an official connection with the Government or to defraud CHAMPUS beneficiaries may be a violation of federal statute. Regardless of whether the actual use of the term “CHAMPUS” may be actionable under federal statute, the unauthorized or deceptive use of the term “CHAMPUS” in private business will be considered abuse for purposes of this Section.
(c)
(1) Submitting CHAMPUS claims (including billings by providers when the claim is submitted by the beneficiary) for services, supplies, or equipment not furnished to, or used by, CHAMPUS beneficiaries. For example, billing or claiming services when the provider was on call (other than an authorized standby charge) and did not provide any specific medical care to the beneficiary; providing services to an ineligible person and billing or submitting a claim for the services in the name of an eligible CHAMPUS beneficiary; billing or submitting a CHAMPUS claim for an office visit for a missed appointment; or billing or submitting a CHAMPUS claim for individual psychotherapy when a medical visit was the only service provided.
(2) Billing or submitting a CHAMPUS claim for costs for noncovered or nonchargeable services, supplies, or equipment disguised as covered items. Some examples are: (i) Billings or CHAMPUS claims for services which would be covered except for the frequency or duration of the services, such as billing or submitting a claim for two one-hour psychotherapy sessions furnished on separate days when the actual service furnished was a two-hour therapy session on a single day, (ii) spreading the billing or claims for services over a time period that reduces the apparent frequency to a level that may be cost-shared by CHAMPUS, (iii) charging to CHAMPUS, directly or indirectly, costs not incurred or not reasonably allowable to the services billed or claimed under CHAMPUS, for example, costs attributable to nonprogram activities, other enterprises, or the personal expenses of principals, or (iv) billing or submitting claim on a fee-for-service basis when in fact a personal service to a specific patient was not performed and the service rendered is part of the overall management of, for example, the laboratory or x-ray department.
(3) Breach of a provider participation agreement which results in the beneficiary (including parent, guardian, or other representative) being billed for amounts which exceed the CHAMPUS-determined allowable charge or cost.
(4) Billings or CHAMPUS claims for supplies or equipment which are clearly unsuitable for the patient's needs or are so lacking in quality or sufficiency for the purpose as to be virtually worthless.
(5) Billings or CHAMPUS claims which involve flagrant and persistent overutilization of services without proper regard for results, the patient's ailments, condition, medical needs, or the physician's orders.
(6) Misrepresentations of dates, frequency, duration, or description of services rendered, or of the identity of the recipient of the services or the individual who rendered the services.
(7) Submitting falsified or altered CHAMPUS claims or medical or mental health patient records which misrepresent the type, frequency, or duration of services or supplies or misrepresent the name(s) of the individual(s) who provided the services or supplies.
(8) Duplicate billings or CHAMPUS claims. This includes billing or submitting CHAMPUS claims more than once for the same services, billing or submitting claims both to CHAMPUS and the beneficiary for the same services, or billing or submitting claims both to CHAMPUS and other third-parties (such as other health insurance or government agencies) for the same services, without making full disclosure of material facts or immediate, voluntary repayment or notification to CHAMPUS upon receipt of payments which combined exceed the CHAMPUS-determined allowable charge of the services involved.
(9) Misrepresentation by a provider of his or her credentials or concealing information or business practices which bear on the provider's qualifications for authorized CHAMPUS provider status. For example, a provider representing that he or she has a qualifying doctorate in clinical psychology when the degree is not from a regionally accredited university.
(10) Reciprocal billing. Billing or claiming services which were furnished by another provider or furnished by the billing provider in a capacity other than as billed or claimed. For example, practices such as the following: (i) One provider performing services for another provider and the latter bills as though he had actually performed the services (e.g., a weekend fill-in); (ii) providing service as an institutional employee and billing as a professional provider for the services; (iii) billing for professional services when the services were provided by another individual who was an institutional employee; (iv) billing for professional services at a higher provider profile than would be paid for the person actually furnishing the services, (for example, bills reflecting that an M.D. or Ph.D. performed the services when services were actually furnished by a licensed social worker, psychiatric nurse, or marriage and family counselor); or (v) an authorized provider billing for services which were actually furnished by an unauthorized or sanctioned provider.
(11) Submitting CHAMPUS claims at a rate higher than a rate established between CHAMPUS and the provider, if such a rate has been established. For example, billing or claiming a rate in excess of the provider's most favored rate limitation specified in a residential treatment center agreement.
(12) Arrangements by providers with employees, independent contractors, suppliers, or others which appear to be designed primarily to overcharge the CHAMPUS through various means (such as commissions, fee-splitting, and kickbacks) used to divert or conceal improper or unnecessary costs or profits.
(13) Agreements or arrangements between the supplier and recipient (recipient could be either a provider or beneficiary, including the parent, guardian, or other representative of the beneficiary) that result in billings or claims which include unnecessary costs or charges to CHAMPUS.
(d)
(2) CHAMPUS cost-sharing shall be denied on any claim where a conflict of interest situation is found to exist. This denial of cost-sharing applies whether the claim is submitted by the individual who provided the care, the institutional provider in which the care was furnished, or the beneficiary.
(e)
(2) CHAMPUS cost-sharing of a claim shall be denied where the services or supplies were provided by an active duty member of the Uniformed Services or a civilian employee of the Government. This denial of CHAMPUS payment applies whether the claim for reimbursement is filed by the individual who provided the care, the institutional provider in which the care was furnished, or by the beneficiary.
Physicians of the National Health Service Corps (NHSC) may be assigned to areas where there is a shortage of medical providers. Although these physicians would be prohibited from accepting CHAMPUS payments as individuals if they are employees of the United States Government, the private organizations to which they may be assigned may be eligible for payment, as determined by the Director, OCHAMPUS, or a designee.
(3) The prohibition against dual compensation does not apply to individuals under contract to the Uniformed Services or the Government.
(f)
(1)
(i)
Under the above paragraph (f)(1)(i)(A) of this section, an entity may be excluded or suspended from CHAMPUS
(B)
(C)
(D)
(E)
(ii)
(iii)
(iv)
(v)
(
(B)
(2)
(i)
(A) The retroactive effective date of termination shall not be limited due to the passage of time, erroneous payment of claims, or any other events which may be cited as a basis for CHAMPUS recognition of the provider
(B) Any claims cost-shared or paid under CHAMPUS for services or supplies furnished by the provider on or after the effective date of termination, even when the effective date is retroactive, shall be deemed an erroneous payment unless specific exception is provided in this part. All erroneous payments are subject to collection under § 199.11 of this part.
(C) If an institution is terminated as an authorized CHAMPUS provider, the institution shall immediately give written notice of the termination to any CHAMPUS beneficiary (or their parent, guardian, or other representative) admitted to, or receiving care at, the institution on or after the effective date of the termination. In addition, when an institution is terminated with an effective date of termination after the date of the initial determination terminating the provider, any beneficiary admitted to the institution prior to the effective date of termination (or their parent, guardian, or other representative) shall be notified by the Director, OCHAMPUS, or a designee, by certified mail of the termination, and that CHAMPUS cost-sharing of the beneficiary's care in the institution will cease as of the effective date of the termination. However, any beneficiary admitted to the institution prior to any grace period extended to the institution under paragraph (f)(2)(ii)(A) of this section shall be advised that, if the beneficiary's care otherwise qualifies for CHAMPUS coverage, CHAMPUS cost-sharing of the care in the institution will continue in order to provide a reasonable period of transition of care; however the transitional period of CHAMPUS cost-sharing shall not exceed the last day of the month following the month in which the institution's status as a CHAMPUS provider is terminated. (This authorized CHAMPUS cost-sharing of the inpatient care received during the transition period is an exception to the general rule that CHAMPUS payment for care furnished after the effective date of termination of the provider's status shall be deemed to be an erroneous payment.) If a major violation under paragraph (f)(2)(ii)(B) of this section is involved, in order to ensure immediate action is taken to transfer beneficiaries to an approved provider, CHAMPUS cost-sharing shall not be authorized after the effective date of termination of the provider's status.
(ii)
(A)
(
(
(
(
(B)
(3)
(ii) Pursuant to § 199.11 of this part, the Director, OCHAMPUS, or a designee, may recover erroneous payments on claims involving fraud or false or misleading statements. Remedies for recovery of the erroneous payments include the use of offset against future CHAMPUS payments.
(iii) Under policies adopted by the Director, OCHAMPUS, or a designee, individuals who, based on reliable information, have previously submitted fraudulent or false CHAMPUS claims, may be required to comply with any procedures (e.g., partial or total pre-payment audit or review, restriction to a designated primary care provider, etc.) which the Director, OCHAMPUS, or a designee, deems appropriate to ensure that their future medical care and CHAMPUS claims (including the medical care and CHAMPUS claims submitted by or for members of their family) are valid.
(g)
(i)
(ii)
(A) When the case concerns all or any part of the same issues which have been the subject of criminal conviction or civil judgment involving fraud by a provider:
(
(
(
(
(
(
(
(
(
(
(B) The Director, OCHAMPUS, or a designee, may consider the following factors in determining a reasonable period of exclusion or suspension of a provider under CHAMPUS:
(
(
(
(
(
(
(
(
(
(
(
(2)
(i) Termination of the provider under CHAMPUS shall continue even if the provider obtains a license to practice in a second jurisdiction during the period of suspension or revocation of the provider's license by the original licensing jurisdiction. A provider who has licenses to practice in two or more jurisdictions and has one or more license(s) suspended or revoked will also be terminated as a CHAMPUS provider.
(A) Professional providers shall remain terminated from the CHAMPUS until the jurisdiction(s) suspending or revoking the provider's license(s) to practice restores it or removes the impediment to restoration.
(B) Institutional providers shall remain terminated under CHAMPUS until their license is restored. In the event the facility is sold, transferred, or reorganized as a new legal entity, and a license issued under a new name or to a different legal entity, the new entity must submit an application to be an authorized CHAMPUS provider.
(ii) If the CHAMPUS provider status is terminated due to the loss of the provider's license, the effective date shall be retroactive to the date the provider lost the license; however, in the case of a professional provider who has licenses in two or more jurisdictions and submitted claims from a jurisdiction from which he/she had a valid license, the effective date of the termination will be 15 calendar days from the date of the written initial determination of termination for purposes of claims from the jurisdiction in which the provider still has a valid license.
(h)
(ii) When adequate evidence exists to determine that a provider or beneficiary is submitting fraudulent or false claims or claims involving practices that may be fraud or abuse as defined by this part, the Director, OCHAMPUS, or a designee, may suspend CHAMPUS claims processing (in whole or in part) for claims submitted
(A) Adequate evidence is any information sufficient to support the reasonable belief that a particular act or omission has occurred.
(B) Indictment or any other initiation of criminal charges, filing of a complaint for civil fraud, issuance of an administrative complaint under the Program Fraud Civil Remedies Act, or issuance of an initial determination under this part for submitting fraudulent or false claims or claims involving practices that may be fraud or abuse as defined by this part, shall constitute adequate evidence for invoking temporary suspension of claims processing.
(iii) The Director, OCHAMPUS, or a designee, may suspend CHAMPUS claims processing without first notifying the provider or beneficiary of the intent to suspend payments. Following a decision to invoke a temporary suspension, however, the Director, OCHAMPUS, or a designee, shall issue written notice advising the provider or beneficiary that:
(A) A temporary suspension of claims processing has been ordered and a statement of the basis of the decision to suspend payment. Unless the suspension is based on any of the actions set forth in paragraph (h)(1)(ii)(B) of this section, the notice shall describe the suspected acts or omissions in terms sufficient to place the provider or beneficiary on notice without disclosing the Government's evidence.
(B) Within 30 days (or, upon written request received by OCHAMPUS during the 30 days and for good cause shown, within 60 days) from the date of the notice, the provider or beneficiary may:
(
(
(C) Additional proceedings to determine disputed material facts may be conducted unless:
(
(
(iv) If the beneficiary or provider submits, either in writing or in person, additional information or argument in opposition to the suspension, the Director, OCHAMPUS, or a designee, shall issue a suspending official's decision which modifies, terminates, or leaves in force the suspension of claims processing. However, a decision to terminate or modify the suspension shall be without prejudice to the subsequent imposition of suspension of claims processing, imposition of sanctions under this § 199.9, the recovery of erroneous payments under § 199.11 of this part, or any other administrative or legal action authorized by law or regulation. The suspending official's decision shall be in writing as follows:
(A) A written decision based on all the information in the administrative record, including any submission by the beneficiary or provider, shall be final in a case:
(
(
(
(B) In a case in which additional proceedings are necessary as to disputed material facts, the suspending official's decision shall advise the beneficiary or provider that the case has been referred for handling as a hearing under § 199.10 of this part.
(v) A suspension of claims processing may be modified or terminated for reasons such as:
(A) Newly discovered evidence;
(B) Elimination of any of the causes for which the suspension was invoked; or
(C) Other reasons the Director, OCHAMPUS, or a designee, deems appropriate.
(vi) A suspension of claims processing shall be for a temporary period pending the completion of investigation and any ensuing legal or administrative proceedings, unless sooner terminated by the Director, OCHAMPUS, or a designee, or as provided in this subparagraph.
(A) If legal or administrative proceedings are not initiated within 12 months after the date of the suspension notice, the suspension shall be terminated unless the Government official responsible for initiation of the legal or administrative action requests its extension, in which case it may be extended for an additional 6 months. In no event may a suspension extend beyond 18 months, unless legal or administrative proceedings have been initiated during that period.
(B) The Director, OCHAMPUS, or a designee, shall notify the Government official responsible for initiation of the legal or administrative action of the proposed termination of the suspension, at least 30 days before the 12-month period expires, to give the official an opportunity to request an extension.
(2)
(A) The notice shall state which sanction will be taken and the effective date of that sanction as determined in accordance with the provisions of this part.
(B) The notice shall inform the provider of the situation(s), circumstance(s), or action(s) which form the basis for the proposed sanction and reference the paragraph of this part under which the administrative action is being taken.
(C) The notice will be sent to the provider's last known business or office address (or home address if there is no known business address.)
(D) The notice shall offer the provider an opportunity to respond within 30 days (or, upon written request received by OCHAMPUS during the 30 days and for good cause shown, within 60 days) from the date on the notice with either:
(
(
(3)
(ii) The initial determination shall include:
(A) A statement of the sanction being invoked;
(B) A statement of the effective date of the sanction;
(C) A statement of the facts, circumstances, or actions which form the basis for the sanction and a discussion of any information submitted by the provider relevant to the sanction;
(D) A statement of the factors considered in determining the period of sanction;
(E) The earliest date on which a request for reinstatement under CHAMPUS will be accepted;
(F) The requirements and procedures for reinstatement; and,
(G) Notice of the available hearing upon request of the sanctioned provider.
(4)
(B) If the Government has made erroneous payments to a provider because of claims involving fraud, abuse, or conflicts of interest, restitution of the erroneous payments shall be made before a request for reinstatement as a CHAMPUS authorized provider will be considered. Without restitution or resolution of the debt under § 199.11 of this part, a provider shall not be reinstated as an authorized CHAMPUS provider. This is not an appealable issue under § 199.10 of this part.
(C) For purposes of authorization as a CHAMPUS provider, a provider who is excluded or suspended under this § 199.9 and who submits participating claims for services furnished on or after the effective date of the exclusion or suspension is considered to have forfeited or waived any right or entitlement to bill the beneficiary for the care involved in the claims. Similarly, because a provider is expected to know the CHAMPUS requirements for qualification as an authorized provider, any participating provider who fails to meet the qualification requirements for CHAMPUS is considered to have forfeited or waived any right or entitlement to bill the beneficiary for the care involved in the CHAMPUS claims. If, in either situation, the provider bills the beneficiary, restitution to the beneficiary may be required by the Director, OCHAMPUS, or a designee, as a condition for consideration of reinstatement as a CHAMPUS authorized provider.
(ii)
(iii)
(
(
(B) A provider entity excluded from CHAMPUS under § 199.9(f)(1)(i) may seek reinstatement by submitting a written request to the Director, OCHAMPUS, or a designee, with documentation sufficient to establish the provider's qualifications under this part to be a CHAMPUS authorized provider and either:
(
(
(
(
(
Under paragraph (h)(4)(iii)(B)(
(iv)
(A) The provider meets all requirements under this part to be an authorized CHAMPUS provider;
(B) No additional criminal, civil, or administrative action has been taken or is being considered which could subject the provider to exclusion, suspension, or termination under this section;
(C) In the case of a provider entity, verification has been made of the divestiture or termination of the owner, controlling party, officer, director, agent or managing employee whose conviction led to the entity's exclusion,
(v)
(
(
(B)
(5)
(ii) If an exclusion is voided under paragraph (h)(5)(i) of this section, CHAMPUS will make payment, either to the provider or the beneficiary (if the claim was not a participating claim) for otherwise authorized services under CHAMPUS that are furnished or performed during the period of exclusion.
(iii) CHAMPUS will also void the exclusion of any entity that was excluded under § 199.9(f)(1)(i) based
(iv) When CHAMPUS voids the exclusion of a provider or an entity, notice will be given to the agencies and others that were originally notified, in accordance with § 199.9(k).
(i)
(2)
(i) Results of audits conducted by or on behalf of the Government. Such audits can include the results of 100 percent review of claims and related records or a statistically valid sample audit of the claims or records. A statistical sampling shall constitute
(ii) Reports, including sanction reports, from various sources including a peer review organization (PRO) for the area served by the provider; state or local licensing or certification authorities; peer or medical review consultants of the Government, including consultants for Government contractors; state or local professional societies; or other sources deemed appropriate by the Director, OCHAMPUS, or a designee.
(iii) Orders or documents issued by Federal, state, foreign, or other courts of competent jurisdiction which issue findings and/or criminal convictions or civil judgments involving the provider, and administrative rulings, findings, or determinations by any agency of the Federal Government, a state, or local licensing or certification authority regarding the provider's status with that agency or authority.
(j)
(2) The normal OCHAMPUS procedure is to suspend action on the administrative process pending an investigation by the Department of Defense—Inspector General or final disposition by the Department of Justice.
(3) Though OCHAMPUS administrative action is taken independently of any action by the Department of Defense-Inspector General or by the Department of Justice, once a case is forwarded to the Department of Defense-Inspector General or the Department of Justice for legal action (criminal or civil), administrative action may be held in abeyance.
(4) In some instances there may be dual jurisdiction between agencies; as
(k)
(2) If CHAMPUS has temporarily suspended claims processing, notice of such action normally will be given to the affected provider and Uniformed Services Medical Treatment Facilities, Health Benefits Advisors, beneficiaries, and sponsors. Notice may also be given to any information or news media and any other individual, professional provider, or institutional provider, as deemed appropriate. However, since a “temporary suspension of claims processing” is by definition not a final or formal agency action, the basis for the action generally will not be disclosed. It is noted that the basis for the action can be a result of questions arising from routine audits to investigation of possible criminal violations.
(l)
(2) When it is in the best interest of CHAMPUS, the Director, OCHAMPUS, has the discretionary authority to waive an action or enter into compromise or settlement of administrative actions taken under this § 199.9.
(m)
(a)
(1)
(B) CHAMPUS contractors and OCHAMPUSEUR shall notify a provider of an initial determination on a claim only if the provider participated in the claim. (See § 199.7 of this part.)
(C) CHAMPUS peer review organizations shall notify providers and fiscal intermediaries of a denial determination on a claim.
(D) Notice of an initial determination on a claim processed by a CHAMPUS contractor or OCHAMPUSEUR normally will be made on a CHAMPUS Explanation of Benefits (CEOB) form.
(E) Each notice of an initial determination on a request for benefit authorization, a request by a provider for approval as an authorized CHAMPUS provider, or a decision to disqualify or exclude a provider as an authorized provider under CHAMPUS shall state the reason for the determination and the underlying facts supporting the determination.
(F) In any case when the initial determination is adverse to the beneficiary or participating provider, or to the provider seeking approval as an authorized CHAMPUS provider, the notice shall include a statement of the beneficiary's or provider's right to appeal the determination. The procedure for filing the appeal also shall be explained.
(ii)
(B) An initial determination involving a CHAMPUS beneficiary entitled to Medicare Part A, who is enrolled in Medicare Part B, may be appealed by the beneficiary or their provider under this section of this Part only when the claimed services or supplies are payable by CHAMPUS and are not payable under Medicare. Both Medicare and CHAMPUS offer an appeal process when a claim for healthcare services or supplies is denied and most healthcare services and supplies are a benefit payable under both Medicare and CHAMPUS. In order to avoid confusion on the part of beneficiaries and providers and to expedite the appeal process, services and supplies denied payment by Medicare will not be considered for coverage by CHAMPUS if the Medicare denial of payment is appealable under Medicare. Because such claims are not considered for payment by CHAMPUS, there can be no CHAMPUS appeal. If, however, a Medicare claim or appeal results in some payment by Medicare, the services and supplies paid by Medicare will be considered for payment by CHAMPUS. In that situation, any decision to deny CHAMPUS payment will be appealable under this section. The following examples of CHAMPUS appealable issues involving Medicare-eligible CHAMPUS beneficiaries are illustrative; they are not all-inclusive.
(
(
(
(2)
(i)
(A) A provider disqualified or excluded as an authorized provider under CHAMPUS based on a determination of abuse or fraudulent practices or procedures under another Federal or federally funded program is not a party to the CHAMPUS action and may not appeal under this section.
(B) A beneficiary who has an interest in receiving care or has received care from a particular provider cannot be an appealing party regarding the exclusion, suspension, or termination of the provider under § 199.9 of this part.
(C) A sponsor or parent of a beneficiary under 18 years of age or guardian or an incompetent beneficiary is not a party to the initial determination and may not serve as the appealing party, although such persons may represent the appealing party in an appeal.
(D) A third party, such as an insurance company, is not a party to the initial determination and is not entitled to appeal even though it may have an indirect interest in the initial determination.
(E) A nonparticipating provider is not a party to the initial determination and may not appeal.
(ii)
(A) The representative shall have the same authority as the party to the appeal and notice given to the representative shall constitute notice required to be given to the party under this part.
(B) To avoid possible conflicts of interest, an officer or employee of the United States, such as an employee or member of a Uniformed Service, including an employee or staff member of a Uniformed Service legal office, or a CHAMPUS advisor, subject to the exceptions in 18 U.S.C. 205, is not eligible to serve as a representative. An exception usually is made for an employee or member of a Uniformed Service who represents an immediate family member. In addition, the Director, OCHAMPUS, or designee, may appoint an officer or employee of the United States as the CHAMPUS representative at a hearing.
(3)
(4)
(5)
(6)
(i) A dispute regarding a requirement of the law or regulation.
(ii) The amount of the CHAMPUS-determined allowable cost or charge, since the methodology for determining allowable costs or charges is established by this part.
(iii) The establishment of diagnosis-related groups (DRGs), or the methodology for the classification of inpatient discharges within the DRGs, or the weighting factors that reflect the relative hospital resources used with respect to discharges within each DRG, since each of these is established by this part.
(iv) Certain other issues on the basis that the authority for the initial determination is not vested in CHAMPUS. Such issues include but are not limited to the following examples:
(A) Determination of a person's eligibility as a CHAMPUS beneficiary is the responsibility of the appropriate Uniformed Service. Although OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors must make determinations concerning a beneficiary's eligibility in order to ensure proper disbursement of appropriated funds on each CHAMPUS claim processed, ultimate responsibility for resolving a beneficiary's eligibility rests with the Uniformed Services. Accordingly, disputed question of fact concerning a beneficiary's eligibility will not be considered an appealable issue under the provisions of this section, but shall be resolved in accordance with § 199.3 of this part.
(B) Similarly, decisions relating to the issuance of a Nonavailability Statement (DD Form 1251) in each case are made by the Uniformed Services. Disputes over the need for a Nonavailability Statement or a refusal to issue a Nonavailability Statement are not appealable under this section. The one exception is when a dispute arises over whether the facts of the case demonstrate a medical emergency for which a Nonavailability Statement is not required. Denial of payment in this one situation is an appealable issue.
(C) Any sanction, including the period of the sanction, imposed under § 199.9 of this part which is based solely on a provider's exclusion or suspension by another agency of the Federal Government, a state, or a local licensing authority is not appealable under this
(v) A decision by the Director, OCHAMPUS, or a designee, as a suspending official when the decision is final under the provisions of § 199.9(h)(1)(iv)(A).
(7)
(i) The amount in dispute is calculated as the amount of money CHAMPUS would pay if the services and supplies involved in dispute were determined to be authorized CHAMPUS benefits. Examples of amounts of money that are excluded by the Regulation from CHAMPUS payments for authorized benefits include, but are not limited to:
(A) Amounts in excess of the CHAMPUS-determined allowable charge or cost.
(B) The beneficiary's CHAMPUS deductible and cost-share amounts.
(C) Amounts that the CHAMPUS beneficiary, or parent, guardian, or other responsible person has no legal obligation to pay.
(D) Amounts excluded under the provisions of § 199.8 of this part.
(ii) The amount of dispute for appeals involving a denial of a request for authorization in advance of obtaining care shall be the estimated allowable charge or cost for the services requested.
(iii) There is no requirement for an amount in dispute when the appealable issue involves a denial of a provider's request for approval as an authorized CHAMPUS provider or the determination to exclude, suspend, or terminate a provider's authorized CHAMPUS provider status.
(iv) Individual claims may be combined to meet the required amount in dispute if all of the following exist:
(A) The claims involve the same beneficiary.
(B) The claims involve the same issue.
(C) At least one of the claims so combined has had a reconsideration decision issued by OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer review organization.
A request for administrative review under this appeal process which involves a dispute regarding a requirement of law or regulation (paragraph (a)(6)(i) of this section) or does not involve a sufficient amount in dispute (paragraph (a)(7) of this section) may not be rejected at the reconsideration level of appeal. However, an appeal shall involve an appealable issue and sufficient amount in dispute under these paragraphs to be granted a formal review or hearing.
(8)
(i)
(B) Formal review by OCHAMPUS (except for CHAMPUS peer review organization reconsiderations).
(C) Hearing.
(ii)
(B) Formal review by OCHAMPUS
(C) Hearing.
(9)
(b)
(1)
(ii)
(iii)
(iv)
(2)
(3)
(4)
(i) A statement of the issues or issue under appeal.
(ii) The provisions of law, regulation, policies, and guidelines that apply to the issue or issues under appeal.
(iii) A discussion of the original and additional information that is relevant to the issue or issues under appeal.
(iv) Whether the reconsideration upholds the initial determination or reverses it, in whole or in part, and the rationale for the action.
(v) A statement of the right to appeal further in any case when the reconsideration determination is less than fully favorable to the appealing party and the amount in dispute is $50 or more.
(5)
(i) The amount in dispute is less than $50.
(ii) Appeal rights have been offered, but a request for formal review is not received by OCHAMPUS within 60 days of the date of the notice of the reconsideration determination.
(c)
(1)
(ii)
(iii)
(iv)
(2)
(3)
(4)
(i) A statement of the issue or issues under appeal.
(ii) The provisions of law, regulation, policies, and guidelines that apply to the issue or issues under appeal.
(iii) A discussion of the original and additional information that is relevant to the issue or issues under appeal.
(iv) Whether the formal review upholds the prior determination or determinations or reverses the prior determination or determinations in whole or in part and the rationale for the action.
(v) A statement of the right to request a hearing in any case when the formal review determination is less than fully favorable, the issue is appealable, and the amount in dispute is $300 or more.
(5)
(i) The issue is not appealable. (See paragraph (a)(6) of this section.)
(ii) The amount in dispute is less than $300. (See paragraph (a)(7) of this section.)
(iii) Appeal rights have been offered but a request for hearing is not received by OCHAMPUS within 60 days of the date of the notice of the formal review determination.
(d)
(1)
(ii)
(iii)
(iv)
(2)
(3)
(ii) The hearing officer, except as otherwise provided in this Section, normally shall have 60 days from the date of written notice of assignment to review the file, schedule and hold the hearing, and issue a recommended decision to the Director, OCHAMPUS, or designee.
(iii) The Director, OCHAMPUS, or designee, may delay the case assignment to the hearing officer if additional information is needed that cannot be obtained and included in the record within the time period specified above. The appealing party will be notified in writing of the delay resulting from the request for additional information. The Director, OCHAMPUS, or a designee, in such circumstances, will assign the case to a hearing officer within 30 days of receipt of all such additional information, or within 60 days of receipt of the request for hearing, whichever shall occur last.
(iv) The hearing officer may delay submitting the recommended decision if, at the close of the hearing, any party to the hearing requests that the record remain open for submission of additional information. In such circumstances, the hearing officer will have 30 days following receipt of all such additional information including comments from the other parties to the hearing concerning the additional information to submit the recommended decision to the Director, OCHAMPUS, or a designee.
(4)
(5)
(6)
(7)
(8)
(9)
(ii)
(iii)
(A) An appealing party shall be deemed to have abandoned a request for hearing, other than when personal appearance is waived in accordance with § 199.10(d)(11)(xii), if neither the appealing party nor an appointed representative appears at the time and place fixed for the hearing and if, within 10 days after the mailing of a notice by certified mail to the appealing party by the hearing officer to show cause, such party does not show good and sufficient cause for such failure to appear and failure to notify the hearing officer before the time fixed for hearing that an appearance could not be made.
(B) An appealing party shall be deemed to have abandoned a request for hearing if, before assignment of the case to the hearing officer, OCHAMPUS is unable to locate either the appealing party or an appointed representative.
(C) An appealing party shall be deemed to have abandoned a request for hearing if the appealing party fails to prosecute the appeal. Failure to prosecute the appeal includes, but is not limited to, an appealing party's failure to provide information reasonably requested by OCHAMPUS or the hearing officer for consideration in the appeal.
(D) If the Director, OCHAMPUS, or a designee, dismisses the request for hearing because of abandonment, the formal review determination in the case shall be deemed to be final, unless the dismissal is vacated in accordance with paragraph (d)(9)(v) of this section.
(iv)
(A) When the appealing party requesting the hearing is not a proper party under paragraph (a)(2)(i) of this section, or does not otherwise have a right to participate in a hearing.
(B) When the appealing party who filed the hearing request dies, and there is no information before the Director, OCHAMPUS, or a designee, showing that a party to the initial determination who is not an appealing party may be prejudiced by the formal review determination.
(C) When the issue is not appealable (see § 199.10(a)(6)).
(D) When the amount in dispute is less than $300 (see § 199.10(a)(7)).
(E) When all appealable issues have been resolved in favor of the appealing party.
(v)
(10)
(ii)
(iii)
(11)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(A)
(B)
(xi)
(xii)
(12)
(i)
(ii)
(e)
(i)
(ii)
(2)
(a)
(b)
(2)
(i) State worker's compensation laws.
(ii) State hospital lien laws.
(iii) State no-fault automobile statutes.
(iv) Contract rights under terms of insurance policies.
(c)
(d)
(e)
(f)
(2)
(ii)
(iii)
(3)
(4)
(5)
(ii) When it is determined that a person was not a TRICARE beneficiary, the TRICARE contractor and the civilian source of medical care are expected to make all reasonable efforts to obtain payment or to recoup the amount of the good faith payment from the person who erroneously claimed to be the TRICARE beneficiary. Recoupment of good faith payments initiated by the TRICARE contractor will be processed pursuant to the provisions of paragraph (f) of this section.
(6)
(ii)
(A) The basis for and amount of the debt and the consequences of failing to cooperate to resolve the debt;
(B) The right to inspect and copy TRICARE records pertaining to the debt;
(C) The opportunity to request an administrative review by the TRICARE contractor; and that such a request must be received by the TRICARE contractor within 90 days from the date of the initial demand letter;
(D) That payment of the debt is due within 30 days from the date of the initial demand notification;
(E) That interest will be assessed on the debt at the Treasury Current Value of Funds rate, pursuant to 31 U.S.C. 3717, and will begin to accrue on the date of the initial demand letter; and that interest will be waived on the debt, or any portion thereof, which is paid within 30 days from the date of the initial demand notification letter;
(F) That administrative costs and penalties will be charged pursuant to 31 CFR 901.9;
(G) That collection by offset against current or subsequent claims or other amounts payable from the government may be taken;
(H) The opportunity to enter into a written agreement to repay the debt;
(I) The name, address, and phone number of a contact person or office that the debtor may contact regarding the debt.
(iii) A minimum of one demand letter is required. However, the specific content, timing and number of demand letters may be tailored to the type and amount of the debt, and the debtor's response, if any. Contractors' demand letters must be mailed or hand-delivered on the same date they are dated.
(iv) The initial or subsequent demand letters may also inform the debtor of the requirement to report delinquent debts to credit reporting agencies and to collection agencies, the requirement to refer debts to the Treasury Offset Program for offset from Federal income tax refunds and other amounts payable by the Government, offset from state payments, the requirement to refer debts to Treasury for collection and TRICARE policies concerning the referral of delinquent debts to the Department of Justice for enforced collection action. The initial or subsequent demand letter may also inform the debtor of TRICARE policies concerning waiver. When necessary to protect the Government's interest (for example to prevent the running of a statute of limitations), written demand may be preceded by other appropriate actions under this regulation, including referral to the Department of Justice for litigation. There should be no undue delay in responding to any communication received from the debtor. Responses to communications from debtors should be made within 30 days of receipt whenever feasible. If prior to the initiation of the demand process or at any time during or after completion of the demand process, the Director, TMA, or a designee, determines to pursue or is required to pursue offset, the procedures applicable to administrative offset, found at paragraph (f)(6)(v) of this section, must be followed. If it appears that initial collection efforts are not productive or if immediate legal action on the claim appears necessary, the claim shall be referred promptly by the contractor to the Office of General Counsel, TMA.
(v)
(A)
(B)
(vi)
(B) The requirement of paragraph (f)(1) of this section does not apply to any debt that:
(
(
(
(
(
(vii)
(A) For collections by salary offset the Director, TMA, or designee, will issue written notification, as required by 5 CFR 550.1104(d) at least 30 days before any offsets are taken. In addition, the notification will advise the employee that if he or she retires, resigns or his or her employment ends before collection of the debt is completed, collection may be made from subsequent payments of any nature due from the United States (e.g., final salary payment, lump-sum leave under 31 U.S.C. 3716 due the employee as of date of separation.) A debtor's involuntary payment of all or part of a debt being collected will not be construed as a waiver of any rights the debtor may have under 5 U.S.C. 5514 or any other provision of contract or law, unless there are statutory or contractual provisions to the contrary or the employee's paying agency is directed by an administrative or judicial order to refund amounts deducted from his or her current pay. No interest will be paid on amounts waived or determined not to be owed unless there are statutory or contractual provisions to the contrary.
(B)
(C)
(
(
(
(
(
(D)
(E)
(F)
(viii) [Reserved]
(ix)
(x)
(A) Waiver of interest consistent with 31 CFR 903.2(c)(2) in connection with a suspension of collection when a TRICARE appeal is pending under § 199.10 of this part where there is a substantial issue of fact in dispute.
(B) Waiver of interest where the original debt arose through no fault or lack of good faith on the part of the debtor and the collection of interest would impose a financial hardship or burden on the debtor. Some examples in which such a waiver would be appropriate include: A debt arising when a TRICARE beneficiary in good faith files and is paid for a claim for medical services or supplies, which are later determined not to be covered benefits, or a debt arising when a TRICARE beneficiary is overpaid as the result of a calculation error on the part of the TRICARE contractor or TMA.
(C) Waiver of interest where there has been an agreement to repay a debt in installments, there is no indication of fault or lack of good faith on the part of the debtor, and the amount of interest is so large in relation to the size of the installments that the debtor can reasonably afford to pay, that it is likely the debt will never be repaid in full. When a debt is paid in installments, the installment payments first will be applied to the payment of outstanding penalty and administrative cost charges, second, to accrued interest and then to principal. Administrative costs incurred as the result of a debt becoming delinquent (as defined in paragraph (f)(2)(iii) of this section) shall be assessed against a debtor. These administrative costs represent the additional costs incurred in processing and handling the debt because it became delinquent. The calculation of administrative costs should be based upon cost analysis establishing an average of actual additional costs incurred in processing and handling claims against other debtors in similar stages of delinquency. A penalty charge, not exceeding six percent a year, shall be assessed on the amount due on a debt that is delinquent for more than 90 days. This charge, which need not be calculated until the 91st day of delinquency, shall accrue from the date that the debt became delinquent.
(xi)
(xii)
(xiii)
(g)
(2)
(3)
(i) The debtor or the estate of a debtor does not have the present or prospective ability to pay the full amount within a reasonable time;
(ii) The cost of collecting the claim does not justify enforced collection of the full amount; or
(iii) The government is unable to enforce collection of the full amount within a reasonable time by enforced collection proceedings; or
(iv) There is significant doubt concerning the Government's ability to prove its case in court for the full amount claimed; or
(v) The cost of collecting the claim does not justify enforced collection of the full amount.
(4)
(i) The debtor cannot be located; or
(ii) The debtor's financial condition is expected to improve; or
(iii) The debtor is unable to make payments on the government's claim or effect a compromise at the time, but the debtor's future prospects justify retention of the claim for periodic review and action and;
(A) The applicable statute of limitations has been tolled or started running anew; or
(B) Future collections can be effected by administrative offset, notwithstanding the expiration of the applicable statute of limitations for litigation of claims with due regard to the 10-year limitation for administrative offset under 31 U.S.C. 3716(e)(1); or
(C) The debtor agrees to pay interest on the amount of the debt on which collection action will be temporarily suspended and such temporary suspension is likely to enhance the debtor's ability fully to pay the principal amount of the debt with interest at a later date.
(iv) Consideration may be given by the Director, TMA, or designee to suspend collection action pending action on a request for a review of the government's claim against the debtor or pending an administrative review under § 199.10 of this part of any TRICARE claim or claims directly involved in the government's claim against the debtor. Suspension under this paragraph will be made on a case-by-case basis as to whether:
(A) There is a reasonable possibility that the debt (in whole or in part) will be found not owing from the debtor;
(B) The government's interest would be protected if suspension were granted by reasonable assurance that the debt would be recovered if the debtor does not prevail; and
(C) Collection of the debt will cause undue hardship.
(5) Collection action may be terminated for one or more of the following reasons:
(i) TMA cannot collect or enforce collection of any substantial amount through its own efforts or the efforts of others, including consideration of the judicial remedies available to the government, the debtor's future financial prospects, and the exemptions available to the debtor under state and federal law;
(ii) The debtor cannot be located, and either;
(iii) The costs of collection are anticipated to exceed the amount recoverable; or
(iv) It is determined that the debt is legally without merit or enforcement of the debt is barred by any applicable statute of limitations; or
(v) The debt cannot be substantiated; or
(vi) The debt against the debtor has been discharged in bankruptcy. Collection activity may be continued subject to the provisions of the Bankruptcy Code, such as collection of any payments provided under a plan of reorganization or in cases when TMA did not receive notice of the bankruptcy proceedings.
(6) In determining whether the debt should be compromised, suspended or terminated, the responsible TMA collection authority will consider the following factors:
(i) Age and health of the debtor; present and potential income; inheritance prospects; the possibility that assets have been concealed or improperly transferred by the debtor; and the availability of assets or income which
(ii) Applicability of exemptions available to a debtor under state or federal law;
(iii) Uncertainty as to the price which collateral or other property may bring at a forced sale;
(iv) The probability of proving the claim in court because of legal issues involved or because of a bona fide dispute of the facts; the probability of full or partial recovery; the availability of necessary evidence and related pragmatic considerations. Debtors may be required to provide a completed Department of Justice Financial Statement of Debtor form (OBD-500 or such other form that DOJ shall prescribe) or other financial information that will permit TMA to verify debtors' representations. TMA may obtain credit reports or other financial information to enable it independently to verify debtors' representations.
(7) Payment of compromised claims. (i)
(ii)
(iii) Effect of compromise, waiver, suspension or termination of collection action. Pursuant to the Internal Revenue Code, 26 U.S.C. 6050P, compromises and terminations of undisputed debts totaling $600 or more for the year will be reported to the Internal Revenue Service in the manner prescribed. Amounts, other than those discharged in bankruptcy, will be included in the debtor's gross income for that year. Any action taken under paragraph (g) of this section regarding the compromise of a federal claim, or waiver or suspension or termination of collection action on a federal claim is not an initial determination for the purposes of the appeal procedures in § 199.10.
(h)
(2)
(i)
(ii) [Reserved]
(a)
(2)
(ii)
(c)
(d)
(2)
(3)
(4)
(e)
(2)
(f)
(g)
(1) This includes the authority under 10 U.S.C. 1095(e)(1) for the United States to institute and prosecute legal proceedings against a third-party payer to enforce a right of the United States under 10 U.S.C. 1095b and this section.
(2) This also includes the authority under 10 U.S.C. 1095(e)(2) for an authorized representative of the United States to compromise, settle or waive a claim of the United States under 10 U.S.C. 1095b and this section.
(3) The authorities provided by the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701
(h)
(1) To provide information regarding coverage by a third-party payer plan and/or the circumstances surrounding an injury to the patient as a conditional precedent of the processing of a TRICARE claim involving possible third-party payer coverage.
(2) To furnish such additional information as may be requested concerning the circumstances giving rise to the injury or disease for which care and treatment are being given and concerning any action instituted or to be instituted by or against a third person; and,
(3) To cooperate in the prosecution of all claims and actions by the United States against such third person.
(i)
(1)
(2)
(3)
(j)
(1)
(2)
(3)
(a)
(2)
(B) Extension of the TDP to areas outside the CONUS service area. In accordance with the authority cited in 10 U.S.C. 1076a(h), the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) may extend the TDP to areas other than those areas specified in paragraph (a)(2)(i)(A) of this section for the eligible members and eligible dependents of members of the Uniformed Services. These areas are collectively referred to as the “OCONUS (or outside the Continental United States) service area”. In extending the TDP outside the CONUS service area, the ASD(HA), or designee, is authorized to establish program elements, methods of administration and payment rates and procedures to providers that are different from those in effect for the CONUS service area to the extent the ASD(HA), or designee, determines necessary for the effective and efficient operation of the TDP. This includes provisions for preauthorization of care if the needed services are not available in a Uniformed Service overseas dental treatment facility and payment by the Department of certain cost-shares (or co-payments) and other portions of a provider's billed charges for certain beneficiary categories. Other differences may occur based on limitations in the availability and capabilities of the Uniformed Service overseas dental treatment facility and a particular nation's civilian sector providers in certain areas. These differences include varying licensure and certification requirements of OCONUS providers, Uniformed Service provider selection criteria and local results of provider selection, referral, beneficiary pre-authorization and marketing procedures, and care for beneficiaries residing in distant areas. The Director, Office of Civilian Health and Medical Program of the Uniformed Services (OCHAMPUS) shall issue guidance, as necessary, to implement the provisions of paragraph (a)(2)(i)(B). Beneficiaries will be eligible for the same TDP benefits in the OCONUS service area although services may not be available or accessible in all OCONUS countries.
(ii)
(iii)
(iv)
(A) Dependents who are 12 years of age or younger and are covered by a dental plan established under this section may be treated by postgraduate dental residents in a dental treatment facility of the uniformed services under a graduate dental education program accredited by the American Dental Association if
(
(
(B) The total number of dependents treated in all facilities of the uniformed services under paragraph (a)(2)(iv) in a fiscal year may not exceed 2,000.
(3)
(B)
(ii)
(B)
(4)
(ii) Based on the determination set forth in paragraph (a)(4)(i) of this section, any State or local law relating to health or dental insurance, prepaid health or dental plans, or other health or dental care delivery or financing methods is preempted and does not apply in connection with the TDP contract. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TDP contract. (However, DoD may, by contract, establish legal obligations on the part of the dental plan contractor to conform with requirements similar or identical to requirements of State or local laws or regulations.)
(iii) The preemption of State and local laws set forth in paragraph (a)(4)(ii) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of the statutes identified in paragraph (a)(4)(i) of this section. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees, or other payments are applicable to a broad range of business activity. For purposes of assessing the
(5)
(ii)
(iii)
(iv)
(A) Development, publication, and enforcement of benefit policy, exclusions, and limitations in compliance with the law, regulation, and the contract provisions;
(B) Adjudicating and processing claims; and conducting related supporting activities, such as enrollment, disenrollment, collection of premiums, eligibility verification, provider relations, and beneficiary communications.
(6)
(7)
(i) Disclosure of such information is necessary to the determination by a provider or the dental plan contractor of beneficiary enrollment or eligibility for coverage of specific services;
(ii) Disclosure of such information is authorized specifically by the beneficiary;
(iii) Disclosure is necessary to permit authorized Government officials to investigate and prosecute criminal actions;
(iv) Disclosure constitutes a routine use of a routine use of a record which is compatible with the purpose for which it was collected. This includes a standard and acceptable business practice commonly used among dental insurers which is consistent with the principle of preserving confidentiality of personal information and detailed clinical data. For example, the release of utilization information for the purpose of determining eligibility for certain services, such as the number of dental prophylaxis procedures performed for a beneficiary, is authorized;
(v) Disclosure is pursuant to an order from a court of competent jurisdiction; or
(vi) Disclosure by the Director, OCHAMPUS, or designee, is for the purpose of determining the applicability of, and implementing the provisions of, other dental benefits coverage or entitlement.
(8)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(i) Enrolling all active duty, Reserve and retired service members, their dependents, and the dependents of deceased service members; and
(ii) Verifying their eligibility for health care benefits in the direct care facilities and through the TDP.
(9)
(10)
(11)
(i) Clinical oral examinations;
(ii) Radiographic examinations; and
(iii) Diagnostic laboratory tests and examinations provided in connection with other dental procedures authorized as benefits of the TDP and further defined in paragraph (e) of the section.
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(c)
(2)
(A) A person who bears one of the following relationships to an active duty member (under a call or order that does not specify a period of thirty (30) days or less) or a member of the Selected Reserve (as specified in 10 U.S.C. 10143) or Individual Ready Reserve (as specified in 10 U.S.C. 10144):
(
(
(B) A member of the Selected Reserve of the Ready Reserve (as specified in 10 U.S.C. 10143).
(C) A member of the Individual Ready Reserve of the Ready Reserve (as specified in 10 U.S.C. 10144(b)) who is subject to being ordered to active duty involuntarily in accordance with 10 U.S.C. 12304.
(D) All other members of the Individual Ready Reserve of the Ready Reserve (as specified in 10 U.S.C. 10144(a)).
(ii)
(B)
(C)
(3)
(B)
(ii)
(
(B)
(
(
(
(
(
(C)
(
(
(
(D)
(E)
(
(
(
(
(
(
(
(
(
(
(d)
(i)
(ii)
(2)
(3)
(A) The percent by which the rates of basic pay of members of the Uniformed Services are increased on such date; or
(B) The sum of one-half percent and the percent computed under 5 U.S.C. 5303(a) for the increase in rates of basic pay for statutory pay systems for pay periods beginning on or after such date.
(ii) Under the legislation authorizing an increase in the monthly premium cap, the methodology for determining the active duty, Selected Reserve and Individual Ready Reserve member's TDP premium pursuant to paragraph (d)(1)(i) of this section will be applied as if the methodology had been in continuous use since December 31, 1993.
(4)
(5)
(6)
(7)
(e)
(ii)
(iii)
(B)
(iv)
(A) The service, procedure, or course of treatment must be consistent with sound professional standards of dental practice for the dental condition concerned.
(B) The service, procedure, or course of treatment must be a generally accepted alternative for a service or procedure covered by the TDP for the dental condition.
(C) Payment for the alternative service or procedure may not exceed the lower of the prevailing limits for the alternative procedure, the prevailing limits or dental plan contractor's scheduled allowance for the otherwise authorized benefit procedure for which the alternative is substituted, or the actual charge for the alternative procedure.
(2)
(i)
(A) Diagnostic services. (
(
(
(B) Preventive services. (
(
(
(
(ii)
(A) Unclassified treatment.
(B) Anesthesia.
(C) Professional consultation.
(D) Professional visits.
(E) Drugs.
(F) Miscellaneous services.
(iii)
(A) Amalgam restorations.
(B) Resin restorations.
(C) Inlay and onlay restorations.
(D) Crowns.
(E) Other restorative services.
(iv)
(A) Pulp capping.
(B) Pulpotomy and pulpectomy.
(C) Endodontic therapy.
(D) Apexification and recalcification procedures.
(E) Apicoectomy and periradicular services.
(F) Other endodontic procedures.
(v)
(A) Surgical services.
(B) Periodontal services.
(C) Other periodontal services.
(vi)
(A) Prosthodontics (removable).
(
(
(
(
(
(
(B) Prosthodontics (fixed).
(
(
(
(vii)
(A) Limited orthodontic treatment.
(B) Minor treatment to control harmful habits.
(C) Interceptive orthodontic treatment.
(D) Comprehensive orthodontic treatment.
(E) Other orthodontic services.
(viii)
(A) Extractions.
(B) Surgical extractions.
(C) Other surgical procedures.
(D) Alveoloplasty—surgical preparation of ridge for denture.
(E) Surgical incision.
(F) Repair of traumatic wounds.
(G) Complicated suturing.
(H) Other repair procedures.
(ix) Exclusion of adjunctive dental care. Adjunctive dental care benefits are excluded under the TDP. For further information on adjunctive dental care benefits under TRICARE/CHAMPUS, see § 199.4(e)(10).
(x)
(xi)
(3)
(ii)
(iii)
(f)
(2)
(3)
(4)
(5)
(6)
(i)
(ii)
(7)
(ii)
(iii)
(iv)
(v)
(vi)
(g)
(2)
(i) Nonparticipating providers (or the Beneficiaries or active duty, Selected Reserve or Individual Ready Reserve members for unassigned claims) shall be reimbursed at the equivalent of not less than the 50th percentile of prevailing charges made for similar services in the same locality (region) or state, or the provider's actual charge, whichever is lower, subject to the exception listed in paragraph (e)(3)(ii) of this section, less any cost-share amount due for authorized services.
(ii) Participating providers shall be reimbursed in accordance with the contractor's network agreements, less any cost-share amount due for authorized services.
(3)
(h)
(1)
(i)
(B)
(ii)
(A)
(B)
(iii)
(iv)
(v)
(vi)
(A) The amount of the dental plan contractor-determined allowable charge since the methodology constitutes a limitation on benefits under the provisions of this section.
(B) Certain other issues on the basis that the authority for the initial determination is not vested in OCHAMPUS. Such issues include but are not limited to the following examples:
(
(
(
(vii)
(B)
(
(
(
(
(viii)
(ix)
(2)
(3)
(4)
(ii)
(5)
(i)
(a)
(1)
(i)
(B)
(
(C)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(D)
(ii)
(B)
(C)
(
(
(
(
(
(
(
(
(
(
(D)
(
(
(
(
(
(
(
(
(
(
(E)
(F)
(iii)
(A)
(
(
(
(
(
(
(
(B)
(C)
(
(
(
(D)
(
(
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(F)
(G)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(2)
(i)
(B)
(ii)
(A)(
(
(B)
(
(C)
(iii)
(A)
(B)
(C)
(
(
(D)
(iv)
(B)
(C)
(
(
(
(v)
(A)
(B)
(C)
(D)
(vi)
(vii)
(viii)
(A)
(B)
(C)
(D)
(E)
(ix)
(B)
(
(
(C)
(D)
(3)
(4)
(i) The actual charge for such service made to the general public; or
(ii) The allowed charge applicable to the policyholders or subscribers of the CHAMPUS fiscal intermediary for comparable services under comparable circumstances, when extended to CHAMPUS beneficiaries by consent or agreement; or
(iii) The allowed charge applicable to the citizens of the community or state as established by local or state regulatory authority, excluding title XIX of the Social Security Act or other welfare program, when extended to CHAMPUS beneficiaries by consent or agreement.
(5)
(6)
(i)
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(I)
(J)
(K)
(L)
(ii)
For non-network hospitals, under the TTPAs, the APC payment level for the five clinic and ER visit APCs would be set at 140 percent of the Medicare APC level in the first year of OPPS implementation. In the second year, the APC payment levels would be set at 125 percent of the Medicare APC level for clinic and ER visits. In the third year, the APC visit amounts would be set at 110 percent of the Medicare APC level for clinic and ER visits. In the fourth year, the TRICARE and Medicare payment levels for the 10 APC visit codes would be identical.
An additional temporary military contingency payment adjustment (TMCPA) will also be available at the discretion of the Director, TMA, or a designee, at any time after implementation to adopt, modify and/or extend temporary adjustments to OPPS payments for TRICARE network hospitals deemed essential for military readiness and deployment in time of contingency operations. Any TMCPAs to OPPS payments shall be made only on the basis of a determination that it is impracticable to support military readiness or contingency operations by making OPPS payments in accordance with the same reimbursement rules implemented by Medicare. The criteria for adopting, modifying, and/or extending deviations and/or adjustments to OPPS payments shall be issued through CHAMPUS policies, instructions, procedures and guidelines as deemed appropriate by the Director, TMA, or a designee. TMCPAs may also be extended to non-network hospitals on a case-by-case basis for specific procedures where it is determined that the procedures cannot be obtained timely enough from a network hospital. For
(iii)
(iv)
(b)
(2)
(3)
(4)
(c)
(d)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(4)
(5)
(6)
(e)
(2) The all-inclusive rate shall include the following to the extent that they are usually associated with a normal pregnancy and childbirth: Laboratory studies, prenatal management, labor management, delivery, post-partum management, newborn care, birth assistant, certified nurse-midwife professional services, physician professional services, and the use of the facility.
(3) The CHAMPUS established all-inclusive rate is equal to the sum of the CHAMPUS area prevailing professional charge for total obstetrical care for a normal pregnancy and delivery and the
(4) Extraordinary maternity care services, when otherwise authorized, may be reimbursed at the lesser of the billed charge or the CHAMPUS allowable charge.
(5) Reimbursement for an incomplete course of care will be limited to claims for professional services and tests where the beneficiary has been screened but rejected for admission into the birthing center program, or where the woman has been admitted but is discharged from the birthing center program prior to delivery, adjudicated as individual professional services and items.
(6) The beneficiary's share of the total reimbursement to a birthing center is limited to the cost-share amount plus the amount billed for non-covered services and supplies.
(f)
(1) The all-inclusive per diem rate for RTCs operating or participating in CHAMPUS during the base period of July 1, 1987, through June 30, 1988, will be the lowest of the following conditions:
(i) The CHAMPUS rate paid to the RTC for all-inclusive services as of June 30, 1988, adjusted by the Consumer Price Index—Urban (CPI-U) for medical care as determined applicable by the Director, OCHAMPUS, or designee; or
(ii) The per diem rate accepted by the RTC from any other agency or organization (public or private) that is high enough to cover one-third of the total patient days during the 12-month period ending June 30, 1988, adjusted by the CPI-U; or
The per diem rate accepted by the RTC from any other agency or organization includes the rates accepted from entities such as Government contractors in CHAMPUS demonstration projects.
(iii) An OCHAMPUS determined capped per diem amount not to exceed the 80th percentile of all established CHAMPUS RTC rates nationally, weighted by total CHAMPUS days provided at each rate during the base period discussed in paragraph (f)(1) of this section.
(2) The all-inclusive per diem rates for RTCs which began operation after June 30, 1988, or began operation before July 1, 1988, but had less than 6 months of operation by June 30, 1988, will be calculated based on the lower of the per diem rate accepted by the RTC that is high enough to cover one-third of the total patient days during its first 6 to 12 consecutive months of operation, or the CHAMPUS determined capped amount. Rates for RTCs beginning operation prior to July 1, 1988, will be adjusted by an appropriate CPI-U inflation factor for the period ending June 30, 1988. A period of less than 12 months will be used only when the RTC has been in operation for less than 12 months. Once a full 12 months is available, the rate will be recalculated.
(3) For care on or after April 6, 1995, the per diem amount may not exceed a cap of the 70th percentile of all established Federal fiscal year 1994 RTC rates nationally, weighted by total CHAMPUS days provided at each rate during the first half of Federal fiscal year 1994, and updated to FY95. For Federal fiscal years 1996 and 1997, the cap shall remain unchanged. For Federal fiscal years after fiscal year 1997, the cap shall be adjusted by the Medicare update factor for hospitals and units exempt from the Medicare prospective payment system.
(4) All educational costs, whether they include routine education or special education costs, are excluded from reimbursement except when appropriate education is not available from, or not payable by, a cognizant public entity.
(i) The RTC shall exclude educational costs from its daily costs.
(ii) The RTC's accounting system must be adequate to assure CHAMPUS is not billed for educational costs.
(iii) The RTC may request payment of educational costs on an individual case basis from the Director, OCHAMPUS, or designee, when appropriate education is not available from, or not payable by, a cognizant public entity. To qualify for reimbursement of educational costs in individual cases, the RTC shall comply with the application procedures established by the Director, OCHAMPUS, or designee, including, but not limited to, the following:
(A) As part of its admission procedures, the RTC must counsel and assist the beneficiary and the beneficiary's family in the necessary procedures for assuring their rights to a free and appropriate public education.
(B) The RTC must document any reasons why an individual beneficiary cannot attend public educational facilities and, in such a case, why alternative educational arrangements have not been provided by the cognizant public entity.
(C) If reimbursement of educational costs is approved for an individual beneficiary by the Director, OCHAMPUS, or designee, such educational costs shall be shown separately from the RTC's daily costs on the CHAMPUS claim. The amount paid shall not exceed the RTC's most-favorable rate to any other patient, agency, or organization for special or general educational services whichever is appropriate.
(D) If the RTC fails to request CHAMPUS approval of the educational costs on an individual case, the RTC agrees not to bill the beneficiary or the beneficiary's family for any amounts disallowed by CHAMPUS. Requests for payment of educational costs must be referred to the Director, OCHAMPUS, or designee for review and a determination of the applicability of CHAMPUS benefits.
(5) Subject to the applicable RTC cap, adjustments to the RTC rates may be made annually.
(i) For Federal fiscal years through 1995, the adjustment shall be based on the Consumer Price Index-Urban (CPI-U) for medical care as determined applicable by the Director, OCHAMPUS.
(ii) For purposes of rates for Federal fiscal years 1996 and 1997:
(A) For any RTC whose 1995 rate was at or above the thirtieth percentile of all established Federal fiscal year 1995 RTC rates normally, weighted by total CHAMPUS days provided at each rate during the first half of Federal fiscal year 1994, that rate shall remain in effect, with no additional update, throughout fiscal years 1996 and 1997; and
(B) For any RTC whose 1995 rate was below the 30th percentile level determined under paragraph (f)(5)(ii)(A) of this section, the rate shall be adjusted by the lesser of: the CPI-U for medical care, or the amount that brings the rate up to that 30th percentile level.
(iii) For subsequent Federal fiscal years after fiscal year 1997, RTC rates shall be updated by the Medicare update factor for hospitals and units exempt from the Medicare prospective payment system.
(6) For care provided on or after July 1, 1995, CHAMPUS will not pay for days in which the patient is absent on leave from the RTC. The RTC must identify these days when claiming reimbursement.
(g)
(1)
(i)
(ii)
(A) A minimum of 8 hours of care must be provided within a 24-hour day starting and ending at midnight.
(B) More than half of the total actual hours being billed for each 24-hour period must be provided by either a registered or licensed practical nurse.
(C) Homemaker and home health aide services may be provided to supplement the nursing care to enable the beneficiary to remain at home.
(D) For every hour or part of an hour of continuous care furnished, the hourly rate will be reimbursed to the hospice up to 24 hours a day.
(iii)
(A) Payment for respite care may be made for a maximum of 5 days at a time, including the date of admission but not counting the date of discharge. The necessity and frequency of respite care will be determined by the hospice interdisciplinary group with input from the patient's attending physician and the hospice's medical director.
(B) Payment for the sixth and any subsequent days is to be made at the routine home care rate.
(iv)
(v)
(2)
(3)
(i)
(B) Direct patient care services are paid in addition to the adjusted national payment rate.
(
(
(ii)
(A) Attending physician may bill in his/her own right.
(B) Services will be subject to the appropriate allowable charge methodology.
(C) Reimbursement is not counted toward the hospice cap limitation.
(D) Services provided by an independent attending physician must be coordinated with any direct care services provided by hospice physicians.
(E) The hospice must notify the CHAMPUS contractor of the name of the physician whenever the attending physician is not a hospice employee.
(iii)
(4)
(5)
(i) The cap amount will be adjusted annually by the percent of increase or decrease in the medical expenditure category of the Consumer Price Index for all urban consumers (CPI-U).
(ii) The aggregate cap amount (i.e., the statutory cap amount times the number of CHAMPUS beneficiaries electing hospice care during the cap period) will be compared with total actual CHAMPUS payments made during the same cap period.
(iii) Payments in excess of the cap amount must be refunded by the hospice program. The adjusted cap amount will be obtained from the Health Care Financing Administration (HCFA) prior to the end of each cap period.
(iv) Calculation of the cap amount for a hospice which has not participated in the program for an entire cap year (November 1 through October 31) will be based on a period of at least 12 months but no more than 23 months. For example, the first cap period for a hospice entering the program on October 1, 1994, would run from October 1, 1994 through October 31, 1995. Similarly, the first cap period for hospice providers entering the program after November 1, 1993 but before November 1, 1994 would end October 31, 1995.
(6)
(i) If the number of days of inpatient care furnished to CHAMPUS beneficiaries exceeds 20 percent of the total days of hospice care to CHAMPUS beneficiaries, the total payment for inpatient care is determined follows:
(A) Calculate the ratio of the maximum number of allowable inpatient days of the actual number of inpatient care days furnished by the hospice to Medicare patients.
(B) Multiply this ratio by the total reimbursement for inpatient care made by the CHAMPUS contractor.
(C) Multiply the number of actual inpatient days in excess of the limitation by the routine home care rate.
(D) Add the amounts calculated in paragraphs (g)(6)(i) (B) and (C) of this section.
(ii) Compare the total payment for inpatient care calculated in paragraph (g)(6)(i)(D) of this section to actual payments made to the hospice for inpatient care during the cap period.
(iii) Payments in excess of the inpatient limitation must be refunded by the hospice program.
(7)
(i) Total reimbursement received and receivable for services furnished CHAMPUS beneficiaries during the cap period, including physician's services
(ii) Total reimbursement received and receivable for general inpatient care and inpatient respite care furnished to CHAMPUS beneficiaries during the cap period.
(iii) Total number of inpatient days furnished to CHAMPUS hospice patients (both general inpatient and inpatient respite days) during the cap period.
(iv) Total number of CHAMPUS hospice days (both inpatient and home care) during the cap period.
(v) Total number of beneficiaries electing hospice care. The following rules must be adhered to by the hospice in determining the number of CHAMPUS beneficiaries who have elected hospice care during the period:
(A) The beneficiary must not have been counted previously in either another hospice's cap or another reporting year.
(B) The beneficiary must file an initial election statement during the period beginning September 28 of the previous cap year through September 27 of the current cap year in order to be counted as an electing CHAMPUS beneficiary during the current cap year.
(C) Once a beneficiary has been included in the calculation of a hospice cap amount, he or she may not be included in the cap for that hospice again, even if the number of covered days in a subsequent reporting period exceeds that of the period where the beneficiary was included.
(D) There will be proportional application of the cap amount when a beneficiary elects to receive hospice benefits from two or more different CHAMPUS-certified hospices. A calculation must be made to determine the percentage of the patient's length of stay in each hospice relative to the total length of hospice stay.
(8)
(9)
(i) The patient is responsible for 5 percent of the cost of outpatient drugs or $5 toward each prescription, whichever is less. Additionally, the cost of prescription drugs (drugs or biologicals) may not exceed that which a prudent buyer would pay in similar circumstances; that is, a buyer who refuses to pay more than the going price for an item or service and also seeks to economize by minimizing costs.
(ii) For inpatient respite care, the cost-share for each respite care day is equal to 5 percent of the amount CHAMPUS has estimated to be the cost of respite care, after adjusting the national rate for local wage differences.
(iii) The amount of the individual cost-share liability for respite care during a hospice cost-share period may not exceed the Medicare inpatient hospital deductible applicable for the year in which the hospice cost-share period began. The individual hospice cost-share period begins on the first day an election is in effect for the beneficiary and ends with the close of the first period of 14 consecutive days on each of which an election is not in effect for the beneficiary.
(h)
(1)
(2)
(3)
(4)
(i) The first part of the SCIC payment adjustment reflects the adjustment to the level of payment prior to the significant change in the patient's condition during the 60-day episode.
(ii) The second part of the SCIC payment adjustment reflects the adjustment to the level of payment after the significant change in the patient's condition occurs during the 60-day episode.
(5)
(i) TRICARE makes an outlier payment for an episode whose estimated cost exceeds a threshold amount for each case-mix group.
(ii) The outlier threshold for each case-mix group is the episode payment amount for that group, the PEP adjustment amount for the episode or the total significant change in condition adjustment amount for the episode plus a fixed dollar loss amount that is the same for all case-mix groups.
(iii) The outlier payment is a proportion of the amount of estimated cost beyond the threshold.
(iv) TRICARE imputes the cost for each episode by multiplying the national per-visit amount of each discipline by the number of visits in the discipline and computing the total imputed cost for all disciplines.
(v) The fixed dollar loss amount and the loss sharing proportion are chosen
(6)
(i)
(ii)
(7)
(i)
(ii)
(iii)
(8)
(9)
(i) Establishment of the payment unit, including the national 60-day prospective episode payment rate, adjustments and outlier payment.
(ii) Establishment of transition period, definition and application of the unit of payment.
(iii) Computation of the initial standard prospective payment amounts.
(iv) Establishment of case-mix and area wage adjustment factors.
(i)
(j) Reimbursement of individual health care professionals and other non-institutional, non-professional providers. The CHAMPUS-determined reasonable charge (the amount allowed by CHAMPUS) for the service of an individual health care professional or other non-institutional, non-professional provider (even if employed by or under contract to an institutional provider) shall be determined by one of the following methodologies, that is, whichever is in effect in the specific geographic location at the time covered services and supplies are provided to a CHAMPUS beneficiary.
(1)
(B)
(C)
(D)
(E)
(ii)
(B) The national prevailing charge level referred to in paragraph (j)(1)(ii)(A) of this section is the level that does not exceed the amount equivalent to the 80th percentile of billed charges made for similar services during the base period. The 80th percentile of charges shall be determined on the basis of statistical data and methodology acceptable to the Director, OCHAMPUS (or a designee).
(C) For purposes of paragraph (j)(1)(ii)(B) of this section, the base period shall be a period of 12 calendar months and shall be adjusted once a year, unless the Director, OCHAMPUS, determines that a different period for adjustment is appropriate and publishes a notice to that effect in the
(iii)
(A)
(
(
(
(B)
(
(
(
(C)
(D)
This paragraph will be implemented when CMAC rates are published.
In any case in which the national CMAC calculated in accordance with paragraphs (j)(1)(i) through (iii) of this section is less than the Medicare rate, the Director, TSO, may determine that the use of the Medicare Economic Index under paragraph (j)(1)(iii)(B) of this section will result in a CMAC rate below the level necessary to assure that beneficiaries will retain adequate access to health care services. Upon making such a determination, the Director, TSO, may increase the national CMAC to a level not greater than the Medicare rate.
(iv)
(B)
(
(C)
(
(
(
(D)
(
(
(
(
(
(E)
(
(
(
(
(
(
(
(v)
(B) Appropriate charge levels will be established for each locality for which an appropriate charge level was in effect immediately prior to October 7, 1991. For each procedure, the appropriate charge level shall be the prevailing charge level in effect immediately prior to October 7, 1991, adjusted as provided in (j)(1)(v)(B) (
(
(
(
(C) For purposes of this paragraph (j)(i)(v), “appropriate charge levels” in effect at any time prior to October 7, 1991 shall mean the lesser of:
(
(
(vi)
(B) The adjustment to calendar year 1991 of the product of paragraph (j)(1)(vi)(A) of this section shall be as follows:
(
(
(vii)
(B) The Director, OCHAMPUS will issue procedural instructions for administration of the allowable charge method.
(viii)
(A) The calculation of national prevailing charge levels, national appropriate charge levels and national CMACs for laboratory service shall begin in calendar year 1993. For purposes of the 1993 calculation, the prior year's national appropriate charge level or national prevailing charge level shall be the level that does not exceed the amount equivalent to the 80th percentile of billed charges made for similar services during the period July 1, 1991, through June 30, 1992 (referred to in this paragraph (j)(1)(viii) of this section as the “base period”).
(B) For purposes of comparison to Medicare allowable payment amounts pursuant to paragraph (j)(1)(iii) of this section, the Medicare national laboratory payment limitation amounts shall be used.
(C) For purposes of establishing laboratory service local CMACs pursuant to paragraph (j)(1)(iv) of this section, the adjustment factor shall equal the ratio of the local average charge (standardized for the distribution of clinical laboratory services) to the national average charge for all clinical laboratory services during the base period.
(D) For purposes of a special locality-based phase-in provision similar to that established by paragraph (j)(1)(iv)(B) of this section, the CMAC in a locality will not be less than 85 percent of the maximum charge level in effect for that locality during the base period.
(ix) The allowable charge for physician assistant services other than assistant-at-surgery may not exceed 85 percent of the allowable charge for a comparable service rendered by a physician performing the service in a similar location. For cases in which the physician assistant and the physician perform component services of a procedure other than assistant-at-surgery (e.g., home, office or hospital visit), the combined allowable charge for the procedure may not exceed the allowable charge for the procedure rendered by a physician alone. The allowable charge for physician assistant services performed as an assistant-at-surgery may not exceed 65 percent of the allowable charge for a physician serving as an assistant surgeon when authorized as CHAMPUS benefits in accordance with the provisions of § 199.4(c)(3)(iii). Physician assistant services must be billed through the employing physician who must be an authorized CHAMPUS provider.
(x) A charge that exceeds the CHAMPUS Maximum Allowable Charge can be determined to be allowable only when unusual circumstances or medical complications justify the higher charge. The allowable charge may not exceed the billed charge under any circumstances.
(2)
(3)
(4)
(k)
(l)
(1)
(2)
(m)
(2)
(i) In the case and individual health care professionals and other non-institutional providers, if the discounted fee is below the provider's normal billed charge and the prevailing charge level (see paragraph (g) of this section), the discounted fee shall be the provider's actual billed charge and the CHAMPUS allowable charge.
(ii) In the case of institutional providers normally paid on the basis of a pre-set amount (such as DRG-based amount under paragraph (a)(1) of this section or per-diem amount under paragraph (a)(2) of this section), if the discount rate is lower than the pre-set rate, the discounted rate shall be the CHAMPUS-determined allowable cost. This is an exception to the usual rule that the pre-set rate is paid regardless of the institutional provider's billed charges or other factors.
(3)
(ii) The Director of OCHAMPUS may establish uniform terms, conditions and limitations for this payment method in order to avoid administrative complexity.
(n)
(o)
For
(a)
(2)
(3)
(4)
(5)
(6)
(b)
(2)
(ii) In any case in which payment is excluded pursuant to paragraph (b)(2)(i) of this section, the patient (or the patient's family) may not be billed for the excluded services.
(iii) Limited exceptions and other special provisions pertaining to the requirements established in paragraphs (b)(2) (i) and (ii) of this section, are set forth in § 199.4(h).
(3)
(4)
(A) The procedures for this review may be prospective (before the care is provided), concurrent (while the care is in process), or retrospective (after the care has been provided). Regardless of the procedures of this utilization review, the same generally accepted standards, norms and criteria for evaluating the medical necessity, appropriateness and reasonableness of the care involved shall apply. The Director, TRICARE Management Activity, or a designee, shall establish procedures for conducting reviews, including types of health care services for which preauthorization or concurrent review shall be required. Preauthorization or concurrent review may be required for categories of health care services. Except where required by law, the categories of health care services for which preauthorization or concurrent review is required may vary in different geographical locations or for different types of providers.
(B) For healthcare services provided under TRICARE contracts entered into by the Department of Defense after October 30, 2000, medical necessity preauthorization will not be required for referrals for specialty consultation appointment services requested by primary care providers or specialty providers when referring TRICARE Prime beneficiaries for specialty consultation appointment services within the TRICARE contractor's network. However, the lack of medical necessity preauthorization requirements for consultative appointment services does not mean that non-emergent admissions or invasive diagnostic or therapeutic procedures which in and of themselves constitute categories of health care services related to, but beyond the level of the consultation appointment service, are not subject to medical necessity prior authorization. In fact many such health care services may continue to require medical necessity prior authorization as determined by the Director, TRICARE Management Activity, or a designee. TRICARE Prime beneficiaries are also required to obtain preauthorization before seeking health care services from a non-network provider.
(ii)
(A) The requirement for preauthorization shall be widely publicized to beneficiaries and providers.
(B) All requests for preauthorization shall be responded to in writing. Notification of approval or denial shall be sent to the beneficiary. Approvals shall specify the health care services and supplies approved and identify any special limits or further requirements applicable to the particular case.
(C) An approved preauthorization shall state the number of days, appropriate for the type of care involved, for which it is valid. In general, preauthorizations will be valid for 30 days. If the services or supplies are not obtained within the number of days specified, a new preauthorization request is required. For organ and stem cell transplants, the preauthorization shall remain in effect as long as the beneficiary continues to meet the specific transplant criteria set forth in the TRICARE/CHAMPUS Policy Manual, or until the approved transplant occurs.
(D) For healthcare services provided under TRICARE contracts entered into by the Department of Defense after October 30, 2000, medical necessity preauthorization for specialty consultation appointment services within the TRICARE contractor's network will not be required. However, the Director, TRICARE Management Activity, or designee, may continue to require or waive medical necessity prior (or pre) authorization for other categories of other health care services based on best business practice.
(iii)
(
(
(
(B) In a case described in paragraph (b)(4)(iii)(A) of this section, reimbursement will be reduced, unless such reduction is waived based on special circumstances. The amount of this reduction shall be at least ten percent of the amount otherwise allowable for services for which preauthorization (including preauthorization for continued stays in connection with concurrent review requirements) approval should have been obtained, but was not obtained.
(C) The payment reduction set forth in paragraph (b)(4)(iii)(B) of this section may be waived by the Director, OCHAMPUS when the provider could not reasonably have been expected to know of the preauthorization requirement or some other special circumstance justifies the waiver.
(D) Services for which payment is disallowed under paragraph (b)(4)(iii) of this section may not be billed to the patient (or the patient's family).
(c)
(1) Documentation that the beneficiary has received the required information about the CHAMPUS PRO program must be maintained in the same manner as is the notice required for the Medicare program by 42 CFR 466.78(b).
(2) The physician acknowledgment required for Medicare under 42 CFR 412.46 is also required for CHAMPUS as
(3) Participating hospitals must execute a memorandum of understanding with the PRO providing appropriate procedures for implementation of the PRO program.
(4) Participating hospitals may not charge a CHAMPUS beneficiary for inpatient hospital services excluded on the basis of § 199.4(g)(1) (not medically necessary), § 199.4(g)(3) (inappropriate level), or § 199.4(g)(7) (custodial care) unless all of the conditions established by 42 CFR 412.42(c) with respect to Medicare beneficiaries have been met with respect to the CHAMPUS beneficiary. In such cases in which the patient requests a PRO review while the patient is still an inpatient in the hospital, the hospital shall provide to the PRO the records required for the review by the close of business of the day the patient requests review, if such request was made before noon. If the hospital fails to provide the records by the close of business, that day and any subsequent working day during which the hospital continues to fail to provide the records shall not be counted for purposes of the two-day period of 42 CFR 412.42(c)(3)(ii).
(d)
(i) Transfers of CHAMPUS beneficiaries from a hospital or hospital unit subject to the CHAMPUS DRG-based payment system to another hospital or hospital unit.
(ii) CHAMPUS admissions to a hospital or hospital unit subject to the CHAMPUS DRG-based payment system which occur within a certain period (specified by OCHAMPUS) of discharge from a hospital or hospital unit subject to the CHAMPUS DRG-based payment system.
(iii) A random sample of other CHAMPUS admissions for each hospital subject to the CHAMPUS DRG-based payment system.
(iv) CHAMPUS admissions in any DRGs which have been specifically identified by OCHAMPUS for review or which are under review for any other reason.
(2)
(i) Perform DRG validation reviews of each case under review.
(ii) Review of claim adjustments submitted by hospitals which result in the assignment of a higher weighted DRG.
(iii) Review for physician's acknowledgement of annual receipt of the penalty statement as contained in the Medicare regulation at 42 CFR 412.46.
(iv) Review of a sample of claims for each hospital reimbursed under the CHAMPUS DRG-based payment system. Sample size shall be determined based upon the volume of claims submitted.
(3)
(4)
(5)
(e)
(i) Deny payment for or recoup (in whole or in part) any amount claimed or paid for the inpatient hospital and professional services related to such determination.
(ii) Require the hospital to take other corrective action necessary to prevent or correct the inappropriate practice.
(iii) Advise the provider and beneficiary of appeal rights, as required by § 199.10 of this part.
(iv) Notify OCHAMPUS of all such actions.
(2)
(3)
(i) If the diagnostic and procedural information in the patient's medical record is found to be inconsistent with the hospital's coding or DRG assignment, the hospital's coding on the CHAMPUS claim will be appropriately changed and payments recalculated on the basis of the appropriate DRG assignment.
(ii) If the information stipulated under paragraph (d)(2) of this section is found not to be correct, the PRO will change the coding and assign the appropriate DRG on the basis of the changed coding.
(f)
(2)
(3)
(ii)
(A) A reconsidered determination that would be final in cases involving sole-function PROs under paragraph (i)(2) of this section will not be final in connection with multi-function PROs. Rather, in such cases (other than any case which is appealable under paragraph (i)(3) of this section), an opportunity for a second reconsideration shall be provided. The second reconsideration will be provided by OCHAMPUS or another contractor independent of the multi-function PRO that performed the review. The second reconsideration may not be further appealed by the provider.
(B) Procedures established by paragraphs (g) through (m) of this section shall not apply to any action of a multi-function PRO (or employee or other person or entity affiliated with the PRO) carried out in performance of functions other than functions under this section.
(g)
(h)
(i)
(2) Except as provided in paragraph (i)(3), a PRO reconsidered determination may not be further appealed by a provider.
(3) A provider may appeal a PRO reconsideration determination to OCHAMPUS and obtain a hearing on such appeal to the extent allowed under the procedures set forth in § 199.10(d) if it is a determination pursuant to § 199.4(h) that the provider knew or could reasonably have been expected to know that the services were excludable.
(4) For purposes of the hearing process, a PRO reconsidered determination shall be considered as the procedural equivalent of a formal review determination under § 199.10, unless revised at the initiative of the Director, OCHAMPUS prior to a hearing on the appeal, in which case the revised determination shall be considered as the procedural equivalent of a formal review determination under § 199.10.
(5) The provisions of § 199.10(e) concerning final action shall apply to hearings cases.
(j)
(k)
(l)
(2)
(ii) Initial denial determinations by PROs pursuant to paragraph (g) of this section (concerning medical necessity determinations, DRG validation actions, etc.) and subsequent decisions regarding those determinations are not nondisclosable quality assurance records under 10 U.S.C. 1102.
(iii) Information the subject of mandatory PRO disclosure under 42 CFR part 476 is not a nondisclosable quality assurance record under 10 U.S.C. 1102.
(m)
(2) The provisions of 42 U.S.C. section 1395ww(f)(2) concerning circumvention by any hospital of the applicable payment methods for inpatient services shall apply to CHAMPUS payment methods as they do to Medicare payment methods.
(3) The Director, or a designee, of CHAMPUS shall determine whether to impose a sanction pursuant to paragraphs (m)(1) and (m)(2) of this section. Providers may appeal adverse sanctions decisions under the procedures set forth in § 199.10(d).
(n)
(2) In any case in which such a contractor has comparable responsibility and authority regarding utilization review in both an MTF (or MTFs) and CHAMPUS, determinations as to medical necessity in connection with services from an MTF or CHAMPUS-authorized provider may be consolidated.
(3) In any case in which an MTF reserves authority to separate an MTF determination on medical necessity from a CHAMPUS PRO program determination on medical necessity, the MTF determination is not binding on CHAMPUS.
(a)
(2) This section applies to the program, known as the supplemental care
(3) This section applies to all health care services covered by the CHAMPUS. For purposes of this section, health care services ordered by a military treatment facility (MTF) provider for an MTF patient (who is not an active duty member) for whom the MTF provider maintains responsibility are also covered by the supplemental care program and subject to the requirements of this section.
(b)
(2)
(c)
(d)
(1) There is no patient cost sharing under the supplemental care program. All amounts due to be paid to the provider shall be paid by the program.
(2) Preauthorization by the Uniformed Services of each service is required for the supplemental care program except for services in cases of medical emergency (for which the definition in Sec. 199.2 shall apply) or in cases governed by the TRICARE Prime Remote program for active duty service members set forth in paragraph (e) of this section. It is the responsibility of the active duty members to obtain preauthorization for each service. With respect to each emergency inpatient admission, after such time as the emergency condition is addressed, authorization for any proposed continued stay must be obtained within two working days of admission.
(3) With respect to the filing of claims and similar administrative matters for which this part refers to activities of the CHAMPUS fiscal intermediaries, for purposes of the supplemental care program, responsibilities for claims processing, payment and some other administrative matters may be assigned by the Director,
(4) The annual cost pass-throughs for capital and direct medical education costs that are available under the CHAMPUS DRG-based payment system are also available, upon request, under the supplemental care program. To obtain payment include the number of active duty bed days as a separate line item on the annual request to the CHAMPUS fiscal intermediaries.
(5) For providers other than participating providers, the Director, OCHAMPUS may authorize payment in excess of CHAMPUS allowable amounts. No provider may bill an active duty member any amount in excess of the CHAMPUS allowable amount.
(e)
(2)
(i) Has a permanent duty assignment that is greater than fifty miles or approximately one hour drive from a military treatment facility or military clinic designated as adequate to provide the needed primary care services to the active duty service member; and
(ii) Pursuant to the assignment of such duty, resides at a location that is greater than fifty miles or approximately one hour from a military medical treatment facility or military clinic designated as adequate to provide the needed primary care services to the active duty service member.
(3)
(4)
(f)
(g)
(2) The Assistant Secretary of Defense for Health Affairs is responsible for the overall policy direction of the supplemental care program and the administration of this part.
(3) The Director, OCHAMPUS shall issue procedural requirements for the implementation of this section, including requirement for claims submission similar to those established by § 199.7.
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(i)
(A) Active duty members, all of whom are automatically enrolled in TRICARE Prime;
(B) TRICARE Prime enrollees;
(C) TRICARE Standard participants, who are all CHAMPUS eligible beneficiaries who are not enrolled in TRICARE Prime;
(D) Non-CHAMPUS beneficiaries, who are beneficiaries eligible for health care services in military treatment facilities, but not eligible for CHAMPUS;
(ii)
(A) “TRICARE Prime,” which is a health maintenance organization (HMO)-like program. It generally features use of military treatment facilities and substantially reduced out-of-pocket costs for CHAMPUS care. Beneficiaries generally agree to use military treatment facilities and designated civilian provider networks and to follow certain managed care rules and procedures.
(B) “TRICARE Extra,” which is a preferred provider organization (PPO) program. It allows TRICARE Standard beneficiaries to use the TRICARE provider network, including both military facilities and the civilian network, with reduced out-of-pocket costs. These beneficiaries also continue to be eligible for military medical treatment facility care on a space-available basis.
(C) “TRICARE Standard” which is the basic CHAMPUS program. All eligible beneficiaries are automatically included in Standard unless they have enrolled in Prime. It preserves broad freedom of choice of civilian providers, but does not offer reduced out-of-pocket costs. These beneficiaries continue to be eligible to receive care in military medical treatment facilities on a space available basis.
(iii)
(A) Resource sharing agreements, under which a TRICARE contractor provides to a military medical treatment facility, personnel and other resources to increase the availability of services in the facility. All beneficiary enrollment categories may benefit from this increase.
(B) Health care finder, an administrative activity that facilitates referrals to appropriate health care services in the military facility and civilian provider network. All beneficiary enrollment categories may use the health care finder.
(C) Integrated quality and utilization management services, potentially standardizing reviews for military and civilian sector providers. All beneficiary categories may benefit from these services.
(iv)
(7)
(ii) Based on the determination set forth in paragraph (a)(7)(i) of this section, any State or local law relating to health insurance, prepaid health plans, or other health care delivery or financing methods is preempted and does not apply in connection with TRICARE regional contracts. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TRICARE regional contracts. (However, the Department of Defense
(iii) The preemption of State and local laws set forth in paragraph (a)(7)(ii) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of the statutes identified in paragraph (a)(7)(i) of this section. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD health and dental services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(b)
(1)
(2)
(3)
(c)
(1)
(2)
(ii) If all dependents of active duty members within the area concerned cannot be accepted for enrollment in Prime at the same time, the MTF Commander (or other authorized individual) may establish priorities within this beneficiary group category. The
(3)
(ii) A dependent child or unmarried person (as described in § 199.3(b)(2)(ii), or (b)(2)(iv)) of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001, is eligible to enroll in Prime and is subject to the same rules and provisions as dependents of active duty members for a period of three years from the date the active duty sponsor dies or until the surviving eligible dependent:
(A) Attains 21 years of age, or
(B) Attains 23 years of age or ceases to pursue a full-time course of study prior to attaining 23 years of age, if, at 21 years of age, the eligible surviving dependent is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the Secretary of Defense and was, at the time of the sponsor's death, in fact dependent on the member for over one-half of such dependent's support.
(4)
(ii) If all eligible retired members, dependents of retired members, and survivors within the area concerned cannot be accepted for enrollment in Prime at the same time, the MTF Commander (or other authorized individual) may allow enrollment within this beneficiary group category on a first come, first served basis.
(5)
(d)
(1)
(A) Active duty service members;
(B) Active duty service members' dependents and survivors of service members who died on active duty, who are enrolled in TRICARE Prime;
(C) Retirees, their dependents and survivors, who are enrolled in TRICARE Prime;
(D) Active duty service members' dependents and survivors of service members who died on active duty, who are not enrolled in TRICARE Prime; and
(E) Retirees, their dependents and survivors who are not enrolled in TRICARE Prime. For purposes of this paragraph (d)(1), survivors of members who died while on active duty are considered as among dependents of active duty service members.
(ii)
(2)
(3)
(e)
(f)
(1)
(2)
(3)
(4)
(g)
(2)
(i) Spouse, child, or unmarried person, as defined in paragraphs § 199.3 (b)(2)(i), (b)(2)(ii) or (b)(2)(iv);
(ii) For a 3-year period, the surviving spouse of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001; and
(iii) The surviving dependent child or unmarried person, as defined in paragraphs § 199.3 (b)(2)(ii) or (b)(2)(iv), of a member who dies while on active duty
(A) Attains 21 years of age, or
(B) Attains 23 years of age or ceases to pursue a full-time course of study prior to attaining 23 years of age, if, at 21 years of age, the eligible surviving dependent is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the Secretary of Defense and was, at the time of the sponsor's death, in fact dependent on the member for over one-half of such dependent's support.
(3)
(A) The family member's active duty sponsor has been assigned permanent duty as a recruiter; as an instructor at an educational institution, an administrator of a program, or to provide administrative services in support of a program of instruction for the Reserve Officers' Training Corps; as a full-time adviser to a unit of a reserve component; or any other permanent duty designated by the Director, TRICARE Management Activity that the Director determines is more than 50 miles, or approximately one hour driving time, from the nearest military treatment facility that is adequate to provide care.
(B) The family members and active duty sponsor, pursuant to the assignment of duty described in paragraph (g)(3)(i)(A) of this section, reside at a location designated by the Director, TRICARE Management Activity, that the Director determines is more than 50 miles, or approximately one hour driving time, from the nearest military medical treatment facility adequate to provide care.
(C) The family member, having resided together with the active duty sponsor while the sponsor served in an assignment described in (g)(3)(i)(A), continues to reside at the same location after the sponsor relocates without the family member pursuant to orders for a permanent change of duty station, and the orders do not authorize dependents to accompany the sponsor to the new duty station at the expense of the United States.
(D) For a 3 year period, the surviving spouse of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001.
(E) The surviving dependent child or unmarried person as defined in paragraphs § 199.3 (b)(2)(ii) or (b)(2)(iv), of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001, for three years from the date the active duty sponsor dies or until the surviving eligible dependent:
(
(
(ii) A family member who is a dependent of a reserve component member is eligible for TRICARE Prime Remote for Active Duty Family Members if he or she is eligible for CHAMPUS and meets all of the following additional criteria:
(A) The reserve component member has been ordered to active duty for a period of more than 30 days.
(B) The family member resides with the member.
(C) The Director, TRICARE Management Activity, determines the residence of the reserve component member is more than 50 miles, or approximately one hour driving time, from the nearest military medical treatment facility that is adequate to provide care.
(D) “Resides with” is defined as the TRICARE Prime Remote residence address at which the family resides with the activated reservist upon activation.
(4)
(5)
(6)
(h)
(1) In connection with internal resource sharing agreements, beneficiary cost sharing requirements shall be the same as those applicable to health care services provided in facilities of the uniformed services.
(2) Under internal resource sharing agreements, the double coverage requirements of § 199.8 shall be replaced by the Third Party Collection procedures of 32 CFR part 220, to the extent permissible under such part. In such a case, payments made to a resource sharing agreement provider through the TRICARE managed care support contractor shall be deemed to be payments by the MTF concerned.
(3) Under internal or external resource sharing agreements, the commander of the MTF concerned may authorize the provision of services, pursuant to the agreement, to Medicare-eligible beneficiaries, if such services are not reimbursable by Medicare, and if the commander determines that this will promote the most cost-effective provision of services under the TRICARE program.
(i)
(j)
(k)
(l)
(2)
(3)
(4)
(m)
(1)
(ii) For Standard participants, TRICARE Extra cost sharing applies. The deductible is the same as standard CHAMPUS. Cost shares are as follows:
(A) For outpatient professional services, cost sharing will be reduced from 20 percent to 15 percent for dependents of active duty members.
(B) For most services for retired members, dependents of retired members, and survivors, cost sharing is reduced from 25 percent to 20 percent.
(C) In fiscal year 1996, the per diem inpatient hospital copayment for retirees, dependents of retirees, and survivors when they use a preferred provider network hospital is $250 per day, or 25 percent of total charges, whichever is less. There is a nominal copayment for active duty dependents, which is the same as under the CHAMPUS program (see § 199.4). The per diem amount may be updated for subsequent years based on changes in the standard CHAMPUS per diem.
(iii) For Medicare-eligible beneficiaries, cost sharing will generally be as applicable to Medicare participating providers.
(2)
(ii) For Standard participants, cost sharing is as specified for the basic CHAMPUS program.
(3)
(ii) For Standard participants, cost sharing is as provided in military treatment facilities.
(iii) For Medicare eligible beneficiaries, where made applicable by the commander of the
(4)
(ii) For TRICARE Standard participants, cost sharing applicable to services provided by military facility personnel shall be as applicable to services in military treatment facilities; that applicable to non-military providers, including institutional and related ancillary charges, shall be as applicable to services provided under TRICARE Extra.
(5)
(6)
(ii) For retirees, their dependents, and survivors in all enrollment categories, there is no charge for outpatient visits provided in military medical treatment facilities.
(7)
(ii) Eligible family members will be able to access their provider without preauthorization. To obtain the waiver of charges, eligible family members are required to use network providers, where available and within the TRICARE access standards. Failure to do so will result in claims being processed under TRICARE Standard rules. For beneficiaries who are enrolled in TRICARE Prime, existing specialty care preauthorization requirements and Point of Service rules remain in effect.
(iii) To the greatest extent possible, contractors will assist eligible members in finding a TRICARE network, participating, or authorized provider. If a network provider cannot be identified within the access standards established under TRICARE, the eligible family member shall use an authorized provider to be eligible for the waiver.
(n)
(1)
(ii) Prime enrollees who are dependents of active duty members in pay grades E-1 through E-4 shall have priority over other active duty dependents for enrollment with MTF PCMs, subject to MTF capacity.
(2)
(i) Prime enrollees must obtain all primary health care from the primary care manager or from another provider to which the enrollee is referred by the primary care manager or an authorized Health Care Finder.
(ii) For any necessary specialty care and nonemergent inpatient care, the primary care manager or the Health Care Finder will assist in making an appropriate referral.
(A) For healthcare services provided under managed care support contracts entered into by the Department of Defense before October 30, 2000, all such
(B) For healthcare services provided under TRICARE contracts entered into by the Department of Defense on or after October 30, 2000, referral requests (consultation requests) for specialty care consultation appointment services for TRICARE Prime beneficiaries must be submitted by primary care managers. Such referrals will be authorized by Health Care Finders (authorization numbers will be assigned so as to facilitate claims processing) but medical necessity preauthorization will not be required for referral consultation appointment services within the TRICARE contractor's network. Some health care services subsequent to consultation appointments (invasive procedures, nonemergent admissions and other health care services as determined by the Director, TRICARE Management Activity, or a designee) will require medical necessity preauthorization. Though referrals for specialty care are generally the responsibility of the primary care managers, subject to discretion exercised by the TRICARE Regional Directors, and established in regional policy or memoranda of understanding, specialist providers may be permitted to refer patients for additional specialty consultation appointment services within the TRICARE contractor's network without prior authorization by primary care managers or subject to medical necessity preauthorization.
(iii) The following procedures will apply to health care referrals and preauthorizations in catchment areas under TRICARE Prime:
(A) The first priority for referral for specialty care or inpatient care will be to the local MTF (or to any other MTF in which catchment area the enrollee resides).
(B) If the local MTF(s) are unavailable for the services needed, but there is another MTF at which the needed services can be provided, the enrollee may be required to obtain the services at that MTF. However, this requirement will only apply to the extent that the enrollee was informed at the time of (or prior to) enrollment that mandatory referrals might be made to the MTF involved for the service involved.
(C) If the needed services are available within civilian preferred provider network serving the area, the enrollee may be required to obtain the services from a provider within the network. Subject to availability, the enrollee will have the freedom to choose a provider from among those in the network.
(D) If the needed services are not available within the civilian preferred provider network serving the area, the enrollee may be required to obtain the services from a designated civilian provider outside the area. However, this requirement will only apply to the extent that the enrollee was informed at the time of (or prior to) enrollment that mandatory referrals might be made to the provider involved for the service involved (with the provider and service either identified specifically or in connection with some appropriate classification).
(E) In cases in which the needed health care services cannot be provided pursuant to the procedures identified in paragraphs (n)(2)(iii) (A) through (D) of this section, the enrollee will receive authorization to obtain services from a CHAMPUS-authorized civilian provider(s) of the enrollee's choice not affiliated with the civilian preferred provider network.
(iv) When Prime is operating in noncatchment areas, the requirements in paragraphs (n)(2)(iii) (B) through (E) of this section shall apply.
(v) Any health care services obtained by a Prime enrollee, but not obtained in accordance with the utilization management rules and procedures of Prime will not be paid for under Prime rules, but may be covered by the point-of-service option (see paragraph (n)(3) of this section). However, Prime rules may cover such services if the enrollee did not know and could not reasonably have been expected to know that the services were not obtained in accordance with the utilization management rules and procedures of Prime.
(vi) In accordance with guidelines issued by the Assistant Secretary of Defense for Health Affairs, certain travel expenses may be reimbursed
(3)
(o)
(1)
(2)
(ii) Exceptions to the 12-month enrollment period.
(A) Beneficiaries who are eligible to enroll in TRICARE Prime but have less than one year of TRICARE eligibility remaining.
(B) The dependents of a Reservist who is called or ordered to active duty or of a member of the National Guard who is called or ordered to full-time federal National Guard duty for a period of more than 30 days.
(3)
(4)
(5)
(6)
(7)
(p)
(1)
(2)
(3)
(4)
(i) They must be CHAMPUS authorized providers and CHAMPUS participating providers.
(ii) All physicians in the preferred provider network must have staff privileges in a hospital accredited by the Joint Commission on Accreditation of Health Care Organizations (JCAHO). This requirement may be waived in any case in which a physician's practice does not include the need for admitting privileges in such a hospital, or in locations where no JCAHO accredited facility exists. However, in any case in which the requirement is waived, the physician must comply with alternative qualification standards as are established by the MTF Commander (or other authorized official).
(iii) All preferred providers must agree to follow all quality assurance, utilization management, and patient referral procedures established pursuant to this section, to make available to designated DoD utilization management or quality monitoring contractors medical records and other pertinent records, and to authorize the release of information to MTF Commanders regarding such quality assurance and utilization management activities.
(iv) All preferred network providers must be Medicare participating providers, unless this requirement is waived based on extraordinary circumstances. This requirement that a provider be a Medicare participating provider does not apply to providers not eligible to be participating providers under Medicare.
(v) The provider must be available to Extra participants.
(vi) The provider must agree to accept the same payment rates negotiated for Prime enrollees for any person whose care is reimbursable by the Department of Defense, including, for example, Extra participants, supplemental care cases, and beneficiaries from outside the area.
(vii) All preferred providers must meet all other qualification requirements, and agree to comply with all other rules and procedures established for the preferred provider network.
(5)
(i) Under normal circumstances, enrollee travel time may not exceed 30 minutes from home to primary care delivery site unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area.
(ii) The wait time for an appointment for a well-patient visit or a specialty care referral shall not exceed four weeks; for a routine visit, the wait time for an appointment shall not exceed one week; and for an urgent care visit the wait time for an appointment shall generally not exceed 24 hours.
(iii) Emergency services shall be available and accessible to handle emergencies (and urgent care visits if not available from other primary care providers pursuant to paragraph (p)(5)(ii) of this section), within the service area 24 hours a day, seven days a week.
(iv) The network shall include a sufficient number and mix of board certified specialists to meet reasonably the anticipated needs of enrollees. Travel time for specialty care shall not exceed one hour under normal circumstances, unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area. This requirement does not apply under the Specialized Treatment Services Program.
(v) Office waiting times in nonemergency circumstances shall not exceed 30 minutes, except when emergency care is being provided to patients, and the normal schedule is disrupted.
(6)
(7)
(i) There may be an acquisition under the Federal Acquisition Regulation, either conducted locally for that catchment area, in a larger area in concert with other MTF Commanders, regionally as part of a CHAMPUS acquisition, or on some other basis.
(ii) To the extent allowed by law, there may be a modification by the Director, OCHAMPUS, of an existing
(iii) The MTF Commander (or other authorized official) may follow the “any qualified provider” method set forth in paragraph (q) of this section.
(iv) Any other method authorized by law may be used.
(q)
(1) The provider must meet all applicable requirements in paragraph (p)(4) of this section.
(2) The provider must agree to follow all quality assurance and utilization management procedures established pursuant to this section.
(3) The provider must be a Participating Provider under CHAMPUS for all claims.
(4) The provider must meet all other qualification requirements, and agree to all other rules and procedures, that are established, publicly announced, and uniformly applied by the commander (or other authorized official).
(5) The provider must sign a preferred provider network agreement covering all applicable requirements. Such agreements will be for a duration of one year, are renewable, and may be canceled by the provider or the MTF Commander (or other authorized official) upon appropriate notice to the other party. The Director, OCHAMPUS shall establish an agreement model or other guidelines to promote uniformity in the agreements.
(r)
(s)
(1) The TRICARE Extra Plan and the TRICARE Standard Plan may be offered without the TRICARE Prime Plan.
(2) In remote sites, where complete implementation of TRICARE is impracticable, TRICARE Prime may be offered to a limited group of beneficiaries. In such cases, normal requirements of TRICARE Prime which the Assistant Secretary of Defense (Health Affairs) determines are impracticable may be waived.
(3) The TRICARE program may be limited to particular services, such as mental health services.
(t)
(u)
(v)
For
(a)
(b)
(2) Certain preventive care services not normally provided as part of basic program benefits under CHAMPUS are covered benefits when provided to Prime enrollees by providers in the civilian provider network. Standards for preventive care services shall be developed based on guidelines from the U.S. Department of Health and Human Services. Such standards shall establish a specific schedule, including frequency or age specifications for:
(i) Laboratory and x-ray tests, including blood lead, rubella, cholesterol, fecal occult blood testing, and mammography;
(ii) Pap smears;
(iii) Eye exams;
(iv) Immunizations;
(v) Periodic health promotion and disease prevention exams;
(vi) Blood pressure screening;
(vii) Hearing exams;
(viii) Sigmoidoscopy or colonoscopy;
(ix) Serologic screening; and
(x) Appropriate education and counseling services. The exact services offered shall be established under uniform standards established by the Assistant Secretary of Defense (Health Affairs).
(3) In addition to preventive care services provided pursuant to paragraph (b)(2) of this section, other benefit enhancements may be added and other benefit restrictions may be waived or relaxed in connection with health care services provided to include the Uniform HMO Benefit. Any such other enhancements or changes must be approved by the Assistant Secretary of Defense (Health Affairs) based on uniform standards.
(c)
(2)
(3)
(d)
(2)
(i) For most physician office visits and other routine services, there is a per visit fee for retirees and their dependents. This fee applies to primary care and specialty care visits, except as provided elsewhere in this paragraph (d)(2) of this section. It also applies to family health services, home health care visits, eye examinations, and immunizations. It does not apply to ancillary health services or to preventive health services described in paragraph (b)(2) of this section, or to maternity services under § 199.4(e)(16).
(ii) There is a copayment for outpatient mental health visits. It is a per visit fee for retirees and their dependents for individual visits. For group visits, there is a lower per visit fee for retirees and their dependents.
(iii) There is a cost share of durable medical equipment, prosthetic devices, and other authorized supplies for retirees and their dependents.
(iv) For emergency room services, there is a per visit fee for retirees and their dependents.
(v) For ambulatory surgery services, there is a per service fee for retirees and their dependents.
(vi) There is a copayment for prescription drugs per prescription, including medical supplies necessary for administration, for dependents of active duty members and for retirees and their dependents under the Pharmacy Benefits Program (see § 199.17(m)(5)).
(vii) There is a copayment for ambulance services for retirees and their dependents.
(3)
(i) For most physician office visits and other routine services, as described in paragraph (d)(2)(i) of this section, the per visit fee for retirees and their dependents is $12.
(ii) For outpatient mental health visits, the per visit fee for retirees and their dependents is $25. For group outpatient mental health visits, there is a lower per visit fee for retirees and their dependents of $17.
(iii) The cost share for durable medical equipment, prosthetic devices, and other authorized supplies for retirees and their dependents is 20 percent of the negotiated fee.
(iv) For emergency room services, the per visit fee for retirees and their dependents is $30.
(v) For primary surgeon services in ambulatory surgery, the per service fee for retirees and their dependents is $25.
(vi) The copayments for prescription drugs are established under the Pharmacy Benefits Program (see § 199.21).
(vii) The copayment for ambulance services for retirees and their dependents is $20.
(e)
(2)
(3)
(f)
(2) The limits established by paragraph (f)(1) of this section do not apply to out-of-pocket costs incurred pursuant to paragraph (m)(1)(i) or (m)(2)(i) of § 199.17 under the point-of-service option of TRICARE Prime.
(g)
(a)
(b)
(c)
(d)
(i) Members of Uniformed Services, who:
(A) Are discharged or released from active duty (or full time National Guard duty), whether voluntarily or involuntarily, under other than adverse conditions;
(B) Immediately preceding that discharge or release, were entitled to medical and dental care under 10 U.S.C. 1074(a) (except in the case of a member discharged or released from full-time National Guard duty); and,
(C) After that discharge or release and any period of transitional health care provided under 10 U.S.C. 1145(a) would not otherwise be eligible for any benefit under 10 U.S.C. chapter 55.
(ii) A person who:
(A) Ceases to meet requirements for being considered an unmarried dependent child of a member or former member of the armed forces under 10 U.S.C. 1072(2)(D);
(B) On the day before ceasing to meet those requirements, was covered under a health benefits plan under 10 U.S.C. chapter 55, or transitional health care under 10 U.S.C. 1145(a) as a dependent of the member or former member; and,
(C) Would not otherwise be eligible for any benefits under 10 U.S.C. chapter 55.
(iii) A person who:
(A) Is an unremarried former spouse of a member or former member of the armed forces;
(B) On the day before the date of the final decree of divorce, dissolution, or annulment was covered under a health benefits plan under 10 U.S.C. chapter 55, or transitional health care under 10 U.S.C. 1145(a) as a dependent of the member or former member; and,
(C) Is not a dependent of the member or former member under 10 U.S.C. 1072(2)(F) or (G) or ends a one-year period of dependency under 10 U.S.C. 1072(2)(H).
(iv) An unmarried person who:
(A) Is placed in the legal custody of a member or former member by a court or who is placed in the home of a member or former member by a recognized placement agency in anticipation of the legal adoption of the child; and
(B) Either:
(
(
(C) Is dependent on the member or former member for over one-half of the person's support; and
(D) Resides with the member or former member unless separated by the necessity of military service or to receive institutional care as a result of disability or incapacitation; and
(E) Is not a dependent of a member or former member as described in § 199.3(b)(2).
(2)
(3)
(ii) In the case of a member who becomes (or will become) eligible for continued coverage, the Department of Defense shall notify the member of their rights for coverage as part of pre-separation counseling conducted under 10 U.S.C. 1142.
(iii) In the case of a child of a member or former member who becomes eligible for continued coverage:
(A) The member or former member may submit to the Third Party Administrator a notice of the child's change in status (including the child's name, address, and such other information needed); and
(B) The Third Party Administrator, within 14 days after receiving such information, will inform the child of the child's rights under 10 U.S.C. 1142.
(iv) In the case of a former spouse of a member or former member who becomes eligible for continued coverage, the Third Party Administrator will notify the individual of eligibility for CHCBP when he or she declares the change in marital status to a military personnel office.
(4)
(A) The date of the discharge or release of the member from active duty or full-time National Guard duty;
(B) The date on which the period of transitional health care applicable to the member under 10 U.S.C. 1145(a) ends;
(C) In the case of an unremarried former spouse of a member or former member, the date the one-year extension of dependency under 10 U.S.C. 1072(2)(H) expires; or
(D) The date the member receives the notification of eligibility.
(ii) A member of the armed forces who is eligible for enrollment under paragraph (d)(1)(i) of this section may elect self-only or family coverage. Family members who may be included in such family coverage are the spouse and children of the member.
(5)
(i) A Defense Enrollment Eligibility Reporting System (DEERS) printout which indicates the appropriate sponsor status and the sponsor's and dependent's eligibility dates;
(ii) A copy of a verified and approved DD Form 1172, “Application for Uniformed Services Identification and Privilege Card”;
(iii) A front and back copy of a DD Form 1173, “Uniformed Services Identification and Privilege Card” overstamped “TA” for Transition Assistance Management Program; or
(iv) A copy of a DD Form 214—“Certificate of Release or Discharge from Active Duty”.
(6)
(i) For a member discharged or released from active duty (or full time National Guard duty), whether voluntarily or involuntarily, the date which is 18 months after the date the member ceases to be entitled to care under 10 U.S.C. 1074(a) and any transitional care under 10 U.S.C. 1145.
(ii) In the case of an unmarried dependent child of a member or former member, the date which is 36 months after the date on which the person first ceases to meet the requirements for being considered an unmarried dependent child under 10 U.S.C. 1072(2)(D).
(iii) In the case of an unremarried former spouse of a member or former member, the date which is 36 months after the later of:
(A) The date on which the final decree of divorce, dissolution, or annulment occurs; or
(B) If applicable, the date the one-year extension of dependency under 10 U.S.C. 1072(2)(H) expires.
(iv) In the case of an unremarried former spouse of a member or former member, whose divorce occurred prior to the end of transitional coverage, the period of coverage under the CHCBP is unlimited, if:
(A) Has not remarried before the age of 55; and
(B) Was enrolled in the CHCBP as the dependent of an involuntarily separated member during the 18-month period before the date of the divorce, dissolution, or annulment; and
(C) Is receiving a portion of the retired or retainer pay of a member or former member or an annuity based on the retainer pay of the member; or
(D) Has a court order for payment of any portion of the retired or retainer pay; or
(E) Has a written agreement (whether voluntary or pursuant to a court order) which provides for an election by the member or former member to provide an annuity to the former spouse.
(v) For the beneficiary who becomes eligible for the Continued Health Care Benefit Program by ceasing to meet the requirements for being considered an unmarried dependent child of a member or former member, health care coverage may not extend beyond the date which is 36 months after the date the member becomes ineligible for medical and dental care under 10 U.S.C. 1074(a) and any transitional health care under 10 U.S.C. 1145(a).
(vi) Though beneficiaries have sixty-days (60) to elect coverage under the CHCBP, upon enrolling, the period of coverage must begin the day after entitlement to a military health care plan (including transitional health care under 10 U.S.C. 1145(a)) ends.
(e)
(2)
(i) Paragraph (a)(2) of this section concerning eligibility:
(ii) All provisions regarding nonavailability statements or requirements to use facilities of the Uniformed Services.
(3)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(2)
(i) The Extended Care Health Option (ECHO) under § 199.5.
(ii) The Active Duty Dependents Dental Plan under § 199.13;
(iii) The Supplemental Health Care Program under § 199.16; and
(iv) The TRICARE Enrollment Program under § 199.17, except for TRICARE Extra program under that section.
(3)
(i) Home Health Care Demonstration; and
(ii) Home Health Care-Case Management Demonstration.
(q)
(2) Effects of failure to make premium payments. Failure by enrollees to submit timely and proper premium payments will result in denial of continued enrollment and denial of payment of medical claims. Premium payments which are late 30 days or more past the start of the quarter for which payment is due will result in the ending of beneficiary enrollment. Beneficiaries denied continued enrollment due to lack of premium payments will not be allowed to reenroll. In such a case, benefit coverage will cease at the end of the ninety day (90) period for which a premium payment was received. Enrollees will be held liable for medical costs incurred after losing eligibility.
(r)
(2) Enrollment in the U.S. VIP program may continue up to October 1, 1994. Policies written prior to October 1, 1994, will remain in effect until the end of the policy life.
(3) On or after the October 1, 1994, implementation of the Continued Health Care Benefit Program, beneficiaries who enrolled in the U.S. VIP program prior to October 1, 1994, may elect to cancel their U.S. VIP policy and enroll in the CHCBP.
(4) With the exception of persons enrolled in the U.S. VIP program who may convert to the CHCBP, individuals who lost their entitlement to regular military health services system coverage prior to August 2, 1994, are not eligible for the CHCBP.
(s)
(a) General—(1)
(2)
(3)
(i) The uniform formulary will assure the availability of pharmaceutical agents in the complete range of therapeutic classes authorized as basic program benefits.
(ii) As required by 10 U.S.C. 1074g(a)(2) and implemented under the procedures established by paragraphs (e) and (f) of this section, pharmaceutical agents in each therapeutic class are selected for inclusion on the uniform formulary based upon the relative clinical effectiveness and cost effectiveness of the agents in such class. If a pharmaceutical agent in a therapeutic class is determined by the Department of Defense Pharmacy and Therapeutics Committee not to have a significant, clinically meaningful therapeutic advantage in terms of safety, effectiveness, or clinical outcome over other pharmaceutical agents included on the uniform formulary, the Committee may recommend it be classified as a non-formulary agent. In addition, if the evaluation by the Pharmacy and Therapeutics Committee concludes that a pharmaceutical agent in a therapeutic class is not cost effective relative to other pharmaceutical agents in that therapeutic class, considering costs, safety, effectiveness, and clinical outcomes, the Committee may recommend it be classified as a non-formulary agent.
(iii) Pharmaceutical agents which are used exclusively in medical treatments or procedures that are expressly excluded from the TRICARE benefit by statute or regulation will not be considered for inclusion on the uniform formulary. Excluded pharmaceutical agents shall not be available as non-formulary agents, nor will they be cost-shared under the TRICARE pharmacy benefits program.
(b)
(1)
(2)
(c)
(2)
(3)
(d)
(e)
(ii) Sources of information may include but are not limited to:
(A) Medical and pharmaceutical textbooks and reference books;
(B) Clinical literature;
(C) U.S. Food and Drug Administration determinations and information;
(D) Information from pharmaceutical companies;
(E) Clinical practice guidelines, and
(F) Expert opinion.
(iii) The DoD Pharmacy and Therapeutics Committee will evaluate the relative clinical effectiveness of pharmaceutical agents within a therapeutic class by considering information about their safety, effectiveness, and clinical outcome.
(iv) Information considered by the Committee may include but is not limited to:
(A) U.S. Food and Drug Administration approved and other studied indications;
(B) Pharmacology;
(C) Pharmacokinetics;
(D) Contraindications;
(E) Warnings/precautions;
(F) Incidence and severity of adverse effects;
(G) Drug to drug, drug to food, and drug to disease interactions;
(H) Availability, dosing, and method of administration;
(I) Epidemiology and relevant risk factors for diseases/conditions in which the pharmaceutical agents are used;
(J) Concomitant therapies;
(K) Results of safety and efficacy studies;
(L) Results of effectiveness/clinical outcomes studies, and
(M) Results of meta-analyses.
(2) Cost effectiveness. (i) In considering the relative cost effectiveness of pharmaceutical agents in a therapeutic class, the DoD Pharmacy and Therapeutics Committee shall evaluate the costs of the agents in relation to the safety, effectiveness, and clinical outcomes of the other agents in the class.
(ii) Information considered by the Committee concerning the relative
(A) Cost of the pharmaceutical agent to the Government;
(B) Impact on overall medical resource utilization and costs;
(C) Cost-efficacy studies;
(D) Cost-effectiveness studies;
(E) Cross-sectional or retrospective economic evaluations;
(F) Pharmacoeconomic models;
(G) Patent expiration dates;
(H) Clinical practice guideline recommendations, and
(I) Existence of existing or proposed blanket purchase agreements, incentive price agreements, or contracts.
(f)
(1) Approval of a new pharmaceutical agent by the U.S. Food and Drug Administration;
(2) Approval of a new indication for an existing pharmaceutical agent;
(3) Changes in the clinical use of existing pharmaceutical agents;
(4) New information concerning the safety, effectiveness or clinical outcomes of existing pharmaceutical agents;
(5) Price changes;
(6) Shifts in market share;
(7) Scheduled review of a therapeutic class; and
(8) Requests from Pharmacy and Therapeutics Committee members, military treatment facilities, or other Military Health System officials.
(g)
(2)
(3)
(4)
(h)
(i) Military Treatment Facilities (MTFs);
(ii) Retail network pharmacies: Those are non-MTF pharmacies that are a part of the network established for TRICARE retail pharmacy services;
(iii) Retail non-network pharmacies: Those are non-MTF pharmacies that are not part of the network established for TRICARE retail pharmacy services, and
(iv) the TRICARE Mail Order Pharmacy (TMOP).
(2)
(ii)
(3)
(ii)
(iii)
(iv)
(4)
(i)
(2)
(i) For pharmaceutical agents obtained from a military treatment facility, there is no co-payment.
(ii) For pharmaceutical agents obtained from a retail network pharmacy there is a:
(A) $9.00 co-payment per prescription required for up to a 30-day supply of a formularly pharmaceutical agent.
(B) $3.00 co-payment per prescription for up to a 30-day supply of a generic pharmaceutical agent.
(C) $22.00 co-payment per prescription for up to a 30-day supply of a non-formulary pharmaceutical agent.
(D) $0.00 co-payment for vaccines/immunizations authorized as preventive care for eligible beneficiaries.
(iii) For formulary and generic pharmaceutical agents obtained from a retail non-network pharmacy there is a 20 percent or $9.00 co-payment (whichever is greater) per prescription for up to a 30-day supply of the pharmaceutical agent.
(iv) For non-formulary pharmaceutical agents obtained at a retail non-network pharmacy there is a 20
(v) For pharmaceutical agents obtained under the TMOP program there is a:
(A) $9.00 co-payment per prescription for up to a 90-day supply of a formulary pharmaceutical agent.
(B) $3.00 co-payment for up to a 90-day supply of a generic pharmaceutical agent.
(C) $22.00 co-payment for up to a 90-day supply of a non-formulary pharmaceutical agent.
(vi) For TRICARE Prime beneficiaries who obtain prescriptions from retail non-network pharmacies, the enrollment year deductible for outpatient claims is $300 per individual; $600 per family; and a point of service cost-share of 50 percent thereafter applies in lieu of the 20 percent co-payment.
(vii) Except as provided in paragraph (h)(2)(viii) of this section, for pharmaceutical agents acquired by TRICARE Standard beneficiaries from retail non-network pharmacies, beneficiaries are subject to the $150.00 per individual or $300.00 maximum per family annual fiscal year deductible.
(viii) Under TRICARE Standard, dependents of members of the uniformed services whose pay grade is E-4 or below are subject to the $50.00 per indiviudal or $100.00 maximum per family annual fiscal year deductible.
(ix) The TRICARE catastrophic cap limits apply to pharmacy benefits program cost-sharing.
(x) The per prescription co-payments established in this paragraph (i)(2) of this section may be adjusted periodically based on experience with the uniform formulary, changes in economic circumstances, and other appropriate factors. Any such adjustment may be made upon the recommendation of the Pharmacy and Therapeutics Committee and approved by the Assistant Secretary of Defense (Health Affairs). Any such adjusted amount will maintain compliance with the requirements of 10 U.S.C. 1074g(a)(6).
(xi) For a Medicare-eligible beneficiary, the cost-sharing requirements may not be in excess of the cost-sharing requirements applicable to all other beneficiaries covered by 10 U.S.C. 1086.
(3)
(ii) A clinical necessity for use of a non-formulary pharmaceutical agent is established when the beneficiary or their provider submits sufficient information to show that one or more of the following conditions exist:
(A) The use of formualry pharmaceutical agents is contraindicated;
(B) The patient experiences significant adverse effects from formulary pharmaceutical agents, or the provider shows that the patient is likely to experience significant adverse effects from formulary pharmaceutical agents;
(C) Formulary pharmaceutical agents result in therapeutic failure, or the provider shows that the formulary pharmaceutical agent is likely to result in therapeutic failure;
(D) The patient previously responded to a non-formulary pharmaceutical agent and changing to a formulary pharmaceutical agent would incur unacceptable clinical risk; or
(E) There is no alternative pharmaceutical agent on the formulary.
(iii) Information to establish clinical necessity for use of a non-formulary pharmaceutical agent should be provided to TRICARE for prescriptions submitted to a retail network pharmacy.
(iv) Information to establish clinical necessity for use of a non-formulary pharmaceutical agent should be provided as part of the claims processes for non-formulary pharmaceutical agents obtained through non-network points of service, claims as a result of other health insurance, or any other situations requiring the submission of a manual claim.
(v) Information to establish clinical necessity for use of a non-formulary pharmaceutical agent may be provided with the prescription submitted to the TMOP contractor.
(vi) Information to establish clinical necessity for use of a non-formulary pharmaceutical agent may also be provided at a later date, but no later than sixty days from the dispensing date, as an appeal to reduce the non-formulary co-payment to the same co-payment as a formulary drug.
(vii) The process of establishing clinical necessity will not unnecessarily delay the dispensing of a prescription. In situations where clinical necessity cannot be determined in a timely manner, the non-formulary pharmaceutical agent will be dispensed at the non-formulary co-payment and a refund provided to the beneficiary should clinical necessity be established.
(viii) Peer review and appeal and hearing procedures. All levels of peer review, appeals, and grievances established by the Contractor for internal review shall be exhausted prior to forwarding to TRICARE Management Activity for a formal review. Procedures comparable to those established under §§ 199.15 and 199.10 of this part shall apply. If it is determined that the prescription is clinically necessary, the pharmaceutical agent will be provided to the beneficiary at the formulary cost-share. TRICARE may require that the time periods for peer review or for appeal and hearing be expedited under the pharmacy benefits program. For purposes of meeting the amount in dispute requirement of § 199.10(a)(7), the relevant amount is the difference between the cost shares of a formulary versus non-formulary drug. The amount for each of multiple prescriptions involving the same drug to treat the same medical condition and filled within a 12-month period may be combined to meet the required amount in dispute.
(j)
(2) The pharmacy benefits program generally requires mandatory substitution of generic drugs listed with an “A” rating in the current Approved Drug Products with Therapeutic Equivalence Evaluations (Orange Book) published by the FDA and generic equivalents of grandfather or Drug Efficacy Study Implementation (DESI) category drugs for brand name drugs. In cases in which there is a clinical justification for a brand name drug in lieu of a generic equivalent, under the standards and procedures of paragraph (h)(3) of this section, the generic substitution policy is waived.
(3) When a blanket purchase agreement, incentive price agreement, Government contract, or other circumstances results in a brand pharmaceutical agent being the most cost effective agent for purchase by the Government, the Pharmacy and Therapeutics Committee may also designate that the drug be cost-shared at the generic rate.
(k)
(2) The Pharmacy and Therapeutics Committee will assess the need to prior authorize a given agent by considering the relative clinical and cost effectiveness of pharmaceutical agents within a therapeutic class. Pharmaceutical agents that require prior authorization will be identified by a majority vote of the Pharmacy and Therapeutics Committee. The Pharmacy and Therapeutics Committee will establish the prior authorization criteria for the pharamaceutical agent.
(3) Prescriptions for pharmaceutical agents for which prior authorization criteria are not met will not be cost-shared under the TRICARE pharmacy benefits program.
(4) The Director, TRICARE Management Activity, may issue policies, procedures, instructions, guidelines, standards or criteria to implement this paragraph (k).
(l)
(m)
(n)
(o)
(2) Based on the determination set forth in paragraph (o)(1) of this section, any State or local law relating to health insurance, prepaid health plans, or other health care delivery or financing methods is preempted and does not apply in connection with TRICARE pharmacy contracts. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TRICARE pharmacy contracts. However, the Department of Defense may by contract establish legal obligations on the part of TRICARE contractors to conform with requirements similar or identical to requirements of State or local laws or regulations.
(3) The preemption of State and local laws set forth in paragraph (o)(1) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of the statutes identified in paragraph (o)(1) of this section. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD pharmacy services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD pharmacy services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(p)
(q)
(ii) Under subparagraph (q)(1)(i) of this section, all covered drug TRICARE retail pharmacy network prescriptions are subject to Federal Ceiling Prices under 38 U.S.C. 8126.
(2)
(A) Inclusion of that drug on the uniform formulary under this section; and
(B) Availability of that drug through retail network pharmacies without preauthorization under paragraph (k) of this section.
(ii) A covered drug not under an agreement under paragraph (q)(2)(i) of this section requires preauthorization under paragraph (k) of this section to be provided through a retail network pharmacy under the Pharmacy Benefits Program. This preauthorization requirement does not apply to other points of service under the Pharmacy Benefits Program.
(iii) For purposes of this paragraph (q)(2), a covered drug is a drug that is a covered drug under 38 U.S.C. 8126, but does not include:
(A) A drug that is not a covered drug under 38 U.S.C. 8126;
(B) A drug provided under a prescription that is not covered by 10 U.S.C. 1074g(f);
(C) A drug that is not provided through a retail network pharmacy under this section;
(D) A drug provided under a prescription which the TRICARE Pharmacy Benefits
Program is the second payer under paragraph (m) of this section;
(E) A drug provided under a prescription and dispensed by a pharmacy under section 340B of the Public Health Service Act; or
(F) Any other exception for a drug, consistent with law, established by the Director, TMA.
(iv) The requirement of this paragraph (q)(2) may, upon the recommendation of the Pharmacy and Therapeutics Committee, be waived by the Director, TMA if necessary to ensure that at least one drug in the drug class is included on the Uniform Formulary. Any such waiver, however, does not waive the statutory requirement referred to in paragraph (q)(1) that all covered TRICARE retail network pharmacy prescriptions are subject to Federal Ceiling Prices under 38 U.S.C. 8126; it only waives the exclusion from the Uniform Formulary of drugs not covered by agreements under this paragraph (q)(2).
(3)
(ii) The refund procedures referred to in paragraph (q)(3)(i) of this section shall, to the extent practicable, incorporate common industry practices for implementing pricing agreements between manufacturers and large pharmacy benefit plan sponsors. Such procedures shall provide the manufacturer at least 70 days from the date of the
(iii) A refund due under this paragraph (q) is subject to section 199.11 of this part and will be treated as an erroneous payment under that section.
(A) A manufacturer may under § 199.11 of this part request waiver or compromise of a refund amount due under 10 U.S.C. 1074g(f) and this paragraph (q).
(B) During the pendency of any request for waiver or compromise under subparagraph (q)(3)(iii)(A) of this section, a manufacturer's written agreement under paragraph (q)(2) shall be deemed to exclude the matter that is the subject of the request for waiver or compromise. In such cases the agreement, if otherwise sufficient for the purpose of the condition referred to in paragraph (q)(2), will continue to be sufficient for that purpose. Further, during the pendency of any such request, the matter that is the subject of the request shall not be considered a failure of a manufacturer to honor an agreement for purposes of paragraph (q)(4).
(C) In addition to the criteria established in § 199.11 of this section, a request for waiver may also be premised on the voluntary removal by the manufacturer in writing of a drug from coverage in the TRICARE Pharmacy Benefit Program.
(iv) In the case of disputes by the manufacturer of the accuracy of TMA's utilization data, a refund obligation as to the amount in dispute will be deferred pending good faith efforts to resolve the dispute in accordance with procedures established by the Director, TMA. If the dispute is not resolved within 60 days, the Director, TMA will issue an initial administrative decision and provide the manufacturer with opportunity to request reconsideration or appeal consistent with procedures under § 199.10 of this part. When the dispute is ultimately resolved, any refund owed relating to the amount in dispute will be subject to an interest charge from the date payment of the amount was initially due, consistent with § 199.11 of this part.
(4)
(5)
(a)
(b)
(2) Premium costs for this coverage will be paid by the enrollee.
(3)
(ii) The Assistant Secretary of Defense (Health Affairs) (ASD (HA)) may extend the TRDP to geographic areas other than those specified in paragraph (b)(3)(i) of this section. In extending the TRDP overseas, the ASD (HA) is authorized to establish program elements, methods of administration, and payment rates and procedures that are different from those in effect for the areas specified in paragraph (b)(3)(i) of this section to the extent the ASD (HA), or designee, determines necessary for the effective and efficient operation of the TRDP. These differences may include, but are not limited to, specific provisions for preauthorization of care, varying licensure and certification requirements for foreign providers, and other differences based on limitations in the availability and capabilities of the Uniformed Services overseas dental treatment facilities and a particular nation's civilian sector providers in certain areas. The Director, TRICARE Management Activity shall issue guidance, as necessary, to implement the provisions of this paragraph. TRDP enrollees residing in overseas locations will be eligible for the same benefits as enrollees residing in the continental United States, although dental services may not be available or accessible in all locations.
(4) Except as otherwise provided in this section or by the Assistant Secretary of Defense (Health Affairs) or designee, the TRDP is administered in a manner similar to the TRICARE Dental Program under § 199.13 of this part.
(5) The TRDP shall be administered through a contract.
(c) Except as may be specifically provided in this section, to the extent terms defined in § 199.2 and § 199.13(b) are relevant to the administration of the TRICARE Retiree Dental Program, the definitions contained in § 199.2 and § 199.13(b) shall apply to the TRDP as they do to TRICARE/CHAMPUS and the TRICARE Dental Program.
(d)
(i) Members of the Uniformed Services who are entitled to retired pay, or former members of the armed forces who are Medal of Honor recipients and who are not otherwise entitled to dental benefits;
(ii) Members of the Retired Reserve under the age of 60;
(iii) Eligible dependents of a member described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section who are covered by the enrollment of the member;
(iv) Eligible dependents of a member described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section when the member is not enrolled in the program and the member meets at least one of the conditions in paragraphs (d)(1)(iv)(A) through (C) of this section. Already enrolled members must satisfy any remaining enrollment commitment prior to enrollment of dependents becoming effective under this paragraph, at which time the dependent-only enrollment will continue on a voluntary basis as specified in paragraph (d)(4) of this section. Members must provide documentation to the TRDP contractor giving evidence of compliance with paragraphs (d)(1)(iv)(A), (B), or (C) of this section at the time of application for enrollment of their dependents under this paragraph.
(A) The member is enrolled under Section 1705 of Title 38, United States Code, to receive ongoing, comprehensive dental care from the Department of Veterans Affairs pursuant to Section 1712 of Title 38, United States Code, and 38 CFR 17.93, 17.161, or 17.166. Authorization of such dental care must be confirmed in writing by the Department of Veterans Affairs.
(B) The member is enrolled in a dental plan that is available to the member as a result of employment of the
(C) The member is prevented by a current and enduring medical or dental condition from being able to obtain benefits under the TRDP. The specific medical or dental condition and reason for the inability to use the program's benefits over time, if not apparent based on the condition, must be documented by the member's physician or dentist.
(v) The unremarried surviving spouse and eligible child dependents of a deceased member who died while in status described in paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section; the unremarried surviving spouse and eligible child dependents who receive a surviving spouse annuity; or the unremarried surviving spouse and eligible child dependents of a deceased member who died while on active duty for a period of more than 30 days and whose eligible dependents are not eligible or no longer for the TRICARE Dental Program.
Eligible dependents of Medal of Honor recipients are described in § 199.3(b)(2)(i) (except for former spouses) and § 199.3(b)(2)(ii) (except for a child placed in legal custody of a Medal of Honor recipient under § 199.3(b)(2)(ii)(H)(
(2)
(3)
(4)
(ii)
(5)
(ii)
(A)
(B)
(
(
(
(C)
(D)
(6)
(e)
(1)
(2)
(3)
(f)
(1) The minimum TRDP benefit is basic dental care to include diagnostic services, preventive services, restorative services, endodontic services, periodontic services, oral surgery services, and other general services. The following is the minimum TRDP covered dental benefit:
(i)
(A) Clinical oral examinations.
(B) Radiographs and diagnostic imaging.
(C) Tests and laboratory examinations.
(ii)
(A) Dental prophylaxis.
(B) Topical fluoride treatment (office procedure).
(C) Sealants.
(D) Other preventive services.
(E) Space maintenance.
(iii)
(A) Amalgam restorations.
(B) Resin-based composite restorations.
(C) Other restorative services.
(iv)
(A) Pulp capping.
(B) Pulpotomy and pulpectomy.
(C) Root canal therapy.
(D) Apexification and recalcification procedures.
(E) Apicoectomy and periradicular services.
(F) Other endodontic procedures.
(v)
(A) Surgical services.
(B) Periodontal services.
(vi)
(A) Extractions.
(B) Surgical extractions.
(C) Alveoloplasty.
(D) Biopsy.
(E) Other surgical procedures.
(vii)
(A) Palliative (emergenery) treatment of dental pain.
(B) Therapeutic drug injection.
(C) Other drugs and/or medicaments.
(D) Treatment of postsurgical complications.
(2)
(3)
(i) The service, procedure, or course of treatment must be consistent with
(ii) The service, procedure, or course of treatment must be a generally accepted alternative for a service or procedure covered by the TRDP for the dental condition.
(iii) Payment for the alternative service or procedure may not exceed the lower of the prevailing limits for the alternative procedure, the prevailing limits or dental plan contractor's scheduled allowance for the otherwise authorized benefit procedure for which the alternative is substituted, or the actual charge for the alternative procedure.
(g)
(h)
(i)
(j)
(1) Billed charges; or
(2) Usual, Customary and Reasonable rates, in which the customary rate is calculated at the 50th percentile of billed charges in that geographic area, as measured in an undiscounted charge profile in 1995 or later for that geographic area (as defined by three-digit zip code).
(k)
(l)
(2) Based on the determination set forth in paragraph (l)(1) of this section, any State or local law or regulation pertaining to health or dental insurance, prepaid health or dental plans, or other health or dental care delivery, administration, and financing methods is preempted and does not apply in connection with the TRICARE Retiree Dental Program contract. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TRICARE Retiree Dental Program contract. (However, the Department of Defense may, by contract, establish legal obligations on the part of the TRICARE Retiree Dental Program contractor to conform with requirements similar to or identical to requirements of State or local laws or regulations).
(3) The preemption of State and local laws set forth in paragraph (l)(2) of this
(m)
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(A) Under 21 years of age; or
(B) Incapable of self-support because of mental or physical incapacity and is in fact dependent on the member for more than
(C) Is under 23 years of age, is enrolled in a full-time course of study in an institution of higher education and is in fact dependent on the member for more than one-half of the child's support.
(10)
(11)
(12)
(i) A dependent of a member of the armed forces residing with the member outside the United States, whether or not that dependent is command sponsored, or
(ii) An employee of a military department who is a national of the United States and is residing outside the United States in connection with such individual's employment or a dependent of such individual residing with the employee outside the United States; or
(iii) An employee of a Department of Defense contractor who is a national of the United States and is residing outside the United States in connection with such individual's employment or a dependent of such individual residing with the employee outside the United States.
(13)
(14)
(15)
(16)
(17)
(i) Is a citizen of the U.S.; or
(ii) Is not a citizen of the United States, but who owes permanent allegiance to the United States, as determined in accordance with the Immigration and Nationality Act.
(18)
(19)
(20)
(ii) Other documented nutritionally related medical conditions, or
(iii) Documented evidence of dietary deficiencies that impair or endanger health, or
(iv) Conditions that directly affect the nutritional health of a person, such as alcoholism or drug abuse, or
(v) Conditions that predispose persons to inadequate nutritional patterns, habits of poor nutritional choices or nutritionally related medical conditions.
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(c)
(i) Meet one of the participant type requirements: be a member of the armed forces on duty overseas; a family member/dependent of a member of the armed forces on duty overseas; a U.S. national employee of a military department serving overseas; a family member of a U.S. national employee of a DoD contractor serving overseas; a family member of a U.S. national employee of a DoD contractor serving overseas;
(ii) Reside in the geographic area served by the WIC Overseas office;
(iii) Meet the income criteria specified in this section; and
(iv) Meet the nutrition risk criteria specified in this section.
(2) In terms of income eligibility, the following apply:
(i) The Department of Defense shall use the Alaska income poverty guidelines published by the DHHS for making determinations regarding income eligibility for the Program.
(ii) Program income eligibility guidelines shall be adjusted annually to conform to annual adjustments made by the DHHS.
(iii) For income eligibility, the Program may consider the income of the family during the past 12 months and the family's current rate of income to determine which indicator accurately reflects the family's status.
(iv) A pregnant woman who is ineligible for participation in the Program because she does not meet income criteria shall be deemed eligible if the criteria would be met by increasing the number of individuals in her family (economic unit) by the number of children in utero.
(v) The Program shall define income according to USDA regulations with regard to the USDA-administered WIC Program. In particular—
(A) A basic allowance for housing is excluded from income as required by section 674 of the National Defense Authorization Act for Fiscal Year 2000.
(B) The value of in-kind housing benefits is excluded from income as required under USDA regulations.
(C) Cost of living allowances for duty outside the continental U.S. (OCONUS) is excluded from income as required under 7 CFR 246.7(d)(2)(iv)(A)(
(D) Public assistance and welfare payments are included in income.
(3) Participants must be found to be at nutritional risk to be eligible for program benefits.
(i) A Competent Professional Authority (CPA) shall determine if an applicant is at nutritional risk.
(ii) At the request of the program, applicants shall provide, according to schedules set by the USDA in 7 CFR 246.7(e) (unless deemed impracticable), nutritional risk data as a condition of certification in the Program. Such data includes:
(A) Anthropometric measurements,
(B) The results of hematological tests,
(C) Physical examination,
(D) Dietary information, or
(E) Developmental testing
(iii) A pregnant woman who meets all other eligibility criteria and for whom a nutritional risk assessment cannot immediately be completed will be considered presumptively eligible to participate in the Program for a period up to 60 days.
(iv) Infants under 6 months of age may be deemed to be at nutritional risk if the infant's mother was a Program participant during pregnancy or if medical records document that the mother was at nutritional risk during pregnancy.
(v) Unless otherwise specified herein or in 7 CFR 246.7(e), required nutritional risk data shall be provided to, or obtained by, the WIC Overseas Program office within 90 days of enrollment.
(4) In the event that it is impracticable for the WIC Overseas Program to adhere to the income and nutritional risk eligibility guidelines contained in USDA regulations, the Director, TRICARE Management Activity (TMA) may waive the Department's use of USDA WIC Program eligibility criteria by determining that it is impracticable to use these standards to certify participants in the WIC Overseas Program.
(i) Such determination shall consider relevant practical, administrative, national security, financial factors and existing Department policies and their application to the population served by the WIC Overseas Program.
(ii) Absent a written finding of impracticability described in section 199.23(c)(4), the eligibility criteria for the WIC program, contained in USDA regulations shall apply.
(5) An applicant for the WIC Overseas Program who presents a valid WIC Program Verification of Certification card, which is issued to participants in the domestic WIC Program when they intend to move, shall be considered eligible for participation in the WIC Overseas Program for the duration of the individual's current domestic WIC certification period, as long as he/she is an eligible service/family member or eligible civilian/family member.
(d)
(i) Drafts shall at a minimum list the food items to be redeemed and the date-to-use.
(ii) Food items listed on the draft must be approved for use under the Program.
(iii) Drafts generally shall allow for a three-month supply of food items for each participant, unless the participant's nutritional status necessitates more frequent contacts with the WIC Overseas office.
(iv) Participating commissaries and NEXMARTS shall accept the drafts in exchange for approved food items.
(v) Commissary and NEXMART personnel shall be trained on verification and processing of drafts.
(vi) Program guidelines shall provide for training of new participants in how to redeem drafts.
(2)
(i) The Director, TMA shall identify to the Defense Commissary Agency (DeCA) and NEXCOM a list of food items approved for the WIC Overseas Program. This list shall be developed in consultation with the USDA and shall include information regarding the appropriate package and/or container sizes and quantities available for participants, as well as the frequency with which food items can be acquired. Additions and/or deletions of food items from this list shall be communicated to the commissaries and NEXMARTS on an ongoing basis.
(ii) A CPA shall prescribe appropriate foods from among the approved list to be included in food packages.
(iii) A CPA shall coordinate documentation of medical need when such
(iv) The Director, TMA may authorize changes regarding the supplemental foods to be made available in the WIC Overseas Program when local conditions preclude strict compliance or when such compliance is impracticable.
(3)
(i) The WIC Overseas nutrition education program shall be locally overseen by a CPA based on guidance and materials provided by TMA.
(ii) Nutrition education and its means of delivery be tailored to the greatest extent practicable to the specific nutritional, cultural, practical, and other needs of the participant. Participant profiles created during certification may be used in designing appropriate nutrition education. A CPA may develop individual care plans, as necessary, consistent with USDA regulations.
(iii) Nutrition education shall consist of sessions wherein individual participants or groups of participants meet with a CPA in an interactive setting such that participants can ask, and the CPA can answer, questions related to nutrition practices. In addition, nutrition education shall utilize prepared educational materials and/or Internet sites. Both the sessions and the information materials shall be designed to improve health status, achieve positive change in dietary habits, and emphasize relationships between nutrition and health. Individual and group sessions can be accomplished through, among other things, face-to-face meetings, remote tele-videoconferencing, real-time computer-based distance learning, or other means.
(iv) Nutrition education services shall generally be provided to participants twice during each 6-month certification period, unless a different schedule is specified in USDA regulations.
(v) The nutrition education program shall promote breastfeeding as the optimal method of infant nutrition, encourage pregnant participants to breastfeed unless contraindicated for health reasons, and educate all participating women about the harmful effects of substance abuse.
(vi) Individual participants shall not be denied supplemental food due to the failure to attend scheduled nutrition education sessions.
(e)
(i) Verification may utilize sampling techniques.
(ii) Payment of drafts shall be made out of Defense Health Program funds.
(f)
(i) The agreement shall identify a contract brand of food item.
(ii) Under the agreement, the manufacturer shall rebate to the Department an agreed portion of the amounts paid by DoD for the procurement of the contract brand.
(2) The DoD shall use competitive procedures under title 10, chapter 137 to select the contract brand.
(3) Amounts rebated shall be credited to the appropriation available for carrying out the program and shall be applied against expenditures for the program in the same period as the other sums in the appropriation.
(g)
(2) Benefits shall not be provided while an appeal is pending when an applicant is denied benefits, a participant's certification has expired or a participant becomes categorically ineligible.
(3) A request for appeal shall be submitted in writing within five working days. If the decision is an adverse one it shall include notice to the applicant of his further appeal rights as reflected in (iii) below, and that he/she has five working days to effect any such appeal.
(4) Appeal reviews shall be conducted in the first instance by the CPA or team leader in charge of the local WIC Overseas office.
(i) Written notice of a decision shall be provided to the applicant within five working days.
(ii) If the appeal is upheld, retroactive benefits shall not be provided.
(iii) At an applicant's request a denied appeal may be forwarded to the regional program manager for review, who will provide a decision on the appeal within 5 working days.
(iv) If the regional program manager denies the appeal, there shall be no further right of appeal.
(5) Complaints about discriminatory treatment shall be handled in accordance with procedures established at each local WIC Overseas site.
(h)
(2) Information and personnel security requirements shall be consistent with applicable laws and regulations.
(a)
(1)
(2)
(3)
(4)
(5)
(i)
(A) Unless specified in this section or otherwise prescribed by the ASD(HA), provisions of 32 CFR Part 199 apply to TRICARE Reserve Select.
(B) Certain special programs established in 32 CFR Part 199 are not available to members covered under TRICARE Reserve Select. These include the Extended Care Health Option Program (see § 199.5), the Special Supplemental Food Program (see § 199.23), and the Supplemental Health Care Program (see § 199.16) except when referred by a Military Treatment Facility (MTF) provider for incidental consults and the MTF provider maintains clinical control over the episode of care. The TRICARE Dental Program (see § 199.13) is independent of this program and is otherwise available to all members of the Selected Reserve and their eligible family members whether or
(ii)
(iii)
(iv)
(b)
(1)
(ii) Annual rates for the first year TRICARE Reserve Select was offered (calendar year 2005) were based on the Federal Blue Cross and Blue Shield annual premiums, with adjustments based on estimated differences in covered populations, as determined by the ASD(HA).
(2)
(3)
(c)
(2)
(i) Is a member of the Selected Reserve of the Ready Reserve.
(ii) Is not enrolled in, or eligible to enroll in, a health benefits plan under Chapter 89 of Title 5, U.S.C.
(3)
(d)
(i)
(ii)
(iii)
(iv)
(2)
(3)
(i) Coverage shall terminate for members who no longer qualify for TRICARE Reserve Select as specified in paragraph (c) of this section, including when the member's service in the Selected Reserve terminates.
(ii) Coverage may terminate for members who gain coverage under another TRICARE program in which the member is the sponsor.
(iii) Coverage may terminate for members who fail to make a premium payment in accordance with procedures established by the ASD(HA).
(iv) Members may request termination of coverage at any time by submitting a completed request in the appropriate format in accordance with established deadlines and procedures.
(v) Coverage for survivors as described in paragraph (d)(1)(iv) of this section shall terminate six months after the date of death of the covered Reserve component member.
(4)
(5)
(e)
(f)
(2) Based on the determination set forth in paragraph (f)(1) of this section, any State or local law or regulation pertaining to health insurance, prepaid health plans, or other health care delivery, administration, and financing methods is preempted and does not
(3) The preemption of State and local laws set forth in paragraph (f)(2) of this section includes State and local laws imposing premium taxes on health insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of 10 U.S.C. 1103. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For the purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD health services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).
(g)
5 U.S.C. 551
(a)
(b)
(1) An opportunity for stakeholder involvement in the environmental restoration process at Department of Defense (DoD) installations. Stakeholders are those parties that may be affected by environmental restoration activities at the installation.
(2) A forum for the early discussion and continued exchange of environmental restoration program information between DoD installations, regulatory agencies, tribes, and the community.
(3) An opportunity for RAB members to review progress, participate in a dialogue with, and provide comments and advice to the installation's decision makers concerning environmental restoration matters. Installations shall give careful consideration to the comments provided by the RAB members.
(4) A forum for addressing issues associated with environmental restoration activities under the Defense Environmental Restoration Program (DERP) at DoD installations, including activities conducted under the Military Munitions Response program (MMRP) to address unexploded ordnance, discarded military munitions, and the chemical constituents of munitions. Environmental groups or advisory boards that address issues other than environmental restoration activities are not governed by this regulation.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(d)
(e)
(f)
(a)
(1) The closure of an installation involves the transfer of property to the community,
(2) At least 50 local citizens petition the installation for creation of a RAB,
(3) Federal, state, tribal, or local government representatives request the formation of a RAB, or
(4) The installation determines the need for a RAB. To determine the need for establishing a RAB, an installation should:
(i) Review correspondence files,
(ii) Review media coverage,
(iii) Consult local community members,
(iv) Consult relevant government officials, and
(v) Evaluate responses to communication efforts, such as notices placed in local newspapers and, if applicable, announced on the installation's Web site.
(b)
(c)
Prior to establishing a RAB, an installation shall notify potential stakeholders of its intent to form a RAB. In announcing the formation of a RAB, the installation should describe the purpose of a RAB and discuss opportunities for membership.
(a)
(1)
(2)
(i) To support the objective selection of community RAB members, installations will use a selection panel comprised of community members to nominate community RAB members. The Installation Commander, in consultation with the state, tribal, and local governments and EPA, as appropriate, will identify community interests and solicit names of individuals who can represent these interests on the selection panel. The panel will establish the procedures for nominating community RAB members, the process for reviewing community interest, and criteria for selecting community RAB members. The panel will transmit the list of RAB nominees to the Installation Commander for appointment.
(ii) Following the panel nominations, the Installation Commander, in consultation with the state and EPA, as appropriate, will review the nominations to ensure the panel fairly represents the local community. The Installation Commander will accept or reject the entire list of RAB nominees for appointment.
(b)
(c)
The installation and community co-chair, in conjunction with the RAB members, shall determine the RAB mission statement in accordance with guidance provided by the DoD Components.
(a)
(b)
Each RAB shall develop a set of operating procedures and the co-chairs are responsible for carrying them out. Areas that should be addressed in the procedures include:
(a) Clearly defined goals and objectives for the RAB, as determined by the co-chairs in consultation with the RAB,
(b) Meeting announcements,
(c) Attendance requirements of members at meetings,
(d) Development, approval and distribution procedures for the minutes of RAB meetings,
(e) Meeting frequency and location,
(f) Rules of order,
(g) The frequency and procedures for conducting training,
(h) Procedures for selecting or replacing co-chairs and selecting, replacing, or adding RAB members,
(i) Specifics on the size of the RAB, periods of membership, and co-chair length of service,
(j) Review of public comments and responses,
(k) Participation of the general public,
(l) Keeping the public informed about proceedings of the RAB,
(m) Discussing the agenda for the next meeting and issues to be addressed, and
(n) Methods for resolving disputes.
Training is not required for RAB members. It may be advisable, however, to provide RAB members with some initial orientation training regarding the purpose and responsibilities of the RAB, familiarization on cleanup technologies, chemicals of concern, and sampling protocols, as well as informing them of the availability of independent technical advice and document review through EPA's Technical Assistant Grant program and DoD's Technical Assistance for Public Participation (TAPP) program, to enable them to fulfill their responsibilities. Training should be site-specific and beneficial to RAB members. The DoD installation may also provide in-house assistance to discuss technical issues. Funding for training activities must be within the scope of administrative support for RABs, as permitted in § 202.12.
(a)
(1) The installation co-chair shall prepare and publish a timely public notice in a local newspaper of general circulation announcing each RAB meeting. If applicable, it is recommended that the meeting also be announced on the installation's Web site.
(2) Each RAB meeting shall be held at a reasonable time and in a manner or place reasonably accessible to and usable by all participants, including persons with disabilities.
(3) Presentation materials and readable maps should be provided to all meeting participants as appropriate.
(4) Interested persons shall be permitted to attend, appear before, or file statements with any RAB, subject to such reasonable rules or regulations as may be prescribed. Open solicitation of public comments shall be permitted and members of the public will have a designated time on the agenda to speak to the RAB committee as a whole.
(b)
(c)
(1) The RAB meeting minutes shall contain a record of the persons present; a complete and accurate description of matters discussed and comments received; and copies of all reports received, issued, or approved by the RAB. The accuracy of all minutes shall be certified by the RAB co-chairs. RAB
(2) The records, reports, minutes, appendixes, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by each RAB shall be available for public inspection and copying at a publicly accessible location, such as the information repositories established under the installation's Community Relations Plan, a public library, or in the offices of the installation to which the RAB reports, until the RAB ceases to exist.
(a)
(i) A record of decision has been signed for all DERP sites on the installation,
(ii) An installation has achieved response complete at all sites and no further environmental restoration decisions are required,
(iii) An installation has all remedies in place,
(iv) The RAB has achieved the desired end goal as defined in the RAB Operating Procedures,
(v) There is no longer sufficient, sustained community interest, as documented by the installation with RAB community members and community-at-large input, to sustain the RAB. The installation shall continue to monitor for any changes in community interest that could warrant reactivating or reestablishing the RAB, or
(vi) The installation has been transferred out of DoD control and day-to-day responsibility for making restoration response decisions has been assumed by the transferee.
(2)
(i) Consult with EPA, state, tribes, RAB members, and the local community, as appropriate, regarding adjourning the RAB and consider all responses before making a final decision.
(ii) Document the rationale for adjournment in a memorandum in a memorandum for inclusion in the Administrative Record, notify the public of the decision through written notice to the RAB members and through publication of a notice in a local newspaper of general circulation, and describe other ongoing public involvement opportunities that are available if the Installation Commander decides to adjourn the RAB.
(b)
(2)
(i) Consult with EPA, state, tribal and local government representatives, as appropriate, regarding dissolving the RAB.
(ii) Notify the RAB community co-chair and members in writing of the intent to dissolve the RAB and the reasons for doing so and provide the RAB members 30 days to respond in writing. The Installation Commander shall consider RAB member responses, and in consultation with EPA, state, tribal and local government representatives, as appropriate, determine the appropriate actions.
(iii) Notify the public of the proposal to dissolve the RAB and provide a 30-day public comment period on the proposal, if the Installation Commander decides to proceed with dissolution. At the conclusion of the public comment period, the Installation Commander will review the public comments, consult with EPA, state, tribal and local
(iv) Send the recommendation, responsiveness summary, and all supporting documentation via the chain-of-command to the Military Component's Environmental Deputy Assistant Secretary (or equivalent) for approval or disapproval. The Military Component's Environmental Deputy Assistant Secretary (or equivalent) shall notify the Office of the Deputy Under Secretary of Defense (Installations & Environment) (or equivalent) of the decision to approve or disapprove the request to dissolve the RAB and the rationale for that decision.
(v) Document the recommendation, responsiveness summary, and the rationale for dissolution in a memorandum for inclusion in the Administrative Record, notify the public of the decision through written notice to the RAB members and through publication of a notice in a local newspaper of general circulation and describe other ongoing public involvement opportunities that are available, once the Military Component's Environmental Deputy Assistant Secretary (or equivalent) makes a final decision.
(c)
(d)
(a) The installation shall document information on the activities of a RAB in the Information Repository. These activities shall include, but are not limited to:
(1) Installation's efforts to survey community interest in forming a RAB,
(2) Steps taken to establish a RAB where there is sufficient and sustained community interest,
(3) How the RAB relates to the overall community involvement program, and
(4) Steps taken to adjourn, dissolve, or reestablish the RAB.
(b) When RAB input has been used in decision-making, it should be documented as part of the Administrative Record.
(a)
(b)
(1) RAB establishment.
(2) Membership selection.
(3) Training if it is:
(i) Site specific and benefits the establishment and operation of a RAB.
(ii) Relevant to the environmental restoration activities occurring at the installation.
(4) Meeting announcements.
(5) Meeting facilities.
(6) Meeting facilitators, including translators.
(7) Preparation of meeting agenda materials and minutes.
(8) RAB-member mailing list maintenance and RAB materials distribution.
(c)
(1) At active installations, administrative expenses for a RAB shall be paid using funds from the Military Component's Environmental Restoration accounts.
(2) At BRAC installations, administrative expenses for a RAB shall be paid using BRAC funds.
(3) At FUDS, administrative expenses for a RAB shall be paid using funds from the Environmental Restoration account for the Formerly Used Defense Sites program.
Community members of a RAB or TRC may request technical assistance for interpreting scientific and engineering issues with regard to the nature of environmental hazards at the installation and environmental restoration activities conducted, or proposed to be conducted, at the installation in accordance with 10 U.S.C. 2705(e) and the TAPP regulations located in 32 CFR Part 203.
The installation at which a RAB is established shall document the activities and meeting minutes and record the administrative expenses associated with the RAB in the information repository at a publicly accessible location. Installations shall use internal department and Military Component-specific reporting mechanisms to submit required information on RAB activities and expenditures.
10 U.S.C. 2705.
Part 203 is issued under the authority of section 2705 of Title 10, United States Code. In 1994, Congress authorized the Department of Defense (DoD) to develop a program to facilitate public participation by providing technical assistance to local community members of Restoration Advisory Boards (RABs) and Technical Review Committees (TRCs) (section 326 of the National Defense Authorization Act for Fiscal Year 1995, Pub.L. 103-337). In 1996, Congress revised this authority (section 324 of the National Defense Authorization Act for Fiscal Year 1996, Pub.L. 104-112). It is pursuant to this revised authority, which is codified as new subsection (3) of section 2705, that the Department of Defense issues this part.
(a) This part establishes the Technical Assistance for Public Participation (TAPP) program for the Department of Defense. It sets forth policies and procedures for providing technical assistance to community members of TRCs and RABs established at DoD installations in the United States and its territories. This part sets forth the procedures for the Department of Defense to accept and evaluate TAPP applications, to procure the assistance desired by community members of RABs and TRCs, and to manage the TAPP program. These provisions are applicable to all applicants/recipients of technical assistance as discussed in § 203.4 of this part.
(b) Any reference to documents made in this part necessary to apply for TAPP (e.g., the Office of Management and Budget (OMB) Circulars or DoD forms) are available through the DoD installations, the military department headquarters, or from the Department of Defense, Office of the Deputy Under Secretary of Defense for Environmental Security (DUSD(ES)), 3400 Defense Pentagon, Washington, DC 20301-3400.
As used in this part, the following terms shall have the meaning set forth:
Technical assistance does not include those activities prohibited under Section 203.11 of this part, such as litigation or underwriting legal actions; political activity; generation of new primary data such as well drilling and testing, including split sampling; reopening final DoD decisions or conducting disputes with the Department of Defense; or epidemiological or health studies, such as blood or urine testing.
(a) The Department of Defense will issue purchase orders to technical assistance, facilitation, training, and other public participation assistance providers subject to the purchase limit per order as resources continue to be available. If multiple purchase orders are needed to assist community members of a particular RAB or TRC, the combined sum of these purchase orders cannot exceed $100,000 or, during any one year, the lesser of $25,000 or 1 percent of the installation's total projected environmental restoration cost-to-complete. Note that these limitations refer to the maximum allowable technical assistance funding per RAB/TRC. Resources available within a given year may vary. These limitations apply unless a waiver is granted by the DoD Component Secretary or equivalent for the installation in question. The $100,000 total and $25,000 annual limitations may be waived, as appropriate, to reflect the complexity of response action, the nature and extent of contamination at the installation, the level of activity at the installation, projected total needs as identified by the TAPP recipient, the size and diversity of the affected population, and the ability of the TAPP recipient to identify and raise funds from other sources.
(b) Community members of the RAB/TRC will provide a description of the services requested (TAPP Project Description) and, if desired, the names of one or more proposed technical assistance providers to the DoD RAB Co-Chair, who will ensure the application
This section provides an overview of the TAPP process. Specific details referred to in this section can be found in subsequent sections of this part.
(a)
(1) Closure status.
(2) Budget.
(3) Installation restoration program status.
(4) Presence (or absence) of alternate funding.
(5) Relative risk posed by sites at the installation.
(6) Type of task to be funded.
(7) Community concern.
(8) Available funding.
(b)
(c)
(d)
(e)
(a) Non-profit contractors must comply with the cost principles in OMB Circular A-122. Copies of the circular may be obtained from EOP Publications, 725 17th NW, NEOB, Washington, DC 20503.
(b) For-profit contractors and subcontractors must comply with the cost principles in the FAR (48 CFR part 31).
Eligible applicants are community members of RABs or TRCs. Furthermore, the RABs or TRCs must be comprised of at least three community members to ensure community interests are broadly represented. The applicant must certify that the request represents the wishes of a simple majority of the community members of the RAB or TRC. Certification includes, but is not limited to, the results of a roll call vote of community members of the RAB or TRC documented in the meeting minutes. Other requirements of the application are detailed in § 203.9 of this part.
The Department of Defense will begin the TAPP procurement process only after it has determined that all eligibility and responsibility requirements listed in §§ 203.6, 203.7, and 203.9 of this
The applicant must submit a TAPP application to begin the TAPP procurement process. The application form is included as appendix A of this part and can be obtained from the DoD installation, the DoD Component headquarters, or directly from the Department of Defense, Office of the Deputy Under Secretary of Defense for Environmental Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400. The applications will not be considered complete until the following data elements have been entered into the form:
(a) Installation.
(b) Source of TAPP request (names of RAB or TRC).
(c) Certification of majority request.
(d) RAB/TRC contact point for TAPP project.
(e) Project title.
(f) Project type (e.g. data interpretation, training, etc.).
(g) Project purpose and description (descriptions, time and locations of products or services desired).
(h) Statement of eligibility of project.
(i) Proposed provider, if known.
(j) Specific qualifications or criteria for provider.
(a) TAPP procurements should be pursued by the RAB or TRC only to the extent that Federal, State, or local agencies responsible for overseeing environmental restoration at the facility do not have the necessary technical expertise for the proposed project, or the proposed technical assistance will contribute to the efficiency, effectiveness, or timeliness of environmental restoration activities at the installation and is likely to contribute to community acceptance of those activities.
(b) TAPP procurements may be used to fund activities that will contribute to the public's ability to provide advice to decision-makers by improving the public's understanding of overall conditions and activities. Categories of eligible activities include the following:
(1)
(i) Installation restoration program site studies, engineering documents, such as site inspections, remedial investigations, feasibility studies, engineering evaluation and cost analyses, and decision documents (including records of decision);
(ii) Risk assessments, including baseline and ecological risk assessments conducted by the installation; and
(iii) Health assessments, such as those conducted by the Agency for Toxic Substances and Disease Registry (ATSDR).
(2)
(3)
(4)
(5)
The following activities are ineligible for assistance under the TAPP program:
(a) Litigation or underwriting legal actions, such as paying for attorney fees or paying for a technical assistance provider to assist an attorney in preparing legal action or preparing for and serving as an expert witness at any legal proceeding regarding or affecting the site.
(b) Political activity and lobbying as defined by OMB Circular A-122.
(c) Other activities inconsistent with the cost principles stated in OMB Circular A-122, “Cost Principles for Non-Profit Organizations.”
(d) Generation of new primary data, such as well drilling and testing, including split sampling.
(e) Reopening final DoD decisions, such as the Records of Decision (see limitations on judicial review of remedial actions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 113(h)) or conducting disputes with the Department of Defense).
(f) Epidemiological or health studies, such as blood or urine testing.
(g) Community outreach efforts, such as renting a facility and conducting public meetings, or producing and distributing newsletters.
(a) A technical assistance provider must possess the following credentials:
(1) Demonstrated knowledge of hazardous or toxic waste issues and/or laws.
(2) Academic training in a relevant discipline (e.g., biochemistry, toxicology, environmental sciences, engineering).
(3) Ability to translate technical information into terms understandable to lay persons.
(b) A technical assistance provider should possess the following credentials:
(1) Experience working on hazardous or toxic waste problems.
(2) Experience in making technical presentations.
(3) Demonstrated writing skills.
(4) Previous experience working with affected individuals or community groups or other groups of individuals.
(c) The technical assistance provider's qualifications will vary according to the type of assistance to be provided. Community members of the RAB/TRC may suggest additional provider qualifications as part of the application for technical assistance. These additional qualifications may be used by the Department of Defense to target the most appropriate providers during the procurement process. Examples of such criteria could include prior work in the area, knowledge of local environmental conditions or laws, specific technical capabilities, or other relevant expertise.
Procurements will be conducted as purchase orders in accordance with the FAR (48 CFR part 13). Under these procedures, procurements not exceeding $100,000 are reserved exclusively for small businesses, and will be conducted as competitive procurements. Procurements below a value of $2,500 are considered “micro-purchases.” These procurements do not require the solicitation of bids and may be conducted at the discretion of the contracting officer.
The community point of contact of the RAB or TRC must submit a report, to be provided to the installation and to DUSD(ES), to enable the Department of Defense to meet DoD reporting requirements to Congress. This report should include a description of the TAPP project, a summary of services and products obtained, and a statement regarding the overall satisfaction of the community member of the RAB or TRC with the quality of service and/or products received.
The SAP set forth in FAR (48 CFR part 13) require purchase orders to be conducted on a firm-fixed-price basis, unless otherwise authorized by agency procedures. The Department of Defense anticipates all TAPP awards to be firm-fixed-price procurements.
The recipient technical assistance providers shall keep and preserve detailed records in connection with the contract reflecting acquisitions, work progress, reports, expenditures and commitments, and indicate the relationship to established costs and schedules.
Each technical assistance provider shall submit progress reports, financial status reports, materials prepared for the RAB/TRC, and a final report to the DoD installation for the TAPP project as specified by the specific purchase order agreement. The final report shall document TAPP project activities over the entire period of support and shall describe the achievements with respect to stated TAPP project purposes and objectives.
The Department of Defense shall require each prospective assistance provider on any contract to provide, with its bid or proposal:
(a) Information on its financial and business relationship with the installation, RAB/TRC members, or any/all potentially responsible parties (PRPs) at the site, and with their parent companies, subsidiaries, affiliates, subcontractors, contractors, and current clients or attorneys and agents. This disclosure requirement encompasses past and anticipated financial and business relationships, including services related to any proposed or pending litigation, with such parties.
(b) Certification that, to the best of its knowledge and belief, it has disclosed such information or no such information exists.
(c) A statement that it shall disclose immediately any such information discovered after submission of its bid or after award. The contracting officer shall evaluate such information and shall exclude any prospective contractor if the contracting officer determines the prospective contractor has a potential conflict of interest that is both significant and cannot be avoided or otherwise resolved. If, after award, the contracting officer determines that a conflict of interest exists that is both significant and cannot be avoided or resolved, the contract will be terminated for cause.
(d) Contractors and subcontractors may not be technical assistance providers to community members of RABs/TRCs at an installation where they are performing cleanup activities for the Federal or State government or any other entity.
DoD Components will establish an appeals process to settle potential disputes between the Department of Defense and the public regarding certain decisions arising out of the TAPP process. The Department of Defense recognizes that the RAB/TRC may disagree with the findings of the installation commander that a proposed TAPP project is ineligible, either because of the availability of alternate sources of assistance or because the project does not meet the eligibility criteria established in this part. It is in the best interests of the Department of Defense and the community members of RABs and TRCs to anticipate and avoid disputes and to work cooperatively to resolve potential differences of opinion. However, in certain circumstances, the RAB/TRC community members may feel that their needs were not adequately served by the decisions of the Department of Defense. In this instance, the hierarchical structure and chain-of-command within each DoD Component will serve as the avenue for appeal. Appeals will be considered within the chain-of-command, and, in general, will be resolved at the lowest level possible. The highest level of appeal will be at the DoD Component Deputy Assistant Secretary level with authority over the DERP and BRAC environmental programs. Inherently governmental functions, such as the procurement process governed by the FAR, are not subject to appeal.
31 U.S.C. 9701.
This part implements the DoD program under Title 31, United States Code, section 9701 and OMB Circular No. A-25, “User Charges,” to establish appropriate fees for authorized services supplied by DoD organizations.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). None of the provisions in this part should be construed as giving authority for the sale or lease of property, or the rendering of special services. Actions to convey such special benefits must be authorized by separate authority. This user fee policy is applicable except when other statutes or directives specifically direct other practices or procedures.
(a)
(1) Enables the beneficiary to obtain more immediate or substantial gain or values (which may or may not be measurable in monetary terms) than those which accrue to the general public (e.g., receiving a patent, insurance, or guarantee provision, or a license to carry on a specific activity or business or various kinds of public land use); or
(2) Provides business stability or contributes to public confidence in the business activity of the beneficiary (e.g., insuring deposits in commercial banks), or
(3) Is performed at the request of or for the convenience of the recipient, and is beyond the services regularly received by other members of the same industry or group or by the general public (e.g., receiving a passport, visa, airman's certificate, or a Custom's inspection after regular duty hours).
(b)
(2) User fees shall be based on market prices (as defined in § 204.5(a)(4)) when the Government is not acting in its capacity as sovereign and is leasing or selling goods or resources, or is providing a service (e.g., leasing space in federally owned buildings). Under these business-type conditions, user fees need not be limited to the recovery of full cost and may yield net revenues.
(3) User fees will be collected in advance of, or simultaneously with, the rendering of services unless appropriations and authority are provided in advance to allow reimbursable services.
(4) Whenever possible, fees should be set as rates rather than fixed dollar amounts in order to adjust for changes in costs to the Government or changes in market prices of the good, resource, or service provided.
(c)
(i) Morale, welfare, and recreation services to military personnel and civilian employees of the Department of Defense and other services provided according to § 204.8.
(ii) Sale or disposal of surplus property under approved programs (Chapter 5 of DoD 7000.14-R.)
(iii) Services furnished the general public relating to, or in furtherance of, the Armed Forces recruiting program.
(iv) Services furnished to representatives of the public information media in the interest of public understanding of the Armed Forces.
(v) Armed Forces participation in public events. Fees for such participation are governed by the provisions of DoD Instruction 5410.19.
(vi) Records made available to the public, under the Freedom of Information Act, pursuant to 32 CFR part 285. Fees for such record searches and copies of records are governed by 32 CFR part 286.
(vii) Services furnished to non-Federal audio-visual media. Fees for such services are governed by the provisions of DoD Instruction 5410.15.
(viii) Government-developed computer programs released to non-Federal customers. Fees for software packages are governed by DoD Instruction 7930.2.
(ix) Pricing of performance by DoD Working Capital Fund activities shall be according to Volume 11B of DoD 7000.14-R.
(x) Foreign Military Sales of Defense articles and services shall be according to Volume 15 of DoD 7000.14-R.
(xi) Records made available to Privacy Act requesters shall be according to 32 CFR part 310.
(2) User fees may be waived by the Head of a DoD Component when:
(i) Furnishing of their service without fee is an appropriate courtesy to a foreign government or international organization, or comparable fees are set on a reciprocal basis with a foreign country.
(ii) The Director of the OMB has approved a request for an exception. Such exceptions may be recommended when:
(A) The cost of collecting the fees would represent an unduly large part of the receipts from the activity; or
(B) Any other conditions exists that, in the opinion of the Head of the DoD Component or his designee, justifies the exception.
(a) The USD(C) shall develop and monitor policies governing user fees.
(b) The Heads of the DoD Components, or designees, shall:
(1) Identify each service or activity that may properly be the subject of a user fee under this part.
(2) Determine the extent of the special benefit provided.
(3) Apply the principles specified in § 204.5(a) in determining full cost or market price.
(4) Review the user fees biennially, to include:
(i) Assurance that existing fees are adjusted to reflect unanticipated changes in costs or market values; and
(ii) A review of all other programs to determine whether fees should be assessed for Government services or the user of Government goods or services. DoD Components should discuss the results of the biennial review of user fees and any resultant proposals in the Chief Financial Officers Annual Report required by the Chief Financial Officers Act of 1990.
(5) Initiate exception actions outlined in § 204.3(c)(2). All such actions shall be coordinated with the USD(C) prior to forwarding to the OMB.
(i) Exceptions granted under § 204.3(c)(2)(i) shall be renewed every 4 years to ensure conditions warrant their continuation.
(ii) Exceptions granted under § 204.3(c)(2)(ii) shall be resubmitted for approval to the OMB every 4 years when conditions warrant their continuation.
(6) Maintain readily accessible records of:
(i) The services or activities covered by this part.
(ii) The extent of special services provided.
(iii) The exceptions to the general policy of this part.
(iv) The information used to establish fees and the specific methods used in their determination.
(v) The collections from each user fee imposed.
(7) Maintain adequate records of the information used to establish fees and
(8) Develop legislative proposals as outlined in § 204.7 when there are statutory prohibitions or limitations on the assessment of user fees.
(a)
(2) “Full cost” includes all direct and indirect costs associated with providing a good, resource, or service. These costs are outlined in Volume 11A, Chapter 1, paragraph 010203 of DoD 7000.14-R.
(3) Full cost shall be determined or estimated from the best available records, and new cost accounting systems shall not be established solely for this purpose.
(4) “Market price” means the price for a good, resource, or service that is based on competition in open markets, and creates neither a shortage nor a surplus of the good, resource, or service.
(i) When a substantial competitive demand exists for a good, resource, or service, its market price will be determined using commercial practices, for example:
(A) By competitive bidding; or
(B) By reference to prevailing prices in competitive markets for goods, resources, or services that are the same or similar to those provided by the Government (e.g., campsites or grazing lands in the general vicinity of private ones) with adjustments as appropriate that reflect demand, level of service, and quality of the good or service.
(ii) In the absence of substantial competitive demand, market price will be determined by taking into account the prevailing prices for goods, resources, or services that are the same or substantially similar to those provided by the Government, and then adjusting the supply made available and/or price of the good, resource, or service so that there will be neither a shortage nor a surplus (e.g., campsites in remote areas).
(5) Fees established in advance of performance shall be based on the estimated cost of performance. Projected amounts shall be reviewed biennially or whenever significant changes in cost or value occur.
(6) Management controls (see DoD Instruction 5010.40) must be established to ensure fees are developed and adjusted, using current, accurate, and complete data, to provide reimbursement conforming to statutory requirements. These controls also must ensure compliance with cash management and debt collection policies according to Volume 5 of DoD 7000.14-R.
(b)
(c) User fees for recurring services shall be established in advance, when feasible. The benefit of charging user fees must outweigh the cost of collecting the fees charged.
(d)
(1)
(ii) In cases involving real estate outgrants, the consideration for a lease shall be determined by appraisal of fair market rental value according to 10 U.S.C. 2667.
(2)
(a) Collections of fees will be made in advance or simultaneously with the rendering of service unless appropriations and authority allow otherwise. The policies in this part, Volume 5 of DoD 7000.14-R, and DoD Instruction 5010.40, shall be used in accounting, controlling, and managing cash and debt collections.
(b) Unless a statute provides otherwise, user fee collections will be credited to the general fund of the Treasury as miscellaneous receipts, as required by 31 U.S.C. 3302.
(a) Legislative proposals that allow the DoD Component to retain collections may be appropriate when a fee is levied in order to finance a service intended to be provided on a substantially self-sustaining basis and thus is dependent upon adequate collections.
(1) The authority to use fees credited to an appropriation is generally subject to limits set in annual appropriations language. However, it may be appropriate to request exemption from annual appropriations control, if a provision of the service is dependent on demand that is irregular or unpredictable (e.g., a fee to reimburse an agency for the cost of overtime pay of inspectors for services performed after regular duty hours).
(2) Legislative proposals that permit fees to be credited to accounts shall be consistent with the full-cost recovery guidelines contained in this part. Any fees in excess of full cost recovery and any increase in fees to recover the portion of retirement costs which recoups all (funded or unfunded) accrual costs not covered by employee contributions are to be credited to the general fund of the Treasury as miscellaneous receipts.
(b) Where the retention of the collection is appropriate, the DoD Components(s) concerned may submit legislative proposals under applicable legislative procedures included in OMB Circular A-19. These procedures may be obtained from the Office of Legislative Counsel, General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600. Proposals to remove user fee restrictions or retain collections shall:
(1) Define in general terms the services for which fees will be assessed and the pricing mechanism that will be used.
(2) Specify whether fees will be collected in advance of, or simultaneously with, the provision of service unless appropriations and authority are provided in advance to allow reimbursable services.
(3) Specify where collections will be credited. Legislative proposals should not normally specify precise fees. The user fee schedule should be set by regulation to allow for the administrative updating of fees to reflect changing costs and market values.
(a) Documents and information requested by members of the Armed Forces is required by such personnel in their capacity as Service members.
(b) Documents and information requested by members of the Armed Forces who are in a casualty status, or requested by their next of kin or legal representative.
(c) The provisions of the address of record of a member or former member of the Armed Forces when the address is readily available through a directory (locator) service, and when the address is requested by a member of the Armed Forces or by a relative or a legal representative of a member of the Armed Forces, or when the address of record is requested by any source for the purpose of paying monies or forwarding property to a member or former member of the Armed Forces.
(d) Services requested by, or on behalf of, a member or former member of the Armed Forces and civilian personnel of the Department of Defense (where applicable) or, if deceased, his or her next of kin or legal representative that pertain to the provision of:
(1) Information required to obtain financial benefits regardless of the terms of separation from the Service.
(2) Document showing membership and military record in the Armed Forces if discharge or release was under honorable conditions, except as
(3) Information relating to a decoration or award or required for memoralization purposes.
(4) Information relating to the review or change in type of discharge or correction of records.
(5) Personal documents, such as birth certificates, when such documents are required to be furnished by the member.
(6) Services furnished free according to statutes or Executive Orders.
(7) Information from or copies of medical and dental records or x-ray films of patients or former patients of military medical or dental facilities, when such information is required for further medical or dental care, and requests for such data are submitted by an accredited medical facility, physician, or dentist, or requested by the patient, his or her next of kin, or legal representative. Other requests subject to the Privacy Act shall be according to 32 CFR part 310 (see § 204.3(c)(1)(xi) of this part).
(8) Services requested by, and furnished to, a member of Congress for official use.
(9) Services requested by state, territorial, county, or municipal government, or an agency thereof, that is performing a function related to or furthering a DoD objective.
(10) Services requested by a court, when such services will serve as a substitute for personal court appearance of a military or civilian employee of the Department of Defense.
(11) Services requested by a nonprofit organization that is performing a function related to or furthering an objective of the Federal Government or is in the interest of public health and welfare, including education.
(12) Services requested by donors in connection with the conveyance or transfer of a gift to the Department of Defense.
(13) Occasional and incidental services (including requests from residents of foreign countries), not requested often, when it is determined administratively that a fee would be inappropriate for the occasional and incidental services rendered.
(14) Administrative services offered by reference or reading rooms to inspect public records, excluding copies of records or documents furnished.
(15) Services rendered in response to requests for classification review of DoD classified records, submitted under Executive Order 12065, “National Security Information,” and implemented by DoD 5200.1-R. Such services consist of the work performed in conducting the classification review or in granting and completing an appeal from a denial of declassification following such review.
(16) Services of a humanitarian nature performed in such emergency situations as life-saving transportation for non-Armed Forces patients, search and rescue operations, and airlift of personnel and supplies to a disaster site. This does not mean that inter- and intra-governmental agreements to recover all or part of costs shall not be negotiated. Rather, it means the recipients or beneficiary will not be assessed a “user fee”.
(a)
(2) Fees will not be charged if the total amount to process your request is $30.00 or less.
(b) Criteria for estimating cost of computerized records:
(1) Costs for processing a data request will be calculated using the full cost method as referenced in § 204.5.
(2) Itemized listing of operations required to process the job will be maintained (
(3) Mailing costs for services (DHL, Express Mail, etc.) when request specifically specifies a means more expensive than first class mail.
10 U.S.C. 131.
This part:
(a) Supersedes the Deputy Secretary of Defense Memorandum, “End Use Certificates,” April 9, 1991.
(b) Establishes policies, assigns responsibilities, and prescribes procedures for signing EUCs on foreign defense items.
This part applies to the Office of the Secretary of Defense; the Military Departments; the Chairman of the Joint Chiefs of Staff and the Joint Staff; the Unified and Specified Commands; the Office of the Inspector General, Department of Defense; the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “DoD Components”).
(a)
(b)
This part is intended to authorize the execution of EUCs when such a certificate is necessary to facilitate purchases of foreign products when the purchase of such products is in the best interest of the United States.
(a) The Military Departments and other DoD Components purchase products produced by allies and friendly countries and participate in cooperative development programs to promote interoperability, standardization, and an expanded procurement base, and to obtain products that best meet U.S. needs at the lowest cost.
(b) U.S. worldwide security responsibilities are extensive and recognition of these special circumstances has resulted in long-time acceptance in international agreements, by allies and friends, of the need for flexibility in the authorized uses or transfer of purchased or co-developed articles and data. In various circumstances, international agreements have recognized that permissible use of an item or data for U.S. “defense purposes” as defined in § 205.3(b).
(c) Consistent with paragraphs (a) and (b) of this section, DoD Components may sign EUCs, in accordance with the policy and procedures outlined below. While most EUCs requested by foreign governments use general language, their effects may be divided into three categories, as described in the following paragraphs. Authority to approve their execution is limited as follows:
(1) Category I. Secretaries of the Military Departments and Directors of Defense Agencies may authorize EUCs:
(i) For acquisition of items classified for security purposes by a foreign government.
(ii) For the acquisition of items covered by the nonproliferation agreements to which the United States is a party, such as missile technology, or
(iii) That permit the item to be “used for defense purposes” as defined in § 205.3(b), by the United States.
(2) Category II. EUCs that are not Category I or III are Category II. Secretaries of the Military Departments and Directors of Defense Agencies may authorize Category II EUCs only after a determination is made through the coordination procedures set forth in § 205.6(a)(1) that, notwithstanding the use or transfer limitations, the purchase is in the U.S. national interest. The least restrictive provisions possible should be negotiated.
(3) Category III. Secretaries of Military Departments and Directors of Defense Agencies may not authorize the signature of EUCs which limit the right:
(i) For use by or for the U.S. Government in any part of the world, or
(ii) To provide the item to allies engaged together with the United States in armed conflict with a common enemy. Waivers to this prohibition may be granted by the Under Secretary of Defense (Acquisition) (USD(A)). Procedures for requesting such waivers are at § 205.6(a)(1).
(a) The Under Secretary of Defense (Acquisition) shall:
(1) Monitor compliance with this part.
(2) Develop procedures to ensure timely review of Category II and III items with the Under Secretary of Defense for Policy (USD(P)).
(3) Upon obtaining the concurrence of the USD(P), waive the restrictions in § 205.4(c)(3) when purchase of the item is in the national interest.
(4) When requested, and in coordination with the USD(P), assist the Military Departments and Defense Agencies in negotiating the elimination or amelioration of an EUC's restrictive language.
(b) The Under Secretary of Defense for Policy shall:
(1) Consult with the USD(A) on waivers authorized by this part and, if appropriate, coordinate with the Department of State.
(2) When requested, and in coordination with the USD(A), assist the Military Departments and Defense Agencies in negotiating the elimination or amelioration of the EUC's restrictive language.
(3) Develop procedures for coordination and review of EUC's internally and with the Department of State.
(4) Establish, with the concurrence of the USD(A), specific acceptable end use restrictions in addition to those set forth in Category I, which shall be added immediately to Category I and a corresponding administrative change made to § 205.4(c)(1).
(c) The Secretaries of the Military Departments and the Directors of the Defense Agencies shall:
(1) Authorize the execution of Category I and II EUCs in accordance with the procedures outlined in § 205.6. This responsibility may not be delegated by the Directors of Defense Agencies; it may be delegated by Secretaries of the Military Departments to civilian officers of their respective departments appointed by the President with the advice and consent of the Senate. Once EUC execution is authorized, the Director of a Defense Agency, or Military Department civilian official who has been delegated authorization authority may delegate the authority to sign individual EUCs.
(2) Establish procedures to ensure compliance with this part. These procedures should ensure compliance, for the life of the purchased item, with the transfer or use restrictions agreed to in signing an EUC. They should also ensure 21-calendar day notification to USD(A) before authorizing the execution of a Category II EUC.
(a) Procedures for the three categories of EUCs established in § 205.4(c) are:
(1) Category I. Secretaries of the Military Departments and Directors of Defense Agencies may authorize Category I EUCs.
(2) Category II. Not less than 21 calendar days before authorizing the execution of a Category II EUC, Military Departments and Defense Agencies shall provide notification to the USD(A). The notification will contain a description of the item and the limitations to be imposed by the exporting government. The USD(A) shall coordinate with the USD(P), providing at least 14 days for review. If appropriate, the USD(P) shall coordinate with the Department of State. The USD(A) shall notify the submitting DoD Component of any further action required before final authorization of the EUC; otherwise, concurrence may be assumed after expiration of the 21-day period.
(3) Category III. To acquire an item requiring a Category III EUC, the Secretary of a Military Department or Director of a Defense Agency must request a waiver from the USD(A). Requests for waivers should specify:
(i) Why it is in the interest of the U.S. Government to procure the item.
(ii) The limitations to be imposed by the exporting government and a justification for acceptance of those limitations by the U.S. Government.
(iii) A statement that no satisfactory alternative to the item, considering cost, schedule, or operational requirements, is available from domestic or foreign sources without equivalent limitations.
(b) Copies of signed EUCs of all three categories shall be provided promptly to USD(A).
(c) A record of any waivers or modifications of this policy shall be maintained by the USD(A).
20 U.S.C. 1141(a).
(a) The Institutional Grants Program provides support in the form of grants to U.S. institutions of higher education. During the 1994-95 and 1995-96 academic years, a program of pilot grants is being initiated with an annual competition for grants held during the spring of each year. Grants to institutions will complement NSEP scholarship and fellowship programs. NSEP encourages the development of programs and curricula which:
(1) Improves the quality and infrastructure of international education;
(2) Addresses issues of national capacity; and
(3) Defines innovative approaches to issues not addressed by NSEP scholarship and fellowship programs.
(b) The NSEP Grants Program is designed to address a number of important objectives critical to the United States:
(1) To equip Americans with an understanding of less commonly taught languages and cultures and enable them to become integrally involved in global issues.
(2) To build a critical base of future leaders in the marketplace and in government service who have cultivated international relationships and worked and studied along-side foreign experts.
(3) To develop a cadre of professionals with more than the traditional knowledge of language and culture who can use this ability to help the U.S. make sound decisions and deal effectively with global issues; and
(4) To enhance institutional capacity and increase the number of faculty who can educate U.S. citizens toward achieving these goals.
(c) Grants will be awarded for initial 1- or 2-year periods. Potential follow-on commitments will be based on a rigorous evaluation and assessment process. Between 15 and 25 awards are expected to be made in the first year ranging from approximately $25,000 to $250,000. These are only estimates and
(d) The following key characteristics will be emphasized in the NSEP Institutional Grants Program:
(1)
(2)
(i) Who will benefit from the program funded by the grant?
(ii) What need does the program address?
(iii) How will this program augment the capacity of the Federal Government or of the field of education in areas consistent with the objectives of the NSEP? How does it fit the national requirement?
(3) Cooperation and collaboration among institutions is mandated in order to ensure that a wider cross-section of colleges and universities benefit from a program funded under NSEP. NSEP is committed to providing opportunities to the widest cross-section of the higher education population as is feasible. Cooperation can be in the form of formal consortia arrangements or less formal but equally effective agreements among institutions. Both vertical (among different types of institutions) and horizontal (among similar institutions across functional areas) integration are encouraged. Outreach to institutions that do not normally benefit from such programs is also strongly favored.
(4) Complementary to other Federal programs such as Title VI of the Higher Education Act. NSEP is designed to address gaps and shortfalls in Higher Education and to build and expand national capacity. NSEP recognizes that base capacity currently exists in some foreign languages and area studies. It also recognizes that funding shortfalls and other factors have contributed to tremendous gaps and weaknesses. Funding for expansion of the international education infrastructure remains limited. Duplication of effort is not affordable. NSEP encourages new initiatives as well as expansion of existing programs to increase supply in cases where the demand cannot be met and encourages efforts that increase demand.
(5) NSEP encourages proposals that address two categories of issues relating to the mission of NSEP:
(i) Programs in specific foreign languages, countries or areas; and/or
(ii) Programs addressing professional, disciplinary and/or interdisciplinary opportunities involving international education.
(6) NSEP views student funding as portable and hopes that universities will develop ways to move students to programs and to provide credit with these programs. NSEP believes that programs need to be developed that are available to a wider cross-section of students. Thus, they need to be “open” to students from other institutions. Programs might also be “transportable” from one institution to another.
(7) NSEP emphasizes leveraging of funds and cost-sharing in order to maximize the impact of NSEP funding. It encourages institutions to seek other sources of funding to leverage against NSEP funding and to commit institutional resources in support of the program as well. NSEP also emphasizes burden sharing between the institution and the Program. NSEP encourages institutions to demonstrate a commitment to international education and to present a plan for how funding for the proposed program will be achieved over a 3-5 year period so that NSEP can reduce its financial commitment to programs. The funds requested from NSEP should minimize costs allocated to unassigned institutional “overhead.” NSEP institutional grants are assumed to be for training programs. Consequently, university/college indirect costs associated with training programs should be used as a
(8) NSEP encourages creativity and is responsive to the needs of higher education to expand the capacity to provide more opportunities for quality international education. We do not suggest that the guidelines presented in the grant solicitation will cover all problems and issues. Quite to the contrary, we encourage careful consideration of issues confronting international education in the U.S. and thoughtful proposals that address these issues, consistent with the overall mission of the NSEP.
Any accredited U.S. institution of higher education, as defined by section 1201(a) of the Higher Education Act of 1965 (20 U.S.C. 1141(a)), may apply for and receive a grant. This includes 2- and 4-year colleges and universities, both public and private. Other organizations, associations, and agencies may be included in proposals but may not be direct recipients of a grant. Foreign institutions may also be included in a proposal but may not be direct recipients of a grant. Only U.S. citizens and U.S. institutions may receive funds through a grant awarded by the NSEP.
(a) The NSEP grants to institutions program focuses on two broad program areas that reflect the challenges to building the infrastructure for international education in U.S. higher education:
(1) Development and expansion to quality programs in overseas locations.
(i) Programs that offer important opportunities for U.S. students, both undergraduate and graduate, to study in critical areas under-represented by U.S. students, and
(ii) Development of meaningful competencies in foreign languages and cultures.
(2) Development and implementation of programs and curricula on U.S. campuses that provide more opportunities for study of foreign languages and cultures and the integration of these studies into overall programs of study.
(b)
(1) Expand program opportunities in critical countries where limited opportunities currently exist.
(2) Establish program opportunities in critical countries where no opportunities exist.
(3) Enhance meaningful opportunities for foreign language and foreign culture acquisition in conjunction with study abroad.
(4) Create and expand study abroad opportunities for students from diverse disciplines. In all cases, grants to develop study abroad infrastructure must address issues of demand (how to increase demand for study in the proposed countries or regions) and diversity (how to attract a diverse student population to study in the proposed countries or regions). Grants may support start-up of programs or the expansion of a program's capacity to benefit more and/or different student or to improve the quality of study abroad instruction. Proposals can address issues concerning either or both issues. of undergraduate and graduate education.
(c) Addressing the infrastructure for international education in U.S. higher
(1) Enhancing foreign language skill acquisition through innovative curriculum development efforts. Such efforts may involve intensive language study designed for different types of students. Less traditional approaches should be considered as well as ways to provide foreign language instruction for the student who may not otherwise have an opportunity to pursue such instruction. Functional competency should be stressed but defined as meaningful for the particular discipline or field.
(2) Expanding opportunities for international education in diverse disciplines and fields and in issues that are cross-area or cross-national in character. Efforts are encouraged that offer opportunities for meaningful international education for those in fields where opportunities are not generally available. There are many fields and disciplines that are rapidly becoming international in scope, yet the educational process does not include a meaningful international component. In many cases this is due to a rigid structure in the field itself that cannot accommodate additional requirements, such as language and culture study. There are also issues that involve cross-area or cross-national education or are studied in comparative terms. Students in these areas also need quality opportunities in international education.
(3) Provide opportunities for programmatic studies throughout an undergraduate or graduate career. Students frequently study a foreign language or pursue study abroad opportunities as adjuncts to their overall program of study. Innovations in curriculum are needed to more thoroughly integrate aspects of international education into curriculum throughout a student's undergraduate or graduate career. The NSEP encourages institutions to address these overall international education curriculum issues in their proposals.
(4) Provide opportunities to increase demand for study of foreign areas and languages. Efforts to develop educational programs that offer innovative approaches to increasing demand to include a meaningful international component are encouraged. Proposals are encouraged to address issues of diversity: How to attract students who have historically not pursued opportunities involving international education. Diversity includes geographical, racial, ethnic, and gender factors.
(5) Improve faculty credentials in international education. Efforts to create more opportunities for teachers to become competent in foreign cultures and languages are encouraged. While NSEP is a higher education program, it is interested in the potential dynamics of collaborative efforts that recognize the shared responsibility of all educational levels for promoting international education.
(6) Uses of new technologies. During the last decade tremendous advances have been made in the application of new educational technologies. Such technologies have enhanced our capacity to improve instruction, broaden access, and assess student learning. NSEP's objective is not to support large technology oriented projects. However, NSEP encourages efforts that integrate innovative uses of technology emphasizing how proposed programs will have significance beyond a local setting. Proposals that include proposed uses of technology will be required to demonstrate detailed knowledge of the technology, how it is to be developed and applied and how student learning will be impacted.
The purpose of this section is to explain the NSEP review process. [Note: A number of important approaches to proposal development and review have
(a) The grants to institutions program will be administered by the National Security Education Program Office (NSEPO). However, the NSEPO will function as an administrative office much in the same manner as the Institute of International Education and the Academy for Educational Development function in administering NSEP scholarship and fellowship programs, respectively. The NSEPO will not review or evaluate proposals. The proposals will be reviewed and evaluated by national screening panels.
(b) The NSEP will use a two-stage review process in order to evaluate a broad range of proposal ideas. In the first stage, applicants will submit a five-page summary (double-spaced) of their proposal. An institution may submit more than one proposal, but each proposal should be submitted and will be evaluated separately and independently.
(c) NSEP expects competition for grants to be intense. By implementing a two-stage process, potential grantees are given an opportunity to present their ideas without creating a paperwork burden on both the proposal authors and the reviewers.
(d)
(e) Panel members will reflect the nature of the grants program. Each panel will include a recognized expert in a field of international education. Other panelists may include experts in area studies, foreign language education, and other fields and disciplines with an international focus.
(f) Preliminary proposals will be reviewed according to a set of criteria developed in consultation with representatives from higher education, and provided to the panels. The applicant shall, at a minimum, deal with the following issues in the preliminary proposal:
(1) How the proposal addresses issues of national capacity in international education.
(2) What area(s), language(s), and discipline(s) the proposal addresses and the importance of these to U.S. national capacity.
(3) What the applicant is proposing to do.
(4) How the proposal deals with the key characteristics of the NSEP.
(5) Demonstration of thorough knowledge of the state of the art in the particular area of the proposal and how this proposal develops or builds capacity, not duplicates existing capacity.
(g) The applicant must also include a budget estimate. This budget estimate, for the first year of the proposal, must include the following:
(1) A summary of anticipated direct costs including professional salaries, funds for students, travel, materials and supplies, consultants, etc., and how or why these costs are needed.
(2) An estimate of institutional indirect costs. The budget estimate must also indicate whether funding is also being requested for a second year and, if so, an estimate of the amount to be requested.
(h) Panelists will review and rank proposals and forward their recommendations to the NSEPO. NSEPO will review and analyze these recommendations and inform all applicants of decisions.
NSEPO will provide detailed comments on proposals to all applicants who are invited to prepare a final proposal.
(a) Final proposals should be limited to no more than 25 double-spaced pages. Proposals will be reviewed by
(b) Proposals will be evaluated in two basic categories:
(1) Proposals that address study abroad infrastructure and
(2) Proposals that address domestic infrastructure. Should proposals deal with both of these issues, they will be evaluated in a third category. This grouping of proposals will ensure that all categories of proposals receive funding consideration.
(c) In general, final proposals will be considered on the following selection criteria:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(d) Applicants should also indicate if they currently receive or are seeking support from other sources. Applicants should indicate why support from NSEP is appropriate, if other sources are also being sought.
63 Stat. 377, as amended, 18 U.S.C. 13; 40 U.S.C. 318a through d., 40 U.S.C. 612.
This part establishes policies pursuant to the requirements of DoD Directive 6055.4,
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies.
(b) The provisions encompass all persons who operate or control a motor vehicle or otherwise use the streets of a military installation over which the United States exercises exclusive or concurrent legislative jurisdiction.
(c) The provisions govern only vehicular and traffic offenses or infractions that cannot be assimilated under 18 U.S.C. 13, thereby precluding application of state laws to traffic offenses committed on military installations.
(a) It is the policy of the Department of Defense that an effective, comprehensive traffic safety program be established and maintained at all military installations as prescribed in DoD Directive 6055.4.
(b) State vehicular and pedestrian traffic laws that are now or may hereafter be in effect shall be expressly adopted and made applicable on military installations to the extent provided by this part. All persons on a military installation shall comply with the vehicular and pedestrian traffic laws of the state in which the installation is located.
(c) Pursuant to the authority established in the Enclosure 1 to DoD Directive 5525.4
(d) A person found guilty of violating, on a military installation, any state vehicular or pedestrian traffic law or local installation vehicular or pedestrian traffic rule or regulation made applicable to the installation under the provisions of this part is subject to a fine of not more than $50 or imprisonment for not more than 30 days, or both, for each violation (40 U.S.C. 318c).
(e) A copy of this part shall be posted in an appropriate place on the DoD installation concerned.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) shall modify this part as appropriate.
(b) Secretaries of the Military Departments shall comply with this part.
5 U.S.C. 301; 10 U.S.C. 2554; 10 U.S.C. 2606; and 36 U.S.C. 300110
This part:
(a) Implements 32 CFR part 213.
(b) Updates responsibilities and procedures to define and reestablish a framework for non-Federal entities authorized to operate on Department of Defense (DoD) installations.
(a) This part applies to:
(1) The Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(2) Non-Federal entities authorized to operate on DoD installations.
(b) This part shall not apply to:
(1) Military relief societies.
(2) Banks or credit unions according to 32 CFR part 230.
(3) Support provided under Innovative Readiness Training according to DoD Directive 1100.20.
It is DoD policy, consistent with 32 CFR part 213, that procedures be established for the operation of non-Federal entities on DoD installations to prevent official sanction, endorsement, or support by the DoD Components except as authorized in DoD 5500.7-R and applicable law. The Department recognizes that non-Federal entity support of Service members and their families can be important to their welfare. Non-Federal entities are not entitled to sovereign immunity and privileges accorded to Federal agencies and instrumentalities. The DoD Components
(a) The Principal Deputy Under Secretary for Personnel and Readiness, under the Under Secretary of Defense for Personnel and Readiness and in coordination with the Deputy Under Secretary of Defense for Installations and Environment and subject to DoD Directive 4165.6, shall be responsible for implementing policy and oversight of non-Federal entities on DoD installations.
(b) The Heads of the DoD Components shall:
(1) Implement this part.
(2) Be aware of all non-Federal entities operating on installations under their jurisdiction.
(3) Conduct reviews to ensure installation commanders periodically review facilities, programs, and services provided by non-Federal entities operating on DoD installations. Installation commanders will also review membership provisions and the original purpose for which each organization was originally approved. Substantial changes to those original conditions shall necessitate further review, documentation, and approval for continued permission to operate on the installation.
(a) To prevent the appearance of official sanction or support by the Department of Defense:
(1) Non-Federal entities may not use the seals, logos, or insignia of the Department of Defense or any DoD Component, DoD organizational unit, or DoD installation on organization letterhead, correspondence, titles, or in association with organization programs, locations, or activities.
(2) Non-Federal entities operating on DoD installations may use the name or abbreviation of the Department of Defense, a DoD Component, organizational unit, or installation in its name provided that its status as a non-Federal entity is apparent and unambiguous and there is no appearance of official sanction or support by the Department of Defense. The following applies:
(i) The non-Federal entity must have approval from the appropriate DoD organization whose name or abbreviation is to be used before using the name or abbreviation.
(ii) Any use of the name or abbreviation of a DoD Component, organizational unit, or installation must not mislead members of the public to assume a non-Federal entity is an organizational unit of the Department of Defense.
(iii) A non-Federal entity must prominently display the following disclaimer on all print and electronic media mentioning the entity's name confirming that the entity is not a part of the Department of Defense: “THIS IS A NON-FEDERAL ENTITY. IT IS NOT A PART OF THE DEPARTMENT OF DEFENSE OR ANY OF ITS COMPONENTS AND IT HAS NO GOVERNMENTAL STATUS.” This disclaimer must also be provided in appropriate oral communications and public announcements when the name of the entity is used.
(b) Activities of non-Federal entities covered by this part shall not in any way prejudice or discredit the DoD Components or other Federal Government agencies.
(c) Subject to DoD Directive 4165.6 as it relates to real property, installation commanders shall approve written agreements that indicate permission to operate on the installation and any logistical support that will be provided. DoD personnel acting in an official capacity will not execute any charter that will serve as the legal basis for the non-Federal entity. The nature, function, and objectives of a non-Federal entity covered by this part shall be delineated in articles of incorporation, a written constitution, bylaws, charters, articles of agreement, or other authorization documents before receiving approval from the installation commander to operate on the installation. That documentation shall also include:
(1) Description of eligible membership in the non-Federal entity.
(i) No person because of race, color, creed, sex, age, disability, or national
(ii) Installation commanders will distribute information on procedures for individuals to follow when they suspect unlawful discrimination by the organization.
(2) Designation of management responsibilities, including the accountability for assets, satisfaction of liabilities, disposition of any residual assets on dissolution, and other documentation that shows responsible financial management.
(3) A certification indicating that members understand they are personally liable, as provided by law, if the assets of the non-Federal entity are insufficient to discharge all liabilities.
(4) Guidance relating to professional scouting organizations operating at U.S. military installations located overseas can be found in DoD Instruction 1015.9.
(i) In accordance with DoD 5500.7-R, which contains a policy on sponsorship of non-Federal entities by DoD personnel acting in an official capacity, DoD personnel acting in an official capacity shall not execute charters that serve as the legal basis for the creation of Boy Scouts organizations (including Boy Scouts, Cub Scout Packs, or Venturer Crews).
(ii) In accordance with U.S. District Court for the Northern District of Illinois, Eastern Division, Decision No. 1999 CV 02424, while such chartering is not allowed, nothing in this part is intended to preclude, if otherwise authorized by law or regulation, DoD support to Boy Scouts or their official affiliates; Boy Scouts activities on DoD installations; or sponsorship of Boy Scout organizations by DoD personnel in their personal capacity. Existing charters executed by DoD personnel in their official capacity shall be terminated or amended to substitute sponsorship by an appropriate individual, volunteer, group, or organization, consistent with DoD policy.
(d) A non-Federal entity covered by this part shall not offer programs or services on DoD installations that compete with appropriated or NAF activities, but may, when specifically authorized, supplement those activities.
(1) Installation commanders, or higher authorities if the installation commander has not been delegated such authority, will determine if the services of a non-Federal entity conflict with or detract from local DoD programs. The cognizant commander has discretionary authority over the operations of non-Federal entities on DoD installations. Commanders are authorized to eliminate duplication of services, particularly when these services compete with the installation's revenue-generating activities.
(2) Background checks are required for employees and volunteers of non-Federal entities who have contact with children under the age of 18 in DoD- operated, -contracted, or community-based programs that are used to supplement or expand child care or youth services, according to DoD Instruction 1402.5.
(e) Non-Federal entities covered by this part shall be self-sustaining, primarily through dues, contributions, service charges, fees, or special assessment of members. There shall be no financial assistance to such an entity from a NAF Instrumentality (NAFI) in the form of contributions, repairs, services, dividends, or other donations of money or other assets. Fundraising and membership drives are governed by DoD 5500.7-R.
(f) Non-Federal entities are not entitled to DoD support. However, support may be provided when it is consistent with and supportive of the military mission of the DoD Component concerned. Such support may be provided only when it can be offered within the capability of the installation commander without detriment to the commander's ability to fulfill the military mission, and when it is permitted under applicable Status of Forces Agreements. The DoD Components
(g) Personal and professional participation in non-Federal entities by DoD employees is governed by DoD 5500.7-R. DoD personnel acting in an official capacity will not execute charters that serve as the legal basis for any non-Federal entity or other private organization.
(h) Neither appropriated fund activities nor NAFIs may assert any claim to the assets, or incur or assume any obligation, of any non-Federal entity covered by this part, except as may arise out of contractual relationships or as provided by law. Property shall not be abandoned on the installation by a non-Federal entity and may only be acquired by the DoD installation by purchase or through donation agreed to by the Department of Defense.
(i) The non-Federal entity shall have adequate insurance, as defined by the DoD Component concerned, to protect against liability and property damage claims or other legal actions that may arise due to its activities, those of its members, or the operation of its equipment or devices. The DoD Components will not assume liability (through insurance or other means) for any activities or assets of non-Federal entities.
(j) Non-Federal entities shall comply with applicable fire and safety regulations; environmental laws; local, State, and Federal tax codes; and any other applicable statutes or regulations.
(k) Income from a non-Federal entity or its activities shall not accrue to individual members of a non-Federal entity except through wages and salaries as employees of the non-Federal entity or as award recognition for services rendered to the non-Federal entity or military community. This prohibition is not meant to preclude operation of investment clubs, in which the investment of members' personal funds result in a return on investment directly and solely to the individual members.
(l) Employees of non-Federal entities are not employees of the United States or of an instrumentality of the United States. Applicable laws on labor standards for employment shall be observed, including worker's compensation insurance. Employees of non-Federal entities shall not participate in NAF employee benefit programs based upon their affiliation with the non-Federal entity.
(m) Non-Federal entities that have statutory authorization for particular support are listed at Appendix A to this part.
(n) Certain unofficial activities conducted on DoD installations do not need formal authorization because of the limited scope of their activities. Examples are office coffee funds, flower funds, and similar small, informal activities and funds. The DoD Components shall establish the basis upon which such informal activities and funds shall operate.
10 U.S.C. 2554 and 2606.
(a) Authorizes 32 CFR part 212.
(b) Establishes policy and assigns responsibilities under DoD Directive 5124.8
(c) Designates the Secretary of the Army as the DoD Executive Agent (DoD EA) according to DoD Directive 5101.1:
(1) For DoD support to the Boy Scouts of America (BSA) and Girl Scouts of the United States of America (GSUSA) local councils and organizations in areas outside of the United States 10 U.S.C. 2606. DoD support will also cover the periodic national jamboree according to 10 U.S.C. 2606.
(2) To perform the annual audit of the American Red Cross (ARC) accounts and to prepare and submit the annual report to Congress according to 36 U.S.C. 300110.
(3) To provide the ARC with the necessary deployment support.
(d) Designates the Secretary of the Air Force as the DoD EA responsible for conducting the Armed Forces Entertainment (AFE) program.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to collectively as the “DoD Components”) and non-Federal entities authorized to operate on DoD installations.
(b) Shall not revise, modify, or rescind any Memorandum of Understanding (MOU) between a non-Federal entity and the U.S. Government or the Department of Defense or their implementing arrangements in existence as of the effective date of this Directive. Additionally, the Directive shall not revise, modify, or rescind any MOU between the Department of Justice (DoJ) and the Department of Defense that is in existence as of the effective date of this Directive. Any such agreements shall, as they expire, come up for renewal, or as circumstances otherwise permit, be revised to conform to this Directive and any implementing guidance.
(c) Does not apply to banks or credit unions addressed in DoD Directive 1000.11
It is DoD policy that:
(a) DoD support for non-Federal entities shall be in accordance with relevant statutes as well as DoD 5500.7-R
(b) Under DoD Directive 5124.8 procedures shall be established as Instructions and agreements for the operation of non-Federal entities on DoD installations and for the prohibition of official sanction, endorsement, or support by the DoD Components and officials, except as authorized by DoD 5500.7-R and applicable law. Instructions and agreements must be compatible with the primary mission of the Department and provide for Congressionally authorized support to non-Federal entities on DoD installations.
(c) In accordance with DoD 5500.7-R, installation commanders or higher authority may authorize, in writing, logistical support for events, including fundraising events, sponsored by non-Federal entities covered by this part.
(d) Installation commanders or higher authority may coordinate with non-Federal entities in order to support appropriated or nonappropriated fund activities on DoD installations, so long as the support provided by the non-Federal entities does not compete with appropriated or nonappropriated fund activities.
(e) Non-Federal entities are not entitled to sovereign immunity and the privileges given to Federal entities and instrumentalities.
(a) The Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Be responsible for implementing all policy matters and Office of the Secretary of Defense oversight of non-Federal entities on DoD installations.
(2) Develop procedures and execute any necessary agreements to implement policy for the operation of non-Federal entities on DoD installations.
(3) Assign responsibilities to the DoD Components to accomplish specific oversight and administrative responsibilities with respect to non-Federal entities operating on DoD installations.
(4) Oversee the activities of the designated DoD EA, assessing the need for continuation, currency, effectiveness, and efficiency of the DoD EA according to 10 U.S.C. 2554 and 2606. Make recommendations for establishment of additional DoD EA assignments and arrangements as necessary.
(b) The Secretary of the Army, as the designated DoD EA, and according to 10 U.S.C. 2554 and 2606, shall:
(1) Perform the audit of the annual ARC accounts and prepare and submit the annual report according to 36 U.S.C. 300110 and this part.
(2) Coordinate support to the BSA and GSUSA according to DoD Instruction 1015.9
(3) Provide necessary deployment support to ARC according to an approved DoD and ARC MOU. Initially, the Army will cover costs, except those paid by the ARC. The Army will then be reimbursed, upon its request, by the entity directly benefiting from the ARC support.
(4) Designate a point of contact to coordinate matters regarding the DoD EA responsibilities, functions, and authorities.
(c) The Secretary of the Air Force, as the designated DoD EA with responsibility for conducting the AFE program, shall administer the AFE program according to 10 U.S.C. 2554 and 2606, DoD Instruction 1330.13
(1) Annually determine with the other DoD Components and the PDUSD(P&R) the scope of the program.
(2) Budget, fund, and maintain accountability for approved appropriated fund expenses. Develop and implement supplemental guidance to identify allowable expenses and reimbursements.
(3) Provide centralized services for selecting, declining, scheduling, and processing entertainment groups for overseas.
(4) Designate a point of contact to coordinate matters regarding the DoD EA responsibilities, functions, and authorities.
Chapter 15 of title 10 U.S.C. (10 U.S.C. 331
This part establishes uniform Department of Defense policies, assigns responsibilities, and furnishes general guidance for utilizing DoD military and civilian personnel, facilities, equipment or supplies:
(a) In support of civil authorities during civil disturbances within the 50 States, District of Columbia, Commonwealth of Puerto Rico, U.S. possessions and territories, or any political subdivision thereof.
(b) In other related instances where military resources may be used to protect life or Federal property or to prevent disruption of Federal functions.
This part is applicable to all components of the Department of Defense (the Military Departments, Organization of the Joint Chiefs of Staff, Defense Agencies, and the unified and specified commands) having cognizance over military resources which may be
(a)
(b)
(c)
(d) A
(a) Under the Constitution and laws of the United States, the protection of life and property and the maintenance of public order are primarily the responsibilities of State and local governments, which have the necessary authority to enforce the laws. The Federal Government may assume this responsibility and this authority only in certain limited instances.
(b) Aside from the constitutional limitations of the power of the Federal Government at the local level, there are additional legal limits upon the use of military forces within the United States. The most important of these from a civil disturbance standpoint is the Posse Comitatus Act (18 U.S.C. 1385), which prohibits the use of any part of the Army or the Air Force to execute or enforce the laws, except as authorized by the Constitution or Act of Congress.
(c) The Constitution and Acts of Congress establish six exceptions, generally applicable within the entire territory of the United States, to which the Posse Comitatus Act prohibition does not apply.
(1) The constitutional exceptions are two in number and are based upon the inherent legal right of the U.S. Government—a sovereign national entity under the Federal Constitution—to insure the preservation of public order and the carrying out of governmental operations within its territorial limits, by force if necessary.
(i)
(ii)
(2) There are four exceptions to the Posse Comitatus Act based on Acts of Congress.
(i) In the cases of each of the first three of those described, paragraphs (c)(2)(i) (
(
(
(
(
(ii) It should be noted that none of the above authorities, in and of itself, provides sufficient legal basis to order members of the Reserve components to active Federal service.
(a) The employment of DoD military resources for assistance to civil authorities in controlling civil disturbances will normally be predicated upon the issuance of a Presidential Executive order or Presidential directive authorizing and directing the Secretary of Defense to provide for the restoration of law and order in a specific State or locality. Exceptions to this condition will be limited to:
(1) Cases of sudden and unexpected emergencies as described in § 215.4(c)(1)(i), which require that immediate military action be taken.
(2) Providing military resources to civil authorities as prescribed in § 215.9 of this part.
(b) The Attorney General of the United States has been designated to receive and coordinate preliminary requests from States for Federal military assistance authorized by 10 U.S.C. 331 (§ 215.4(c)(2)(i)(
(c) The Secretary of the Army is delegated any and all of the authority of the President under chapter 15 of title 10, U.S.C. (§ 215.4(c)(2)(i) (
(d) The Secretary of the Navy and the Secretary of the Air Force are delegated all that authority which has been or may be hereafter delegated by the President to the Secretary of Defense to order to active duty, units and members of the Reserve Components under their respective jurisdictions, except National Guard units and members, for use pursuant to chapter 15 of title 10, U.S.C. (§ 215.4(c)(2)(i) (
(e) DoD components and their subordinate activities will coordinate with local civil authorities or local military commanders as appropriate, to assure mutual understanding of the policies and procedures to be adhered to in an actual or anticipated civil disturbance situation.
(f) DoD civilian employees generally should not be used to assist civil authorities in connection with civil disturbances, except as provided for in § 215.9(b)(3).
(g) The prepositioning of more than a battalion-sized unit, as authorized in § 215.6(a)(6), will be undertaken only with the approval of the President. Requests for the prepositioning of forces will be addressed to the Attorney General.
(a) The Secretary of the Army is designated as the Executive Agent for the Department of Defense in all matters pertaining to the planning for, and the deployment and employment of military resources in the event of civil disturbances. As DoD Executive Agent, the Secretary of the Army (or the Under Secretary of the Army, as his designee) is responsible for:
(1) Providing policy and direction concerning plans, procedures, and requirements to all DoD components
(2) Improving and evaluating the capabilities of the National Guard to deal with civil disturbances.
(3) Establishing DoD policies and procedures for:
(i) Calling the National Guard to active Federal service and ordering the National Guard and other Reserve components to active duty; and
(ii) The employment of such forces that may be required to carry out the purposes of this part.
(4) Calling to active Federal service:
(i) The Army National Guard units or members required to carry out the provisions of the Presidential Executive order or other appropriate authority.
(ii) The Air National Guard units or members required to carry out the provisions of the Presidential Executive order or other appropriate authority, subject to the provisions of paragraph (c)(1)(i) of this section.
(5) Providing military resources of the U.S. Army, consistent with defense priorities to include:
(i) The military resources of the Army National Guard called to active Federal service under the provisions of paragraph (a)(4)(i) of this section.
(ii) The military resources of the Army Reserve (other than Army National Guard) ordered to active duty to carry out the purposes of this part.
(6) Exercising through designated military commanders the direction of military resources committed or assigned for employment in the event of actual or potential civil disturbances. When circumstances warrant, such direction will include:
(i) Alerting, and, if necessary, prepositioning predesignated ground forces; and
(ii) Directing the Secretary of the Air Force to alert and provide the necessary airlift resources (see § 215.5(g)).
(7) Devising command, control, and communications arrangements to insure effective coordination and responsiveness among Defense agencies, military departments, the Joint Chiefs of Staff, and Commanders-in-Chief (CINCs) of unified and specified commands, under conditions of prepositioning, deployment, or employment of military resources. Maximum utilization will be made of existing reports of the Joint Reporting Structure (JRS), as prescribed in JCS Pub 6.
(8) Promulgating in implementation of DoD Directive 5200.27, “Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense,” March 1, 1971,
(9) Keeping the Secretary of Defense informed of unusual military resource requirements (actual or potential) and other significant developments in connection with civil disturbance planning and operations.
(10) Establishing procedures for the review and coordination of all DoD components' directives, instructions, and plans affecting civil disturbance planning and operations to assure conformity with DoD policies stated herein and DoD Executive Agent policies.
(11) Providing for the establishment of a DoD Civil Disturbance Steering Committee and a Directorate of Military Support (see § 215.8).
(12) Providing the necessary facilities, equipment, and personnel as required by the Assistant Secretary of Defense (Public Affairs) in the accomplishment of his public affairs responsibilities set forth in paragraph (f) of this section.
(13) Within the restrictions established by DoD Directive 5200.27, “Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense,” March 1, 1971,
(b) The Joint Chiefs of Staff are responsible for:
(1) Establishing procedures that will promptly transfer military resources that are assigned to unified and specified commands (i) to the military departments for civil disturbance operations in the Continental United States (CONUS) or (ii) to unified commands for such operations outside the CONUS, as directed by the DoD Executive Agent and consistent with defense priorities.
(2) Maintaining an appropriate strategic reserve for worldwide employment and contingency operations.
(3) Insuring that directives concerning civil disturbances are issued to the commanders of unified commands, for the employment of military resources outside the CONUS, in accordance with direction and guidance provided by the DoD Executive Agent.
(c) The Secretary of the Air Force is responsible for:
(1) Providing military resources of the U.S. Air Force, as required by the DoD Executive Agent and consistent with defense priorities, to include:
(i) Designating and providing the specific units or members of the Air National Guard to be called to active Federal service under the provisions of paragraph (a)(4)(ii) of this section.
(ii) Designating and providing the military resources of the Air Force Reserve (other than Air National Guard) order to active duty to carry out the purposes of this part.
(2) Exercising for the DoD Executive Agent, through designated military commanders, coordinating authority over and direction of DoD provided military and commercial obligated airlift resources used to fulfill civil disturbance airlift requirements.
(3) Providing airlift to deploy and redeploy civil disturbance forces and for supply, resupply, and aeromedical evacuation.
(d) The Secretary of the Navy is responsible for:
(1) Designating and providing military resources of the U.S. Navy and the U.S. Marine Corps, as required by the DoD Executive Agent and consistent with defense priorities, to include ordering to active duty and utilizing the resources of the Naval Reserve and the Marine Corps Reserve required to carry out the purposes of this directive.
(2) Insuring that Navy and Marine forces committed in connection with civil disturbances are trained and equipped in accordance with criteria established by the DoD Executive Agent.
(3) Making airlift resources available to the Secretary of the Air Force, consistent with defense priorities, as requested by him in the accomplishment of his airlift responsibilities set forth in paragraph (c) of this section.
(e) The Defense agencies are responsible for providing military resources as required, and advice and assistance on matters within their spheres of responsibility, to the DoD Executive Agent and to the Secretaries of the military departments and to the Joint Chiefs of Staff in the discharge of their responsibilities.
(f) The Assistant Secretary of Defense (Public Affairs) is responsible for all DoD public affairs matters related to civil disturbances. To assure efficiency and responsiveness in keeping the public fully informed, he will:
(1) Provide direction and guidance to the DoD Executive Agent on all aspects of public release of information relating to civil disturbances.
(2) Assign Public Affairs representatives, of appropriate rank, to the Directorate of Military Support during civil disturbance operations.
(3) Designate as required onsite DoD Public Affairs Chiefs who will furnish appropriate advice and guidance to task force commanders and, upon request or by direction of appropriate authorities, to other representatives of the Federal Government. The onsite Public Affairs Chief is responsible for releasing all military information to the public in the affected area(s). He will be responsible for such other public affairs functions as directed by competent authority. In the event of a
(a) In the event of civil disturbances within the CONUS:
(1) Military resources of the unified or specified commands will be transferred by the JCS to their respective military departments, when directed by the DoD Executive Agent. (Such resources will revert to the unified or specified commands when directed by the DoD Executive Agent.)
(2) The DoD Executive Agent is delegated the authority to exercise, through the Chief of Staff, U.S. Army, the direction of those forces assigned or committed to him by the military departments.
(b) In the event of civil disturbances outside of CONUS, the DoD Executive Agent is delegated the authority to exercise the direction of those forces assigned or committed to the commanders of unified or specified commands through the Chief of Staff, U.S. Army, and Task Force Commanders designated by JCS.
(c) At objective areas, designated task force commanders will exercise operational control over all military forces assigned for employment in the event of civil disturbances.
(a) A DoD Civil Disturbance Steering Committee will be established to provide advice and assistance to the DoD Executive Agent concerning civil disturbance matters. The Committee Chairman will be the Under Secretary of the Army. Members will include:
(b) A Directorate of Military Support (DOM's) will be established by the DoD Executive Agent with a joint service staff under the Chief of Staff, U.S. Army. The Department of the Army will provide the Director and the Department of the Air Force will provide the Deputy Director. The DOMs will plan, coordinate, and direct civil disturbance operations.
This section provides general guidance for the handling of requests for DoD facilities, personnel, equipment, or supplies, received from officials of the 50 States, District of Columbia, Commonwealth of Puerto Rico, U.S. possessions and territories, or any political subdivision thereof, for use in connection with civil disturbances.
(a)
(1)
(i)
(ii)
(iii)
(2) Requests for personnel to be used in a direct law enforcement role are not within the purview of this part and must be made by the legislature or governor of a State in accordance with 10 U.S.C. 331. Pursuant to the Posse Comitatus Act, DoD operating personnel employed in connection with loaned equipment may not be used in a direct law enforcement role.
(3) Repair parts and POL items are classified according to the group of the
(b)
(2) Requests for Group Two military resources may be granted only with the personal approval of the DoD Executive Agent, or the following individuals when designated by him for that purpose:
(i) The Under Secretary of the Army;
(ii) The Director and Deputy Director of Military Support; or
(iii) A Task Force Commander employed at an objective area during a civil disturbance.
(3) Requests for Group Three resources may be granted by Secretaries of the military departments, CINCs of unified and specified commands outside CONUS; or commanders of military installations or organizations who have been delegated such authority by the appropriate Service Secretary or CINC.
(i) Installation commanders are authorized to provide emergency explosive ordnance disposal service in accordance with applicable regulations of respective military departments.
(ii) The Director, Defense Supply Agency, is authorized to approve requests from subordinate agencies for firefighting assistance in connection with civil disturbances. Where installation fire departments have mutual aid agreements with nearby civil communities, the installation commander is authorized to provide emergency civilian or mixed civilian/military firefighting assistance. In the absence of a mutual aid agreement and when it is in the best interest of the United States, a commander with Group Three approval authority is authorized to provide emergency civilian or mixed civilian/military assistance in extinguishing fires and in preserving life or property from fire, within the vicinity of an installation. In either case, civilian firefighters may be used provided:
(
(
(
(4) Requests for Groups One, Two, or Three resources, and for renewal of outstanding loans, may be denied at any level in the chain of command down to and including commanders delegated Group Three approval authority.
(c)
(2) Requests will be forwarded and processed in keeping with the degree of urgency dictated by the situation.
(3) Requests received by personnel of Defense agencies will be referred to local military commanders for processing, except that DSA subordinate agencies will forward requests for firefighting assistance to DSA.
(4) Request from civil law enforcement agencies for training assistance related to the control of civil disturbances will not be approved at the local level. Such requests should be referred to the nearest U.S. attorney, Department of Justice.
(d)
(i) To the military department headquarters, in the case of requests received in the CONUS by the four Services.
(ii) To the DoD Executive Agent, in the case of requests for firefighting assistance received by the Defense Supply Agency.
(iii) To the JCS, in the case of requests received by organizations or installations over which the commanders of the unified and specified commands exercise command authority.
(2) Reports received by the military department headquarters and JCS will be transmitted to the DoD Executive Agent, who, in turn, will transmit information copies of all approved requests for Groups One and Two military resources to the General Counsel of the DoD and the Deputy Attorney General of the United States.
(3) In addition, a weekly summary report of all requests will be compiled by the DoD Executive Agent, showing action taken (approved, denied, or pending) and submitted to the General Counsel of the DoD, the Assistant Secretary of Defense (Installations and Logistics), and the Deputy Attorney General of the United States. Negative summary reports are required.
(4) The reporting requirements prescribed herein are assigned Report Control Symbol DD-A(AR)1112.
(a) Reporting requirements to provide for financing costs associated with civil disturbance operations, to include reimbursement of military department expenditures, will be in accordance with DoD Instruction 7200.9, “Financing and Reporting Costs of Military Resources Used in Civil Disturbances,” January 26, 1970,
(b) Military assistance (Groups One, Two, and Three military resources) provided to civil authorities, under the provisions of § 215.9, will be on a reimbursable or reclaimable basis as appropriate.
10 U.S.C. 983.
This part:
(a) Implements 10 U.S.C. 983.
(b) Updates policy and responsibilities relating to the management of covered schools that have a policy of denying or effectively preventing military recruiting personnel access to their campuses or access to students on their campuses in a manner that is at least equal in quality and scope to the access to campuses and to students provided to any other employer, or access to student-recruiting information. The term “equal in quality and scope” means the same access to campus and students provided by the school to the any other nonmilitary recruiters or employers receiving the most favorable access. The focus is not on the content of a school's recruiting policy, but instead on the result achieved by the policy and compares the access provided military recruiters to that provided other recruiters. Therefore, it is insufficient to comply with the statute (10 U.S.C. 983) if the policy results in a greater level of access for other recruiters than for the military.
(c) Updates policy and responsibilities relating to the management of covered schools that have an anti-ROTC policy.
This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard
(a)
(b)
(c)
(1) A determination (§ 216.5(a)) affecting only a subelement of a parent institution (see § 216.3(f)) effects a limitation on the use of funds (see § 216.4 (a)) applicable to the parent institution as a whole, including the institution's offending subelement and all of its subelements, if any.
(2) When an individual institution of higher education that is part of a single university system (
(d)
(e)
(f)
(g)
(h)
(i)
(j)
It is DoD policy that:
(a) Under 10 U.S.C. 983, no covered funds may be provided by contract or grant (to include payment on such contracts or grants previously obligated) to a covered school if the Secretary of Defense determines that the covered school:
(1) Has a policy or practice (regardless of when implemented) that either prohibits or in effect prevents the Secretary of Defense or Secretary of Homeland Security from obtaining, for military recruiting purposes, access to campuses or access to students on campuses that is at least equal in quality and scope, as defined in § 216.3(d), to the access to campuses and to students provided to any other employer, or access to directory information on students;
(2) Has failed to disseminate military visit information or alerts at least on par with nonmilitary recruiters since schools offering such services to nonmilitary recruiters must also send e-mails, post notices, etc., on behalf of military recruiters to comply with the Solomon Amendment;
(3) Has failed to schedule visits at times requested by military recruiters that coincide with nonmilitary recruiters' visits to campus if this results in a greater level of access for other recruiters than for the military (
(4) Has failed to provide military recruiters with a mainstream recruiting location amidst nonmilitary employers to allow unfettered access to interviewees since military recruiters must be given the same access as recruiters who comply with a school's nondiscrimination policy;
(5) Has failed to enforce time, place, and manner policies established by the covered school such that the military recruiters experience an inferior or unsafe recruiting climate, as schools must allow military recruiters on campus and must assist them in whatever way the school assists other employers;
(6) Has through policy or practice in effect denied students permission to participate, or has prevented students from participating, in recruiting activities; or
(7) Has an anti-ROTC policy or practice, as defined in this rule, regardless of when implemented.
(b) The limitations established in paragraph (a) of this section shall not apply to a covered school if the Secretary of Defense determines that the covered school:
(1) Has ceased the policies or practices defined in paragraph (a) of this section;
(2) Has a long-standing policy of pacifism (see § 216.3(j)) based on historical religious affiliation;
(3) When not providing requested access to campuses or to students on campus, certifies that all employers are similarly excluded from recruiting on the premises of the covered school, or presents evidence that the degree of access by military recruiters is the same access to campuses or to students on campuses provided to the nonmilitary recruiters;
(4) When not providing any student-recruiting information, certifies that such information is not maintained by the covered school; or that such information already has been provided to the Military Service concerned for that current semester, trimester, quarter, or other academic term, or within the past 4 months (for institutions without academic terms); or
(5) When not providing student-recruiting information for a specific student certifies that the student concerned has formally requested, in writing, that the covered school withhold this information from all third parties.
(c) A covered school may charge military recruiters a fee for the costs incurred in providing access to student-recruiting information when that institution can certify that such charges are the actual costs, provided that such charges are reasonable, customary and identical to fees charged to other employers.
(d) An evaluation to determine whether a covered school maintains a policy or practice covered by paragraphs (a)(1) through (a)(6) of this section shall be undertaken when:
(1) Military recruiting personnel are prohibited, or in effect prevented, from the same access to campuses or access to students on campuses provided to nonmilitary recruiters, or are denied access to student-recruiting information;
(2) Information or alerts on military visits are not distributed at least on par with nonmilitary recruiters since schools offering such services to nonmilitary recruiters must also send e-mails, post notices, etc., on behalf of the military recruiter to comply with the Solomon Amendment;
(3) Military recruiters are prohibited from scheduling their visits at requested times that coincide with nonmilitary recruiters' visits to its campus if this results in a greater level of access for other recruiters than for the military as schools must ensure their recruiting policy operates in such a way that military recruiters are given access to students equal to that provided to any other employer;
(4) Military recruiters do not receive a mainstream recruiting location amidst nonmilitary employers to allow unfettered access to interviewees since military recruiters must be given the same access as recruiters who comply with the school's nondiscrimination policy;
(5) The school has failed to enforce time, place, and manner policies established by that school such that military recruiters experience an unsafe recruiting climate, as schools must allow
(6) Evidence is discovered of an institution-sponsored policy or practice that in effect denied students permission to participate, or prevented students from participating in recruiting activities.
(7) The costs being charged by the school for providing student-recruiting information are believed by the military recruiter to be excessive, and the school does not provide information sufficient to support a conclusion that such are the actual costs, provided that they are reasonable and customary, and are identical to those costs charged to other employers; or
(8) The covered school is unwilling to declare in writing, in response to an inquiry from a representative of a DoD Component or a representative from the Department of Homeland Security, that the covered school does not have a policy or practice of prohibiting, or in effect preventing, the Secretary of a Military Department or Secretary of Homeland Security from the same access to campuses or access to students on campuses provided to nonmilitary recruiters, or access to student-recruiting information by military recruiters for purposes of military recruiting.
(e) An evaluation to determine whether a covered school has an anti-ROTC policy covered by paragraph (a)(7) of this section shall be undertaken when:
(1) A Secretary of a Military Department or designee cannot obtain permission to establish, maintain, or efficiently operate a unit of the Senior ROTC; or
(2) Absent a Senior ROTC unit at the covered school, students cannot obtain permission from a covered school to participate, or are effectively prevented from participating, in a unit of the Senior ROTC at another institution of higher education.
(a) The PDUSD(P&R), under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Not later than 45 days after receipt of the information described in paragraphs (b)(3) and (c)(1) of this section:
(i) Inform the Office of Naval Research (ONR) and the Director, Defense Finance and Accounting Service that a final determination will be made so those offices can make appropriate preparations to carry out their responsibilities should a covered school be determined ineligible to receive federal funds.
(ii) Make a final determination under 10 U.S.C. 983, as implemented by this part, and notify any affected school of that determination and its basis, and that the school is therefore ineligible to receive covered funds as a result of that determination.
(iii) Disseminate to Federal entities affected by the decision, including the DoD Components and the GSA, and to the Secretary of Education and the head of each other department and agency the funds of which are subject to the determination, the names of the affected institutions identified under paragraph (a)(1)(ii) of this section.
(iv) Notify the Committees on Armed Services of the Senate and the House of Representatives of the affected institutions identified under paragraph (a)(1)(ii) of this section.
(v) Inform the affected school identified under paragraph (a)(1)(ii) of this section that its funding eligibility may be restored if the school provides sufficient new information that the basis for the determination under paragraph (a)(1)(ii) of this section no longer exists.
(2) Not later than 45 days after receipt of a covered school's request to restore its eligibility:
(i) Determine whether the funding status of the covered school should be changed, and notify the applicable school of that determination.
(ii) Notify the parties reflected in paragraphs (a)(1)(i), (a)(1)(iii), and (a)(1)(iv) of this section when a determination of funding ineligibility (paragraph (a)(1)(ii) of this section) has been rescinded.
(3) Publish in the
(4) Publish in the
(5) Enter information into the Excluded Parties List System
(6) Provide ONR with an updated list of the names of institutions identified under paragraph (a)(1)(ii) of this section whenever the list changes due to an institution being added to or dropped from the list, so that ONR can carry out its responsibilities for post-award administration of DoD Components' contracts and grants with institutions of higher education.
(7) Provide the Office of the Deputy Chief Financial Officer, DoD, and the Director, Defense Finance and Accounting Service with an updated list of the names of institutions identified under paragraph (a)(1)(ii) of this section whenever the list changes due to an institution being added or dropped from the list, so those offices can carry out their responsibilities related to cessation of payments of prior contract and grant obligations to institutions of higher education that are on the list.
(8) Publish in the
(b) The Secretaries of the Military Departments and the Secretary of Homeland Security shall:
(1) Identify covered schools that, by policy or practice, prohibit, or in effect prevent, the same access to campuses or access to students on campuses provided to nonmilitary recruiters, or access to student-recruiting information by military recruiters for military recruiting purposes.
(i) When requests by military recruiters to schedule recruiting visits are unsuccessful, the Military Service concerned, and the Office of the Secretary of Homeland Security when the Coast Guard is operating as a service in the Department of Homeland Security, shall seek written confirmation of the school's present policy from the head of the school through a letter of inquiry. A letter similar to that shown in Appendix A of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the submission to the PDUSD(P&R).
(ii) When a request for student-recruiting information is not fulfilled within a reasonable period, normally 30 days, a letter similar to that shown in Appendix A shall be used to communicate the problem to the school, and the inquiry shall be managed as described in § 216.5.(b)(1)(ii). Schools may stipulate that requests for student-recruiting information be in writing.
(2) Identify covered schools that, by policy or practice, deny establishment, maintenance, or efficient operation of a unit of the Senior ROTC, or deny students permission to participate, or effectively prevent students from participating in a unit of the Senior ROTC at another institution of higher education. The Military Service concerned, and the Office of the Secretary of Homeland Security when the Coast Guard is operating as a service in the Department of Homeland Security, shall seek written confirmation of the school's policy from the head of the school through a letter of inquiry. A letter similar to that shown in Appendix B of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or
(3) Evaluate responses to the letter of inquiry, and other such evidence obtained in accordance with this part, and submit to the PDUSD(P&R) the names and addresses of covered schools that are believed to be in violation of policies established in § 216.4. Full documentation shall be furnished to the PDUSD(P&R) for each such covered school, including the school's formal response to the letter of inquiry, documentation of any oral response, or evidence showing that attempts were made to obtain either written confirmation or an oral statement of the school's policies.
(c) The Heads of the DoD Components and Secretary of Homeland Security shall:
(1) Provide the PDUSD(P&R) with the names and addresses of covered schools identified as a result of evaluation(s) required under § 216.4(d) and (e).
(2) Take immediate action to deny obligations of covered funds to covered schools identified under paragraph (a)(1)(ii) of this section, and to restore eligibility of covered schools identified under paragraph (a)(2) of this section.
The information requirements identified at § 216.5(b) and (c)(1) have been assigned Report Control Symbol DD-P&R-(AR)-2038 in accordance with DoD 8910.1-M
Dear Dr. Doe: I understand that military recruiting personnel [have been unable to recruit or have been refused student-recruiting information
Current Federal law (10 U.S.C. 983) denies the use of certain Federal funds through grants or contracts, to include payment on such contracts or grants previously obligated, (excluding any Federal funding to an institution of higher education, or to an individual, to be available solely for student financial assistance, related administrative costs, or costs associated with attendance) from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies to institutions of higher education (including any subelements of such institutions) that have a policy or practice of denying military recruiting personnel access to campuses or access to students on campuses, in a manner that is at least equal in quality and scope (as explained in § 216.3 of Title 32, Code of Federal Regulations, Part 216), as it provides to nonmilitary recruiters, or access to student recruiting information. Implementing regulations are codified at Title 32, Code of Federal Regulations, Part 216.
This letter provides you an opportunity to clarify your institution's policy regarding military recruiting on the campus of [University]. In that regard, I request, within the next 30 days, a written policy statement of the institution with respect to access to campus and students by military recruiting personnel. Your response should highlight any difference between access for
Based on this information and any additional facts you can provide, Department of Defense officials will make a determination as to your institution's eligibility to receive funds by grant or contract. That decision may affect eligibility for funding from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies. Should it be determined that [University] as an institution of higher education (or any subelement of the institution) is in violation of the aforementioned statutes and regulations, such funding would be stopped, and the institution of higher education (including any subelements of the institution) would remain ineligible to receive such funds until and unless the Department of Defense determines that the institution has ceased the offending policies and practices.
I regret that this action may have to be taken. Successful recruiting requires that Department of Defense recruiters have equal access to students on the campuses of colleges and universities [and student-recruiting information], and at the same time, have effective relationships with the officials and student bodies of those institutions. I hope it will be possible to identify and correct any policies or practices that inhibit military recruiting at your school. [My representative, (name), is] [I am] available to answer any of your questions by telephone at [telephone number]. I look forward to your reply.
Dear Dr. Smith: I understand that ABC University has [refused a request from a Military Department to establish a Senior ROTC unit at your institution] [refused to continue existing ROTC programs at your institution][prevented students from participation at a Senior ROTC program at another institution] by a policy or practice of the University.
Current Federal law (10 U.S.C. 983) denies the use of certain Federal funds through grants or contracts, to include payment on such contracts or grants previously obligated, (excluding any Federal funding to an institution of higher education, or to an individual, to be available solely for student financial assistance, related administrative costs, or costs associated with attendance) from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies to institutions of higher education (including any subelements of such institutions) that have a policy or practice of prohibiting or preventing the Secretary of Defense from maintaining, establishing, or efficiently operating a Senior ROTC unit. Implementing regulations are codified at Title 32, Code of Federal Regulations, Part 216.
This letter provides you an opportunity to clarify your institution's policy regarding ROTC access on the campus of ABC University. In that regard, I request, within the next 30 days, a written statement of the institution with respect to [define the problem area(s)].
Based on this information, Department of Defense officials will make a determination as to your institution's eligibility to receive the above-referenced funds by grant or contract. That decision may affect eligibility for funding from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies. Should it be determined that [University] as an institution of higher education (or any subelement of the institution) is in violation of the aforementioned statutes and regulations, such funding would be stopped, and the institution of higher education (including any subelements of the institution) would remain ineligible to receive such funds until and unless the Department of Defense determines that the institution has ceased the offending policies and practices.
I regret that this action may have to be taken. Successful officer procurement requires that the Department of
Pub. L. 98-542, 98 Stat. 2725 (38 U.S.C. 354 Note.)
(a) Upon request by the Veterans Administration in connection with a claim for compensation, or by a veteran or his or her representative, available information shall be provided by the applicable Military Service which shall include all material aspects of the radiation environment to which the veteran was exposed and shall include inhaled, ingested and neutron doses. In determining the veteran's dose, initial neutron, initial gamma, residual gamma, and internal (inhaled and ingested) alpha, beta, and gamma shall be considered. However, doses will be reported as gamma dose, neutron dose, and internal dose. The minimum standards for reporting dose estimates are set forth in § 218.4.
(b) The basic means by which to measure dose from exposure to ionizing radiation is the film badge. Of the estimated 220,000 Department of Defense participants in atmospheric nuclear weapons tests, about 145,000 have film badge dose data available. The information contained in the records has been reproduced in a standard format and is being provided to each military service, which can use the film badge dose data to obtain a radiation dose for a particular individual from that service. This is done upon request from the individual, the individual's representative, the Veterans Administration, or others as authorized by the Privacy Act. Upon request, the participant or his or her authorized representative will be informed of the specific methodologies and assumptions employed in estimating his or her dose. The participant can use this information to obtain independent options regarding exposure.
(c) From 1945 through 1954, the DoD and Atomic Energy Commission (AEC) policy was to issue badges only to a portion of the personnel in a homogeneous unit such as a platoon of a battalion combat team, Naval ship or aircraft crew. Either one person was badged in a group performing the same function, or only personnel expected to be exposed to radiation were badged. After 1954, the policy was to badge all personnel. But, some badges were unreadable and some records were lost or destroyed, as in the fire at the Federal Records Center in St. Louis. For these reasons the Nuclear Test Personnel Review (NTPR) Program has focused on determining the radiation dose for those personnel (about 75,000) who were not issued film badges or for whom film badge records are not available.
(d) In order to determine the radiation dose to individuals for whom film badge data are not available, alternative approaches are used as circumstances warrant. All approaches require investigation of individual or group activities and their relationship to the radiological environment. First, if it is apparent that personnel were not present in the radiological environment and had no other potential for exposure, then their dose is zero. Second, if some members of a group had film badge readings and others did not—and if all members had a common relationship with the radiological enviroment—then doses for unbadged personnel can be calculated. Third, where sufficient badge readings or a common relationship to the radiological environment does not exist, dose reconstruction is performed. This
(1) Activities of an individual or his unit are researched for the period of participation in an atmospheric nuclear test. Unit locations and movements are related to areas of radiation. If personnel were far distant from the nuclear detonation(s), did not experience fallout or enter a fallout area, and did not come in contact with radioactive samples or contaminated objects, they were judged to have received no dose.
(2) Film badge data from badged personnel may be used to estimate individual doses for unbadged personnel. First, a group of participants must be identified that have certain common characteristics and a similar potential for exposure to radiation. Such characteristics are: Individuals must be doing the same kind of work, referred to as activity, and all members of the group must have a common relationship to the radiological environment in terms of time, location or other factors. Identification of these groups is based upon research of historical records, technical reports or correspondence. A military unit may consist of several groups or several units may comprise a single group. Using proven statistical methods, the badge data for each group is examined to determine if it adequately reflects the entire group, is valid for use in statistical calculations, or if the badge data indicate the group should be sub-divided into smaller groups. For a group that meets the tests described above, the mean dose, variance and confidence limits are determined. An estimated dose equal to 95% probability that the actual exposure did not exceed the estimate is assigned to unbadged personnel. This procedure is statistically sound and will insure that unbadged personnel are assigned doses much higher than the average/mean for the group.
(3) Dose reconstruction is performed if film badge data are unavailable for all or part of the period or radiation exposure, if film badge data are partially available but cannot be used statistically for calculations, special activities are indicated for specific individuals, or if other types of radiation exposures are indicated. In dose reconstruction, the conditions of exposure are reconstructed analytically to arrive at a radiation dose. Such reconstruction is not a new concept; it is standard scientific practice used by health physicists when the circumstances of a radiation exposure require investigation. The underlying method is in each case the same. The radiation environment is characterized in time and space, as are the activities and geometrical position of the individual. Thus, the rate at which radiation is accrued is determined throughout the time of exposure, from which the total dose is integrated. An uncertainty analysis of the reconstruction provides a calculated mean dose with confidence limits. The specific method used in a dose reconstruction depends on what type of data are available to provide the required characterizations as well as the nature of the radiation environment. The radiation environment is not limited to the gamma radiation that would have been measured by a film badge, but also includes neutron radiation for personnel sufficiently close to a nuclear detonation, as well as beta and alpha radiation (internally) for personnel whose activities indicate the possibility of inhalation or ingestion of radioactive particles.
The following procedures govern the approach taken in dose determination:
(a) Use individual film badge data where available and complete, for determining the external gamma dose.
(b) Identify group activities and locations for period(s) of possible exposure.
(c) Qualitatively assess the radiation environment in order to delineate contaminated areas. If no activities occurred in these areas, and if no other potential for exposure exists, a no dose received estimate is made.
(d) If partial film badge data are available, define group(s) of personnel with common activities and relationships to radiation environment.
(e) Using standard statistical methods, verify from the distribution of film badge readings whether the badged
(f) Calculate the mean external gamma dose, with variance and confidence limits, for each unbadged population. Assign a dose equal to 95% probability that actual exposure did not exceed the assigned dose.
(g) If badge data is not available for a statistical calculation, conduct a dose reconstruction.
(h) For dose reconstruction, define radiation environment through use of all available scientific data, e.g., measurements of radiation intensity, decay, radioisotopic composition.
(i) Quantitatively relate activities shielding, position, and other factors to radiation environment as a function of time. Integrate dose throughout period of exposure.
(j) Where possible, calculate mean dose with confidence limits; otherwise calculate best estimate dose or, if data are too sparse, upper limit dose.
(k) Compare calculations with available film badge records to verify the calculated doses. Whether or not film badge data is available, calculate initial and internal doses where identified as a meaningful contribution to the total dose.
(a)
(b)
(2) The initial radiation environment results from several types of gamma and neutron emissions. Prompt neutron and gamma radiation are emitted at the time of detonation, while delayed neutrons and fission-product gamma, from the decay of radioactive products in the fireball, continue to be emitted as the fireball rises. In contrast to these essentially point sources of radiation, there is gamma radiation from neutron interactions with air and soil, generated within a fraction of a second. Because of the complexity of these radiation sources and their varied interaction properties with air and soil, it is necessary to obtain solutions of the Boltzmann radiation transport equation. The radiation environment thus derived includes the effects of shot-specific parameters such as weapon type and yield, neutron and gamma output, source and target geometry, and atmospheric conditions. The calculated neutron and gamma radiation environments are checked for consistency with existing measured data as available. In those few cases displaying significant discrepancies that cannot be resolved, an environment based on extrapolation of the data is used if it leads to a larger calculated dose.
(3) In determining the residual radiation environment, all possible sources are considered including radioactive clouds, radiation that may have been encountered from other tests, and radioactive debris that may have been deposited in water during oceanic tests. The residual radiation environment is divided into two general components—neutron-activated material that subsequently emits, over a period of time, beta and gamma radiation; and radioactive debris from the fission reaction or from unfissioned materials that emit alpha, beta, and gamma radiation. Because residual radiation decays, the characterization of the residual environment is defined by the radiation intensity as a function of type and time. Radiological survey data are used to determine specific intensities at times of personnel exposure. Interpolation and extrapolation are based on known decay characteristics of the individual materials that comprise the residual contamination. In those rare cases where insufficient radiation data exist to adequately define the residual environment, source data are obtained from the appropriate weapon design laboratory and applied in standard radiation transport codes to determine the initial radiation at specific distances from the burst. This radiation, together with material composition and characteristics, leads to description of the neutron-activated field for each location and time of interest. In all cases observed data, as obtained at the time of the operation, are used to calibrate the calculations.
(c)
(d)
(2) The calculation of the dose from residual radiation follows from the characterized radiation environment and personnel activities. Because radiation intensities are calculated for a field (i.e., in two spatial dimensions) and in time, the radiation intensity is determinable for each increment of personnel activity regardless of direction or at what time. The dose from exposure to a radiation field is obtained by summing the contribution (product of intensity and time) to dose at each
(3) The calculation of the dose from inhaled or ingested radioactivity primarily involves the determination of what radiosotopes entered the body in what quantity. Published conversion factors are then applied to these data to arrive at the radiation dose and future dose commitments to internal organs. Inhalation or ingestion of radioactive material is calculated from the radioactive environment and the processes of making these materials inhalable or ingestible. Activities and processes that cause material to become airborne (such as wind, decontamination or traffic) are used with empirical data on particle lofting to determine airborne concentrations under specific circumstances. Volumetric breathing rates and durations of exposure are used to calculate the total material intake. Data on time-dependent weapon debris isotopic composition and the above-mentioned conversion factors are used to calculate the dose commitment to the body and to specific body organs.
(e)
(f)
(2) Film badge data may, in some cases, be unrepresentative of the total exposure of a given individual or group; nevertheless, they are extremely useful for direct comparison of incremental doses for specific periods, e.g., validating the calculations for the remaining, unbadged period of exposure. Moreover, a wide distribution of film badge data often leads to more definitive personnel grouping for dose calculations and to further investigation of the reason(s) for such distribution. In all cases, personnel film badge data are not used in the dose calculations, but rather are used solely for comparison with and validation of the calculations. For dose reconstructions accomplished to date, comparison has been favorable and within the confidence limits of the calculations.
The following minimum standards for reporting dose estimates shall be uniformly applied by the Military Services when preparing information in response to an inquiry by the Veterans Administration, in connection with a claim for compensation, or by a veteran or his or her representative. The information shall include all material aspects of the radiation environment to which the veteran was exposed and shall include inhaled, ingested, and neutron doses, when applicable. In determining the veteran's dose, initial neutron, initial gamma, residual gamma, and internal (inhaled and ingested) alpha, beta, and gamma shall be considered. However, doses will be reported as gamma dose, neutron dose,
(a) Can it be documented that the veteran was a test participant? If so, what tests did he attend and what were the specifics of these tests (date, time, yield (unless classified) type, location and other relevant details)?
(b) What unit was the man in? What were the mission and activities of the units at the test?
(c) To the extent to which the available records indicate, what were his duties at the test?
(d) Can you corroborate the specific information relevant to the potential exposure provided by the claimant to the Veterans Administration and forwarded to the Department of Defense? What is the impact of these specific activities on the claimant's reconstructed dose?
(e) Is there any recorded radiation exposure for the individual? Does this recorded exposure cover the full period of test participation? What are the uncertainties associated with the recorded film badge dose?
(f) If recorded dosimetry data is unavailable or incomplete, what is the dose reconstruction for the most probable dose, with error limits, if available?
(g) Is there evidence of a neutron or internal exposure? What is the reconstruction?
5 U.S.C. 301; 42 U.S.C. 300v-1(b).
(a) Except as provided in paragraph (b) of this section, this policy applies to all research involving human subjects conducted, supported or otherwise subject to regulation by any federal department or agency which takes appropriate administrative action to make the policy applicable to such research. This includes research conducted by federal civilian employees or military personnel, except that each department or agency head may adopt such procedural modifications as may be appropriate from an administrative standpoint. It also includes research conducted, supported, or otherwise subject to regulation by the federal government outside the United States.
(1) Research that is conducted or supported by a federal department or agency, whether or not it is regulated as defined in § 219.102(e), must comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal department or agency but is subject to regulation as defined in § 219.102(e) must be reviewed and approved, in compliance with § 219.101, § 219.102, and
(b) Unless otherwise required by department or agency heads, research activities in which the only involvement of human subjects will be in one or more of the following categories are exempt from this policy:
(1) Research conducted in established or commonly accepted educational settings, involving normal educational practices, such as (i) research on regular and special education instructional strategies, or (ii) research on the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human subjects can be identified, directly or through identifiers linked to the subjects; and
(ii) Any disclosure of the human subjects' responses outside the research could reasonably place the subjects at risk of criminal or civil liability or be damaging to the subjects' financial standing, employability, or reputation.
(3) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures, or observation of public behavior that is not exempt under paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or candidates for public office; or
(ii) Federal statute(s) require(s) without exception that the confidentiality of the personally identifiable information will be maintained throughout the research and thereafter.
(4) Research, involving the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or subject to the approval of department or agency heads, and which are designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs;
(ii) Procedures for obtaining benefits or services under those programs;
(iii) Possible changes in or alternatives to those programs or procedures; or
(iv) Possible changes in methods or levels of payment for benefits or services under those programs.
(6) Taste and food quality evaluation and consumer acceptance studies,
(i) If wholesome foods without additives are consumed or
(ii) If a food is consumed that contains a food ingredient at or below the level and for a use found to be safe, or agricultural chemical or environmental contaminant at or below the level found to be safe, by the Food and Drug Administration or approved by the Environmental Protection Agency or the Food Safety and Inspection Service of the U.S. Department of Agriculture.
(c) Department or agency heads retain final judgment as to whether a particular activity is covered by this policy.
(d) Department or agency heads may require that specific research activities or classes of research activities conducted, supported, or otherwise subject to regulation by the department or agency but not otherwise covered by this policy, comply with some or all of the requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent federal laws or regulations which provide additional protections for human subjects.
(f) This policy does not affect any state or local laws or regulations which may otherwise be applicable and which provide additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations which may otherwise be applicable and which provide additional protections to human subjects of research.
(h) When research covered by this policy takes place in foreign countries, procedures normally followed in the foreign countries to protect human subjects may differ from those set forth in this policy. (An example is a foreign institution which complies with guidelines consistent with the World Medical Assembly Declaration (Declaration of Helsinki amended 1989) issued either by sovereign states or by an organization whose function for the protection of human research subjects is internationally recognized.) In these circumstances, if a department or agency head determines that the procedures prescribed by the institution afford protections that are at least equivalent to those provided in this policy, the department or agency head may approve the substitution of the foreign procedures in lieu of the procedural requirements provided in this policy. Except when otherwise required by statute, Executive Order, or the department or agency head, notices of these actions as they occur will be published in the
(i) Unless otherwise required by law, department or agency heads may waive the applicability of some or all of the provisions of this policy to specific research activities or classes of research activities otherwise covered by this policy. Except when otherwise required by statute or Executive Order, the department or agency head shall forward advance notices of these actions to the Office for Human Research Protections, Department of Health and Human Services (HHS), or any successor office, and shall also publish them in the
(a)
(b)
(c)
(d)
(e)
(f)
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
(g)
(h)
(i)
(j)
(a) Each institution engaged in research which is covered by this policy and which is conducted or supported by a federal department or agency shall provide written assurance satisfactory to the department or agency head that it will comply with the requirements set forth in this policy. In lieu of requiring submission of an assurance, individual department or agency heads shall accept the existence of a current assurance, appropriate for the research in question, on file with the Office for Human Research Protections, HHS, or any successor office, and approved for federalwide use by that office. When the existence of an HHS-approved assurance is accepted in lieu of requiring submission of an assurance, reports (except certification) required by this policy to be made to department and agency heads shall also be made to the Office for Human Research Protections, HHS, or any successor office.
(b) Departments and agencies will conduct or support research covered by this policy only if the institution has an assurance approved as provided in this section, and only if the institution has certified to the department or agency head that the research has been reviewed and approved by an IRB provided for in the assurance, and will be subject to continuing review by the IRB. Assurances applicable to federally supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the discharge of its responsibilities for protecting the rights and welfare of human subjects of research conducted at or sponsored by the institution, regardless of whether the research is subject to federal regulation. This may include an appropriate existing code, declaration, or statement of ethical principles, or a statement formulated by the institution itself. This requirement does not preempt provisions of this policy applicable to department- or agency-supported or regulated research and need not be applicable to any research exempted or waived under § 219.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with the requirements of this policy, and for which provisions are made for meeting space and sufficient staff to support the IRB's review and recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees; representative capacity; indications of experience such as board certifications, licenses, etc., sufficient to describe each member's chief anticipated contributions to IRB deliberations; and any employment or other relationship between each member and the institution; for example: full-time employee, part-time employee, member of governing panel or board, stockholder, paid or unpaid consultant. Changes in IRB membership shall be reported to the department or agency head, unless in accord with § 219.103(a) of this policy, the existence of an HHS-approved assurance is accepted. In this case, change in IRB membership shall be reported to the Office for Human Research Protections, HHS, or any successor office.
(4) Written procedures which the IRB will follow (i) for conducting its initial and continuing review of research and for reporting its findings and actions to the investigator and the institution; (ii) for determining which projects require review more often than annually and which projects need verification from sources other than the investigators that no material changes have occurred since previous IRB review; and (iii) for ensuring prompt reporting to the IRB of proposed changes in a research activity, and for ensuring that such changes in approved research, during the period for which IRB approval has already been given, may not be initiated without IRB review and approval except when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB, appropriate institutional officials, and the department or agency head of (i) any unanticipated problems involving risks to subjects or others or any serious or continuing noncompliance with this policy or the requirements or determinations of the IRB and (ii) any suspension or termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to act for the institution and to assume on behalf of the institution the obligations imposed by this policy and shall be filed in such form and manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances submitted in accordance with this policy through such officers and employees of the department or agency and such experts or consultants engaged for this purpose as the department or agency head determines to be appropriate. The department or agency head's evaluation will take into consideration the adequacy of the proposed IRB in light of the anticipated scope of the institution's research activities and the types of subject populations likely to be involved, the appropriateness of the proposed initial and continuing review procedures in light of the probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head may approve or disapprove the assurance, or enter into negotiations to develop an approvable one. The department or agency head may limit the period during which any particular approved assurance or class of approved assurances shall remain effective or otherwise condition or restrict approval.
(f) Certification is required when the research is supported by a federal department or agency and not otherwise exempted or waived under § 219.101 (b) or (i). An institution with an approved assurance shall certify that each application or proposal for research covered by the assurance and by § 219.103 of this Policy has been reviewed and approved by the IRB. Such certification must be submitted with the application or proposal or by such later date as may be prescribed by the department or agency to which the application or proposal is submitted. Under no condition shall research covered by § 219.103 of the Policy be supported prior to receipt of the certification that the research has been reviewed and approved by the IRB. Institutions without an approved assurance covering the research shall certify within 30 days after receipt of a request
(a) Each IRB shall have at least five members, with varying backgrounds to promote complete and adequate review of research activities commonly conducted by the institution. The IRB shall be sufficiently qualified through the experience and expertise of its members, and the diversity of the members, including consideration of race, gender, and cultural backgrounds and sensitivity to such issues as community attitudes, to promote respect for its advice and counsel in safeguarding the rights and welfare of human subjects. In addition to possessing the professional competence necessary to review specific research activities, the IRB shall be able to ascertain the acceptability of proposed research in terms of institutional commitments and regulations, applicable law, and standards of professional conduct and practice. The IRB shall therefore include persons knowledgeable in these areas. If an IRB regularly reviews research that involves a vulnerable category of subjects, such as children, prisoners, pregnant women, or handicapped or mentally disabled persons, consideration shall be given to the inclusion of one or more individuals who are knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no IRB consists entirely of men or entirely of women, including the institution's consideration of qualified persons of both sexes, so long as no selection is made to the IRB on the basis of gender. No IRB may consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary concerns are in scientific areas and at least one member whose primary concerns are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise affiliated with the institution and who is not part of the immediate family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or continuing review of any project in which the member has a conflicting interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with competence in special areas to assist in the review of issues which require expertise beyond or in addition to that available on the IRB. These individuals may not vote with the IRB.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in § 219.103(b)(4) and, to the extent required by, § 219.103(b)(5).
(b) Except when an expedited review procedure is used (see § 219.110), review proposed research at convened meetings at which a majority of the members of the IRB are present, including at least one member whose primary concerns are in nonscientific areas. In order for the research to be approved, it shall receive the approval of a majority of those members present at the meeting.
(a) An IRB shall review and have authority to approve, require modifications in (to secure approval), or disapprove all research activities covered by this policy.
(b) An IRB shall require that information given to subjects as part of informed consent is in accordance with § 219.116. The IRB may require that information, in addition to that specifically mentioned in § 219.116, be given to
(c) An IRB shall require documentation of informed consent or may waive documentation in accordance with § 219.117.
(d) An IRB shall notify investigators and the institution in writing of its decision to approve or disapprove the proposed research activity, or of modifications required to secure IRB approval of the research activity. If the IRB decides to disapprove a research activity, it shall include in its written notification a statement of the reasons for its decision and give the investigator an opportunity to respond in person or in writing.
(e) An IRB shall conduct continuing review of research covered by this policy at intervals appropriate to the degree of risk, but not less than once per year, and shall have authority to observe or have a third party observe the consent process and the research.
(a) The Secretary, HHS, has established, and published as a Notice in the
(b) An IRB may use the expedited review procedure to review either or both of the following:
(1) Some or all of the research appearing on the list and found by the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period (of one year or less) for which approval is authorized.
(c) Each IRB which uses an expedited review procedure shall adopt a method for keeping all members advised of research proposals which have been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate, or choose not to authorize an institution's or IRB's use of the expedited review procedure.
(a) In order to approve research covered by this policy the IRB shall determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized:
(i) By using procedures which are consistent with sound research design and which do not unnecessarily expose subjects to risk, and
(ii) Whenever appropriate, by using procedures already being performed on the subjects for diagnostic or treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated benefits, if any, to subjects, and the importance of the knowledge that may reasonably be expected to result. In evaluating risks and benefits, the IRB should consider only those risks and benefits that may result from the research (as distinguished from risks and benefits of therapies subjects would receive even if not participating in the research). The IRB should not consider possible long-range effects of applying knowledge gained in the research (for example,
(3) Selection of subjects is equitable. In making this assessment the IRB should take into account the purposes of the research and the setting in which the research will be conducted and should be particularly cognizant of the special problems of research involving vulnerable populations, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or the subject's legally authorized representative, in accordance with, and to the extent required by § 219.116.
(5) Informed consent will be appropriately documented, in accordance with, and to the extent required by § 219.117.
(6) When appropriate, the research plan makes adequate provision for monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to coercion or undue influence, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons, additional safeguards have been included in the study to protect the rights and welfare of these subjects.
Research covered by this policy that has been approved by an IRB may be subject to further appropriate review and approval or disapproval by officials of the institution. However, those officials may not approve the research if it has not been approved by an IRB.
An IRB shall have authority to suspend or terminate approval of research that is not being conducted in accordance with the IRB's requirements or that has been associated with unexpected serious harm to subjects. Any suspension or termination of approval shall include a statement of the reasons for the IRB's action and shall be reported promptly to the investigator, appropriate institutional officials, and the department or agency head.
Cooperative research projects are those projects covered by this policy which involve more than one institution. In the conduct of cooperative research projects, each institution is responsible for safeguarding the rights and welfare of human subjects and for complying with this policy. With the approval of the department or agency head, an institution participating in a cooperative project may enter into a joint review arrangement, rely upon the review of another qualified IRB, or make similar arrangements for avoiding duplication of effort.
(a) An institution, or when appropriate an IRB, shall prepare and maintain adequate documentation of IRB activities, including the following:
(1) Copies of all research proposals reviewed, scientific evaluations, if any, that accompany the proposals, approved sample consent documents, progress reports submitted by investigators, and reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to show attendance at the meetings; actions taken by the IRB; the vote on these actions including the number of members voting for, against, and abstaining; the basis for requiring changes in or disapproving research; and a written summary of the discussion of controverted issues and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the investigators.
(5) A list of IRB members in the same detail as described is § 219.103(b)(3).
(6) Written procedures for the IRB in the same detail as described in § 219.103(b)(4) and § 219.103(b)(5).
(7) Statements of significant new findings provided to subjects, as required by § 219.116(b)(5).
(b) The records required by this policy shall be retained for at least 3 years, and records relating to research which is conducted shall be retained for at least 3 years after completion of the research. All records shall be accessible for inspection and copying by authorized representatives of the department or agency at reasonable times and in a reasonable manner.
Except as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject's legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject's legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in paragraph (c) or (d) of this section, in seeking informed consent the following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject's participation, a description of the procedures to be followed, and identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts to the subject;
(3) A description of any benefits to the subject or to others which may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as to whether any compensation and an explanation as to whether any medical treatments are available if injury occurs and, if so, what they consist of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent questions about the research and research subjects' rights, and whom to contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one or more of the following elements of information shall also be provided to each subject:
(1) A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's participation may be terminated by the investigator without regard to the subject's consent;
(3) Any additional costs to the subject that may result from participation in the research;
(4) The consequences of a subject's decision to withdraw from the research and procedures for orderly termination of participation by the subject;
(5) A statement that significant new findings developed during the course of the research which may relate to the subject's willingness to continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth above, or waive the requirement to obtain informed consent provided the IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or subject to the approval of state or local government officials and is designed to study, evaluate, or otherwise examine:
(i) Public benefit of service programs;
(ii) Procedures for obtaining benefits or services under those programs;
(iii) Possible changes in or alternatives to those programs or procedures; or
(iv) Possible changes in methods or levels of payment for benefits or services under those programs; and
(2) The research could not practicably be carried out without the waiver or alteration.
(d) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth in this section, or waive the requirements to obtain informed consent provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights and welfare of the subjects;
(3) The research could not practicably be carried out without the waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with additional pertinent information after participation.
(e) The informed consent requirements in this policy are not intended to preempt any applicable federal, state, or local laws which require additional information to be disclosed in order for informed consent to be legally effective.
(f) Nothing in this policy is intended to limit the authority of a physician to provide emergency medical care, to the extent the physician is permitted to do so under applicable federal, state, or local law.
(a) Except as provided in paragraph (c) of this section, informed consent shall be documented by the use of a written consent form approved by the IRB and signed by the subject or the subject's legally authorized representative. A copy shall be given to the person signing the form.
(b) Except as provided in paragraph (c) of this section, the consent form may be either of the following:
(1) A written consent document that embodies the elements of informed consent required by § 219.116. This form may be read to the subject or the subject's legally authorized representative, but in any event, the investigator shall give either the subject or the representative adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements of informed consent required by § 219.116 have been presented orally to the subject or the subject's legally authorized representative. When this method is used, there shall be a witness to the oral presentation. Also, the IRB shall approve a written summary of what is to be said to the subject or the representative. Only the short form itself is to be signed by the subject or the representative. However, the witness shall sign both the short form and a copy of the summary, and the person actually obtaining consent shall sign a copy of the summary. A copy of the summary shall be given to the subject or the representative, in addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain a
(1) That the only record linking the subject and the research would be the consent document and the principal risk would be potential harm resulting from a breach of confidentiality. Each subject will be asked whether the subject wants documentation linking the subject with the research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to subjects and involves no procedures for which written consent is normally required outside of the research context.
Certain types of applications for grants, cooperative agreements, or contracts are submitted to departments or agencies with the knowledge that subjects may be involved within the period of support, but definite plans would not normally be set forth in the application or proposal. These include activities such as institutional type grants when selection of specific projects is the institution's responsibility; research training grants in which the activities involving subjects remain to be selected; and projects in which human subjects' involvement will depend upon completion of instruments, prior animal studies, or purification of compounds. These applications need not be reviewed by an IRB before an award may be made. However, except for research exempted or waived under § 219.101 (b) or (i), no human subjects may be involved in any project supported by these awards until the project has been reviewed and approved by the IRB, as provided in this policy, and certification submitted, by the institution, to the department or agency.
In the event research is undertaken without the intention of involving human subjects, but it is later proposed to involve human subjects in the research, the research shall first be reviewed and approved by an IRB, as provided in this policy, a certification submitted, by the institution, to the department or agency, and final approval given to the proposed change by the department or agency.
(a) The department or agency head will evaluate all applications and proposals involving human subjects submitted to the department or agency through such officers and employees of the department or agency and such experts and consultants as the department or agency head determines to be appropriate. This evaluation will take into consideration the risks to the subjects, the adequacy of protection against these risks, the potential benefits of the research to the subjects and others, and the importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head may approve or disapprove the application or proposal, or enter into negotiations to develop an approvable one.
Federal funds administered by a department or agency may not be expended for research involving human subjects unless the requirements of this policy have been satisfied.
(a) The department or agency head may require that department or agency support for any project be terminated or suspended in the manner prescribed in applicable program requirements, when the department or agency head finds an institution has materially
(b) In making decisions about supporting or approving applications or proposals covered by this policy the department or agency head may take into account, in addition to all other eligibility requirements and program criteria, factors such as whether the applicant has been subject to a termination or suspension under paragarph (a) of this section and whether the applicant or the person or persons who would direct or has have directed the scientific and technical aspects of an activity has have, in the judgment of the department or agency head, materially failed to discharge responsibility for the protection of the rights and welfare of human subjects (whether or not the research was subject to federal regulation).
With respect to any research project or any class of research projects the department or agency head may impose additional conditions prior to or at the time of approval when in the judgment of the department or agency head additional conditions are necessary for the protection of human subjects.
5 U.S.C. 301; 10 U.S.C. 1095.
(a) This part implements the provisions of 10 U.S.C. 1095, 1097b(b), and 1079b. In general, 10 U.S.C. 1095 establishes the statutory obligation of third party payers to reimburse the United States the reasonable charges of healthcare services provided by facilities of the Uniformed Services to covered beneficiaries who are also covered by a third party payer's plan. Section 1097b(b) elaborates on the methods for computation of reasonable charges. Section 1079b addresses charges for civilian patients who are not normally beneficiaries of the Military Health System. This part establishes the Department of Defense interpretations and requirements applicable to all healthcare services subject to 10 U.S.C. 1095, 1097b(b), and 1079b.
(b) This part applies to all facilities of the Uniformed Services; the Department of Transportation administers this part with respect to facilities to the Coast Guard, not the Department of Defense.
(c) This part applies to pathology services provided by the Armed Forces Institute of Pathology. However, in lieu of the rules and procedures otherwise applicable under this part, the Assistant Secretary of Defense (Health Affairs) may establish special rules and procedures under the authority of 10 U.S.C. 176 and 177 in relation to cooperative enterprises between the Armed Forces Institute of Pathology and the American Registry of Pathology.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(1) Express exclusions or limitations in third party payer plans that are inconsistent with 10 U.S.C. 1095(b) are inoperative.
(2) No objection, precondition or limitation may be asserted that defeats the statutory purpose of collecting from third party payers.
(3) Third party payers may not treat claims arising from services provided in facilities of the uniformed services less favorably than they treat claims arising from services provided in other hospitals.
(4) No objection, precondition or limitation may be asserted that is contrary to the basic nature of facilities of the uniformed services.
(c)
(1)
(2)
(3)
(4)
(5)
(i) Expressly disallows payment as the primary payer to all providers to whom payment would not be made under Medicare (including payment under Part A, Part B, a Medicare HMO, or a Medicare+Choice plan); and
(ii) Is otherwise in accordance with applicable law.
(a)
(b)
(2) Except as provided by 10 U.S.C. 1095, this part, or other applicable law, third party payers are not required to treat claims arising from services provided in or through facilities of the Uniformed Services more favorably than they treat claims arising from services provided in other facilities or by other health care providers.
(c)
(1)
(2)
(ii) Such provisions are not permissible if they are applied in a manner that would result in claims arising from services provided by or through facilities of the Uniformed Services being treated less favorably than claims arising from services provided by other hospitals or providers.
(iii) Such provisions are not permissible if they would not affect a third party payer's obligation under this part. For example, concurrent review of an inpatient hospitalization would generally not affect the third party payer's obligation because of the DRG-based, per-admission basis for calculating reasonable charges under § 220.8(a) (except in long stay outlier cases, noted in § 220.8(a)(4)).
(3)
(d)
Pursuant to 10 U.S.C. 1095(c), facilities of the uniformed services, when requested, shall make available to representatives of any third party payer from which the United States seeks payment under 10 U.S.C. 1095 for inspection and review appropriate health care records (or copies of such records) of individuals for whose care payment is sought. Appropriate records which will be made available are records which document that the services which are the subject of the claims for payment under 10 U.S.C. 1095 were provided as claimed and were provided in a manner consistent with permissible terms and conditions of the third party payer's plan. This is the sole purpose for which patient care records will be made available. Records not needed for this purpose will not be made available.
(a)
(b)
(c)
(d)
(1) That have been in continuous effect without amendment or renewal since prior to November 5, 1990; and
(2) For which the facility of the Uniformed Services or other authorized representative for the United States makes a determination, based on documentation provided by the third party payer, that the policy or plan clearly excludes payment for such services. Plans entered into, amended or renewed on or after November 5, 1990, are subject to this section, as are prior plans that do not clearly exclude payment for services covered by this section.
(a) Pursuant to 10 U.S.C. 1095(e)(1), the United States may institute and prosecute legal proceedings against a third party payer to enforce a right of the United States under 10 U.S.C. 1095 and this part.
(b) Pursuant to 10 U.S.C. 1095(e)(2), an authorized representative of the United States may compromise, settle or waive a claim of the United States under 10 U.S.C. 1095 and this part.
(c) The authorities provided by 31 U.S.C. 3701,
(d) A third party payer may not, without the consent of a U.S. Government official authorized to take action under 10 U.S.C. 1095 and this part, offset or reduce any payment due under 10 U.S.C. 1095 or this part on the grounds that the payer considers itself due a refund from a facility of the Uniformed Services. A request for refund must be submitted and adjudicated separately from any other claims submitted to the third party payer under 10 U.S.C. 1095 or this part.
(a)
(2) The general rule is that reasonable charges under this part are based on the rates used by CHAMPUS under 32 CFR 199.14 to reimburse authorized providers. There are some exceptions to this general rule, as outlined in this section.
(b)
(c)
(2)
(3)
(4)
(5)
(i) Hospital charges (which refers to routine service charges associated with the hospital stay and ancillary charges).
(ii) Professional charges (which refers to professional services provided by physicians and certain other providers).
(d)
(e)
(f)
(1) The charge for ambulance services is based on the full costs of operating the ambulance service.
(2) With respect to inpatient hospital charges in the Burn Center at Brooke Army Medical Center, the Assistant Secretary of Defense for Health Affairs may establish an adjustment to the rate otherwise applicable under the DRG payment methodology under this section to reflect unique attributes of the Burn Center.
(3) Charges for dental services (including oral diagnosis and prevention, periodontics, prosthodontics (fixed and removable), implantology, oral surgery, orthodontics, pediatric dentistry and endodontics) will be based on a full cost of the dental services.
(4) With respect to service provided prior to January 1, 2003, reasonable charges for anesthesia services will be based on an average DoD cost of service in all Military Treatment Facilities. With respect to services provided on or after January 1, 2003, reasonable charges for anesthesia services will be based on an average cost per minute of
(5) The charge for immunizations, allergin extracts, allergic condition tests, and the administration of certain medications when these services are provided in a separate immunizations or shot clinic, are based on CHAMPUS prevailing rates in cases in which such rates are available, and in cases in which such rates are not available, on the average full cost of these services, exclusive of any costs considered for purposes of any outpatient visit. A separate charge shall be made for each immunization, injection or medication administered.
(6) The charges for pharmacy, durable medical equipment and supplies are based on CHAMPUS prevailing rates in cases in which such rates are available, in cases in which such rates are not available, on the average full cost of these items, exclusive of any costs considered for purposes of any outpatient visit. A separate charge shall be made for each item provided.
(7) Charges for aero-medical evacuation will be based on the full cost of the aero-medical evacuation services.
(g)
(h)
(i)
(j)
(a)
(b)
(c)
(2) Uniformed Services beneficiaries are required to take other reasonable steps to cooperate with the efforts of the facility of the Uniformed Services to make collections under 10 U.S.C. 1095 and this part, such as submitting to the third party payer (or other entity involved in adjudicating a claim) any requests or documentation that might be required by the third party payer (or other entity), if consistent with this part, to facilitate payment under this part.
(3) Intentionally providing false information or willfully failing to satisfy a beneficiary's obligations are grounds for disqualification for health care services from facilities of the Uniformed Services.
(d)
(a)
(b)
(2) Only one deductible charge shall be made per hospital admission (or Medicare benefit period), regardless of whether the admission is to a facility of the Uniformed Services or a Medicare certified civilian hospital. To ensure that a Medicare supplemental insurer is not charged the inpatient hospital deductible twice when an individual who is entitled to benefits under both DoD retiree benefits and Medicare, the following payment rules apply:
(i) If a dual beneficiary is first admitted to a Medicare-certified hospital and is later admitted to a facility of the Uniformed Services within the same benefit period initiated by the admission to the Medicare-certified hospital, the facility of the Uniformed Services shall not charge the Medicare supplemental insurance plan an inpatient hospital deductible.
(ii) If a dual beneficiary is admitted first to a facility of the Uniformed Services and secondly to a Medicare-certified hospital within 60 days of discharge from the facility of the Uniformed Services, the facility of the Uniformed Services shall refund to the Medicare supplemental insurer any inpatient hospital deductible that the insurer paid to the facility of the Uniformed Services so that it may pay the deductible to the Medicare-certified hospital.
(c)
(i) Be based on percentage amounts of the per diem, per visit and other rates established by § 220.8 comparable to the percentage amounts of beneficiary financial responsibility under Medicare for the service involved;
(ii) Include adjustments, as appropriate, to identify major components of the all inclusive per diem or per visit rates for which Medicare has special rules.
(iii) Provide for offsets and/or refunds to ensure that Medicare supplemental insurers are not required to pay a limited benefit more than one time in cases in which beneficiaries receive similar services from both a facility of the uniformed services and a Medicare certified provider; and
(iv) Otherwise conform with the requirements of this section and this part.
(2) If collections are sought under paragraph (c) of this section, the effective date of such collections will be prospective from the date the Assistant Secretary of Defense (Health Affairs) provides notice of such collections, and will exempt policies in continuous effect without amendment or renewal since the date the Assistant Secretary of Defense (Health Affairs) provides notice of such collections.
(d)
(e)
(1) That have been in continuous effect without amendment since prior to November 5, 1990; and
(2) For which the facility of the Uniformed Services (or other authorized representative of the United States) makes a determination, based on documentation provided by the Medicare supplemental plan, that the plan agreement clearly excludes payment for services covered by this section. Plans entered into, amended or renewed on or after November 5, 1990, are subject to this section, as are prior plans that do not clearly exclude payment for services covered by this section.
(a)
(b)
(2)
(c)
(1) That have been in continuous effect without amendment since prior to November 5, 1990; and
(2) For which the facility of the Uniformed Services (or other authorized representative of the United States) makes a determination, based on documentation provided by the third party payer, that the policy or plan clearly excludes payment for services covered by this section. Plans entered into, amended or renewed on or after November 5, 1990, are subject to this section, as are prior plans that do not clearly exclude payment for services covered by this section.
(a)
(b)
(1)
(2)
(ii) If a settlement appears to represent an attempt to shift to the facility of the Uniformed Services the responsibility of providing uncompensated services or items for the treatment of the work-related condition, the settlement will not be recognized and reimbursement to the uniformed health care facility will be required. For example, if the parties to a settlement attempt to maximize the amount of disability benefits paid under workers' compensation by releasing the employer or workers' compensation carrier from liability for medical expenses for a particular condition even though the facts show that the condition is work-related, the facility of the Uniformed Services must be reimbursed.
(iii) Except as specified in paragraph (b)(2)(iv) of this section, if a lump-sum compromise settlement forecloses the possibility of future payment or workers' compensation benefits, medical expenses incurred by a facility of the Uniformed Services after the date of the settlement are not reimbursable under this section.
(iv) As an exception to the rule of paragraph (b)(2)(iii) of this section, if the settlement agreement allocates
(3)
(1) Circumstances in which liability benefits are paid to an injured party only when the insured party's tortious acts are the cause of the injuries; and
(2) Uninsured and underinsured coverage, in which there is a third party tortfeasor who caused the injuries (i.e., benefits are not paid on a no-fault basis), but the insured party is not the tortfeasor.
(1) Any plan offered by an insurer, re-insurer, employer, corporation, organization, trust, organized health care group or other entity.
(2) Any plan for which the beneficiary pays a premium to an issuing agent as well as any plan to which the beneficiary is entitled as a result of employment or membership in or association with an organization or group.
(3) Any Employee Retirement Income and Security Act (ERISA) plan.
(4) Any Multiple Employer Trust (MET).
(5) Any Multiple Employer Welfare Arrangement (MEWA).
(6) Any Health Maintenance Organization (HMO) plan, including any such plan with a point-of-service provision or option.
(7) Any individual practice association (IPA) plan.
(8) Any exclusive provider organization (EPO) plan.
(9) Any physician hospital organization (PHO) plan.
(10) Any integrated delivery system (IDS) plan.
(11) Any management service organization (MSO) plan.
(12) Any group or individual medical services account.
(13) Any preferred provider organization (PPO) plan or any PPO provision or option of any third party payer plan.
(14) Any Medicare supplemental insurance plan.
(15) Any automobile liability insurance plan.
(16) Any no fault insurance plan, including any personal injury protection plan or medical payments benefit plan for personal injuries arising from the operation of a motor vehicle.
(1) State and local governments that provide such plans other than Medicaid.
(2) Insurance underwriters or carriers.
(3) Private employers or employer groups offering self-insured or partially self-insured medical service or health plans.
(4) Automobile liability insurance underwriter or carrier.
(5) No fault insurance underwriter or carrier.
(6) Workers' compensation program or plan sponsor, underwriter, carrier, or self-insurer.
(7) Any other plan or program that is designed to provide compensation or coverage for expenses incurred by a beneficiary for healthcare services or products.
(1) Operated by or under the authority of any law of any State (or the District of Columbia, American Samoa, Guam, Puerto Rico, and the Virgin Islands).
(2) Operated through an insurance arrangement or on a self-insured basis by an employer.
(3) Operated under the authority of the Federal Employees Compensation Act or the Longshoremen's and Harbor Workers' Compensation Act.
10 U.S.C. 128 and 5 U.S.C. 552(b)(3).
This part implements 10 U.S.C. 128 by establishing policy, assigning responsibilities, and prescribing procedures for identifying, controlling, and limiting the dissemination of unclassified information on the physical protection of DoD special nuclear material (SNM), equipment, and facilities. That information shall be referred to as “the Department of Defense Unclassified Controlled Nuclear Information (DoD UCNI),” to distinguish it from a similar Department of Energy (DoE) program.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Defense Agencies, and the
(b) Implements 10 U.S.C. 128, which is the statutory basis for controlling the DoD UCNI in the Department of Defense. 10 U.S.C. 128 also constitutes the authority for invoking 32 CFR part 286 to prohibit mandatory disclosure of DoD UCNI under the “Freedom of Information Act (FOIA)” in 5 U.S.C. 552.
(c) Supplements the security classification guidance contained in CG-W-5
(d) Applies to all SNM, regardless of form, in reactor cores or to other items under the direct control of the DoD Components.
(e) Applies equally to DoE UCNI under DoD control, except the statute applicable to DoE UCNI (42 U.S.C. 2011
(a)
(1) Development, production, testing, sampling, maintenance, repair, modification, assembly, utilization, transportation, or retirement of nuclear weapons or nuclear weapon components.
(2) Production, utilization, or transportation of DoD SNM for military applications.
(3) Safeguarding of activities, equipment, or facilities that support the functions in paragraphs (a) (1) and (2) of this section, including the protection of nuclear weapons, nuclear weapon components, or DoD SNM for military applications at a fixed facility or in transit.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
It is DoD policy:
(a) To prohibit the unauthorized dissemination of unclassified information on security measures, including security plans, procedures, and equipment for the physical protection of DoD SNM, equipment, or facilities.
(b) That the decision to protect unclassified information as DoD UCNI shall be based on a determination that the unauthorized dissemination of such information could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by increasing significantly the likelihood of the illegal production of nuclear weapons or the theft, diversion, or sabotage of DoD SNM, equipment, or facilities.
(c) That government information shall be made publicly available to the fullest extent possible by applying the minimum restrictions consistent with the requirements of 10 U.S.C. 128 necessary to protect the health and safety of the public or the common defense and security.
(d) That nothing in this part prevents a determination that information previously determined to be DoD UCNI is classified information under applicable standards of classification.
(a) The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence shall:
(1) Administer the DoD program for controlling DoD UCNI.
(2) Coordinate DoD compliance with the DoE program for controlling DoE UCNI.
(3) Prepare and maintain the reports required by 10 U.S.C. 128.
(b) The Assistant Secretary of Defense (Public Affairs) shall provide guidance to the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C3I)), other elements of the OSD, and the Heads of the DoD Components on the FOIA (5 U.S.C. 552), as implemented in DoD 5400.7-R,
(c) The Heads of the DoD Components shall:
(1) Implement this part in their DoD Components.
(2) Advise the ASD(C3I) of the following, when information not in the guidelines in appendix B to this part is determined to be DoD UCNI:
(i) Identification of the type of information to be controlled as DoD UCNI. It is not necessary to report each document or numbers of documents.
(ii) Justification for identifying the type of information as DoD UCNI, based on the guidelines in appendix B to this part and prudent application of the adverse effects test.
Appendix A to this part outlines the procedures for controlling DoD UCNI. Appendix B to this part provides general and topical guidelines for identifying information that may qualify for protection as DoD UCNI. The procedures and guidelines in appendices A and B to this part complement the DoD Component Programs to protect other DoD-sensitive unclassified information and may be used with them.
(a) Section 128 of 10 U.S.C. requires that the Secretary of Defense prepare on a quarterly basis a report to be made available on the request of any interested person. Appendix A to this part outlines the procedures for preparing the quarterly report.
(b) The report is exempt from licensing in accordance with paragraph E.4.e of DoD 7750.5-M.
1. The Secretary of Defense's authority for prohibiting the unauthorized disclosure and dissemination of DoD UCNI may be exercised by the Heads of the DoD Components and by the officials to whom such authority is specifically delegated by the Heads of the DoD Components. These procedures for identifying and controlling DoD UCNI are provided as guidance for the Heads of the DoD Components to implement the Secretary of Defense's authority to prohibit the unauthorized dissemination of unclassified information on security measures, including security plans, procedures, and equipment, for the physical protection of DoD SNM, equipment, or facilities.
2. The decision to protect unclassified information as DoD UCNI shall be based on a determination that the unauthorized dissemination of such information could reasonably be expected to have an adverse effect on the health and safety of the public or the common defense and security by increasing significantly the likelihood of the illegal production of nuclear weapons or the theft, diversion, or sabotage of DoD SNM, equipment, or facilities.
3. Government information shall be made publicly available to the fullest extent possible by applying the minimum restrictions consistent with the requirements of 10 U.S.C. 128, necessary to protect the health and safety of the public or the common defense and security.
4. DoD personnel, in making a determination to protect unclassified information as DoD UCNI, shall consider the probability of an illegal production, theft, diversion, or sabotage if the information proposed for protection were made available for pubic disclosure and dissemination. The determination to protect specific documents or information is not related to the ability of DoD UCNI to be obtained by other sources. For determining the control of DoD UCNI, the cognizant official should consider how the unauthorized disclosure or dissemination of such information could assist a potential adversary in the following:
a. Selecting a target for an act of theft, diversion, or sabotage of DoD SNM, equipment, or facilities (e.g., relative importance of a facility or the location, form, and quantity of DoD SNM). Information that can be obtained by observation from public areas outside controlled locations should not be considered as DoD UCNI.
b. Planning or committing an act of theft, diversion, or sabotage of DoD SNM, equipment, or facilities (e.g., design of security systems; building plans; methods and procedures for transfer, accountability, and handling of DoD SNM; or security plans, procedures, and capabilities).
c. Measuring the success of an act of theft, diversion, or sabotage of DoD SNM, equipment, or facilities (e.g., actual or hypothetical consequences of the sabotage of specific vital equipment or facilities).
d. Illegally producing a nuclear explosive device (e.g., unclassified nuclear weapon design information useful in designing a primitive nuclear device; location of unique DoD SNM needed to fabricate such a device; or location of a nuclear weapon).
e. Dispersing DoD SNM in the environment (e.g., location, form, and quantity of DoD SNM).
5. DoD UCNI shall be identified, controlled, marked, transmitted, and safeguarded in the DoD Components, the North Atlantic Treaty Organization (NATO), and among DoD contractors, consultants, and grantees authorized to conduct official business for the Department of Defense. Contracts requiring the preparation of unclassified information that could be DoD UCNI shall have the requirements for identifying and controlling the DoD UCNI.
6. DoE GG-2
1. To be considered for protection as DoD UCNI, the information must:
a. Be unclassified.
b. Pertain to security measures, including plans, procedures, and equipment, for the physical protection of DoD SNM, equipment, or facilities.
c. Meet the adverse effects test; i.e., that the unauthorized dissemination of such information could reasonably be expected to have an adverse effect on the health and safety of the public or the common defense and security by increasing significantly the likelihood of the illegal production of nuclear weapons or the theft, diversion, or sabotage of DoD SNM, equipment, or facilities.
2. Information, in the categories in section C. of appendix B to this part, about DOD SNM should be considered for protection as DoD UCNI.
3. Material originated before the effective date of those procedures, which is found in the normal course of business to have DoD UCNI, shall be protected as DoD UCNI. There is no requirement to conduct detailed file
1. A Reviewing Official is an Authorized Individual for documents or materials that the Reviewing Official determines to contain DoD UCNI. An Authorized Individual, for DoD UCNI, may determine that another person is an Authorized Individual who may be granted routine access to the DoD UCNI, and who may further disseminate the DoD UCNI under the procedures specified in paragraph E., below. This recipient of DoD UCNI from an Authorized Individual is also an Authorized Individual for the specific DoD UCNI to which routine access has been granted. An Authorized Individual designates another person to be an Authorized Individual by the act of giving that person a document or material that contains DoD UCNI. No explicit designation or security clearance is required. This second Authorized Individual may further disseminate the UCNI under the procedures specified in section E. of the appendix.
2. A person granted routine access to DoD UCNI must have a need to know the specific DoD UCNI in the performance of official duties or of DoD-authorized activities. The recipient of the document or material shall be informed of the physical protection and access requirements for DoD UCNI. In addition to a need to know, the person must meet at least one of the following requirements:
a. The person is a U.S. citizen who is one of the following:
(1) A Federal Government employee or member of the U.S. Armed Forces.
(2) An employee of a Federal Government contractor, subcontractor, or of a prospective Federal Government contractor or subcontractor who will use the DoD UCNI for the purpose of bidding on a Federal Government contract or subcontract.
(3) A Federal Government consultant or DoD advisory committee member.
(4) A member of Congress.
(5) A staff member of a congressional committee or of an individual Member of Congress.
(6) The Governor of a State or designated State government official or representative.
(7) A local government official or an Indian tribal government official; or
(8) A member of a State, local, or Indian tribal law enforcement or emergency response organization.
b. The person is other than a U.S. citizen, and is one of the following:
(1) A Federal Government employee or a member of the U.S. Armed Forces.
(2) An employee of a Federal Government contractor or subcontractor; or
(3) A Federal Government consultant or DoD advisory committee member.
c. The person may be other than a U.S. citizen who is not otherwise eligible for routine access to DoD UCNI under paragraph C. 2.b of this appendix, but who requires routine access to specific DoD UCNI in conjunction with one of the following:
(1) An international nuclear cooperative activity approved by the Federal Government.
(2) U.S. diplomatic dealings with foreign government officials; or
(3) Provisions of treaties, mutual defense acts, or Government contracts or subcontracts.
3. A person not authorized routine access to DoD UCNI under paragraph C.2. of this appendix, may submit a request for special access to DoD UCNI to Heads of DoD Components, or their designated representative, as appropriate. A special access request must include the following information:
a. The name, current residence or business address, birthplace, birth date, and country of citizenship of the person submitting the request.
b. A description of the DoD UCNI for which special access is being requested.
c. A description of the purpose for which the DoD UCNI is needed; and
d. Certification by the requester of his or her understanding of, and willingness to abide by, the requirements for the protection of DoD UCNI contained in this part.
4. Heads of DoD Components, or their designated representative, shall base his or her decision to grant special access to DoD UCNI on an evaluation of the following criteria:
a. The sensitivity of the DoD UCNI for which special access is being requested (i.e., the worst-case, adverse effect on the health and safety of the public or the common defense and security which would result from unauthorized use of the DoD UCNI).
b. The purpose for which the DoD UCNI is needed (e.g., the DoD UCNI will be used for commercial or other private purposes, or will be used for public benefit to fulfill statutory or regulatory responsibilities).
c. The likelihood of an unauthorized dissemination by the requester of the DoD UCNI; and
d. The likelihood of the requester using the DoD UCNI for illegal purposes.
5. Heads of DoD Components, or their designated representative, shall attempt to notify a person who requests special access to DoD UCNI within 30 days of receipt of the request as to whether or not special access to the requested DoD UCNI is granted. If a final determination on the request cannot be made within 30 days of receipt of the request, Heads of DoD Components, or their designated representative, shall notify the requester, within 30 days of the request, as to
6. A person granted special access to specific UCNI is not an Authorized Individual and shall not further disseminate the DoD UCNI to which special access has been granted.
7. An Authorized Individual granting routine access to specific DoD UCNI to another person shall notify each person granted access (other than when the person being granted such access is a Federal Government employee, a member of the U.S. Armed Forces, or an employee of a Federal Government contractor or subcontractor) of applicable regulations concerning the protection of DoD UCNI and of any special dissemination limitations that the Authorized Individual determines to apply for the specific DoD UCNI to which routine access is being granted.
8. Heads of DoD Components, or their designated representative, shall notify each person granted special access to DoD UCNI of applicable regulations concerning the protection of DoD UCNI prior to dissemination of the DoD UCNI to the person.
9. The requirement to notify persons granted routine access or special access to specific DoD UCNI may be met by attachment of an appropriate cover sheet to the front of each document or material containing DoD UCNI prior to its transmittal to the person granted access.
1. An unclassified document with DoD UCNI shall be marked “DoD Unclassified Controlled Nuclear Information” at the bottom on the outside of the front cover, if any, and on the outside of the back cover, if any.
2. In an unclassified document, an individual page that has DoD UCNI shall be marked to show which of its portions contain DoD UCNI information. In marking sections, parts, paragraphs, or similar portions, the parenthetical term “(DoD UCNI)” shall be used and placed at the beginning of those portions with DoD UCNI.
3. In a classified document, an individual page that has both DoD UCNI and classified information shall be marked at the top and bottom of the page with the highest security classification of information appearing on that page. In marking sections, parts, paragraphs, or similar portions, the parenthetical term “(DoD UCNI)” shall be used and placed at the beginning of those portions with DoD UCNI. In a classified document, an individual page that has DoD UCNI, but no classified information, shall be marked “DoD Unclassified Controlled Information” at the bottom of the page. The DoD UCNI marking may be combined with other markings, if all relevant statutory and regulatory citations are included.
4. Other material (e.g., photographs, films, tapes, or slides) shall be marked “DoD Unclassified Controlled Nuclear Information” to ensure that a recipient or viewer is aware of the status of the information.
1. DoD UCNI may be disseminated in the DoD Components, the NATO, and among the DoD contractors, consultants, and grantees on a need-to-know basis to conduct official business for the Department of Defense. Recipients shall be made aware of the status of such information, and transmission shall be by means to preclude unauthorized disclosure or dissemination. Contracts that shall require access to DoD UCNI shall require compliance with this part and the DoD Component regulations and have the requirements for the marking, handling, and safeguarding of DoD UCNI.
2. DoD holders of DoD UCNI are authorized to convey such information to officials in other Departments or Agencies on a need-to-know basis to fulfill a Government function. Transmittal documents shall call attention to the presence of DoD UCNI attachments using an appropriate statement in the text, or marking at the bottom of the transmittal document, that “The attached document contains DoD Unclassified Controlled Nuclear Information (DoD UCNI).” Similarly, documents transmitted shall be marked, as prescribed in section D. of this appendix.
3. DoD UCNI transmitted outside the Department of Defense requires application of an expanded marking to explain the significance of the DoD UCNI marking. That may be accomplished by typing or stamping the following statement on the document before transfer:
4. When not commingled with classified information, DoD UCNI may be sent by first-class mail in a single, opaque envelope or wrapping.
5. DoD UCNI may only be discussed or transmitted over an unprotected telephone or telecommunications circuit (to include facsimile transmissions) in an emergency.
6. Each part of electronically transmitted messages with DoD UCNI shall be marked appropriately. Unclassified messages with DoD UCNI shall have the abbreviation “DoD UCNI” before the beginning of the text.
7. DoD UCNI may be processed, stored, or produced on stand-alone personal computers, or shared-logic work processing systems, if
8. A document marked as having DoD UCNI may be reproduced minimally without permission of the originator and consistent with the need to carry out official business.
1. During normal working hours, documents determined to have DoD UCNI shall be placed in an out-of-sight location, or otherwise controlled, if the work area is accessible to unescorted personnel.
2. At the close of business, DoD UCNI material shall be stored so to preclude disclosure. Storage of such material with other unclassified documents in unlocked receptacles; i.e., file cabinets, desks, or bookcases, is adequate, when normal Government or Government-contractor internal building security is provided during nonduty hours. When such internal building security is not provided, locked rooms or buildings normally provide adequate after-hours protection. If such protection is not considered adequate, DoD UCNI material shall be stored in locked receptacles; i.e., file cabinets, desks, or bookcases.
3. Nonrecord copies of DoD UCNI materials must be destroyed by tearing each copy into pieces to reasonably preclude reconstruction and placing the pieces in regular trash containers. If the sensitivity or volume of the information justifies it, DoD UCNI material may be destroyed in the same manner as classified material rather than by tearing. Record copies of DoD UCNI documents shall be disposed of, in accordance with the DoD Components' record management regulations. DoD UCNI on magnetic storage media shall be disposed of by overwriting to preclude its reconstruction.
4. The unauthorized disclosure of DoD UCNI material does not consititute disclosure of DoD information that is classified for security purposes. Such disclosure of DoD UCNI justifies investigative and administrative actions to determine cause, assess impact, and fix responsibility. The DoD Component that originated the DoD UCNI information shall be informed of its unauthorized disclosure and the outcome of the investigative and administrative actions.
1. Any unclassified document or material which is not marked as containing DoD UCNI but which may contain DoD UCNI shall be marked upon retirement in accordance with the DoD Components' record management regulations.
2. A document or material marked as containing DoD UCNI is not required to be reviewed by a Reviewing Official upon or subsequent to retirement. A Reviewing Official shall review any retired document or material upon a request for its release made under 5 U.S.C. 552.
DoD 5400.7-R applies. Information that qualifies as DoD UCNI, under 10 U.S.C. 128, is exempt from mandatory disclosure under 5 U.S.C. 552. Consequently, requests for the public release of DoD UCNI shall be denied under 5 U.S.C. 552(b)(3), citing 10 U.S.C. 128 as authority.
The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence shall prepare and maintain the quarterly reports required by 10 U.S.C. 128. The Heads of the DoD Components shall advise the ASD(C3I) when information not in the guidelines in appendix B to this part is determined to be DoD UCNI. Those reports shall have the following information:
1. Identification of the information to be controlled as DoD UCNI. It is not necessary to report each document or numbers of documents.
2. Justification for identifying the type of information to be controlled as DoD UCNI.
3. Certification that only the minimal information necessary to protect the health and safety of the public or the common defense and security is being controlled as DoD UCNI.
1. These guidelines for determining DoD UCNI are the bases for determining what unclassified information about the physcial protection of DoD SNM, equipment or facilities in a given technical or programmatic subject area is DoD UCNI.
2. The decision to protect unclassified information as DoD UCNI shall be based on a determination that the unauthorized dissemination of such information could reasonably be expected to have an adverse effect on the health and safety of the public or the common defense and security by increasing significantly the likelihood of the illegal production of nuclear weapons or the theft, diversion, or sabotage of SNM, equipment, or facilities.
1. The policy for protecting unclassified information about the physical protection of DoD SNM, equipment, or facilities is to protect the public's interest by controlling certain unclassified Government information so to prevent the adverse effects described in
2. In controlling DoD SNM information, only the minimum restrictions needed to protect the health and safety of the public or the common defense and security shall be applied to prohibit the disclosure and dissemination of DoD UCNI.
3. Any material that has been, or is, widely and irretrievably disseminated into the public domain and whose dissemination was not, or is not, under Government control is exempt from control under these guidelines. However, the fact that information is in the public domain is not a sufficient basis for determining that similar or updated Government-owned and -controlled information in another document or material is not, or is no longer, DoD UCNI; case-by-case determinations are required.
The following elements of information shall be considered by the DoD Components during the preparation of unclassified information about the physical protection of DoD SNM to determine if it qualifies for control as DoD UCNI:
a. General vulnerabilities that could be associated with specific DoD SNM, equipment, or facility locations.
b. The fact that DoD SNM facility security-related projects or upgrades are planned or in progress.
c. Identification and description of security system components intended to mitigate the consequences of an accident or act of sabotage at a DoD SNM facility.
a. Total quantity or categories of DoD SNM at a facility.
b. Control and accountability plans or procedures.
c. Receipts that, cumulatively, would reveal quantities and categories of DoD SNM of potential interest to an adversary.
d. Measured discards, decay losses, or losses due to fission and transmutation for a reporting period.
e. Frequency and schedule of DoD SNM inventories.
a. Maps, conceptual design, and construction drawings of a DoD SNM facility showing construction characteristics of building and associated electrical systems, barriers, and back-up power systems not observable from a public area.
b. Maps, plans, photographs, or drawings of man-made or natural features in a DoD SNM facility not observable from a public area; i.e., tunnels, storm or waste sewers, water intake and discharge conduits, or other features having the potential for concealing surreptitious movement.
a. Information on the layout or design of security and alarm systems at a specific DoD SNM facility, if the information is not observable from a public area.
b. The fact that a particular system make or model has been installed at a specific DoD SNM facility, if the information is not observable from a public area.
c. Performance characteristics of installed systems.
a. Types and models of keys, locks, and combinations of locks used in DoD SNM facilities and during shipment.
b. Method of application of tamper-indicating devices.
c. Vulnerability information available from unclassified vendor specifications.
a. Information about arrangements with local, State, and Federal law enforcement Agencies of potential interest to an adversary.
b. Information in “nonhostile” contingency plans of potential value to an adversary to defeat a security measure; i.e., fire, safety, nuclear accident, radiological release, or other administrative plans.
c. Required response time of security forces.
a. Method of evaluating physical security measures not observable from public areas.
b. Procedures for inspecting and testing communications and security systems.
a. Fact that a shipment is going to take place.
b. Specific means of protecting shipments.
c. Number and size of packages.
d. Mobile operating and communications procedures that could be exploited by an adversary.
e. Information on mode, routing, protection, communications, and operations that must be shared with law enforcement or other civil agencies, but not visible to the public.
f. Description and specifications of transport vehicle compartments or security systems not visible to the public.
Refer to CG-W-5 for guidance about the physical protection of information on nuclear weapon stockpile and storage requirements, nuclear weapon destruction and disablement systems, and nuclear weapon physical characteristics that may, under certain circumstances, be unclassified. Such information meets the adverse effects test shall be protected as DoD UCNI.
10 U.S.C. 2546.
This part implements 10 U.S.C. 2546 by establishing Department of Defense policy for the Department of Defense Shelter for the Homeless Program.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Unified and Specified Commands, the Defense Agencies, and Department of Defense Field Activities (hereafter referred to collectively as “Department of Defense Components”).
(a) By Memorandum for the Secretaries of the Military Departments from the Secretary of Defense dated October 29, 1984, and entitled: “Shelter for the Homeless”, the Secretary of Defense stated it is Department of Defense policy that shelters for the homeless may be established on military installations.
(b) The Secretary of a Military Department, or designee, may make military installations under his or her jurisdiction available for the furnishing of shelter to persons without adequate shelter in accordance with 10 U.S.C. 2546 and this part if he or she, or designee, determines that such shelter will not interfere with military preparedness or ongoing military functions.
(c) The Secretary of a Military Department, after determining that a shelter for the homeless may be established on a military installation, shall ensure that the plans for the shelter be developed in cooperation with appropriate State or local governmental entities and charitable organizations. The State or local government entity, either separately or in conjunction with the charitable organization, shall be responsible for operating and staffing any shelter established under the Shelter for the Homeless Program.
(d) Services that may be provided by a Military Department incident to the furnishing of shelter under 10 U.S.C. 2546 are the following:
(1) Utilities.
(2) Bedding.
(3) Security.
(4) Transportation.
(5) Renovation of facilities.
(6) Minor repairs undertaken specifically to make suitable space available for shelter to be provided in accordance with 10 U.S.C. 2546 and this part.
(7) Property liability insurance.
(e) The Military Departments should be especially sensitive to establishing shelters in the following areas:
(1) Family housing areas,
(2) Troop billeting areas,
(3) Service facilities such as commissaries, exchanges, dining facilities, hospitals, clinics, recreation centers, etc.,
(4) Safety arcs formed by firing ranges and impact areas,
(5) Frequently used training areas.
(f) Shelters for the homeless shall normally be established in only those facilities where the homeless will have exclusive use at all times. Shelters for the homeless shall normally not be established in facilities “shared” with military functions.
(g) In addition to providing shelter and incidental services, Department of Defense Components may provide bedding for support of shelters for the homeless that are located on other
(h) Individuals or entities interested in establishing shelters on military installations shall:
(1) Submit a request to the Installation Commander where the shelter is desired, and
(2) Provide, at a minimum, the following data: The name and address of the organization that will operate the shelter, the name and address of the affiliated state or local governmental entity, numbers of people to be served, type of program, hours of operation, special needs of the people to be served, incidental services required, estimated date when the services are requested, estimate of when services will no longer be necessary, and what security provisions are to be provided (physical security).
(a) The Deputy Assistant Secretary of Defense (Installations) shall:
(1) Administer the Homeless Assistance Program and issue such supplemental guidance as is necessary.
(2) Appoint an individual as Director, The Homeless Assistance Program, who shall be the Department of Defense program manager responsible for monitoring the Shelter for the Homeless program and answering all inquiries.
(b) The Assistance Secretary of Defense (Comptroller) shall provide guidance on the use of Department of Defense funds to finance the items issued in support of the Shelter for the Homeless program.
(c) The Secretaries of the Military Departments shall:
(1) Implement the Shelter for the Homeless program.
(2) Appoint a senior manager to monitor the Shelter for the Homeless program within that Department and to provide any assistance that may be required to the Deputy Assistant Secretary of Defense (Installations). Such official, after consultation with the Director, The Homeless Assistance Program ODASD(I), shall approve or disapprove all requests to establish a Shelter for the Homeless in accordance with 10 U.S.C. 2546 and this part.
(3) Ensure that upon receipt of a formal request for assistance, as defined in § 226.3(h) of this part, the Military Department concerned provides an appropriate response to the requester within 30 days.
(4) Ensure that each Installation Commander is informed about the Shelter for the Homeless Program and the types of assistance that they may provide as authorized by 10 U.S.C. 2546 and this part.
(d) Department of Defense Installation Commanders shall:
(1) Acknowledge all requests for assistance.
(2) Upon receipt of a request, initiate such action as is necessary to determine the availability of facilities at that installation for use as a shelter for the homeless.
(3) Forward each request, through the chain of command, to the Service Senior Manager with a copy to the DASD(I). The Installation Commander's recommendation shall accompany each request.
This part is effective October 30, 1987. Forward one copy of implementing documents to the Deputy Assistant Secretary of Defense (Installations) within 60 days.
40 U.S.C. 318-318c.
This part applies to all property under the charge and control of the Director, NSA, and to all persons entering in or on such property (hereinafter referred to as “protected property”). Employees of the NSA and any other persons entering upon protected property shall be subject to these regulations.
Persons in and on protected property shall at all times comply with official signs of a prohibitory, regulatory, or directory nature and with the direction of Security Protective Officers and any other duly authorized personnel.
Access to protected property shall be restricted to ensure the orderly and secure conduct of Agency business. Admission to protected property will be restricted to employees and other persons with proper authorization who shall, when requested, display government or other identifying credentials to the Security Protective Officers or other duly authorized personnel when entering, leaving, or while on the property.
Drivers of all vehicles entering or while on protected property shall comply with the signals and directions of Security Protective Officers or other duly authorized personnel and any posted traffic instructions. All vehicles shall be driven in a safe and careful manner at all times, in compliance with applicable motor vehicle laws.
For reasons of security, parking regulations shall be strictly enforced. Except with proper authorization, parking on protected property is not allowed without a permit. Parking without a permit or other authorization, parking in unauthorized locations or in locations reserved for other persons, or parking contrary to the direction of posted signs or applicable state or federal laws and regulations is prohibited. Vehicles parked in violation, where warning signs are posted, shall be subject to removal at the owner's risk, which shall be in addition to any penalties assessed pursuant to § 228.18. The Agency assumes no responsibility for the payment of any fees or costs related to such removal which may be charged to the owner of the vehicle by the towing organization. This paragraph may be supplemented from time to time with the approval of the NSA Director of Security or his designee by the issuance and posting of such specific traffic directives as may be required, and when so issued and posted such directives shall have the same force and effect as if made a part hereof. Proof that a vehicle was parked in violation of these regulations or directives may be taken as
Any personal property, including but not limited to any packages, briefcases, containers or vehicles brought into, while on, or being removed from protected property are subject to inspection. A search of a person may accompany an investigative stop or an arrest.
No persons entering or while on protected property shall carry or possess, either openly or concealed, firearms, any illegal or legally controlled weapon (e.g., throwing stars, switchblades), explosives, or items intended to be used to fabricate an explosive or incendiary
No person entering or while on protected property shall bring or possess any kind of photographic, recording or transmitting equipment (including but not limited to cameras, cellular telephones, or recorders), except as specially authorized by the NSA Director of Security or his designee at each Agency facility.
Entering or being on protected property under the influence of, or while using or possessing, any narcotic drug, hallucinogen, marijuana, barbiturate or amphetamine is prohibited. Operation of a motor vehicle entering or while on protected property by a person under the influence of narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines is also prohibited. These prohibitions shall not apply in cases where the drug is being used as prescribed for a patient by a licensed physician.
Entering or being on protected property under the influence of alcoholic beverages is prohibited. Operation of a motor vehicle entering or while on protected property by a person under the influence of alcoholic beverages is prohibited. The use of alcoholic beverages on protected property is also prohibited, except on occasions and on protected property for which the NSA Deputy Director for Support Services or his designee has granted approval for such use.
In order to protect the security of the Agency's facilities, photographs may be taken on protected property only with the consent of the NSA Director of Security or his designee. The taking of photographs includes the use of television cameras, video taping equipment, and still or motion picture cameras.
The willful destruction of, or damage to any protected property, or any buildings or personal property thereon, is prohibited. The theft of any personal property, the creation of any hazard on protected property to persons or things, and the throwing of articles of any kind at buildings or persons on protected property is prohibited. The improper disposal of trash or rubbish, or any unauthorized or hazardous materials on protected property is also prohibited.
Any conduct which impedes or threatens the security of protected property, or any buildings or persons thereon, or which disrupts the performance of official duties by Agency employees, or which interferes with ingress to or egress from protected property is prohibited. Also prohibited is any disorderly conduct, any failure to obey an order to depart the premises, any unwarranted loitering, any behavior which creates loud or unusual noise or nuisance, or any conduct which obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways or parking lots.
Participating in games for money or other personal property, or the operating of gambling devices, the conduct of a lottery, or the selling or purchasing of numbers tickets, in or on protected property is prohibited. This prohibition shall not apply to the vending or exchange of chances by licensed blind operators of vending facilities for any lottery set forth in a State law and conducted by an agency of a State as
No animals except guide dogs for the blind or hearing impaired, or guard or search dogs used by authorized state or federal officials, shall be brought upon protected property, except as authorized by the NSA Director of Security or his designee at each Agency facility.
Commercial or political soliciting, vending of all kinds, displaying or distributing commercial advertising, collecting private debts or soliciting alms on protected property is prohibited. This does not apply to:
(a) National or local drives for welfare, health, or other purposes as authorized by the “Manual on Fund Raising Within the Federal Service,” issued by the U.S. Office of Personnel Management under Executive Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 139, or by other federal laws or regulations; and
(b) Authorized employee notices posted on Agency bulletin boards.
Distributing, posting or affixing materials, such as pamphlets, handbills, or flyers, on protected property is prohibited, except as provided by § 228.16, as authorized by the NSA Director of Security or his designee at each Agency facility, or when conducted as part of authorized Government activities.
Whoever shall be found guilty of violating any provision of these regulations is subject to a fine of not more than $50 or imprisonment of not more than 30 days, or both. In the case of traffic and parking violations, fines assessed shall be in accordance with the schedule(s) of fines adopted by the United States District Court for the District where the offense occurred. Nothing in these regulations shall be construed to abrogate or supersede any other Federal laws or any State or local laws or regulations applicable to any area in which the protected property is situated.
Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat. 2983 (16 U.S.C. 470aa-mm) Sec. 10(a). Related Authority: Pub. L. 59-209, 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).
(a) The regulations in this part implement provisions of the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-mm)
(b) The regulations in this part do not impose any new restrictions on activities permitted under other laws, authorities, and regulations relating to mining, mineral leasing, reclamation, and other multiple uses of the public lands.
(a) The regulations in this part are promulgated pursuant to section 10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ii), which requires that the Secretaries of the Interior, Agriculture and Defense and the Chairman of the Board of the Tennessee Valley Authority jointly develop uniform rules and regulations for carrying out the purposes of the Act.
(b) In addition to the regulations in this part, section 10(b) of the Act (16 U.S.C. 470ii) provides that each Federal land manager shall promulgate such rules and regulations, consistent with the uniform rules and regulations in this part, as may be necessary for carrying out the purposes of the Act.
As used for purposes of this part:
(a)
(1)
(2)
(3) The following classes of material remains (and illustrative examples), if they are at least 100 years of age, are of archaeological interest and shall be considered archaeological resources unless determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this section:
(i) Surface or subsurface structures, shelters, facilities, or features (including, but not limited to, domestic structures, storage structures, cooking structures, ceremonial structures, artificial mounds, earthworks, fortifications, canals, reservoirs, horticultural/agricultural gardens or fields, bedrock mortars or grinding surfaces, rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, burial pits or graves, hearths, kilns, post molds, wall trenches, middens);
(ii) Surface or subsurface artifact concentrations or scatters;
(iii) Whole or fragmentary tools, implements, containers, weapons and weapon projectiles, clothing, and ornaments (including, but not limited to, pottery and other ceramics, cordage, basketry and other weaving, bottles and other glassware, bone, ivory, shell, metal, wood, hide, feathers, pigments, and flaked, ground, or pecked stone);
(iv) By-products, waste products, or debris resulting from manufacture or use of human-made or natural materials;
(v) Organic waste (including, but not limited to, vegetal and animal remains, coprolites);
(vi) Human remains (including, but not limited to, bone, teeth, mummified flesh, burials, cremations);
(vii) Rock carvings, rock paintings, intaglios and other works of artistic or symbolic representation;
(viii) Rockshelters and caves or portions thereof containing any of the above material remains;
(ix) All portions of shipwrecks (including, but not limited to, armaments, apparel, tackle, cargo);
(x) Any portion or piece of any of the foregoing.
(4) The following material remains shall not be considered of archaeological interest, and shall not be considered to be archaeological resources for purposes of the Act and this part, unless found in a direct physical relationship with archaeological resources as defined in this section:
(i) Paleontological remains;
(ii) Coins, bullets, and unworked minerals and rocks.
(5) The Federal land manager may determine that certain material remains, in specified areas under the Federal land manager's jurisdiction, and under specified circumstances, are not or are no longer of archaeological interest and are not to be considered archaeological resources under this part. Any determination made pursuant to this subparagraph shall be documented. Such determination shall in no way affect the Federal land manager's obligations under other applicable laws or regulations.
(6) For the disposition following lawful removal or excavations of Native American human remains and “cultural items”, as defined by the Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is referred to NAGPRA and its implementing regulations.
(b)
(c)
(1) With respect to any public lands, the secretary of the department, or the head of any other agency or instrumentality of the United States, having primary management authority over such lands, including persons to whom such management authority has been officially delegated;
(2) In the case of Indian lands, or any public lands with respect to which no department, agency or instrumentality has primary management authority, such term means the Secretary of the Interior;
(3) The Secretary of the Interior, when the head of any other agency or instrumentality has, pursuant to section 3(2) of the Act and with the consent of the Secretary of the Interior, delegated to the Secretary of the Interior the responsibilities (in whole or in part) in this part.
(d)
(1) Lands which are owned and administered by the United States as part of the national park system, the national wildlife refuge system, or the national forest system; and
(2) All other lands the fee title to which is held by the United States, except lands on the Outer Continental Shelf, lands under the jurisdiction of the Smithsonian Institution, and Indian lands.
(e)
(f)
(1) Any tribal entity which is included in the annual list of recognized tribes published in the
(2) Any other tribal entity acknowledged by the Secretary of the Interior pursuant to 25 CFR part 54 since the most recent publication of the annual list; and
(3) Any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85
(g)
(h)
(i)
(a) Under section 6(a) of the Act, no person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under § 229.8 or exempted by § 229.5(b) of this part.
(b) No person may sell, purchase, exchange, transport, or receive any archaeological resource, if such resource was excavated or removed in violation of:
(1) The prohibitions contained in paragraph (a) of this section; or
(2) Any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.
(c) Under section (d) of the Act, any person who knowingly violates or counsels, procures, solicits, or employs any other person to violate any prohibition contained in section 6 (a), (b), or (c) of the Act will, upon conviction, be fined not more than $10,000.00 or imprisoned not more than one year, or both: provided, however, that if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500.00, such person will be fined not more than $20,000.00 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person will be fined not more than $100,000.00, or imprisoned not more than 5 years, or both.
(a) Any person proposing to excavate and/or remove archaeological resources from public lands or Indian lands, and to carry out activities associated with such excavation and/or removal, shall apply to the Federal land manager for a permit for the proposed work, and shall not begin the proposed work until a permit has been issued. The Federal land manager may issue a permit to any qualified person, subject to appropriate terms and conditions, provided that the person applying for a permit meets conditions in § 229.8(a) of this part.
(b) Exceptions:
(1) No permit shall be required under this part for any person conducting activities on the public lands under other permits, leases, licenses, or entitlements for use, when those activities are exclusively for purposes other than the excavation and/or removal of archaeological resources, even though those activities might incidentally result in the disturbance of archaeological resources. General earth-moving excavation conducted under a permit or other authorization shall not be construed to mean excavation and/or removal as used in this part. This exception does not, however, affect the Federal land manager's responsibility to comply with other authorities which protect archaeological resources prior to approving permits, leases, licenses, or entitlements for use; any excavation and/or removal of archaeological resources required for compliance with those authorities shall be conducted in accordance with the permit requirements of this part.
(2) No permit shall be required under this part for any person collecting for private purposes any rock, coin, bullet, or mineral which is not an archaeological resource as defined in this part, provided that such collecting does not result in disturbance of any archaeological resource.
(3) No permit shall be required under this part or under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), for the
(4) No permit shall be required under this part for any person to carry out any archaeological activity authorized by a permit issued under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the enactment of the Archaeological Resources Protection Act of 1979. Such permit shall remain in effect according to its terms and conditions until expiration.
(5) No permit shall be required under section 3 of the Act of June 8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit is issued under this part.
(c) Persons carrying out official agency duties under the Federal land manager's direction, associated with the management of archaeological resources, need not follow the permit application procedures of § 229.6. However, the Federal land manager shall insure that provisions of § 229.8 and § 229.9 have been met by other documented means, and that any official duties which might result in harm to or destruction of any Indian tribal religious or cultural site, as determined by the Federal land manager, have been the subject of consideration under § 229.7.
(d) Upon the written request of the Governor of any State, on behalf of the State or its educational institutions, the Federal land manager shall issue a permit, subject to the provisions of §§ 229.5(b)(5), 229.7, 229.8(a)(3), (4), (5), (6), and (7), 229.9, 229.10, 229.12, and 229.13(a) to such Governor or to such designee as the Governor deems qualified to carry out the intent of the Act, for purposes of conducting archaeological research, excavating and/or removing archaeological resources, and safeguarding and preserving any materials and data collected in a university, museum, or other scientific or educational institution approved by the Federal land manager.
(e) Under other statutory, regulatory, or administrative authorities governing the use of public lands and Indian lands, authorizations may be required for activities which do not require a permit under this part. Any person wishing to conduct on public lands or Indian lands any activities related to but believed to fall outside the scope of this part should consult with the Federal land manager, for the purpose of determining whether any authorization is required, prior to beginning such activities.
(a) Any person may apply to the appropriate Federal land manager for a permit to excavate and/or remove archaeological resources from public lands or Indian lands and to carry out activities associated with such excavation and/or removal.
(b) Each application for a permit shall include:
(1) The nature and extent of the work proposed, including how and why it is proposed to be conducted, proposed time of performance, locational maps, and proposed outlet for public written dissemination of the results.
(2) The name and address of the individual(s) proposed to be responsible for conducting the work, institutional affiliation, if any, and evidence of education, training, and experience in accord with the minimal qualifications listed in § 229.8(a).
(3) The name and address of the individual(s), if different from the individual(s) named in paragraph (b)(2) of this section, proposed to be responsible for carrying out the terms and conditions of the permit.
(4) Evidence of the applicant's ability to initiate, conduct, and complete the proposed work, including evidence of logistical support and laboratory facilities.
(5) Where the application is for the excavation and/or removal of archaeological resources on public lands, the names of the university, museum, or other scientific or educational institution in which the applicant proposes to store all collections, and copies of records, data, photographs, and other documents derived from the proposed
(6) Where the application is for the excavation and/or removal of archaeological resources on Indian lands, the name of the university, museum, or other scientific or educational institution in which the applicant proposes to store copies of records, data, photographs, and other documents derived from the proposed work, and all collections in the event the Indian owners do not wish to take custody or otherwise dispose of the archaeological resources. Applicants shall submit written certification, signed by an authorized official of the institution, or willingness to assume curatorial responsibility for the collections, if applicable, and/or the records, data, photographs, and other documents derived from the proposed work.
(c) The Federal land manager may require additional information, pertinent to land management responsibilities, to be included in the application for permit and shall so inform the applicant.
(d)
(a) If the issuance of a permit under this part may result in harm to, or destruction of, any Indian tribal religious or cultural site on public lands, as determined by the Federal land manager, at least 30 days before issuing such a permit the Federal land manager shall notify any Indian tribe which may consider the site as having religious or cultural importance. Such notice shall not be deemed a disclosure to the public for purposes of section 9 of the Act.
(1) Notice by the Federal land manager to any Indian tribe shall be sent to the chief executive officer or other designated official of the tribe. Indian tribes are encouraged to designate a tribal official to be the focal point for any notification and discussion between the tribe and the Federal land manager.
(2) The Federal land manager may provide notice to any other Native American group that is known by the Federal land manager to consider sites potentially affected as being of religious or cultural importance.
(3) Upon request during the 30-day period, the Federal land manager may meet with official representatives of any Indian tribe or group to discuss their interests, including ways to avoid or mitigate potential harm or destruction such as excluding sites from the permit area. Any mitigation measures which are adopted shall be incorporated into the terms and conditions of the permit under § 229.9.
(4) When the Federal land manager determines that a permit applied for under this part must be issued immediately because of an imminent threat of loss or destruction of an archaeological resource, the Federal land manager shall so notify the appropriate tribe.
(b)(1) In order to identify sites of religious or cultural importance, the Federal land manager shall seek to identify all Indian tribes having aboriginal or historic ties to the lands under the Federal land manager's jurisdiction and seek to determine, from the chief executive officer or other designated official of any such tribe, the location
(2) If the Federal land manager becomes aware of a Native American group that is not an Indian tribe as defined in this part but has aboriginal or historic ties to public lands under the Federal land manager's jurisdiction, the Federal land manager may seek to communicate with official representatives of that group to obtain information on sites they may consider to be of religious or cultural importance.
(3) The Federal land manager may enter into agreement with any Indian tribe or other Native American group for determining locations for which such tribe or group wishes to receive notice under this section.
(4) The Federal land manager should also seek to determine, in consultation with official representatives of Indian tribes or other Native American groups, what circumstances should be the subject of special notification to the tribe or group after a permit has been issued. Circumstances calling for notification might include the discovery of human remains. When circumstances for special notification have been determined by the Federal land manager, the Federal land manager will include a requirement in the terms and conditions of permits, under § 229.9(c), for permittees to notify the Federal land manager immediately upon the occurrence of such circumstances. Following the permittee's notification, the Federal land manager will notify and consult with the tribe or group as appropriate. In cases involving Native American human remains and other “cultural items”, as defined by NAGPRA, the Federal land manager is referred to NAGPRA and its implementing
(a) The Federal land manager may issue a permit, for a specified period of time appropriate to the work to be conducted, upon determining that:
(1) The applicant is appropriately qualified, as evidenced by training, education, and/or experience, and possesses demonstrable competence in archaeological theory and methods, and in collecting, handling, analyzing, evaluating, and reporting archaeological data, relative to the type and scope of the work proposed, and also meets the following minimum qualifications:
(i) A graduate degree in anthropology or archaeology, or equivalent training and experience;
(ii) The demonstrated ability to plan, equip, staff, organize, and supervise activity of the type and scope proposed;
(iii) The demonstrated ability to carry research to completion, as evidenced by timely completion of theses, research reports, or similar documents;
(iv) Completion of at least 16 months of professional experience and/or specialized training in archaeological field, laboratory, or library research, administration, or management, including at least 4 months experience and/or specialized training in the kind of activity the individual proposes to conduct under authority of a permit; and
(v) Applicants proposing to engage in historical archaeology should have had at least one year of experience in research concerning archaeological resources of the historic period. Applicants proposing to engage in prehistoric archaeology should have had at least one year of experience in research concerning archaeological resources of the prehistoric period.
(2) The proposed work is to be undertaken for the purpose of furthering archaeological knowledge in the public interest, which may include but need not be limited to, scientific or scholarly research, and preservation of archaeological data;
(3) The proposed work, including time, scope, location, and purpose, is not inconsistent with any management plan or established policy, objectives, or requirements applicable to the management of the public lands concerned;
(4) Where the proposed work consists of archaeological survey and/or data recovery undertaken in accordance with other approved uses of the public lands or Indian lands, and the proposed work
(5) Written consent has been obtained, for work proposed on Indian lands, from the Indian landowner and the Indian tribe having jurisdiction over such lands;
(6) Evidence is submitted to the Federal land manager that any university, museum, or other scientific or educational institution proposed in the application as the repository possesses adequate curatorial capability for safeguarding and preserving the archaeological resources and all associated records; and
(7) The applicant has certified that, not later than 90 days after the date the final report is submitted to the Federal land manager, the following will be delivered to the appropriate official of the approved university, museum, or other scientific or educational institution, which shall be named in the permit:
(i) All artifacts, samples, collections, and copies of records, data, photographs, and other documents resulting from work conducted under the requested permit where the permit is for the excavation and/or removal of archaeological resources from public lands.
(ii) All artifacts, samples and collections resulting from work under the requested permit for which the custody or disposition is not undertaken by the Indian owners, and copies of records, data, photographs, and other documents resulting from work conducted under the requested permit, where the permit is for the excavation and/or removal of archaeological resources from Indian lands.
(b) When the area of the proposed work would cross jurisdictional boundaries, so that permit applications must be submitted to more than one Federal land manager, the Federal land manager shall coordinate the review and evaluation of applications and the issuance of permits.
(a) In all permits issued, the Federal land manager shall specify:
(1) The nature and extent of work allowed and required under the permit, including the time, duration, scope, location, and purpose of the work;
(2) The name of the individual(s) responsible for conducting the work and, if different, the name of the individual(s) responsible for carrying out the terms and conditions of the permit;
(3) The name of any university, museum, or other scientific or educational institutions in which any collected materials and data shall be deposited; and
(4) Reporting requirements.
(b) The Federal land manager may specify such terms and conditions as deemed necessary, consistent with this part, to protect public safety and other values and/or resources, to secure work areas, to safeguard other legitimate land uses, and to limit activities incidental to work authorized under a permit.
(c) The Federal land manager shall include in permits issued for archaeological work on Indian lands such terms and conditions as may be requested by the Indian landowner and the Indian tribe having jurisdiction over the lands, and for archaeological work on public lands shall include such terms and conditions as may have been developed pursuant to § 229.7.
(d) Initiation of work or other activities under the authority of a permit signifies the permittee's acceptance of the terms and conditions of the permit.
(e) The permittee shall not be released from requirements of a permit until all outstanding obligations have been satisfied, whether or not the term of the permit has expired.
(f) The permittee may request that the Federal land manager extend or modify a permit.
(g) The permittee's performance under any permit issued for a period greater than 1 year shall be subject to review by the Federal land manager, at least annually.
(a)
(2) The Federal land manager may revoke a permit upon assessment of a civil penalty under § 229.15 upon the permittee's conviction under section 6 of the Act, or upon determining that the permittee has failed after notice under this section to correct the situation which led to suspension of the permit.
(b)
Any affected person may appeal permit issuance, denial of permit issuance, suspension, revocation, and terms and conditions of a permit through existing administrative appeal procedures, or through procedures which may be established by the Federal land manager pursuant to section 10(b) of the Act and this part.
Issuance of a permit in accordance with the Act and this part does not constitute an undertaking requiring compliance with section 106 of the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance of such a permit does not excuse the Federal land manager from compliance with section 106 where otherwise required.
(a) Archaeological resources excavated or removed from the public lands remain the property of the United States.
(b) Archaeological resources excavated or removed from Indian lands remain the property of the Indian or Indian tribe having rights of ownership over such resources.
(c) The Secretary of the Interior may promulgate regulations providing for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, for the ultimate disposition of archaeological resources, and for standards by which archaeological resources shall be preserved and maintained, when such resources have been excavated or removed from public lands and Indian lands.
(d) In the absence of regulations referenced in paragraph (c) of this section, the Federal land manager may provide for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, when such resources have been excavated or removed from public lands under the authority of a permit issued by the Federal land manager.
(e) Notwithstanding the provisions of paragraphs (a) through (d) of this section, the Federal land manager will follow the procedures required by NAGPRA and its implementing regulations for determining the disposition of Native American human remains and other “cultural items”, as defined by NAGPRA, that have been excavated, removed, or discovered on public lands.
(a)
(b)
(c)
(1) Reconstruction of the archaeological resource;
(2) Stabilization of the archaeological resource;
(3) Ground contour reconstruction and surface stabilization;
(4) Research necessary to carry out reconstruction or stabilization;
(5) Physical barriers or other protective devices, necessitated by the disturbance of the archaeological resource, to protect it from further disturbance;
(6) Examination and analysis of the archaeological resource including recording remaining archaeological information, where necessitated by disturbance, in order to salvage remaining values which cannot be otherwise conserved;
(7) Reinterment of human remains in accordance with religious custom and State, local, or tribal law, where appropriate, as determined by the Federal land manager.
(8) Preparation of reports relating to any of the above activities.
(a) The Federal land manager may assess a civil penalty against any person who has violated any prohibition contained in § 229.4 or who has violated any term or condition included in a permit issued in accordance with the Act and this part.
(b)
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provision(s) of this part or to a permit issued pursuant to this part allegedly violated;
(3) The amount of penalty proposed to be assessed, including any initial proposal to mitigate or remit where appropriate, or a statement that notice of a proposed penalty amount will be served after the damages associated with the alleged violation have been ascertained;
(4) Notification of the right to file a petition for relief pursuant to paragraph (d) of this section, or to await the Federal land manager's notice of assessment, and to request a hearing in accordance with paragraph (g) of this section. The notice shall also inform the person of the right to seek judicial review of any final administrative decision assessing a civil penalty.
(c) The person served with a notice of violation shall have 45 calendar days from the date of its service (or the date of service of a proposed penalty amount, if later) in which to respond. During this time the person may:
(1) Seek informal discussions with the Federal land manager;
(2) File a petition for relief in accordance with paragraph (d) of this section;
(3) Take no action and await the Federal land manager's notice of assessment;
(4) Accept in writing or by payment the proposed penalty, or any mitigation or remission offered in the notice. Acceptance of the proposed penalty or mitigation or remission shall be deemed a waiver of the notice of assessment and of the right to request a hearing under paragraph (g) of this section.
(d)
(e)
(2) The Federal land manager shall take into consideration all available information, including information provided pursuant to paragraphs (c) and (d) of this section or furnished upon further request by the Federal land manager.
(3) If the facts warrant a conclusion that no violation has occurred, the Federal land manager shall so notify the person served with a notice of violation, and no penalty shall be assessed. (4) Where the facts warrant a conclusion that a violation has occurred, the Federal land manager shall determine a penalty amount in accordance with § 229.16.
(f)
(1) The facts and conclusions from which it was determined that a violation did occur;
(2) The basis in § 229.16 for determining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and
(3) Notification of the right to request a hearing, including the procedures to be followed, and to seek judicial review of any final administrative decision assessing a civil penalty.
(g)
(2) Failure to deliver a written request for a hearing within 45 days of the date of service of the notice of assessment shall be deemed a waiver of the right to a hearing.
(3) Any hearing conducted pursuant to this section shall be held in accordance with 5 U.S.C. 554. In any such hearing, the amount of civil penalty assessed shall be determined in accordance with this part, and shall not be limited by the amount assessed by the Federal land manager under paragraph (f) of this section or any offer of mitigation or remission made by the Federal land manager.
(h)
(2) Where the person served with a notice of assessment has not filed a timely request for a hearing pursuant to paragraph (g)(1) of this section, the notice of assessment shall constitute the final administrative decision;
(3) Where the person served with a notice of assessment has filed a timely
(i)
(2) Upon failure to pay the penalty, the Federal land manager may request the Attorney General to institute a civil action to collect the penalty in a U.S. District Court for any district in which the person assessed a civil penalty is found, resides, or transacts business. Where the Federal land manager is not represented by the Attorney General, a civil action may be initiated directly by the Federal land manager.
(j)
(a)
(2) Where the person being assessed a civil penalty has committed any previous violation of any prohibition in § 229.4 or of any term or condition included in a permit issued pursuant to this part, the maximum amount of the penalty shall be double the cost of restoration and repair plus double the archaeological or commercial value of archaeological resources destroyed or not recovered.
(3) Violations limited to the removal of arrowheads located on the surface of the ground shall not be subject to the penalties prescribed in this section.
(b)
(1) Determination of the penalty amount and/or a proposal to mitigate or remit the penalty may be based upon any of the following factors:
(i) Agreement by the person being assessed a civil penalty to return to the Federal land manager archaeological resources removed from public lands or Indian lands;
(ii) Agreement by the person being assessed a civil penalty to assist the Federal land manager in activity to preserve, restore, or otherwise contribute to the protection and study of archaeological resources on public lands or Indian lands;
(iii) Agreement by the person being assessed a civil penalty to provide information which will assist in the detection, prevention, or prosecution of violations of the Act or this part;
(iv) Demonstration of hardship or inability to pay, provided that this factor shall only be considered when the person being assessed a civil penalty has not been found to have previously violated the regulations in this part;
(v) Determination that the person being assessed a civil penalty did not willfully commit the violation;
(vi) Determination that the proposed penalty would constitute excessive punishment under the circumstances;
(vii) Determination of other mitigating circumstances appropriate to consideration in reaching a fair and expeditious assessment.
(2) When the penalty is for a violation on Indian lands, the Federal land manager shall consult with and consider the interests of the Indian landowner and the Indian tribe having jurisdiction over the Indian lands prior to proposing to mitigate or remit the penalty.
(3) When the penalty is for a violation which may have had an effect on a known Indian tribal religious or cultural site on public lands, the Federal land manager should consult with and consider the interests of the affected
(a) Section 6 of the Act contains criminal prohibitions and provisions for criminal penalties. Section 8(b) of the Act provides that archaeological resources, vehicles, or equipment involved in a violation may be subject to forfeiture.
(b) Section 8(a) of the Act provides for rewards to be made to persons who furnish information which leads to conviction for a criminal violation or to assessment of a civil penalty. The Federal land manager may certify to the Secretary of the Treasury that a person is eligible to receive payment. Officers and employees of Federal, State, or local government who furnish information or render service in the performance of their official duties, and persons who have provided information under § 229.16(b)(1)(iii) shall not be certified eligible to receive payment of rewards.
(c) In cases involving Indian lands, all civil penalty monies and any item forfeited under the provisions of this section shall be transferred to the appropriate Indian or Indian tribe.
(a) The Federal land manager shall not make available to the public, under subchapter II of chapter 5 of title 5 of the U.S. Code or any other provision of law, information concerning the nature and location of any archaeological resource, with the following exceptions:
(1) The Federal land manager may make information available, provided that the disclosure will further the purposes of the Act and this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), without risking harm to the archaeological resource or to the site in which it is located.
(2) The Federal land manager shall make information available, when the Governor of any State has submitted to the Federal land manager a written request for information, concerning the archaeological resources within the requesting Governor's State, provided that the request includes:
(i) The specific archaeological resource or area about which information is sought;
(ii) The purpose for which the information is sought; and
(iii) The Governor's written commitment to adequately protect the confidentiality of the information.
(b) [Reserved]
(a) Each Federal land manager, when requested by the Secretary of the Interior, will submit such information as is necessary to enable the Secretary to comply with section 13 of the Act and comprehensively report on activities carried out under provisions of the Act.
(b) The Secretary of the Interior will include in the annual comprehensive report, submitted to the Committee on Interior and Insular Affairs of the United States House of Representatives and to the Committee on Energy and Natural Resources of the United States Senate under section 13 of the Act, information on public awareness programs submitted by each Federal land manager under § 229.20(b). Such submittal will fulfill the Federal land manager's responsibility under section 10(c) of the Act to report on public awareness programs.
(c) The comprehensive report by the Secretary of the Interior also will include information on the activities carried out under section 14 of the Act. Each Federal land manager, when requested by the Secretary, will submit any available information on surveys and schedules and suspected violations in order to enable the Secretary to summarize in the comprehensive report actions taken pursuant to section 14 of the Act.
(a) Each Federal land manager will establish a program to increase public awareness of the need to protect important archaeological resources located on public and Indian lands. Educational activities required by section 10(c) of the Act should be incorporated into other current agency public education and interpretation programs where appropriate.
(b) Each Federal land manager annually will submit to the Secretary of the
(a) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley Authority will develop plans for surveying lands under each agency's control to determine the nature and extent of archaeological resources pursuant to section 14(a) of the Act. Such activities should be consistent with Federal agency planning policies and other historic preservation program responsibilities required by 16 U.S.C. 470
(b) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will prepare schedules for surveying lands under each agency's control that are likely to contain the most scientifically valuable archaeological resources pursuant to section 14(b) of the Act. Such schedules will be developed based on objectives and information identified in survey plans described in paragraph (a) of this section and implemented systematically to cover areas where the most scientifically valuable archaeological resources are likely to exist.
(c) Guidance for the activities undertaken as part of paragraphs (a) through (b) of this section is provided by the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation.
(d) Other Federal land managing agencies are encouraged to develop plans for surveying lands under their jurisdictions and prepare schedules for surveying to improve protection and management of archaeological resources.
(e) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will develop a system for documenting and reporting suspected violations of the various provisions of the Act. This system will reference a set of procedures for use by officers, employees, or agents of Federal agencies to assist them in recognizing violations, documenting relevant evidence, and reporting assembled information to the appropriate authorities. Methods employed to document and report such violations should be compatible with existing agency reporting systems for documenting violations of other appropriate Federal statutes and regulations. Summary information to be included in the Secretary's comprehensive report will be based upon the system developed by each Federal land manager for documenting suspected violations.
10 U.S.C. 136.
This part:
(a) Updates policies and responsibilities for financial institutions that serve Department of Defense (DoD) personnel on DoD installations worldwide. Associated procedures are contained in 32 CFR part 231.
(b) Prescribes consistent arrangements for the provision of services by financial institutions among the DoD Components, and requires that financial institutions operating on DoD installations provide, and are provided, support consistent with the policies stated in this part.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff (JCS), the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational
Terms used in this part are set forth in 32 CFR part 231.
(a) The following pertains to financial institutions on DoD installations:
(1) Except where they already may exist as of May 1, 2000, no more than one banking institution and one credit union shall be permitted to operate on a DoD installation.
(2) Upon the request of an installation commander and with the approval of the Secretary of the Military Department concerned (or designee), duly chartered financial institutions may be authorized to provide financial services on DoD installations to enhance the morale and welfare of DoD personnel and facilitate the administration of public and quasi-public monies. Arrangement for the provision of such services shall be in accordance with this part and the applicable provisions of 32 CFR part 231.
(3) Financial institutions or branches thereof, shall be established on DoD installations only after approval by the Secretary of the Military Department concerned (or designee) and the appropriate regulatory agency.
(i) Except in limited situations overseas (see paragraph (b)(2)(iii) of this section), only banking institutions insured by the Federal Deposit Insurance Corporation and credit unions insured by the National Credit Union Share Insurance Fund or by another insurance organization specifically qualified by the Secretary of the Treasury, shall operate on DoD installations. These financial institutions may either be State or federally chartered; however, U.S. credit unions operated overseas shall be federally insured.
(ii) Military banking facilities (MBFs) shall be established on DoD installations only when a demonstrated and justified need cannot be met through other means. An MBF is a financial institution that is established by the Department of the Treasury under statutory authority that is separate from State or Federal laws that govern commercial banking. Section 265 of title 12, United States Code contains the provisions for the Department of the Treasury to establish MBFs. Normally, MBFs shall be authorized only at overseas locations. This form of financial institution may be considered for use at domestic DoD installations only when the cognizant DoD Component has been unable to obtain, through normal means, financial services from a State or federally chartered financial institution authorized to operate in the State in which the installation is located. In times of mobilization, it may become necessary to designate additional MBFs as an emergency measure. The Director, Defense Finance and Accounting Service (DFAS) may recommend the designation of MBFs to the Department of the Treasury.
(iii) Retail banking operations shall not be performed by any DoD Component. Solicitations for such services shall be issued, or proposals accepted, only in accordance with the policies identified in this part. The DoD Components shall rely on commercially available sources in accordance with DoD Directive 4100.15.
(4) Installation commanders shall not seek the provision of financial services from any entity other than the on-base banking office or credit union. The Director, DFAS, with the concurrence of the Under Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to this policy.
(5) Financial institutions authorized to locate on DoD installations shall be provided logistic support as set forth in 32 CFR part 231.
(6) Military disbursing offices, nonappropriated fund instrumentalities (including MWR activities and the Military Exchange Services) and other DoD Component activities requiring financial services shall use on-base financial institutions to the maximum extent feasible.
(7) The Department encourages the delivery of retail financial services on
(i) ATMs are considered electronic banking services and, as such, shall be provided only by financial institutions that are chartered and insured in accordance with the provisions of paragraph (a)(3) of this section.
(ii) Proposals by the installation commander to install ATMs from other than on-base financial institutions shall comply with the provisions of paragraph (a)(4) of this section.
(8) Expansion of financial services (to include in-store banking) requiring the outgrant of additional space or logistical support shall be approved by the installation commander. Any DoD activity or financial institution seeking to expand financial services shall coordinate such requests with the installation bank/credit union liaison officer prior to the commander's consideration.
(9) The installation commander shall ensure, to the maximum extent feasible, that all financial institutions operating on that installation are given the opportunity to participate in pilot programs to demonstrate new financial-related technology or establish new business lines (e.g., in-store banking) where a determination has been made by the respective DoD Component that the offering of such services is warranted.
(10) The installation commander shall approve requests for termination of financial services that are substantiated by sufficient evidence and forwarded to the Secretary of the Military Department concerned (or designee). The Secretary of the Military Department (or designee) shall coordinate such requests with the USD(C), through the Director, DFAS, before notification to the appropriate regulatory agency.
(11) Additional guidance pertaining to financial services is set forth in 32 CFR part 231.
(b) The following additional provisions pertain only to financial institutions on overseas DoD installations:
(1) The extension of services by MBFs and credit unions overseas shall be consistent with the policies stated in this part and with the applicable status of forces agreements, other intergovernmental agreements, or host-country law.
(2) Financial services at overseas DoD installations may be provided by:
(i) Domestic on-base credit unions operating overseas under a geographic franchise and, where applicable, as authorized by the pertinent status of forces agreements, other intergovernmental agreements, or host-country law.
(ii) MBFs operated under and authorized by the pertinent status of forces agreement, other intergovernmental agreement, or host-country law.
(iii) Domestic and foreign banks located on overseas DoD installations that are:
(A) Chartered to provide financial services in that country, and
(B) A party to a formal operating agreement with the installation commander to provide such services, and
(C) Identified, where applicable, in the status of forces agreements, other intergovernmental agreements, or host-country law.
(3) In countries served by MBFs operated under contract, nonappropriated fund instrumentalities and on-base credit unions that desire, and are authorized, to provide accommodation exchange services shall acquire foreign currency from the MBF at the MBF accommodation rate; and shall sell such foreign currency at a rate of exchange that is no more favorable to the customer than the customer rate available at the MBF.
(a) The Under Secretary of Defense (Comptroller) (USD(C)) shall develop policies governing establishment, operation, and termination of financial institutions on DoD installations and take final action on requests for exceptions to this part.
(b) The Under Secretary of Defense (Acquisition, Technology and Logistics) (USD(AT&L)) shall monitor policies and procedures governing logistical support furnished to financial institutions on DoD installations, including the use of DoD real property and equipment.
(c) The Under Secretary of Defense (Personnel and Readiness) (USD(P&R))
(d) DoD Component responsibilities pertaining to this part are set forth in 32 CFR part 231.
10 U.S.C. 136.
(a)
(b)
The policy pertaining to financial institutions operating on DoD installations is contained in DoD Directive 1000.11 (32 CFR part 230) and in § 231.4.
(a) The Under Secretary of Defense (Comptroller) (USD(C)) shall develop and monitor policies governing establishment, operation, and termination of financial institutions on DoD installations and take final action on requests for exceptions to this part.
(b) The Under Secretary of Defense (Acquisition, Technology and Logistics) (USD(AT&L)) shall monitor policies and procedures governing logistical support furnished to financial institutions on DoD installations, including the use of DoD real property and equipment.
(c) The Under Secretary of Defense (Personnel and Readiness) (USD(P&R)) shall advise the USD(C) on all aspects of on-base financial institution services that affect the morale and welfare of DoD personnel.
(d) The Director, Defense Finance and Accounting Service (DFAS) shall:
(1) Develop procedures governing banks and credit unions on DoD installations for promulgation in this part.
(2) For domestic DoD installations, coordinate with the Secretaries of the Military Departments (or designees) on requests from subordinate installation commanders to establish or terminate banking offices or on-base credit unions. For overseas DoD installations, coordinate with the Secretary of the Military Department concerned (or designee) on requests from subordinate installation commanders to establish or discontinue the provision of financial services from the on-base financial institution under contract with the Department of Defense or to establish or terminate banking offices or credit unions located on DoD installations.
(3) In coordination with affected DoD Components, authorize the specific types of banking services that will be provided by overseas military banking facilities (MBFs) and specify the charges or fees, or the basis for these, to be levied on users of these services.
(4) Coordinate with the Fiscal Assistant Secretary of the Treasury on the designation of domestic and overseas MBFs as depositaries and financial agents of the U.S. Government.
(5) Designate a technical representative to provide policy direction for the procuring and administrative contracting officer(s) responsible under the Federal Acquisition Regulation (FAR) for acquiring banking services required at overseas DoD installations.
(6) Serve as principal liaison with banking institutions having offices on overseas DoD installations. In this capacity, monitor MBF managerial and operational policies, procedures, and operating results and take action as appropriate.
(7) As necessary, assist in the formation of government-to-government agreements for the provision of banking services on overseas DoD installations, in accordance with DoD Directive 5530.3
(8) Provide procedural guidance to DoD Components, as required.
(9) Maintain liaison with financial institution trade associations, leagues, and councils in order to interpret DoD policies toward respective memberships and aid in resolving mutual concerns affecting the provision of financial services.
(10) Coordinate with the USD(P&R), through the USD(C), on all aspects of morale and welfare and with the USD(AT&L), through the USD(C), on all aspects of logistic support for on-base financial institutions.
(11) Monitor industry trends, conduct studies and surveys, and facilitate appropriate dialogues on banking and credit union arrangements and cost-benefit relationships, coordinate as necessary with DoD Components, financial institutions, and trade associations as appropriate.
(12) Maintain liaison, as appropriate, with financial institution regulatory agencies at federal and state levels.
(13) Ensure that recommendations of the Combatant Commands are considered before processing requests for overseas banking and credit union service or related actions.
(14) Maintain a listing of all geographic franchises assigned to credit unions serving DoD overseas installations.
(e) Secretaries of the Military Departments (or designees) shall:
(1) For domestic DoD installations, take action on requests from subordinate installation commanders to establish or terminate financial institution operations. For overseas DoD installations, take action in accordance with guidance contained herein on requests from subordinate installation commanders to establish or discontinue the provision of financial services from the DoD contracted banking institution, or to establish or terminate other financial institutions located on DoD installations.
(2) Provide for liaison to those financial institutions that operate banking offices on respective domestic DoD installations.
(3) Oversee the use of banking offices and credit unions on respective DoD installations within the guidance contained herein and in DoD Directive 1000.11 (32 CFR part 230).
(4) Evaluate the services provided and related charges and fees by respective on-base banking offices and credit unions to ensure that they fulfill the
(5) Monitor practices and procedures of respective banking offices and credit unions to ensure that the welfare and interests of DoD personnel as consumers are protected.
(6) Assist on-base banking offices and credit unions to develop and expand necessary services for DoD personnel consistent with this part.
(7) Encourage the conversion of existing domestic MBFs on respective installations to independent or branch bank status where feasible.
(8) Provide logistical support to overseas MBFs under terms and conditions identified in this part as well as with the applicable terms of DoD contracts with financial institutions responsible for the operations of overseas MBFs.
(9) Refer matters requiring policy decisions or proposed changes to this part or DoD Directive 1000.11 (32 CFR part 230) to the USD(C) through the Director, DFAS.
(10) Monitor and encourage the use of financial institutions on DoD installations to accomplish the following ends.
(i) Facilitate convenient, effective management of the appropriated, nonappropriated, and private funds of on-base activities.
(ii) Assist DoD personnel in managing their personal finances through participation in programs such as direct deposit and regular savings plans, including U.S. savings bonds. The use of on-base financial institutions shall be on a voluntary basis and should not be urged in preference to, or to the exclusion of, other financial institutions.
(11) Encourage and assist duly chartered financial institutions on domestic DoD installations to provide complete financial services to include, without charge, basic financial education and counseling services. Financial education and counseling services refer to basic personal and family finances such as budgeting, checkbook balancing and account reconciliation, benefits of savings, prudent use of credit, how to start a savings program, how to shop and apply for credit, and the consequences of excessive credit.
(12) Establish liaison, as appropriate, with federal and state regulatory agencies and financial institution trade associations, leagues, and councils.
(13) Make military locator services available to on-base financial institutions in accordance with the Privacy Act guidelines in subpart B of this part.
(14) Permit DoD personnel to serve on volunteer boards or committees of on-base financial institutions, without compensation, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 5500.7.
(15) Allow DoD personnel to attend conferences and meetings that bring together representatives of on-base financial institutions, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 1327.5,
(f) The Commanders of the Combatant Commands (or designees) shall:
(1) Ensure the appropriate coordination of the following types of requests affecting financial institutions overseas.
(i) Establish financial institutions in countries not presently served. Such requests will include a statement that the requirement has been coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy and that the host country will permit the operation.
(ii) Eliminate any or all financial institutions on DoD installations within a foreign country. Such requests will include a statement that the U.S. Chief of Diplomatic Mission has been informed and that appropriate arrangements to coordinate local termination announcements and procedures have been made with the U.S. Embassy.
(2) Monitor and coordinate military banking operations within the command area. Personnel assigned to security assistance positions will not perform this function without the prior approval of the Director, Defense Security Cooperation Agency (DSCA).
(g) The Commanders of Major Commands and subordinate installation commanders shall:
(1) Monitor the banking and credit union program within their commands.
(2) Coordinate requests to establish or construct bank and credit union offices or terminate logistical support as specified in this part to banks and credit unions within their commands. Personnel assigned to overseas security assistance positions will not monitor, coordinate, or assist in military banking operations without the prior approval of the DSCA.
(3) Assign, as appropriate, responsibility for paragraphs (g)(1) and (g)(2) of this section, to comptroller or resource management personnel.
(4) Cooperate with financial institution associations, leagues, and councils.
(5) Recognize the right of all DoD personnel to organize and join credit unions and promote the credit union movement in DoD worldwide.
(6) Permit DoD personnel to serve on volunteer boards or committees of on-base financial institutions, without compensation, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 5500.7.
(7) Allow DoD personnel to attend conferences and meetings that bring together representatives of on-base financial institutions, when neither a conflict of duty nor a conflict of interest is involved, in accordance with DoD Directive 1327.5, Subchapter 630 of the DoD Civilian Personnel Manual (DoD 1400.25-M), and Comptroller General Decision B-212457.
(8) Seek the provision of financial services only from existing on-base financial institutions, proposing alternatives only where on-base financial institutions fail to respond favorably to a valid requirement.
(a)
(1) A written agreement shall be established outlining the security procedures that the financial institution will follow and the role that installation security authorities will play with regard to alarms, movement of cash, and procedures to be followed in response to criminal activity (e.g., armed robbery).
(2) Cash and other assets in on-base banking offices and credit unions are the property of those financial institutions. Maintenance of alarms and use of armored cars is the sole responsibility of the on-base financial institution. The on-base financial institution is also solely responsible for the guarding or escorting of cash unless the installation commander determines that providing such services is desirable or necessary.
(b)
(1) When appropriate, installations will process financial institution requests for central locator service to obtain military addresses of active duty personnel. This service will be used to locate persons for settling accounts, and recovering funds on checks that did not clear or loans that are delinquent or in default (see DoD Directive 1344.9
(2) The DoD Components shall assist financial institutions to locate DoD personnel whose whereabouts cannot be locally determined. The request should be on the financial institution's letterhead, include the Service member's name and social security number, and cite the cognizant Military Service regulation that authorizes the use of
(i) For addresses of Department of the Army active, retired, separated and civilian personnel, financial institutions may telephone (703) 325-3732 or write to: Department of the Army Worldwide Locator, U.S. Army Enlisted Record and Evaluation Center, 8899 E. 56th Street, Indianapolis, IN 46249-5301.
(ii) For addresses of Navy active, retired, separated and civilian personnel, financial institutions may telephone (901) 874-3388 or write to: Navy Personnel Command, PERS-312F, 5720 Integrity Drive, Millington, TN 38055-3120.
(iii) For addresses of Department of the Air Force active, retired, separated and civilian personnel, financial institutions may telephone (210) 565-2660 or write to: Air Force Personnel Center, MSIMDL Suite 50, 550 C Street West, Randolph AFB, TX 78150-4752.
(iv) For addresses of United States Marine Corps active, retired, separated and civilian personnel, financial institutions may telephone (703) 784-3942 or write to:
(c)
(2) An on-base financial institution may use installation bulletin boards, newsletters or web pages to post general information that complements the installation's financial counseling programs and promotes financial responsibility and thrift. Message center services may distribute a reasonable number of announcements to units for use on bulletin boards so long as this does not impose an unreasonable workload.
(3) An on-base financial institution may include an insert in the installation's newcomers package (or equivalent). This insert should benefit newcomers by identifying the financial services that are available on the installation.
(4) DoD Directive 5120.20
(5) Off-base financial institutions are not permitted to distribute competitive literature or forms on the installation. These institutions, however, may use commercial advertising, mailings or telecommunications to reach their customers.
(6) Advertising in government-funded (official) installation papers is not permitted with the exception of insert advertising in the
(7) Installation activities, including Military Exchange Services and concessionaire outlets, shall not permit the distribution of literature from off-base financial institutions if there is an on-base financial institution. This does not prevent the Military Exchange Services from distributing literature on affinity credit card services that those Military Exchange Services may acquire centrally through competitive solicitation.
(d)
(1) Financial institutions that propose to install ATMs on DoD installations shall bear the cost of ATM installation, maintenance and operation. The installation commander may enter into an agreement with the on-base financial institution wherein the installation may acquire and provide ATMs to on-base financial institutions under certain circumstances, such as when it is advantageous to the government to have one or more ATMs available for use but the acquisition cost to the financial institution is prohibitive. No ATM shall be purchased by an installation unless approved by the Secretary of the Military Department concerned (or designee). In all such cases, installation costs and all logistic support shall be borne by the financial institution.
(2) ATM approval authority is as shown:
(i) The installation commander has approval authority when an on-base financial institution wishes to place an ATM on the installation. This approval should be reflected as an amendment to the operating agreement.
(ii) Where there is no on-base financial institution, follow the solicitation procedures to obtain financial services set forth in §§ 231.5(c) and 231.7(b).
(3) The availability of ATM service shall not preclude the later establishment of a banking office should conditions change on an installation.
(4) Proposals by an installation commander to install ATMs on domestic installations from other than on-base financial institutions, including the Military Exchange Services, morale, welfare and recreational activities and/or other nonappropriated fund instrumentalities, shall be considered only when:
(i) ATM service is unavailable or existing service is inadequate, and
(ii) The on-base financial institution(s) either declines to provide the service, fails to improve existing service so that it is adequate, or does not formally respond to the request for such service within 30 days of the date of the request. Any ATM service from other than on-base financial institutions is considered an exception to policy. The procedures to establish an on-base financial institution set forth in §§ 231.5(c) and 231.7(b) shall be followed when soliciting for such ATM services. Proposals offering shared-access ATMs (e.g., ATMs operated by two or more financial institutions where their accountholders are not assessed any or all fees applicable to nonaccountholders) shall receive preference.
(5) ATM service from foreign banking institutions may be authorized on overseas installations with or without MBFs operated under contract where the installation or community commander determines that a bonafide need exists to support local national hires. On installations with MBFs operated under contract, the MBFs shall be the primary source of the ATM service except when a determination has been made by the cognizant contract program office that providing the service is either not cost effective or precluded by pertinent status of forces agreements, other intergovernmental agreements or host-country law. In those instances where ATM service from foreign banking institutions is authorized and provided by other than the on-base financial institution, ATM connectivity shall be limited to host country networks and the ATMs shall dispense only local currency (no U.S. dollars). The operating agreement covering ATM service shall be negotiated by the installation or community commander and submitted for approval by the appropriate Combatant Commander (or designee) prior to its execution. A copy of the operating agreement will be forwarded through DoD Component channels to the DFAS.
(e)
(f)
(2) All staffing shall comply fully with applicable equal employment opportunity laws and with the spirit of DoD equal employment opportunity policies as set forth in DoD Directive 1440.1.
(3) DoD personnel, excluding military retirees and their dependents, may not serve as directors of domestic or foreign banking institutions operating banking offices on those DoD installations where they currently are assigned. This does not preclude a member of a Reserve Component, who has been serving as a director of a domestic or foreign banking institution operating a banking office on a DoD installation, from retaining his or her directorship if called to active duty.
(4) DoD personnel may not be detailed to duty with an on-base financial institution located on a DoD installation. Off-duty personnel, however, may be employed by an on-base financial institution subject to approval by the installation commander (or designee). Such employment must not interfere with the performance of the individual's official duties and responsibilities.
(g)
(h)
(2) DoD personnel who tender uncollectable checks, overdraw their accounts or fail to meet their financial obligations in a proper and timely manner damage their credit reputation and adversely affect the public image of all government personnel. For uniformed personnel, military financial counselors and legal advisors shall recommend workable repayment plans that avoid further endangering credit ratings and counsel affected personnel to protect their credit standing and career. Counselors shall ensure that such personnel are aware of the stigma associated with bankruptcy and difficulties in obtaining future credit at reasonable rates and terms and shall recommend its use only when no other alternative will alleviate the situation.
(i)
(i) Identification of services to be rendered and the conditions for service. Full financial services shall be provided where feasible. Agreements, however, may not restrict either entity's right to renegotiate services and fees.
(ii) Agreement by both parties that they will comply with this part and DoD Directive 1000.11 (32 CFR part 230).
(iii) Agreement by the on-base financial institution that it will furnish copies of its financial reports and other local publications on an “as needed” basis in response to a formal request from the installation commander (or designee).
(iv) Agreement that the on-base financial institution will indemnify and hold harmless the U.S. Government from (and against) any loss, expense, claim, or demand to which the U.S. Government may be subjected as a result of death, loss, destruction, or damage in conjunction with the use and occupancy of the premises caused in whole or in part by agents or employees of the on-base financial institution.
(v) Agreement that neither the Department of Defense nor its representatives shall be responsible or liable for the financial operation of the on-base financial institution or for any loss (including criminal losses), expense, or claim for damages arising from operations.
(vi) Agreement by the on-base financial institution (or any successor) that it will provide no less than 180 days advance written notice to the installation commander before ceasing operations.
(vii) Specification of the security services to be provided for guarding cash shipments, at times of unusual risk to the financial institution and to avoid excessive insurance costs charged to that institution.
(viii) Statement that the physical security for cash and negotiable items will be in a manner consistent with the requirements of the on-base financial institution's insurer. A copy of those requirements will be provided to the installation commander on request.
(ix) Statement that the financial institution, whenever possible, will accommodate local command requests for lectures and printed materials for consumer credit education programs. Officials invited to participate in such programs shall not use the occasion to promote the exclusive services of a particular financial institution.
(x) Agreement that the financial institution will reimburse the installation for the provision of logistical support (such as custodial, janitorial, and other services provided by the government) at rates set forth in the lease or agreement between the installation and the financial institution.
(xi) Statement that on-base financial institution operations shall be terminated, when required, under provisions specified in this part.
(2) Approved expansion of services will be documented as an amendment to the existing operating agreement between the installation commander and the on-base financial institution. The amendment to the operating agreement and any required lease (to include a change to an existing lease) shall be in place prior to the initiation of new financial services or offices.
(j)
(2) Financial services provided on DoD installations will be as uniform as possible for all personnel. As separately negotiated, or based on a fee schedule, custodians of nonappropriated funds shall compensate on-base financial institutions for services received. Compensation may be made with compensating balances or paying fees based on the services provided or a combination of these payment mechanisms. Fees shall not exceed the charge customary for the financial institution less an offsetting credit on balances maintained. Banking offices shall classify nonappropriated fund accounts as commercial accounts.
(3) At a minimum, banking offices shall provide the same services to individuals and nonappropriated fund instrumentalities as are available in the surrounding geographic area.
(4) On-base financial institutions may conduct operations during normal duty hours provided they do not disrupt the performance of official duties. Operating hours shall be set, in consultation with the bank or credit union liaison officer, to meet the needs of all concerned. ATMs may be used to expand financial services and operating hours.
(5) DoD personnel may use their allotment of pay privileges to establish sound credit and savings practices through on-base financial institutions.
(i) The on-base financial institution shall credit customer accounts not later than the deposit date of the allotment check or electronic funds transfer.
(ii) The initiation of an allotment is voluntary (See Volume 7a, Chapter 42, Section 4202 of The DoD Financial Management Regulation (7200.14-R)). Thus, DoD personnel generally cannot be required to initiate an allotment for the repayment of a loan. Allotments voluntarily established by DoD personnel for the purpose of repaying a loan or otherwise providing funds to an on-base financial institution shall continue in effect at the option of the allotter.
(6) In accordance with sound lending practice, policies on loans to individuals are expected to be as liberal as feasible while remaining consistent with the overall interests of the on-base financial institution. On-base financial institutions shall conform to the Standards of Fairness principles before executing loan or credit agreements. See DoD Directive 1344.9.
(7) On-base financial institutions shall make basic financial education and counseling services available without charge to individuals seeking these services. Financial education and counseling services refer to basic personal and family finances such as budgeting, checkbook balancing and account reconciliation, benefits of savings, prudent use of credit, how to start a savings program, how to shop and apply for credit, and the consequences of excessive credit. DoD personnel in junior enlisted or civilian grades, or newly married couples who apply for loans, shall be given special attention and counseling.
(8) On-base financial institutions must strive to provide the best service to all customers. On-base financial institutions that evidence a policy of discrimination in their services are in violation of this part. In resolving complaints of discrimination, use the procedures specified in § 231.5(h)(8).
(9) All correspondence regarding on-base financial institutions, and questions concerning their operation that cannot be resolved locally, shall be referred through command channels to the Secretary of the Military Department concerned (or designee) for consideration.
(a)
(b)
(i) The approximate number of DoD personnel at the installation, and other persons who may be authorized to use the banking office.
(ii) The distance between the installation and the financial institutions in the vicinity, and the names of those institutions.
(iii) Available transportation between the installation and the financial institutions listed in paragraph (b)(1)(ii) of this section.
(iv) The number of DoD personnel in duty assignments that confine them to the installation or who cannot obtain transportation (such as hospital patients).
(v) The name and location of the depositary used to make official deposits for credit to the TGA.
(vi) A list of organizational and nonappropriated fund accounts, the name and location of the financial institutions where deposited, and the average daily activity and balance of each account.
(vii) A written description and photographs of the space proposed for banking office use.
(viii) A statement listing the requirements of the proposed banking office for safes and a vault, alarm systems, and surveillance equipment, when necessary.
(ix) Reasons for use of space controlled by the General Services Administration (GSA). All the GSA assigned space, whether leased space or federal office building space, is reimbursable to the GSA at the standard level user charge. As such, space occupied by a banking office to serve military needs will be assigned and charged by the GSA.
(x) Any other information pertinent to the establishment of a banking office.
(2) The Secretary of the Military Departments (or designee) shall:
(i) Review each request for the establishment of banking offices.
(ii) Conduct a solicitation for the services when warranted.
(iii) Approve proposals for banking offices.
(iv) Notify the selected financial institution either directly or through the installation commander. The selected banking institution will, in turn, obtain operating authority from their regulating agencies.
(v) Forward proposals to establish TGAs to the DFAS for subsequent forwarding to the Fiscal Assistant Secretary of the Treasury in accordance with Volume 5, Chapter 5, paragraph 050102 of The DoD Financial Management Regulation (7000.14-R).
(c)
(1) Solicitations for banking services shall be accomplished in the following order:
(i) Solicitation letters will be sent to local banking institutions and a solicitation announcement will be published in the local newspaper(s) and forwarded to financial institution associations.
(ii) If the Secretary of the Military Department concerned (or designee) or, where delegated, the installation commander, determines that the geographic scope of the solicitation needs to be expanded, a prospectus will be forwarded to financial institutions in a larger geographic area, as well as financial institution associations and regulatory authorities in the state where the installation is located.
(iii) If the Secretary of the Military Department concerned (or designee) or, where delegated, the installation commander, determines that the geographic scope of the solicitation needs to be expanded further, the prospectus will be published in the Commerce Business Daily and financial institution trade journals.
(2) For solicitations conducted at the installation level, the installation commander shall review proposals to establish banking offices, select the banking institution making the best offer and forward a recommendation to the Secretary of the Military Department concerned (or designee) for final approval.
(3) Banking institutions shall not be coerced when banking arrangements are under consideration or after banking offices are established. If otherwise proper, this prohibition does not preclude:
(i) Discussions with banking institutions prior to submitting a proposal for a new banking office.
(ii) Helping banking offices extend their operations in support of an installation requirement.
(iii) Discussions with banking institutions to improve services or to create savings for the banking institution or DoD personnel.
(iv) Seeking proposals for banking service as directed by the Secretary of the Military Department concerned (or designee).
(v) Negotiations preparatory to signing a banking agreement.
(4) When soliciting for banking services, proposals shall be evaluated on specific factors identified in the solicitation. These factors, at a minimum, shall be predicated on the services to be provided as outlined in appendix A, paragraph 3, of this part, the financial institution's schedule of service fees and charges, and the extent of logistical support required. Prior to issuance of the solicitation, the preparing office shall identify (for internal use during the subsequent evaluation period) the weights to be applied to the factors reflected in the solicitation. Proposals shall be evaluated and ultimate selection made based upon the factors and weights developed for the solicitation.
(5) The Secretary of the Military Department concerned (or designee), or the installation commander with advice from the cognizant Secretary of the Military Department (or designee), shall make the selection of the banking institution based on the provisions outlined in this section.
(d)
(i) The mission of the installation has changed, or is scheduled to be changed, thereby eliminating or substantially reducing the requirement for financial services.
(ii) Active military operations prevent continuation of on-base financial services.
(iii) Performance of the banking office in providing services is not satisfactory according to standards ordinarily associated with the financial services industry or is inconsistent with the operating agreements or the procedures prescribed herein.
(iv) When merger, acquisition, change of control or other action results in violation of the terms and conditions of the existing operating agreement, the Secretary of the Military Department (or designee) shall terminate the operating agreement with the existing banking institution. When the merger, acquisition, change of control or other action does not result in violation of the terms and conditions of the existing operating agreement, the Secretary of the Military Department (or designee) shall initiate a novation action of the operating agreement identifying the change in control.
(2) The installation commander shall forward requests for termination to the Secretary of the Military Department concerned (or designee). The Secretary of the Military Department (or designee) shall coordinate all termination actions with the USD(C), through the Director, DFAS, before notification to the appropriate regulatory agency. Subsequent to this coordination process:
(i) The Secretary of the Military Department (or designee) shall inform the regulatory agency of the action.
(ii) The installation commander shall revoke the authority of the financial institution to operate. The lease will be terminated.
(3) Any banking office that intends to terminate its operations should notify the installation commander at least 180 days before the closing date. This notification should precede any public announcement of the planned closure. When appropriate, the commander shall attempt to negotiate an agreement permitting the banking office to continue operations until the installation has made other arrangements. Immediately upon notification of a closing, the commander shall advise the
(e)
(ii) The term of the lease shall not exceed 5 years except where the banking institution uses its own funds to improve existing government space as outlined in paragraph (e)(5) of this section. If space occupied is assigned by the GSA, charges to financial institutions for space and services shall be at the GSA standard level user rate.
(iii) Leases shall include the following provisions:
(A) The government has the right to terminate the lease due to national emergency; installation inactivation, closing, or other disposal action; or default by the lessee.
(B) The lessee shall provide written notice 180 days prior to voluntarily terminating the lease.
(C) Upon a lease termination, the government has the option to cause the title of all structures and other improvements to be conveyed to the United States without reimbursement, or require the lessee to remove the improvements and restore the land to its original condition.
(2)
(ii) Banking institutions shall perform all maintenance, repair, improvements, alterations, and construction on the banking premises.
(iii) Banking institutions shall pay for all utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating and air conditioning, intrastation telephone service, and custodial and janitorial services to include garbage disposal and outdoor maintenance (such as grass cutting and snow removal) at rates set forth in the lease, operating agreement or other written agreement between the installation and the banking institution.
(3) Leases executed before the issuance of this part may not be altered solely as a result of the provisions of this part unless a lessee specifically requests a renegotiation under these provisions. No lease may be negotiated or renegotiated, nor may any rights be waived or surrendered without compensation to the government.
(4) When a banking institution participates in the construction of a shopping mall complex the lease shall cover only land where the banking office physically is located.
(5) When a banking institution uses its own funds to improve existing government space, leases, for a period not to exceed 25 years subject to periodic review every 5 years to assess changes in fair market value, may be negotiated for a period commensurate with the appraised value of the leasehold improvements divided by the annual lease fee.
(f)
(2) If determined to be in the government's interest, an existing lease of land may be extended prior to expiration of its term. Passage of title to facilities shall be deferred until all extensions have expired. Such extensions shall be for periods not to exceed 5 years with lease payments set at the appraised fair market rental of the land only as determined on the date of each such extension. Banking institution lessees shall continue to maintain the premises and pay for utilities and services furnished.
(3) When, under the terms of a lease, title to improvements passes to the government, arrangements normally will be made as follows:
(i) When the square footage involved exceeds that authorized in DoD 4270.1-M
(ii) The charge for continued occupancy of improved space by a banking office shall be at fair market rental value only for the associated land. The lessee shall continue to maintain the premises and pay the cost of utilities and services furnished.
(g)
(1) The building shall be solely for the use of the banking institution and may not provide for other commercial enterprises or government instrumentalities.
(2) Construction projects must meet the criteria in DoD 4270.1-M.
(3)
(ii) Projects costing less than $25,000, to include interior alterations and room or office additions to existing banking offices, shall be approved by installation commanders. Copies of approvals, including the identification of project cost, shall be furnished to the Secretary of the Military Department concerned (or designee).
(4) The Congress shall be notified of all construction projects, using other than appropriated funds and costing over $500,000, in accordance with DoD Instruction 7700.18
(5) Proposals for construction of structures on installations at a banking institution's expense shall be reviewed and reported in accordance with regulations of the Military Department concerned. The following information shall be listed to support each proposal:
(i) Number of DoD personnel at the installation plus others who may use the banking office.
(ii) Square footage of the proposed building.
(iii) Land area to be leased to the banking institution.
(iv) Term of the lease.
(v) Estimated cost of construction.
(vi) Estimated fair market value of the land to be leased.
(vii) Statement that the banking institution will be responsible for utility connections and other utility and maintenance costs.
(viii) Statement that the building will be used only for financial services.
(ix) A statement that financial institution officials understand the potential loss of the building in the event of installation closure or other delimiting condition.
(x) Justification for a waiver of space criteria if the building exceeds that specified in DoD 4270.1-M.
(6) Banks shall pay for interior alterations and maintenance as well as utilities, custodial, and other furnished services.
(7) Banks shall pay all construction costs.
(h)
(1) Ensure that the banking institution operating the banking office has the latest version of this part.
(2) Ensure that traveler's checks and money orders are not being sold by other on-base organizations when banking offices are open for business. Postal units and credit unions, however, are exempt from this restriction. Also, ensure that other financial services, to include vehicle financing on domestic installations, are offered only by the banking office.
(3) Attend financial workshops, conferences, and seminars as appropriate. These gatherings offer excellent opportunities for personnel of financial institutions and the Department to improve the military banking program.
(4) Assist, when requested by the banking office manager or the installation commander, in locating and collecting from individuals tendering uncollectable checks, overdrawing accounts, or defaulting on loans (within the guidelines of subpart C) if not otherwise prohibited by law.
(5) Maintain regular contact with the banking office manager to confer and discuss quantitative and qualitative improvements in the services provided. In executing this authority, the BLO shall not become involved in the internal operations of the financial institution.
(6) Review the schedule of service charges and fees annually, and ensure that the operating agreement is updated at least every 5 years. Renegotiate the financial services offered and related service charges and fees as necessary.
(7) Assist in resolving customer complaints about banking services.
(8) Assist in resolving complaints of discrimination with financial services by the banking institution. If a complaint cannot be resolved, a written request for investigation shall be forwarded to the appropriate regulatory agency. Any such request must document the problem and command efforts taken toward its resolution. Information copies of all related correspondence shall be sent through channels to the Secretary of the Military Department concerned (or designee) for transmittal to the DFAS.
(9) Assist the installation commander to report to the appropriate regulatory agency any evidence suggesting malpractice by banking office personnel.
(i)
(1) Provision of the requested services, and any associated stipulations, shall be documented as an amendment to the existing operating agreement between the installation commander and the on-base financial institution that will provide in-store services.
(2) The amendment to the operating agreement shall be drafted through close coordination between the requesting DoD Component representative, the on-base financial institution representative, the bank liaison officer, and the installation commander (or designee). The final amendment shall be signed by the installation commander and the on-base financial institution with the acknowledgement of the DoD Component that will host the in-store banking operation.
(3) The installation commander shall extend the opportunity to provide the requested in-store banking services to all financial institutions located on the installation. The selection process is outlined in Appendix B of this part.
(4) Space shall be granted by the installation commander through a lease to the banking institution that will provide in-store service.
(j)
(ii) Installation commanders shall send requests for an MBF with justification for its establishment through the Secretary of the Military Department concerned (or designee) to the Director, DFAS, for coordination with the Department of the Treasury. The Department of the Treasury may approve the designation of an MBF under provisions of 12 U.S.C. 265.
(iii) MBF operations may begin only after approval for MBF status is granted by the Department of the Treasury.
(2)
(ii) Proposals from the on-base banking institution to convert an existing MBF to an independent or branch bank shall be sent through command channels to the Secretary of the Military Department concerned (or designee) for approval. The Secretary of the Military
(iii) Unsolicited proposals from banking institutions to establish independent or branch banks where an MBF exists shall be forwarded through command channels to the Secretary of the Military Department concerned (or designee). Each proposal shall be evaluated on its own merits.
(A) The installation commander shall inform the banking institution operating the MBF that an unsolicited proposal for a banking office has been received and shall offer that incumbent institution the opportunity to submit its own proposal.
(B) Preference to operate an independent or branch bank shall be given to the banking institution that has operated the MBF, provided that the banking service previously rendered has been satisfactory and that the institution's proposal is adequate.
(3)
(a)
(1) MBFs operated under contract and authorized by the pertinent status of forces agreement, other intergovernmental agreements, or host-country law.
(2) Domestic and foreign banking institutions located on overseas DoD installations. Each such institution shall be:
(i) Chartered to provide financial services in that country.
(ii) A party to a formal operating agreement with the installation commander to provide such services.
(iii) Identified, where applicable, in the status of forces agreements, other intergovernmental agreements, or host-country law.
(b)
(i) Requests to establish MBFs shall include, but are not limited to, the following information:
(A) The approximate number of DoD personnel at the installation and in the community and any other persons who may be authorized to use the MBF.
(B) The distance between the installation and the nearest MBF and credit union office, the names; addresses, and telephone numbers of the operators of those institutions; and the installations and communities where they are located.
(C) The availability of official and public transportation between the installation or community and the nearest MBF and credit union office.
(D) The name and location of the depository used to make official deposits for credit to the TGA.
(E) A list of organizational and nonappropriated fund accounts, the name and location of the financial institutions where deposited, and the average daily activity and balance of each account.
(F) A written description and photographs or drawings of the space proposed for MBF use. The extent and approximate cost of required alterations, including the construction of counters and teller cages.
(G) A statement that recognizes the logistical support, including equipment, to be provided by the local command as detailed in paragraph (c) of this section. The statement will include the costs of such equipment and the manner in which it will be acquired.
(H) In countries where no MBFs currently are operated under contract, a statement from the cognizant Combatant Command that the requirement has been coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy and that the host country
(I) Any other pertinent information to justify the establishment of an MBF.
(ii) As a general rule, MBFs may be established only when the installation or community population meets the following criteria:
(A)
(B)
(iii) If the population at a certain remote area is not sufficient to qualify under the criteria for full-time or part-time MBFs, the installation or community commander will explore all other alternatives for acquiring limited banking services before requesting establishment of an MBF as an exception to these provisions. Alternatives to limited banking services include installation of ATMs and check cashing and accommodation exchange service by disbursing officers and their agents.
(iv) Establishment of an overseas MBF is predicated on and requires:
(A) Designation of the MBF contractor as a depositary and financial agent of the U.S. Government by the Department of the Treasury.
(B) The availability of banking contractors interested in bidding for the operation of the facility and the viability of such proposals.
(C) The availability of appropriated funds to underwrite such banking services.
(D) Establishment of a U.S. dollar currency custody account to support banking operations.
(2)
(i) Installation or community commanders shall send requests for banking services or unsolicited proposals from foreign banking institutions to their Major Commands with supporting data as required in § 231.5(b)(1).
(ii) Major Commands shall forward installation or community commander requests to the Secretary of the Military Department concerned (or designee) for approval. The Secretary of the Military Department concerned (or designee) shall coordinate with the DFAS to seek the designation of the parent foreign banking institution as a depositary and financial agent of the U.S. Government by the Department of the Treasury.
(iii) Banking offices in this category cannot become operational until the foreign parent banking institution has been designated a depositary and financial agent of the U.S. Government. The institution also shall indicate a willingness and ability to provide collateral backing for any official and nonappropriated fund U.S. dollar deposits. Any collateral pledged shall be in a form acceptable to the DFAS and the Department of the Treasury.
(c)
(A) Adequate office space, including steel bars; grillwork; security doors; a vault, safes, or both; security alarm systems and camera surveillance equipment (where deemed necessary) that meet documented requirements of the MBF contractor's insurance carrier; construction of counters, teller cages, and customer and work areas; necessary modifications and alterations to existing buildings; and construction of new MBF premises, if necessary.
(
(
(B) Office space in a building that is accessible to most users and permits the maximum security. In addition, office space for MBF area and district administrations and storage space for retention of records, files, and storage of supplies.
(C) DoD housing on a rental basis to assigned MBF staff that are designated as key and essential MBF managerial personnel who are unable to find suitable, reasonably priced housing in the vicinity of the DoD installation, subject to the assignment procedures and other requirements of DoD 4165.63-M.
(D) Education, on a space-available, tuition-paying basis, provided by the Department of Defense Education Activity to minor dependents of assigned staff in accordance with DoD Directive 1342.13.
(E) Air conditioning, which is considered a normal utility for banking offices located at installations that qualify for air conditioning under applicable regulations. Banking space is classified as administrative space at military installations.
(F) Utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating, intrastation telephone service, and custodial and janitorial services to include garbage disposal and outdoor maintenance (such as grass cutting and snow removal).
(G) Defense Switched Network (DSN) voice and data communication to include, where feasible, Internet access.
(H) Military guards, civilian guards (for use within the installation), military police, or other protective services to accompany shipments of money. This level of protective service also shall be provided at other times as required to include replenishment of ATM currency and receipts, alarm system failures, and to avoid undue risks or insurance costs on the part of the MBF.
(I) U.S. Military Postal Service access in accordance with DoD Directive 4525.6.
(J) Office equipment and furniture on memorandum receipt if available from local stock. If office equipment or furniture is unavailable, statements of nonavailability shall be issued.
(K) Vehicle registration and fuel sales from government-owned facilities for bank-operated vehicles, if not in conflict with host government agreements. Vehicle registration shall be subject to normal fees.
(L) Issuance by local commanders of invitational travel orders, at no expense to the U.S. Government when required for official onsite visits by U.S. based banking institution officials.
(ii) Suggestions for changes to the logistical support provisions of the MBF contract may be forwarded for consideration through command channels to the Director, DFAS.
(2)
(ii) Logistical support shall not exceed that provided to contract MBFs, as specified in paragraph (c)(1) of this section.
(d)
(ii) For MBFs operated by U.S. banking contractors, the agreement shall
(2)
(ii)
(iii)
(iv)
(v)
(B) Any deficiency of banking services under DoD banking contracts shall be reported to the manager of the MBF within 7 calendar days of noting the deficiency. If the problem has not been corrected within 30 calendar days after being noted, the commander shall report the problem through DoD Component channels to the Director, DFAS (or designee).
(C) The MBF contractor and military disbursing officers shall establish cash management practices that minimize the cash required conducting business.
(D) Commanders shall assist MBF contractors to develop and update contingency plans for banking services in the event of hostilities or other emergencies.
(E) MBF provision of foreign currency shall be in accordance with Volume 5, Chapter 13 of The DoD Financial Management Regulation (DoD 7000.14-R).
(3)
(ii)
(iii)
(iv)
(4)
(ii) For all other relocations, prior approval from the Director, DFAS (or designee) shall be obtained through DoD Component channels.
(5)
(i) Major changes in installation population that would affect use of the MBF.
(ii) Opinion that the space assigned is not adequate for the efficient operation of the MBF including a statement concerning corrective action.
(iii) Suggestions that might improve the MBF operation, increase efficiency, or decrease costs.
(iv) Pending developments that may have a material impact on the MBF operation.
(6)
(e)
(1)
(i) The report shall state whether a part-time MBF should be established and specify the days each week that the MBF would be needed.
(ii) The Secretary of the Military Department (or designee) shall send this report with recommendations to the Director, DFAS (or designee).
(2)
(a)
(b)
(1) DoD personnel seeking to establish a new full-service credit union shall submit a proposal to the installation commander for review. In addition to the information identified in § 231.5(b)(1), the proposal shall include a request for the establishment of a field of membership that includes all personnel at the installation. Upon installation commander concurrence, the proposal shall be forwarded through DoD Component channels to the Secretary of the Military Department (or designee).
(2) The Secretary of the Military Department concerned (or designee) shall:
(i) Obtain a list of credit unions that could establish eligibility to serve the installation's military members and civilian employees from the National Credit Union Administration (NCUA)
(ii) Prepare and send formal solicitation letters to eligible credit unions informing them of an opportunity to establish a branch office at the installation.
(iii) In coordination with the installation commander, establish the criteria for selection of a specific credit union in accordance with § 231.5(c)(4). Proposals shall be evaluated, and a selection made, based upon the factors and weights developed for the solicitation.
(3) Upon approval by the Secretary of the Military Department (or designee), the NCUA or applicable state regulatory agency shall be notified and asked to establish or amend the selected credit union's charter to include the new location.
(4) No commitment may be made to a credit union regarding its proposal until the appropriate regulatory agency has approved the requested charter change.
(c)
(ii) The installation commander shall inform the Secretary of the Military Department concerned (or designee) immediately upon receiving notification of a closing. The report shall include a recommendation about continued credit union service on the installation. Paragraph (b) of this section applies if continued service is needed.
(2)
(3)
(4)
(5)
(d)
(ii) A credit union may be furnished space on a DoD installation at one or more locations for periods not exceeding 5 years except where the credit union uses its own funds to improve existing government space as outlined in paragraphs (d)(1)(ii)(C) and (d)(1)(ii)(D) of this section. The cumulative total of
(A) The furnishing of office space (including ATM placement) to on-base credit unions is governed by section 170 of the Federal Credit Union Act (12 U.S.C. 1770). The provision of no-cost office space for a period not to exceed 5 years is limited to credit unions if at least 95 percent of the membership to be served by the allotment of space is composed of individuals who are, or who were at the time of admission into the credit union, military personnel or federal employees, or members of their families. A written statement to the effect that the credit union meets the 95 percent criterion shall be required to justify and document the allotment of free government space. This statement shall be prepared on the credit union's letterhead and signed either by the chairman of the board of directors or the president. A certification also shall be required whenever there is a merger, takeover, or significant change in a field of membership. This certification shall serve as justification and documentation for the continued allocation of free government space including space renovated with credit union funds. The statement shall be updated every 5 years and on renewal of each no-cost permit or license. (See appendix C of this part for a sample format of the statement.)
(B) Credit unions that fail to meet the 95 percent criterion shall be charged fair market rental for space provided. Except where more than one credit union exists on an installation prior to June 9, 2000, credit unions giving less than full service or not serving all assigned DoD personnel are not authorized no-cost office space.
(C) When a credit union that meets the 95 percent criterion uses its own funds to expand, modify, or renovate government-owned space, it may be provided a no-cost permit or license for a period commensurate with the extent of the improvements not to exceed 25 years as determined by the DoD Component concerned. The permit or license shall be effective until the agreed date of expiration or until the credit union ceases to satisfy the 95 percent criterion. In this latter case, the no-cost permit shall be cancelled in favor of a lease immediately negotiated at fair market value under the provisions of paragraph (d)(1)(ii)(B) of this section. If the credit union desires, this permit or license may extend through the period identified in the original permit or license not to exceed 25 years.
(D) Similarly, a credit union not meeting the 95 percent criterion that uses its own funds to expand, modify, or renovate government-owned space, may be provided a lease at fair market value for a period not to exceed 25 years subject to periodic review every 5 years to assess changes in fair market value. Duration of this lease shall be commensurate with the extent of the improvements as determined by the DoD Component concerned.
(iii) All space assigned by the GSA, whether leased or in a federal office building, is reimbursable to the GSA at the standard level user charge. Consequently, the GSA shall charge the benefiting DoD Component for any space assigned for credit union operations. Such space is subject to the provisions of paragraph (d)(1)(i) and (ii) of this section.
(2)
(3) Leases executed before the issuance of this part may not be altered solely as a result of the provisions of this part unless a lessee specifically requests a renegotiation under these provisions. No lease may be negotiated or renegotiated, nor may any
(4) When a credit union participates in the construction of a shopping mall complex the lease shall cover only land where the branch or facility physically is located.
(5)
(e)
(f)
(g) Credit unions offering ATM service shall do so in accordance with § 231.4(d).
(h)
(i) An official authorized to act on loan applications.
(ii) An individual authorized to sign checks; and
(iii) A qualified financial counselor available to serve members during operating hours.
(2) Exceptions to paragraph (h)(1)(i) of this section may be approved by the installation commander with advice from the Secretary of the Military Department concerned (or designee) in the case of newly organized credit unions.
(3) When an on-base credit union can support only minimum staffing, one of the positions required in paragraph (h)(1)(i) of this section or paragraph (h)(1)(ii) of this section also may be subsumed under the counselor duties.
(4) Credit union remote service locations at the same installation may be staffed with one person alone, provided that a direct courier or an electronic or automated message service links each remote location to the credit union's main office.
(i)
(j)
(1) Credit unions interested in submitting proposals to provide requested in-store banking services shall provide a statement from the NCUA or applicable state regulatory agency certifying the credit union's authority to offer the requested financial services to the commissary, Military Exchange, or other on-base facilities.
(2) Space granted to a credit union selected to provide in-store banking services should be issued through a no-cost license in accordance with section 170 of the Federal Credit Union Act (12 U.S.C. 1770).
(a)
(2) The extension of credit union service overseas is encouraged consistent with the principles prescribed for domestic credit unions and with applicable status of forces agreements or other intergovernmental agreements, or host-country law.
(3) Where permitted by the status of forces agreements or other intergovernmental agreements, or host-country law, only federal credit unions or federally insured state chartered credit unions may operate on overseas DoD installations. The ultimate decision to provide services overseas rests with the credit union itself.
(b)
(i) Full information about available space and logistical support.
(ii) The name and location of the nearest credit union facility or branch.
(iii) The distance between the installation and the nearest credit union facility or branch.
(iv) The availability of any official or public transportation.
(v) The number of DoD personnel in duty assignments that confine them to the installation or who cannot obtain transportation (such as hospital patients).
(vi) In countries not presently served, a statement concurred in by the cognizant Combatant Command that the requirement has been coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy. The statement shall include that the host country will permit credit union operations and will indicate any conditions imposed by the host country with respect to those operations.
(2) Subsequent to approval of the request from the installation or community commander to establish an overseas credit union facility, the Secretary of the Military Department concerned (or designee) shall solicit proposals for the provision of full credit union services under the following provisions.
(i) Where there is a DoD designated geographic franchise with a specific field of membership, the Secretary of the Military Department (or designee) shall direct the installation or community commander to contact the supporting credit union and request that a branch or facility be established. The basic decision concerning such extensions of service rests with the servicing credit union. The Director, DFAS (or designee) shall maintain a listing of all geographic franchises assigned to credit unions serving DoD overseas installations.
(ii) Where there is no DoD designated geographic franchise, the Secretary of the Military Department (or designee) shall:
(A) Coordinate requests, through the Director, DFAS (or designee), to obtain a geographic franchise. A geographic franchise is the authorization granted to a credit union by the Office of the Under Secretary of Defense (Comptroller) (OUSD(C)) to provide financial services in a specific geographic region located outside the United States, its territories and possessions.
(B) Solicit proposals from credit unions currently operating on DoD installations.
(C) Review proposals of interested credit unions.
(D) Coordinate with field commands, as needed.
(E) Recommend selection to the NCUA or applicable state regulatory agency with a copy to the DFAS and the OUSD(C), requesting that the appropriate field of membership adjustment be made. Such a recommendation shall identify the primary installations on which the credit union would operate and, if applicable, the contiguous geographic boundaries for future facilities and branches.
(3) Where there is an existing field of membership, the Secretary of the Military Department concerned (or designee) shall take the following actions:
(i) If a credit union on an installation terminates operation, afford any other credit union having a geographic franchise within that country an opportunity to assume the franchise being vacated. If all such institutions decline, the geographic franchise shall be offered to the federally insured credit union community. If, as a result of a credit union decision to decline service to an installation or a termination action, another credit union:
(A) Offers to provide service.
(B) Meets host country requirements (if any) and
(C) Is assigned the former geographic franchise or portion thereof, the NCUA or the applicable state regulatory agency shall be notified and requested to make appropriate field of membership adjustments.
(ii) When other credit union(s) having a geographic franchise within a country decline the opportunity, or there is
(4) No commitment may be made to a credit union regarding its proposal until the appropriate regulatory agency has announced a selection.
(c)
(1) Adequate office space, including steel bars; grillwork; security doors; a vault, safes or both; security alarm systems and camera surveillance equipment (where deemed necessary) that meet documented requirements of the credit union's insurance carrier; construction of counters, teller cages, and customer and work areas; necessary modifications and alterations to existing buildings. The size and arrangement of space should permit efficient operations. The credit union shall pay for all improvements to the space given. Space assigned may not exceed that prescribed in DoD 4270.1-M.
(2) DoD housing on a rental basis to key credit union personnel unable to find suitable, reasonably priced housing in the vicinity of the DoD installation, if available.
(3) Education, on a space-available, tuition-paying basis, provided by the Department of Defense Education Activity to minor dependents of assigned staff in accordance with DoD Directive 1342.13.
(4) Utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating, intrastation telephone service, and custodial and janitorial services.
(5) DSN voice and data communication to include, where feasible, internet access.
(6) U.S. Military Postal Service support under DoD Directive 4525.6. The use of free intra-theater delivery system (IDS) is authorized for all routine mail sent and received between Army Post Offices (APOs) and Fleet Post Offices (FPOs) within a theater.
(7) Military guards, civilian guards (for use within the installation), military police, or other protective services to accompany shipments of money from the MBF to the credit union and return where it is impractical or not authorized to have a local armored car service or civilian police authorities entering a military installation to provide cash escort service or when the cost of obtaining such service is prohibitive. This level of protective service also shall be provided at other times as required to include replenishment of ATM currency and receipts, alarm system failures, and to avoid undue risks or insurance costs.
(d)
(e)
(2) The Department assigns overseas credit unions a prescribed geographic franchise. Any credit union, however, may continue to serve its members stationed overseas by mail or telecommunications, to include access to the Internet.
(3) A credit union proposing a new service to be offered by a branch office that is not authorized by the operating agreement shall coordinate the establishment of the new service through the cognizant Component command to the Combatant Command. The new service shall be offered only after the appropriate command's approval and coordination with the U.S. Chief of Diplomatic Mission or U.S. Embassy to ensure that the service does not conflict with the applicable status of forces agreement, other intergovernmental agreements, or host-country law.
(4) Credit unions that operate full service branches shall have U.S. currency and coin available for member transactions. In areas served by currency custody accounts, transactional U. S. currency and coins shall be made available from the servicing MBF with no direct or analysis charge to the
(5) In countries served by MBFs operated under contract, credit unions shall purchase foreign currency only from the servicing MBF.
(i) The bulk rate purchase price shall apply to currency used by the credit union to make payments to vendors or to make payroll payments.
(ii) Credit unions that desire and are authorized to provide accommodation exchange services to its members shall acquire foreign currency from the servicing MBF at the MBF wholesale rate and sell it at a rate of exchange no more favorable than that available to customers of the MBF.
(6) Credit unions operating under a geographic franchise on an overseas DoD installation shall not publicize, display or sell vehicles on the installation.
(7) The NCUA or applicable state regulatory agency may review operations of overseas credit union offices either when it examines the main credit union or at other times of its choosing. For federally insured, state chartered credit unions, the applicable state regulatory agency also may examine credit unions operations.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(1) Status of forces agreements, other intergovernmental agreements, or host-country law.
(2) Physical security requirements that cannot be resolved by the credit union or local command.
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(a)
(1) Updates policies and responsibilities for financial institutions that serve Department of Defense (DoD) personnel on DoD installations worldwide. Associated procedures are contained in subpart A of this part.
(2) Prescribes consistent arrangements for the provision of services by financial institutions among the DoD Components, and requires that financial institutions operating on DoD installations provide, and are provided, support consistent with the policies stated herein.
(b)
(c)
(d)
(i) Except where they already may exist as of May 1, 2000, no more than one banking institution and one credit union shall be permitted to operate on a DoD installation.
(ii) Upon the request of an installation commander and with the approval of the Secretary of the Military Department concerned (or designee), duly chartered financial institutions may be authorized to provide financial services on DoD installations to enhance the morale and welfare of DoD personnel and facilitate the administration of public and quasi-public monies. Arrangement for the provision of such services shall be in accordance with this subpart and the applicable provisions of subpart A of this part.
(iii) Financial institutions or branches thereof, shall be established on DoD installations only after approval by the Secretary of the Military Department concerned (or designee) and the appropriate regulatory agency.
(A) Except in limited situations overseas (see paragraph (d)(2)(ii)(C) of this section), only banking institutions insured by the Federal Deposit Insurance Corporation and credit unions insured by the National Credit Union Share Insurance Fund or by another insurance organization specifically qualified by the Secretary of the Treasury, shall operate on DoD installations. These financial institutions may either be State or federally chartered; however, U.S. credit unions operated overseas shall be federally insured.
(B) Military banking facilities (MBFs) shall be established on DoD installations only when a demonstrated and justified need cannot be met through other means. An MBF is a financial institution that is established by the Department of the Treasury under statutory authority that is separate from State or Federal laws that govern commercial banking. Section 265 of title 12, United States Code contains the provisions for the Department of the Treasury to establish MBFs. Normally, MBFs shall be authorized only at overseas locations. This form of financial institution may be considered for use at domestic DoD installations only when the cognizant DoD Component has been unable to obtain, through normal means, financial services from a State or federally chartered financial institution authorized to operate in the State in which the installation is located. In times of mobilization, it may become necessary to designate additional MBFs as an emergency measure. The Director, Defense Finance and Accounting Service (DFAS) may recommend the designation of MBFs to the Department of the Treasury.
(C) Retail banking operations shall not be performed by any DoD Component. Solicitations for such services shall be issued, or proposals accepted, only in accordance with the policies identified in this subpart. The DoD Components shall rely on commercially available sources in accordance with DoD Directive 4100.15.
(iv) Installation commanders shall not seek the provision of financial services from any entity other than the on-base banking office or credit union. The Director, DFAS, with the concurrence of the Under Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to this policy.
(v) Financial institutions authorized to locate on DoD installations shall be provided logistic support as set forth in subpart A of this part.
(vi) Military disbursing offices, nonappropriated fund instrumentalities (including MWR activities and the Military Exchange Services) and other DoD Component activities requiring financial services shall use on-base financial institutions to the maximum extent feasible.
(vii) The Department encourages the delivery of retail financial services on DoD installations via nationally networked automated teller machines (ATMs).
(A) ATMs are considered electronic banking services and, as such, shall be provided only by financial institutions that are chartered and insured in accordance with the provisions of paragraph (d)(1)(iii) of this section.
(B) Proposals by the installation commander to install ATMs from other than on-base financial institutions shall comply with the provisions of paragraph (d)(1)(iv) of this section.
(viii) Expansion of financial services (to include in-store banking) requiring the outgrant of additional space or logistical support shall be approved by the installation commander. Any DoD activity or financial institution seeking to expand financial services shall coordinate such requests with the installation bank/credit union liaison officer prior to the commander's consideration.
(ix) The installation commander shall ensure, to the maximum extent feasible, that all financial institutions operating on that installation are given the opportunity to participate in pilot programs to demonstrate new financial-related technology or establish
(x) The installation commander shall approve requests for termination of financial services that are substantiated by sufficient evidence and forwarded to the Secretary of the Military Department concerned (or designee). The Secretary of the Military Department (or designee) shall coordinate such requests with the USD(C), through the Director, DFAS, before notification to the appropriate regulatory agency.
(xi) Additional guidance pertaining to financial services is set forth in subpart A of this part.
(2) The following additional provisions pertain to only to financial institutions on overseas DoD installations:
(i) The extension of services by MBFs and credit unions overseas shall be consistent with the policies stated herein and with the applicable status of forces agreements, other intergovernmental agreements, or host-country law.
(ii) Financial services at overseas DoD installations may be provided by:
(A) Domestic on-base credit unions operating overseas under a geographic franchise and, where applicable, as authorized by the pertinent status of forces agreements, other intergovernmental agreements, or host-country law.
(B) MBFs operated under and authorized by the pertinent status of forces agreement, other intergovernmental agreement, or host-country law.
(C) Domestic and foreign banks located on overseas DoD installations that are:
(
(
(
(iii) In countries served by MBFs operated under contract, nonappropriated fund instrumentalities and on-base credit unions that desire, and are authorized, to provide accommodation exchange services shall acquire foreign currency from the MBF at the MBF accommodation rate; and shall sell such foreign currency at a rate of exchange that is no more favorable to the customer than the customer rate available at the MBF.
(e)
(2) The Under Secretary of Defense (Acquisition, Technology and Logistics) (USD(AT&L)) shall monitor policies and procedures governing logistical support furnished to financial institutions on DoD installations, including the use of DoD real property and equipment.
(3) The Under Secretary of Defense (Personnel and Readiness) (USD(P&R)) shall advise the USD(C) on all aspects of on-base financial institution services that affect the morale and welfare of DoD personnel.
(4) DoD Component responsibilities pertaining to this subpart are set forth in subpart A of this part.
(a) The following guidelines govern the application of DoD Directive 5400.11
(1) Financial institutions and their branches and facilities operating on DoD military installations do not fall within the purview of 5 U.S.C. 552
(i) These financial institutions do not fit the definition of “agency” to which the Privacy Act applies, that is, any executive department, Military Department, government corporation, government-controlled corporation, or other establishment in the executive branch of the government (including the Executive Office of the President),
(ii) These financial institutions are not “government contractors” within the meaning of 5 U.S.C. 552a(o), as they do not operate a system of records on behalf of an agency to accomplish an agency function. According to the Office of Management and Budget Privacy Act Guidelines, the provision relating to government contractors applies only to systems of records actually taking the place of a federal system which, but for the contract, would have been performed by an agency and covered by the Privacy Act. Clearly, the subject institutions do not meet these criteria.
(iii) Since the Act does not apply to them, these financial institutions are not required to comply with 5 U.S.C. 552a(e)(3) in obtaining and making use of personal information in their relationships with personnel authorized to use such institutions. Thus, these institutions are not required to inform individuals from whom information is requested of the authority for its solicitation, the principal purpose for which it is intended to be used, the routine uses that may be made of it, or the effects of not providing the information. There also is no requirement to post information of this nature within on-base banking and credit union offices.
(2) The financial institutions concerned hold the same position and relationship to their account holders, members, and to the government as they did before enactment of OMB Circular A-130. Within their usual business relationships, they still are responsible for safeguarding the information provided by their account holders or members and for obtaining only such information as is reasonable and necessary to conduct business. This includes credit information and proper identification, which may include social security number, as a precondition for the cashing of checks.
(3) Financial institutions may incorporate the following conditions of disclosure of personal identification in all contracts, including loan agreements, account signature cards, certificates of deposit agreements, and any other agreements signed by their account holders or members:
I hereby authorize the Department of Defense and its various Components to verify my social security number or other identifier and disclose my home address to authorized (name of financial institution) officials so that they may contact me in connection with my business with (name of financial institution). All information furnished will be used solely in connection with my financial relationship with (name of financial institution).
(ii) When the financial institution presents such signed authorizations, the receiving military command or installation shall provide the appropriate information.
(4) Even though an agreement described in paragraph (a)(3) of this section has not been obtained, the Department of Defense may provide these financial institutions with salary information and, when pertinent, the length or type of civilian or military appointment, consistent with DoD Directives 5400.11 and 5400.7.
(5) When DoD personnel with financial obligations are reassigned and fail to inform the financial institution of their whereabouts, they should be located by contacting the individual's last known commander or supervisor at the official position or duty station within that particular DoD Component. That commander or supervisor either shall furnish the individual's new official duty location address to the financial institution, or shall forward, through official channels, any correspondence received pertaining thereto to the individual's new commander or supervisor for appropriate assistance and response. Correspondence addressed to the individual concerned at his or her last official place
(b) Questions concerning this guidance should be forwarded through channels to the Deputy Chief Financial Officer, Office of the Under Secretary of Defense (Comptroller), The Pentagon, Washington, DC 20301-1100.
The following operating agreement template identifies general arrangement and content. Content of the actual operating agreement may vary according to the circumstances of each installation.
This Agreement is made and entered into this day by and between the installation commander of (name of installation) in his or her official capacity as installation commander, hereinafter referred to as the “commander” and the (name of financial institution), having its principal office at (location of home office) hereinafter referred to as the “financial institution,” together hereinafter referred to as “the parties.” Whereas the commander and the financial institution enter into this Operating Agreement upon the mutual consideration of the promises, covenants, and agreements hereinafter contained.
1. The parties understand and agree that this Agreement shall in no way modify, change, or alter the terms and conditions of Lease Number (number of lease) covering the use of real property described therein, and this Agreement shall continue, subject to the termination provisions herein-after set forth, during the terms of said lease and any extensions thereof. In the case of a banking institution operating a military banking facility (MBF) overseas, this agreement will not change the conditions of the contract between the banking institution and the Department of Defense.
2. The financial institution agrees to operate a (federally or state) chartered office on-base in accordance with the policies and procedures set forth in DoD Directive 1000.11, and Volume 5, Chapter 34, of the DoD 7000.14-R (as codified in the Code of Federal Regulations (CFR) at 32 CFR parts 230 and 231, respectively); and, in addition for the Overseas Military Banking Program (OMBP), the policies and procedures set forth in the applicable DoD contract. The hours of operations shall be between (hour office opens) and (hour office closes), and on the following days (weekdays office open), except on government holidays when the financial institution may be closed. The Program Office for the OMBP shall notify the commander of any changes to the DoD contract.
3. The financial institution shall provide the following services:
a.
(1) Demand (checking) account services.
(2) Cashing personal checks and government checks for accountholders.
(3) Maintaining savings accounts and (any other interestbearing accounts).
(4) Selling official checks, money orders, and traveler's checks.
(5) Selling and redeeming United States savings bonds.
(6) Providing direct deposit service.
(7) Loan services.
(8) Electronic banking (i.e., automated teller machines, internet banking).
b.
(1) Furnishing cash (if the financial institution's terms for doing so is consistent with sound management practices).
(2) Accepting deposits for credit to the Treasury General Account (where the financial institution has entered into an agreement with the Department of the Treasury).
c.
(1) Demand (checking) account services, including wire transfers.
(2) Savings accounts and nonnegotiable certificates of deposit or other interestbearing accounts offered by the banking institution.
(3) Currency and coin for change.
4. Service charges shall be as follows:
a.
(1) No fees shall be charged to individuals for the services listed in subparagraphs 3.a.(2), and 3.a.(5), above, except for subparagraph 3.a.(2), wherein checks drawn on other
(2) Checking and savings accounts. Fees for individual checking and savings accounts shall be the customary service charges of the financial institution or those negotiated for base personnel per the attached schedule.
(3) Sale of official checks, money orders, traveler's checks and other types of financial paper. Charges for these services shall be the customary charges of the financial institution operating the on-base office.
b.
c.
5. It is agreed that the financial institution shall:
a. Notify the commander or designated representative of any proposed changes to the attached schedule of fees and services at least 30 days prior to implementation.
b. Follow the requirements in Volume 5, Chapter 34, of DoD 7000.14-R, as codified in the Code of Federal Regulations (CFR), and any changes thereto.
c. Comply with Department of the Treasury requirements for establishment and operation of a Treasury General Account where the financial institution agrees to act as a depository for government funds.
d. Absolve the (Military Service) and its representatives of responsibility or liability for the financial operation of the financial institution; and for any loss (including losses due to criminal activity), expenses, or claims for damages arising from financial institution operations.
e. Indemnify, and hold harmless the United States from (and against) any loss, expense, claim, or demand, including attorney fees, court costs, and costs of litigation, to which the government may be subjected as a result of death, loss, destruction, or damage in connection with the use and occupancy of (Military Service) premises occasioned in whole or in part by officers, agents or employees of the financial institution operating an office of the financial institution.
f. Favorably respond, whenever feasible, to reasonable local command requests for lectures and printed materials to support consumer credit education programs, financial management program and newcomer's briefings.
g. Prominently post in the lobby of the financial institution the name, duty telephone number of the (Bank or Credit Union) Liaison Officer.
h. Accept the government travel card in all on-base ATMs operated by the financial institution.
i. Abide by the installation fire protection program, including immediate correction of fire hazards noted by the installation fire inspector during periodic fire prevention inspections.
6. The commander shall provide the following space and support:
a. Space requirements for financial institution operations shall be administered in accordance with the existing outgrant (i.e., lease, permit or license). (Show Number of Outgrant).
b. Utilities (i.e., electricity, natural gas or fuel oil, water and sewage), heating and air conditioning, intrastation telephone service, and custodial and janitorial services to include garbage disposal and outdoor maintenance (such as grass cutting and snow removal) on a reimbursable basis.
c. DoD housing and minor dependent education in overseas locations for military banking facility (MBF) and credit union personnel in accordance with §§ 231.6(c)(1)(i)(C), 231.6(c)(1)(D), 231.8(c)(2) and 231.8(c)(3).
7. Termination of this Agreement shall be consistent with the termination provision of the real property lease and subpart A. The Secretary of the (Military Department) shall have the right to terminate this Agreement at any time. Any termination of the right of the financial institution to operate on the installation shall render this Agreement terminated without any applicable action by the commander.
8. Any provision of this Agreement that is contrary to or violates any laws, rules, or regulations of the United States, its agencies, or the state of (state in which the financial institution is located) that apply on federal installations shall be void and have no force or effect; however, both parties to this Agreement agree to notify the other party promptly of any known or suspected continuing violation of such laws, rules, or regulations.
9. So long as this Agreement remains in effect, it shall be reviewed jointly by the commander and the financial institution at least once every 5 years to ensure compatibility with current DoD issuances and to determine
A.
1. Consistent with DoD Component delegation, the final decision to solicit for an in-store banking office rests with the installation commander.
2. The DoD Component seeking in-store banking (e.g., in buildings operated by the Defense Commissary Agency, Military Exchange Services and MWR activities) shall draft the solicitation letter.
3. Close coordination among all cognizant DoD organizations is essential throughout the selection process.
B.
1. The need for in-store banking service may be identified from either:
a. An unsolicited proposal from an on-base financial institution,
b. A DoD Component's request, or
c. An installation commander's request.
2. The cognizant installation commander (or designee) is responsible for assessing the environment and authorizing the Bank/Credit Union Liaison Officer(s) to pursue the acquisition of in-store banking services. If no authorization is given, no further action is required.
3. The cognizant installation commander shall determine whether a solicitation is required. (A solicitation shall be required whenever there are two or more financial institutions on a DoD installation.) If no solicitation is required, then the Bank/Credit Union Liaison Officer shall work directly with the on-base financial institution to obtain the requested services. Where there is neither a banking office nor an on-base credit union, use the solicitation process outlined in § 231.5(c) of this chapter, as supplemented by the provisions outlined in paragraph A, above.
4. The solicitation letter shall identify the financial services being requested and classify these services as either mandatory or optional. In addition, the solicitation letter shall highlight any services that will be weighed as more important than others during the evaluation of the proposals. Any space consideration and terms of the proposed agreement also shall be identified in the letter.
5. The installation commander (or designee) formally shall notify the selected financial institution and request that institution to coordinate with the proper activity to begin any construction, modifications or renovations necessary to open the in-store banking office. The cognizant facility management personnel shall begin the process of obtaining the necessary outgrant instruments. Concurrently, the requesting DoD Component representative and the financial institution representative shall draft the appropriate amendment to the operating agreement. The amendment should contain provisions regarding:
a. The roles and responsibilities of all parties involved.
b. The financial services to be provided, and
c. The logistical support arrangements to include custodial services and security provisions. The amendment should be coordinated with the Bank/Credit Union Liaison Officer(s) prior to forwarding that document to the installation commander for signature. The amendment shall be signed by the installation commander (or designee) and the appropriate financial institution official with a copy furnished to the Secretary of the Military Department concerned (or designee) and the Director, DFAS (or designee).
I, (name), Chairman of the Board of Directors or President of the (credit union), located at (place), certify that this credit union complies with the requirements of section 170 of the Federal Credit Union Act (12 U.S.C 1770), for the allotment of space in federal buildings without charge for rent or services. The provision of no-cost office space is limited to credit unions if at least 95 percent of the membership to be served by the allotment of space is composed of individuals who are, or who were at the time of admission into the credit union, military personnel or federal employees, or members of their families.
The Certificate of Compliance shall be written on credit union letterhead.
10 U.S.C. 987.
(a)
(b)
(c)
(1) Provides the maximum allowable amount of all charges, and the types of charges, that may be associated with a covered extension of consumer credit;
(2) Requires creditors to disclose to covered borrowers the cost of the transaction as a total dollar amount and as an annualized percentage rate referred to as the Military Annual Percentage Rate or MAPR, which must be disclosed before the borrower becomes obligated on the transaction. The disclosures required by this regulation differ from and are in addition to the disclosures that must be provided to consumers under the Federal Truth in Lending Act;
(3) Provides for the method creditors shall use in calculating the MAPR, and;
(4) Contains such other criteria and limitations as the Secretary of Defense has determined appropriate, consistent with the provisions of 10 U.S.C. 987.
This part applies to consumer credit extended by creditors to a covered borrower, as those terms are defined in this part.
Terms used in this part are defined as follows:
(a)
(b)
(1) Except as provided in paragraph (b)(2) of this section, consumer credit means the following transactions:
(i)
(A) Receives funds from and incurs interest and/or is charged a fee by a creditor, and contemporaneously with the receipt of funds, provides a check or other payment instrument to the creditor who agrees with the covered borrower not to deposit or present the check or payment instrument for more than one day, or;
(B) Receives funds from and incurs interest and/or is charged a fee by a creditor, and contemporaneously with the receipt of funds, authorizes the creditor to initiate a debit or debits to the covered borrower's deposit account (by electronic fund transfer or remotely created check) after one or more days. This provision does not apply to any right of a depository institution under statute or common law to offset indebtedness against funds on deposit in the event of the covered borrower's delinquency or default.
(ii)
(iii)
(2) For purposes of this part, consumer credit does not mean:
(i) Residential mortgages, which are any credit transactions secured by an interest in the covered borrower's dwelling, including transactions to finance the purchase or initial construction of a dwelling, refinance transactions, home equity loans or lines of credit, and reverse mortgages;
(ii) Any credit transaction to finance the purchase or lease of a motor vehicle when the credit is secured by the vehicle being purchased or leased;
(iii) Any credit transaction to finance the purchase of personal property when the credit is secured by the property being purchased;
(iv) Credit secured by a qualified retirement account as defined in the Internal Revenue Code; and
(v) Any other credit transaction that is not consumer credit extended by a creditor, is an exempt transaction, or is not otherwise subject to disclosure requirements for purposes of Regulation Z (Truth in Lending), 12 CFR part 226.
(c)
(1) A regular or reserve member of the Army, Navy, Marine Corps, Air Force, or Coast Guard, serving on active duty under a call or order that does not specify a period of 30 days or fewer, or such a member serving on Active Guard and Reserve duty as that term is defined in 10 U.S.C. 101(d)(6), or
(2) The member's spouse, the member's child defined in 38 U.S.C. 101(4), or an individual for whom the member provided more than one-half of the individual's support for 180 days immediately preceding an extension of consumer credit covered by this part.
(d)
(e)
(f)
(g)
(h)
(1) The MAPR includes the following cost elements associated with the extension of consumer credit to a covered borrower if they are financed, deducted from the proceeds of the consumer credit, or otherwise required to be paid as a condition of the credit:
(i) Interest, fees, credit service charges, credit renewal charges;
(ii) Credit insurance premiums including charges for single premium credit insurance, fees for debt cancellation or debt suspension agreements; and
(iii) Fees for credit-related ancillary products sold in connection with and
(2) The MAPR does not include:
(i) Fees or charges imposed for actual unanticipated late payments, default, delinquency, or similar occurrence;
(ii) Taxes or fees prescribed by law that actually are or will be paid to public officials for determining the existence of, or for perfecting, releasing, or satisfying a security interest;
(iii) Any tax levied on security instruments or documents evidencing indebtedness if the payment of such taxes is a requirement for recording the instrument securing the evidence of indebtedness; and
(iv) Tax return preparation fees associated with a tax refund anticipation loan, whether or not the fees are deducted from the loan proceeds.
(i)
(a) Neither a creditor who extends consumer credit to a covered borrower nor an assignee of the creditor shall require the member or dependent to pay a military annual percentage rate (MAPR) with respect to such extension of credit, except as—
(1) Agreed to under the terms of the credit agreement or promissory note;
(2) Authorized by applicable State or Federal law; and
(3) Not specifically prohibited by this part.
(b) A creditor described in paragraph (a) of this section or an assignee may not impose an MAPR greater than 36 percent in connection with an extension of consumer credit to a covered borrower.
(a) This part shall not apply to a consumer credit transaction if the conditions described in paragraphs (a)(1) and (a)(2) of this section are met:
(1) Prior to becoming obligated on the transaction, each applicant is provided with a clear and conspicuous “covered borrower identification statement” substantially similar to the following statement and each applicant signs the statement indicating that he or she is or is not a covered borrower:
(2) The creditor has not determined, pursuant to the optional verification procedures in paragraphs (b) or (c) of
(b) The creditor may, but is not required to, verify the status of an applicant as a covered borrower by requesting the applicant to provide a current (previous month) military leave and earning statement, or a military identification card (DD Form 2 for members, DD Form 1173 for dependents), as described in DoD Instruction 1003.1,
(c) The creditor may, but is not required to, verify the status of an applicant as a covered borrower by accessing the information available at
(d) This part shall not apply to a consumer credit transaction in which the creditor rolls over, renews, repays, refinances, or consolidates consumer credit in accordance with § 232.8(a)(1) if § 232.5(a)(1) and § 232.5(a)(2) applied to the previous transaction.
(a)
(1) The MAPR applicable to the extension of consumer credit, and the total dollar amount of all charges included in the MAPR.
(2) Any disclosures required by Regulation Z (Truth in Lending), 12 CFR part 226.
(3) A clear description of the payment obligation of the covered borrower, as applicable. A payment schedule provided pursuant to paragraph (a)(2) of this section satisfies this requirement.
(4) A statement that “Federal law provides important protections to regular or reserve members of the Army, Navy, Marine Corps, Air Force, or Coast Guard, serving on active duty under a call or order that does not specify a period of 30 days or fewer, and their dependents. Members of the Armed Forces and their dependents may be able to obtain financial assistance from Army Emergency Relief, Navy and Marine Corps Relief Society, the Air Force Aid Society, or Coast Guard Mutual Aid. Members of the Armed Forces and their dependents may request free legal advice regarding an application for credit from a service legal assistance office or financial counseling from a consumer credit counselor.”
(b)
(2)
(c)
(a)
(b) Different treatment under State law of covered borrowers is prohibited. States may not:
(1) Authorize creditors to charge covered borrowers rates of interest that are higher than the legal limit for residents of the State, or
(2) Permit the violation or waiver of any State consumer lending protection that is for the benefit of residents of the State on the basis of the covered borrower's nonresident or military status, regardless of the covered borrower's domicile or permanent home of record, provided that the protection would otherwise apply to the covered borrower.
(a) 10 U.S.C. 987 makes it unlawful for any creditor to extend consumer credit to a covered borrower with respect to which:
(1) The creditor rolls over, renews, repays, refinances, or consolidates any consumer credit extended to the covered borrower by the same creditor with the proceeds of other consumer credit extended by that creditor to the same covered borrower, unless the new transaction results in more favorable terms to the covered borrower, such as a lower MAPR. This part shall not apply to a transaction permitted by this paragraph when the same creditor extends consumer credit to a covered borrower to refinance or renew an extension of credit that was not covered by this part because the consumer was not a covered borrower at the time of the original transaction.
(2) The covered borrower is required to waive the covered borrower's right to legal recourse under any otherwise applicable provision of State or Federal law, including any provision of the Servicemembers Civil Relief Act (50 U.S.C. App. 10 U.S.C. 527
(3) The creditor requires the covered borrower to submit to arbitration or imposes other onerous legal notice provisions in the case of a dispute.
(4) The creditor demands unreasonable notice from the covered borrower as a condition for legal action.
(5) The creditor uses a check or other method of access to a deposit, savings, or other financial account maintained by the covered borrower, except that, in connection with a consumer credit transaction with an MAPR consistent with § 232.4(b):
(i) The creditor may require an electronic fund transfer to repay a consumer credit transaction, unless otherwise prohibited by Regulation E (Electronic Fund Transfers) 12 CFR part 205;
(ii) The creditor may require direct deposit of the consumer's salary as a condition of eligibility for consumer credit, unless otherwise prohibited by law; or
(iii) The creditor may, if not otherwise prohibited by applicable law, take a security interest in funds deposited after the extension of credit in an account established in connection with the consumer credit transaction.
(6) The creditor requires as a condition for the extension of consumer credit that the covered borrower establish an allotment to repay the obligation.
(7) The covered borrower is prohibited from prepaying the consumer credit or is charged a penalty fee for prepaying all or part of the consumer credit.
(b) For purposes of this section, an assignee may not engage in any transaction or take any action that would be prohibited for the creditor.
(a)
(b)
(c)
(d)
Nothing in this part may be construed to limit or otherwise affect the applicability of Section 207 and any other provisions of the Servicemembers Civil Relief Act (50 U.S.C. App. 527).
Applicable consumer credit—This part shall only apply to consumer credit that is extended to a covered borrower and consummated on or after October 1, 2007.
10 U.S.C. 131 and 2674(c).
As used in this part.
The provisions of this part apply to all areas, lands, and waters on or adjoining the Pentagon Reservation and under the jurisdiction of the United States, and to all persons entering in or on the property. They supplement those penal provisions of Title 18, United States Code, relating to crimes and criminal procedure and those provisions of State law that are federal criminal offenses by virtue of the Assimilative Crimes Act, 18 U.S.C. 13.
(a) Access to the Pentagon Reservation or facilities thereon shall be restricted in accordance with AI Number 30
(b) All persons entering or upon the Pentagon Reservation shall, when required and/or requested, display identification to authorized persons.
(c) All packages, briefcases, and other containers brought into, on, or being removed from facilities or restricted areas on the Pentagon Reservation are subject to inspection and search by authorized persons. Persons entering on facilities or restricted areas who refuse to permit an inspection and search will be denied entry.
(d) Any person or organization desiring to conduct activities anywhere on the Pentagon Reservation shall file an application for permit with the applicable Building Management Office or Installation Commander. Such application shall be made on a form provided by the Department of Defense and shall be submitted in the manner specified by the Department of Defense. Violation of the conditions of a permit issued in accordance with this section is prohibited and may result in the loss of access to the Pentagon Reservation.
(a) Trespassing, entering, or remaining in or upon property not open to the public, except with the express invitation or consent of the person or persons having lawful control of the property, is prohibited. Failure to obey an order to leave under paragraph (b) of this section, or reentry upon property after being ordered to leave or not reenter under paragraph (b) of this section, is also prohibited.
(b) Any person who violates a Department of Defense rule or regulation may be ordered to leave the Pentagon Reservation by an authorized person. A violator's reentry may also be prohibited.
Persons on the Pentagon Reservation shall at all times comply with official signs of a prohibitory, regulatory, or directory nature.
The following are prohibited:
(a)
(b)
(c)
(1) To an authorized person investigating an accident or violation of law or regulation, or
(2) On an application for a permit.
(d)
A person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy, or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts:
(a) Engages in fighting or threatening, or in violent behavior.
(b) Uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.
(c) Makes noise that is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.
(d) Creates or maintains a hazardous or physically offensive condition.
(e) Impedes or threatens the security of persons or property, or disrupts the performance of official duties by Department of Defense employees, or obstructs the use of areas such as entrances, foyers, lobbies, corridors, concourses, offices, elevators, stairways, roadways, driveways, walkways, or parking lots.
Willfully destroying or damaging private or government property is prohibited. The throwing of articles of any kind from or at buildings or persons, improper disposal of rubbish, and open fires are also prohibited.
(a) Using, possessing, storing, or transporting explosives, blasting agents or explosive materials is prohibited, except pursuant to the terms and conditions of a permit issued by the applicable Building Management Office or Installation Commander. When permitted, the use, possession, storage and transportation shall be in accordance with applicable Federal and State law.
(b) Using or possessing fireworks or firecrackers is prohibited.
(c) Violation of the conditions established by the applicable Building Management Office or Installation Commander or of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the loss of access to the Pentagon Reservation.
(a) Except as otherwise authorized under this section, the following are prohibited:
(1) Possessing a weapon.
(2) Carrying a weapon.
(3) Using a weapon.
(b) This section does not apply to any agency or Department of Defense component that has received prior written approval from the Pentagon Force Protection Agency or the Installation Commander to carry, transport, or use a weapon in support of a security, law enforcement, or other lawful purpose while on the Pentagon Reservation.
(a)
(b) Controlled substances. The following are prohibited:
(1) The delivery of a controlled substance, except when distribution is made by a licensed physician or pharmacist in accordance with applicable law. For the purposes of this paragraph, delivery means the actual, attempted, or constructive transfer of a controlled substance.
(2) The possession of a controlled substance, unless such substance was obtained by the possessor directly from, or pursuant to a valid prescription or order by, a licensed physician or pharmacist, or as otherwise allowed by Federal or State law.
(c) Presence on the Pentagon Reservation when under the influence of alcohol, a drug, a controlled substance, or any combination thereof, to a degree that may endanger oneself or another person, or damage property, is prohibited.
Animals, except guide dogs for persons with disabilities, shall not be brought upon the Pentagon Reservation for other than official purposes.
Commercial or political soliciting, vending of all kinds, displaying or distributing commercial advertising, collecting private debts or soliciting alms upon the Pentagon Reservation is prohibited. This does not apply to:
(a) National or local drives for funds for welfare, health, or other purposes as authorized by 5 CFR parts 110 and 950, Solicitation of Federal Civilian and Uniformed Services Personnel for Contributions to Private Voluntary Organizations, issued by the U.S. Office of Personnel Management under Executive Order 12353, 3 CFR, 1982 Comp., p. 139, as amended.
(b) Personal notices posted on authorized bulletin boards, and in compliance with building rules governing the use of such authorized bulletin boards, advertising to sell or rent property of Pentagon Reservation employees or their immediate families.
(c) Solicitation of labor organization membership or dues authorized by the Department of Defense under the Civil Service Reform Act of 1978.
(d) Licensees, or their agents and employees, with respect to space licensed for their use.
(e) Solicitations conducted by organizations composed of civilian employees of the Department of Defense or members of the uniformed services among their own members for organizational support or for the benefit of welfare funds for their members, after compliance with the requirements of § 234.3(d).
Posting or affixing materials, such as pamphlets, handbills, or fliers on the Pentagon Reservation is prohibited except as provided by § 234.13(b) or when conducted as part of activities approved by the applicable Building Management Office or Installation Commander under § 234.3(d).
(a) The use of cameras or other visual recording devices on the Pentagon Reservation is prohibited, unless the use of such items are approved by the Pentagon Force Protection Agency, the Installation Commander, or the Office of the Assistant to the Secretary of Defense for Public Affairs.
(b) It shall be unlawful to make any photograph, sketch, picture, drawing, map or graphical representation of the Pentagon Reservation without first obtaining permission of the Pentagon Force Protection Agency, Installation Commander, or the Office of the Assistant to the Secretary of Defense for Public Affairs.
Gambling in any form, or the operation of gambling devices, is prohibited. This prohibition shall not apply to the vending or exchange of chances by licensed blind operators of vending facilities for any lottery set forth in a State law and authorized by the provisions of the Randolph-Sheppard Act (20 U.S.C. 107,
(a)
(b)
(2) Carrying or storing a bottle, can, or other receptacle containing an alcoholic beverage that is open or has been opened, or whose seal is broken, or the contents of which have been partially removed, within a vehicle on the Pentagon Reservation is prohibited.
(3) This section does not apply to:
(i) An open container stored in the trunk of a vehicle or, if a vehicle is not equipped with a trunk, an open container stored in some other portion of the vehicle designed for the storage of luggage and not normally occupied by or readily accessible to the operator or passengers; or
(ii) An open container stored in the living quarters of a motor home or camper.
(4) For the purpose of paragraph (a)(3)(i) of this section, a utility compartment or glove compartment is deemed to be readily accessible to the operator and passengers of a vehicle.
(c)
(i) Under the influence of alcohol, a drug or drugs, a controlled substance or controlled substances, or any combination thereof, to a degree that renders the operator incapable of safe operation; or
(ii) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided, however, that if State law that applies to operating a vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.
(2) The provisions of paragraph (c)(1) of this section shall also apply to an operator who is or has been legally entitled to use alcohol or another drug.
(3) Tests.
(i) At the request or direction of an authorized person who has probable cause to believe that an operator of a vehicle within the Pentagon Reservation has violated a provision of paragraph (c)(1) of this section, the operator shall submit to one or more tests of the blood, breath, saliva, or urine for the purpose of determining blood alcohol, drug, and controlled substance content.
(ii) Refusal by an operator to submit to a test is prohibited and may result in detention and citation by an authorized person. Proof of refusal may be admissible in any related judicial proceeding.
(iii) Any test or tests for the presence of alcohol, drugs, and controlled substances shall be determined by and administered at the direction of an authorized person.
(iv) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(4) Presumptive levels.
(i) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of this section. If the alcohol concentration in the operator's blood or breath at the time of the testing is less than the alcohol concentration specified in paragraph (c)(1)(ii) of this section, this
(ii) The provisions of paragraphs (c)(3) and (c)(4)(i) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, a drug or drugs, or a controlled substance or controlled substances, or any combination thereof.
Parking regulations for the Pentagon Reservation shall be enforced in accordance with the Pentagon Reservation Parking Program and State law; violating such provisions is prohibited. A vehicle parked in any location without authorization, or parked contrary to the directions of posted signs or markings, shall be subject to removal at the owner's risk and expense, in addition to any penalties imposed. The Department of Defense assumes no responsibility for the payment of any fees or costs related to such removal which may be charged to the owner of the vehicle by the towing organization. This section may be supplemented from time to time with the approval of the Director, Washington Headquarters Services, or his designee, or the Installation Commander, by the issuance and posting of such parking directives as may be required, and when so issued and posted such directive shall have the same force and effect as if made a part hereof.
(a) Whoever shall be found guilty of willfully violating any rule or regulation enumerated in this part is subject to the penalties imposed by Federal law for the commission of a Class B misdemeanor offense.
(b) Whoever violates any rule or regulation enumerated in this part is liable to the United States for a civil penalty of not more than $1,000.
(c) Nothing in this part shall be construed to abrogate any other Federal laws.
10 U.S.C. 2489a.
This part implements 10 U.S.C. 2489a, consistent with DoD Instruction 1330.09,
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to as the “DoD Components”).
(b) Shall not confer rights on any person.
For the purpose of this part, the following definitions apply:
It is DoD policy that:
(a) No sexually explicit material may be offered for sale or rental on property under the DoD jurisdiction, and no member of the Armed Forces or DoD civilian officer or employee, acting in his or her official capacity, shall offer for sale or rental any sexually explicit material.
(b) Material shall not be deemed sexually explicit because of any message or point of view expressed therein.
(a) The Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD((P&R)), under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Monitor and ensure compliance with this part.
(2) Establish a Resale Activities Board of Review (the “Board”) and approve senior representatives from the Army and Air Force Exchange Service, the Navy Exchange Service Command, and the Marine Corps Exchange Service; and approve a senior representative from each of the Military Departments, if designated by the Military Department concerned, to serve as board members on the Resale Activities Board.
(3) Appoint a Chair of the Board.
(4) Monitor the activities of the Board and ensure that the Board discharges its responsibilities as set forth in § 235.6.
(b) The Secretaries of the Military Departments shall ensure that their respective component DoD resale activities comply with this Part and may designate a senior representative to serve on the Board.
(c) The Secretary of the Army and the Secretary of the Air Force shall each appoint one senior representative from the Army and Air Force Exchange Service to serve on the Board.
(d) The Secretary of the Navy shall appoint a senior representative from the Navy Exchange Service Command and a senior representative from the Marine Corps Exchange Service to serve on the Board.
(a) The Board shall periodically review material offered or to be offered for sale or rental on property under DoD jurisdiction and determine whether any such material is sexually explicit in accordance with this part.
(b) If the Board determines that any material offered for sale or rental on property under DoD jurisdiction is sexually explicit, such material shall be withdrawn from all retail outlets where it is sold or rented and returned to distributors or suppliers, and shall not be purchased absent further action by the Board.
(c) The Board shall convene as necessary to determine whether any material offered or to be offered for sale or rental on property under DoD jurisdiction is sexually explicit. The Board members shall, to the extent practicable, maintain and update relevant information about material offered or to be offered for sale or rental on property under DoD jurisdiction.
(d) If any purchasing agent or manager of a retail outlet has reason to believe that material offered or to be offered for sale or rental on property under DoD jurisdiction may be sexually explicit as defined herein, and such material is not addressed by the Board's guidance issued pursuant to paragraph (e) of this section, he or she shall request a determination from the Board about such material prior to purchase or as soon as possible.
(e) At the conclusion of each review and, as necessary, the Board shall issue guidance to purchasing agents and managers of retail outlets about the purchase, withdrawal, and return of sexually explicit material. The Board
(f) Material which has been determined by the Board to be sexually explicit may be submitted for reconsideration every 5 years. If substantive changes in the publication standards occur earlier, the purchasing agent or manager of a retail outlet under DoD jurisdiction may request a review.
The Chair of the Board shall submit to the PDUSD(P&R) an annual report documenting the activities, decisions, and membership of the Board. Negative reports are required. The annual report shall be due on October 1st of each year and is not subject to the licensing internal information requirements of DoD 8910.1-M.
5 U.S.C. 301.
This part establishes (a) guidance for preparation of the Defense Industry Bulletin, and (b) includes guidance and procedures governing Department of Defense cooperation with industry on (1) public affairs matters in general, (2) industry-sponsored events, and (3) advertising defense themes and products.
The provisions of this part apply to all components of the DoD.
(a) It is important that American industry—particularly defense contractors—understand the plans, programs, and activities of the DoD. Such understanding can be achieved by (1) wide dissemination of information to the business community, consistent with national security, and (2) cooperation with industry in public relations activities which are not contrary to the national or DoD interests.
(b) As outlined in part 237 of this subchapter, DoD components shall cooperate with industry at local and regional levels. However, they will notify the Assistant Secretary of Defense (Public Affairs) (ASD(PA)) promptly of any local or regional activity which has the potential of being escalated, or which has been escalated by unforeseen circumstances, to national or international interest.
(a)
(1) DoD components may submit any of the items listed below to the Editor, Defense Industry Bulletin, OASD(PA), by the 20th day of each month. If no significant information exists, a negative report will be submitted.
(i) Articles, preferably by-lined, with supporting photographs or illustrations. (Suggested length is 2,000-2,500 words, but may be shorter or longer as coverage of subject requires.)
(ii) Material covering subjects that are timely and of particular interest to those organizations oriented toward
(
(
(
(
(
(
(
(
(
(iii) Key personnel appointment and reassignment announcements, for the “About People” section.
(iv) New or revised official directives, instructions, regulations, and other publications, for the “Bibliography” section.
(v) Scheduled technical meetings and symposia sponsored by DoD organizations, projected at least forty-five (45) days, for the “Meeting and Symposia” section.
(vi) Announcements of meetings, conferences, briefings, demonstrations, exercises, etc., projected at least forty-five (45) days, for the “Calendar of Events.”
(2) Each DoD component will designate one action officer and one alternate to assist the Directorate for Community Relations, OASD(PA), in carrying out responsibilities defined in paragraph (a)(1) of this section.
(b)
(
(
(
(
(ii) Participation in events which benefit a particular firm (examples—open houses and ceremonies dedicating new facilities) will be limited, normally, to speaker participation (see part 238 of this subchapter).
(2)
(3)
(4)
(c)
(2)
(3)
(d)
(e)
(2) Defense contractors wanting to distribute items through official DoD channels should be advised to contact the headquarters of the DoD component concerned for guidance.
(f)
(2) Classified meetings are governed by DoD Directive 5200.12,
(g)
(2) When DoD Components desire to sponsor such visits by nationally known press representatives, approval will be obtained from both the contractor and the ASD(PA).
42 U.S.C. 3374 as amended by Section 1001, ARRA, Public Law 111-5.
This part:
(a) Continues to authorize the Homeowners Assistance Program (HAP) under section 3374 of title 42, United States Code, to assist eligible military and civilian Federal employee homeowners when the real estate market is adversely affected directly related to the closure or reduction-in-scope of operations due to Base Realignment and Closure (BRAC). Additionally, in accordance with Section 1001, American Recovery and Reinvestment Act of 2009
(b) Establishes policy, authority, and responsibilities for managing Expanded HAP and defines eligibility for financial assistance.
(c) In accordance with this part, The Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L) has overall responsibility and, through the Deputy Under Secretary of Defense for Installations and Environment (DUSD(I&E)), provides oversight for this program. The Army, acting as the DoD Executive Agent for administering the HAP, uses the Headquarters, U.S. Army Corps of Engineers (HQUSACE) to implement the program.
This part applies to the Office of the Secretary of Defense, the Military Departments (including the U.S. Coast Guard), the Chairman of the Joints Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to collectively as the “DoD Components”). This part for Expanded HAP is applicable until September 30, 2012, or as otherwise extended by law.
(a) It is DoD policy, in implementing section 3374 of title 42, United States Code, as amended by Section 1001 of the ARRA (Public Law 111-5), that those eligible (
(b) Detailed regulations regarding the determination of available benefits, can also be found in the circular (EC 405-1-18a) published by the HQUSACE, as directed by the Secretary of the Army as the DoD Executive Agent for the Expanded HAP. Changes to the Engineering Circular for the Expanded Homeowners Assistance Program will be submitted for OMB review as required.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
Section 3374 of Title 42, United States Code, as amended by Section 1001 of the ARRA, Public Law 111-5, authorizes the Secretary of Defense, under specified conditions, to acquire title to, hold, manage, and dispose of, or, in lieu thereof, to reimburse for certain losses upon private sale of, or foreclosure against, any property improved with a one- or two-family dwelling owned by designated individuals.
(a)
(i) The applicable percentage (identified by applicant type in § 239.5(a)(4)) of the PFMV of the primary residence, or
(ii) The total amount of the eligible mortgage(s) that remains outstanding.
(2) If an applicant sells, has sold, or otherwise has transferred title of the primary residence, the benefit calculation shall be the amount of closing costs plus an amount not to exceed the difference between the applicable percentage of the PFMV and the sales price.
(3) If an applicant is foreclosed upon, the benefit will pay all legally enforceable liabilities, directly associated with the foreclosed mortgage, for example, a deficiency judgment.
(4)
(ii) If an applicant is eligible under § 239.6(a)(3) or (4) and is unable to sell the primary residence after demonstrating reasonable efforts to sell, the applicable percentage shall be 75% of the PFMV. Closing costs incurred on the sale will not be reimbursed.
(iii) If an applicant is eligible under § 239.6(a)(1) or (2), the applicable percentage, regardless of whether the applicant sells the primary residence, shall be 95% of the PFMV. In addition, closing costs incurred on the sale may be reimbursed.
(b)
(2) A short sale will be treated as a private sale. If an applicant remains personally liable for a deficiency between the outstanding mortgage and the sale price, the amount of this deficiency may be included in the benefit, provided that the total amount of the benefit does not exceed the difference between 95 percent of the PFMV and the sales price.
(c)
(2)
(3)
(d)
(1) Expanded HAP payments to, or on behalf of, all civilian applicants are considered income and are taxable as wages.
(2) Payments to, or on behalf of, all members of the Armed Forces are considered income and are taxable. Payments to military members are not subject to social security or Medicare taxes.
(a)
(1)
(A) Who receive a disability rating of 30% or more for an unfitting condition (using the Department of Veterans Affairs Schedule for Ratings Disabilities), or who are eligible for Service member's Group Life Insurance Traumatic Injury Protection Program, or whose treating physician (in a grade of at least captain in the Navy or Coast Guard or colonel in Army or Air Force) certifies that the member is likely, by a preponderance of the evidence, to receive a disability rating of 30% or more for an unfitting condition (using the Department of Veterans Affairs Schedule for Ratings Disabilities) for wounds, injuries, or illness incurred in the line of duty while deployed, on or after September 11, 2001 and
(B) Who are reassigned in furtherance of medical treatment or rehabilitation, or due to retirement in connection with such disability, and
(C) Who needs to market the primary residence for sale due to the wound, injury or illness. (For example, the need to be closer to a hospital or a family member caregiver or the need to find work more accommodating to the disability.)
(ii) Civilian employees of DoD or the United States Coast Guard (excluding temporary employees or contractors, but including employees of non-appropriated fund instrumentalities):
(A) Who suffer a wound, injury, or illness (not due to own misconduct), on or after September 11, 2001, in the performance of duties while forward deployed in support of the Armed Forces, whose treating physician provides written documentation that the member, by a preponderance of the evidence, meets the criteria for a disability rating of 30% or more. As described in paragraph (a)(1) of this section, this documentation will be certified by a physician in the grade of at least captain in the Navy or Coast Guard or colonel in Army or Air Force.
(B) Who relocate from their primary residence in furtherance of medical treatment, rehabilitation, or due to medical retirement resulting from the wound, injury, or illness, and
(C) Who needs to market the primary residence for sale due to the wound, injury or illness. (For example, the need to be closer to a hospital or a family member caregiver or the need to find work more accommodating to the disability.)
(2)
(i) Whose spouse dies as the result of a wound, injury, or illness incurred in the line of duty while deployed (or forward deployed for civilian employees) on or after September 11, 2001, and
(ii) Who relocates from the member's or civilian employee's primary residence within two years of the death of spouse.
(3)
(i) Whose position is eliminated or transferred because of the realignment or closure; and
(ii) Who accepts employment or is required to relocate because of a transfer beyond the normal commuting distance from the primary residence (50 miles).
(4)
(i) Dated between February 1, 2006 and September 30, 2012 (subject to availability of funds),
(ii) To a new duty station or home port outside a 50-mile radius of the member's former duty station or home port.
(b) Eligibility based on Economic Impact, Timing, Price, Orders, and Submission of Application.
(1)
(A) Has suffered at least a 10% market impact zone home value loss between July 1, 2006 and date of application for Expanded HAP benefits for the county/parish/city in which their primary residence is located, and
(B) A decline of at least a 10% personal home value loss from the date of purchase to date of sale.
(ii) The Wounded, Injured, or Ill and surviving spouses do not need to show either type of minimum economic impact.
(2)
(ii) Permanently reassigned members of the Armed Forces must have purchased their primary residence before July 1, 2006.
(iii) Wounded, injured, or ill or Surviving Spouses are eligible for compensation without respect to date of purchase.
(3)
(4)
(B) For initial implementation, Permanently Reassigned Members of the Armed Forces must have received qualifying orders to relocate dated between February 1, 2006, and December 31, 2009. The orders must specify a report-no-later-than date of on or before February 28, 2010. These dates may be extended to September 30, 2012 at the discretion of the DUSD(I&E) based on availability of funds.
(ii)
(A). Members who retire prior to reaching their mandatory retirement date,
(B) Members who are a new accession into the Armed Forces or who are otherwise entering active duty,
(C) Members who are voluntarily separated or discharged,
(D) Members whose separation or discharge is characterized as less than honorable,
(E) Members who request and receive voluntary release from active duty (REFRAD),
(F) Members who are REFRAD for misconduct or poor performance.
(c) Applications will be processed according to eligibility category in the following order:
(1)
(2)
(3)
(4)
(a) The DUSD(I&E), under the authority, direction, and control of the USD(AT&L), shall, in relation to the Expanded HAP:
(1) Prescribe and monitor administrative and operational policies and procedures.
(2) Determine applicable personnel benefits and policies, in coordination with the Under Secretary of Defense (Comptroller) and the Under Secretary of Defense for Personnel and Readiness.
(3) Serve as senior appeals authority for appeals submitted by applicants.
(b) The Under Secretary of Defense (Comptroller) shall, in relation to the Expanded HAP:
(1) Implement policies and prescribe procedures for financial operations.
(2) Review and approve financial plans and budgets.
(3) Issue financing and obligation authorities.
(4) Administer the DoD Homeowners Assistance Fund.
(c) The Deputy Assistant Secretary of the Army for Installations and Housing (DASA(I&H)), as the DoD Executive Agent for administering, managing, and executing the Expanded HAP, shall:
(1) Establish detailed policies and procedures for execution of the program.
(2) Maintain necessary records, prepare reports, and conduct audits.
(3) Publish regulations and forms, subject to review by the DUSD(I&E).
(4) Disseminate information on the program.
(5) Forward copies of completed responses to congressional inquiries and appeals to the DUSD(I&E) for information.
(6) Serve as the initial approval authority for HAP appeals. The DASA(I&H) may approve appeals. The DASA(I&H) will forward recommendations for Expanded HAP denial to the DUSD(I&E) for decision.
(d) The Heads of the DoD Components and the Commandant of the Coast Guard, by agreement of the Secretary of Homeland Security, shall:
(1) Designate at least one representative at the headquarters level to work with DASA(I&H) and HQUSACE HAP offices.
(2) Require each installation to establish liaison with the nearest HAP field office to obtain guidance or assistance on the Expanded HAP.
(3) Supply the HQUSACE HAP office a copy of any internal regulation, instruction, or guidance published relative to the Expanded HAP program.
(4) Disseminate information on the Expanded HAP and, upon request, supply HAP field offices with data pertaining to the Expanded HAP.
(e) HQUSACE. (1)
(i) Supervision, interagency coordination, development of procedures, policy guidance, and processing of appeals forwarded from the districts and HQUSACE Major Subordinate Commands (MSC).
(ii) Maintaining an Expanded HAP central office and Expanded HAP field offices.
(iii) Process appeal cases from the MSC where applicant agreement cannot be reached. Such appeal cases will be forwarded, in turn, to DASA(I&H) for consideration.
(2)
(i) Districts (as identified in § 239.9) will accept applications (DD Form 1607) for HAP and Expanded HAP benefits.
(ii) Determine the eligibility of each applicant for Expanded HAP assistance using the criterion established by the DUSD(I&E).
(iii) Determine and advise each applicant on the most appropriate type of assistance.
(iv) Determine amounts to be paid, consistent with DoD policy, and make payments or authorize and arrange for acquisition or transfer of the applicant's property.
(v) Maintain, manage, and dispose of acquired properties or contract for such services with private contractors.
(vi) Process all cases, except where applicant agreement cannot be reached. Such appeal cases will be forwarded, in turn, to the MSC, CEMP-CR, and DASA(I&H) for consideration.
(3)
(a)
(b)
(c)
(a)
(b)
(c)
(2)
(i) Agency code to indicate the Federal agency accountable for installation being closed or applicant support:
(A)1—Army.
(B)2—Air Force.
(C)3—Navy.
(D)4—Marine Corps.
(E)5—Defense Agencies.
(F)6—Non-Defense Agencies.
(G)7—U.S. Coast Guard.
(ii) District Code.
(A) Sacramento Dist.: L2.
(B) Savannah Dist.: K6.
(C) Fort Worth Dist.: M2.
(iii) Applicant Category Code (Military/Civilian/Wounded/Surviving Spouse/PCS):
(A)1 = Civilian (BRAC).
(B)2 = Military (BRAC).
(C)3 = Non-appropriated Fund Instrumentalities.
(D)4 = Military Wounded.
(E)5 = Civilian Wounded.
(F)6 = Surviving Spouse (military deceased).
(G)7 = Surviving Spouse (civilian employee deceased).
(F)8 = Military PCS.
(iv)
(v)
(A) For a BRAC 05 applicant moving from the closing Saint Louis, MO, DFAS office to Minneapolis, MN, use the ZIP code of the city from which he or she is moving,
(B) For wounded warrior or surviving spouse who moved from primary residence, use present installation or hometown.
(C) For service members who are eligible based on PCS criteria, use ZIP code of installation from which they depart.
(vi)
(d)
(2) Districts are responsible for ensuring primary residence values are appropriate and applicants receive deserved benefit payments.
(i)
(ii)
(a).
(1)
(2)
(i) Funds issued to field offices for execution accountability.
(ii) Funds committed and obligated by applicant category, installation, State and county.
(b)
Individuals seeking to determine whether information about them is contained in this system should address written inquiries to the Chief of Engineers, Headquarters U.S. Army Corps of Engineers, ATTN: CERE-R, 441 G Street, NW., Washington, DC 20314-1000.
Applicant appeals will be processed at the District level and forwarded through the MSC, CEMP-CR to the DASA(I&H) for review and consideration. DASA(I&H) may approve an appeal but must forward recommendations for denial to the DUSD(I&E) for decision.
For disbursed funds, tax documents will be certified by HQUSACE Finance Center, and distributed to applicants and the Internal Revenue Service (IRS) on an annual basis.
HQUSACE will prepare monthly program performance reviews using the Homeowners Assistance Program Management Information System; HQUSACE Annual Management Command Plan and Management Control Checklist. In addition, program monitoring will also be conducted (through HAPMIS and CEFMS reports) at the Headquarters Department of the Army and at the DUSD(I&E) levels.
The HQUSACE and MSCs may conduct periodic on-site inspections of district offices and monitor program execution through HAPMIS and CEFMS reports.
Homeowners Assistance Program field offices that process HAP applications for installations and applicants located in the State indicated. Questions should be directed to the field office listed within the State applicable to the installation.
HAP Central Office, Homeowners Assistance Program, Real Estate Directorate, Military Division, 441 G Street, NW., Washington, DC 20314-1000.
10 U.S.C. 2112,
This part establishes policies and procedures and assigns responsibilities for the selection of entrants to the School of Medicine of the Uniformed Services University of the Health Sciences (DoD Directive 5105.45, “Uniformed Services University of the Health Sciences,” April 16, 1974).
This part applies to the Office of the Secretary of Defense, the Military Departments, the Uniformed Services University of the Health Sciences (USUHS), and the Department of Defense Medical Examination Review Board (DoD MERB).
As used herein, the following definitions apply:
(a)
(b)
(1) Individuals currently on (or on orders for) active duty for a period of 90 days or more in any of the three Military Departments.
(2) Reserve component personnel enrolled in the Armed Forces Health Professions Scholarship Program.
(3) Persons enrolled in scholarship ROTC or advanced (junior-senior level) nonscholarship ROTC.
(4) Individuals in attendance at any of the three Military Department Service Academies.
(c)
(d)
(e)
(f)
(g)
(a) The School of Medicine, USUHS, shall consider applications for admission from persons who:
(1) Are citizens of the United States;
(2) Are at least 18 years old at the time of matriculation, but have not become 28 years old as of June 30 in the
(3) Are not under 18 years of age at time of entry to the first-year class;
(4) Are of good moral character;
(5) Meet the physical qualifications and security requirements for a Regular commission in the Uniformed Services.
(i) Standards of medical fitness for commissioning in the Uniformed Services shall be chapter 5, AR 40-501
(ii) Security requirements for commissioning in the Military Departments are prescribed in DoD Directive 5200.2.
(6) Meet the academic, intellectual, and personal qualifications specified in §§ 242.8 and 242.9.
(7) Are motivated to pursue a medical career in the Uniformed Services;
(8) Are not otherwise obligated or committed for service in the Army, Navy, Air Force or Marine Corps as a result of current or prior participation in programs of study or training sponsored by these Military Services. (Unless specifically prohibited by law or Department of Defense policy, individuals may be permitted to interrupt sponsored training programs and/or associated service commitments for the purpose of entering the School of Medicine, at the discretion of the appropriate Military Department sponsor. See also paragraph (e) of this section on obligated service requirements.)
(b) In making admissions decisions, the School will adhere to the principle of equal educational opportunity for all. Sex, race, religion, national origin, marital status, and State of residence shall not be factors influencing the selection process. Aspirants seeking entrance shall be judged strictly on merit, in terms of demonstrated aptitude, motivation, and potential for succeeding in medicine, both academically and professionally. Only the most promising and best qualified of the applicants shall be accepted for admission.
(c) While enrolled in School, students shall serve on active duty as Reserve commissioned officers (Medical Officer Candidates), pay grade O-1, in one of the Uniformed Services, the Uniformed Service of assignment to be determined under procedures established by the Secretaries of the Military Departments and the Assistant Secretary of Defense Health Affairs in coordination with the President of the University. Applicants' preferences shall be honored to the extent possible in making Service assignments. However, to insure that the makeup of each entering class is equitably constituted, students shall be assigned proportionally to the three Military Departments, based on projected end strengths of the individual Medical Corps at time of graduation. Students shall not be counted against any prescribed Service strengths while in School. Individuals admitted to the School of Medicine holding Regular commissions must resign their Regular appointments to enter the School.
(d) Upon satisfactory completion of the medical school program, graduates shall, if qualified, be tendered Regular Medical Corps appointments, unless otherwise covered under 10 U.S.C. 2115.
(e) Graduates of the School shall incur a Federal active-duty obligation of 21 months for each year or portion thereof spent in medical training, except that in no case will the minimum obligation be less than 27 months. Except as law or Department of Defense policy otherwise prescribes, this obligation shall be served consecutively with any other active-duty obligation.
(f) If dropped from the School for deficiencies in conduct or studies, or for other reasons, the student shall immediately be referred for disposition to the appropriate Military Department, which shall have the prerogative of either:
(1) Requiring the individual to fulfill his incurred service obligation, as stated in the Uniformed Services Health Professions Revitalization Act of 1972 (10 U.S.C., 2101
(2) Waiving the individual's incurred service obligation, if that action would be in the best interests of that Service. (Such relief, though, shall not relieve the individual from any other active-duty obligation imposed by established law.) Individuals whose service obligation is waived may, at the discretion of the Secretary of the Military Department concerned, be required to reimburse the Government for all or a part of the tuition and other educational costs incurred. However, a member of the program may not be relieved of his Service obligation solely because he is willing and able to reimburse the Government for all educational expenses.
(g) Periods of time spent in sponsored graduate medical education shall not count toward satisfying the medical school Federal-duty obligation.
(a)
(2)
(b)
(1)
(2)
(c)
(d)
(2) The Secretaries, or their designees, shall initiate necessary actions (records checks, physical examinations, and National Agency Checks, as
(e)
The Assistant Dean for Academic Support, USUHS, is designated as the central point of contact for matters pertaining to the admission procedures outlined in § 242.5.
(a) The President of the University shall:
(1) Develop and prescribe formal application procedures for admission to the School, consistent with the provisions of this part.
(2) Select candidates for admission to the School of Medicine in accordance with the policies and procedures prescribed in this part.
(3) Coordinate, as required, with the Military Department Secretaries or their designees to ensure the proper administration of the admissions process.
(4) Monitor, review, and evaluate the admissions process to assure its effectiveness and efficiency operationally, and make recommendations as required for the revision of the policies and procedures herein set forth.
(b) Secretaries of the Military Departments shall:
(1) Approve/disapprove requests of military personnel who want to apply to the School of Medicine, as prescribed herein.
(2) Carry out confirmatory requirements and ensure that the suspense for accomplishing these actions is met.
(3) Designate a representative in their respective areas to be responsible for overseeing and coordinating confirmatory action requirements. (Names of designees and any changes in designations shall be furnished to the President of USUHS.)
(4) Ensure coordination of proposed implementing regulations with the President, USUHS.
(c) Assistant Secretary of Defense Health Affairs shall determine, in coordination with the Secretaries of the Military Departments and the President, USUHS, the number of spaces in each entering class to be allocated to the respective components.
(d) Director, DoDMERB, shall:
(1) Establish necessary policies and procedures, in coordination with the Military Departments, for scheduling and reviewing physical examinations for civilian selectees, and reviewing examinations for military selectees.
(2) Review and take final action on any requests for waiver of physical standards for admission to the School.
Admission to the School of Medicine of the Uniformed Services University of the Health Sciences is on a competitive basis, with selection predicated on:
(a) Evidence of sound character and high motivation for a career in the Medical Corps of the Uniformed Services, and
(b) Evidence of sufficient intellectual ability and preparation to undertake successfully the study of medicine.
(1)
(i)
(ii)
(
(
(
(
(
(2)
(3)
(a) Selection of students to advanced standing will be competitive, based on both cognitive and noncognitive factors. Demonstrated aptitude and motivation for a career in medicine in the Uniformed Services will be prime considerations in making admissions decisions. Only the most promising of candidates will be accepted, as judged by scholastic records, letters of recommendation, interviews, and such other credentials and/or appraisal techniques as may be deemed appropriate to use by the School of Medicine.
(b) To be eligible academically for admission to advanced-standing, applicants must have successfully completed the year of medical studies preceding the year in which they desire advanced placement. Only students from fully accredited medical schools will be eligible for transfer.
(c) Individuals who have received the D.D.S., D.M.D., Ph.D., D.O., or D.V.M. degrees, or candidates for these degrees will not be eligible for advanced placement in the School of Medicine at this time. They will only be considered for admission to the Freshman class. Advanced standing applicants are required to have taken the Medical College Admission Test.
This part will become effective immediately. Three copies of proposed implementing regulations shall be forwarded to the Assistant Secretary of Defense Health Affairs within 30 days.
5 U.S.C. 552b (g); Pub. L. 94-409.
These procedures apply to meetings of the Board of Regents, Uniformed Services University of the Health Sciences (USUHS), including committees of the Board of Regents.
(a)
(1) Nine persons outstanding in the fields of health and health education appointed from civilian life by the President, by and with the advice and consent of the Senate;
(2) The Secretary of Defense, or his designee, an ex officio member;
(3) The surgeons general of the uniformed services, ex officio members; and
(4) The Dean (President) of the University, an ex officio non-voting member.
(b)
(c)
(d)
(e)
(1) Deliberations to open or close a meeting, or to release or withhold information, required or permitted by § 242a.5 or § 242a.6;
(2) Notation voting or similar consideration of matters whether by circulation of material to members individually in writing, or polling of members individually by telephone or telegram; and
(3) Instances where individual members, authorized to conduct business on behalf of the Board or to take action on behalf of the Board, meet with members of the public or staff. Conference telephone calls that involve the requisite number of members, and otherwise come within the definition, are included.
(f)
(g)
(h)
(a) Members shall not jointly conduct or dispose of business of the Board of Regents other than in accordance with
(b) Open meetings will be attended by members of the Board, certain staff, and any other individual or group desiring to observe the meeting. The public will be invited to observe and listen to the meeting but not to record any of the discussions by means of electronic or other devices or cameras unless approval in advance is obtained from the Executive Secretary. The public will not participate in the meeting unless public participation is invited by the Board.
(c) The Executive Secretary shall be responsible for making physical arrangements that provide ample space, sufficient visibility, and adequate acoustics for public observation of meetings.
Except in a case where the Board or a committee finds that the public interest requires otherwise, the open meeting requirement set forth in the second sentence of § 242a.3(a) shall not apply to any portion of a Board or committee meeting, and the informational disclosure requirements of §§ 242a.5 and 242a.6 shall not apply to any information pertaining to such meeting otherwise required by this part to be disclosed to the public, where the Board or committee as applicable, properly determines that such portion or portions of its meetings or the disclosure of such information is likely to:
(a) Disclose matters that are:
(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy; and
(2) Properly classified pursuant to such executive order;
(b) Relate solely to the internal personnel rules and practices of the USUHS;
(c) Disclose matters specifically exempted from disclosure by statute (other than Title 5, U.S. Code 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(d) Disclose trade secrets and commercial or financial information obtained from a person, privileged or confidential;
(e) Involve accusing any person of a crime or formally censuring any person;
(f) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(g) Disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement personnel;
(h) Disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;
(i) Disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action, except that this subsection shall not apply in any instance where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is required by law to make such disclosure on its
(j) Specifically concern the issuance of a subpoena, or USUHS participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the USUHS of a particular case of formal adjudication pursuant to the procedures in Title 5, United States Code, section 554 or otherwise involving a determination on the record after opportunity for a hearing.
(a) Except to the extent such information is exempt from disclosure under the provisions of § 242a.4, in the case of each Board or committee meeting, the Board representative, shall make public announcement, at least 7 days before the meeting, of the following:
(1) Time of the meeting;
(2) Place of the meeting;
(3) Subject matter of the meeting;
(4) Whether the meeting or parts thereof are to be open or closed to the public; and
(5) The name and telephone number of the person designated by the Board or committee to respond to requests for information about the meeting.
(b) The 7 day period for the public announcement required by paragraph (a) of this section may be reduced if a majority of the members of the Board or committee, as applicable, determine by a recorded vote that Board or committee business requires that such expedited meeting be called at an earlier date. The Board or committee shall make public announcement of the time, place, and subject matter of such meeting, and whether open or closed to the public, at the earliest practicable time.
(c) The time or place of a meeting or deletion of subject matter may be changed following the public announcement required by paragraph (a) of this section only if the Board representative publicly announces such change at the earliest practicable time. Such change need not be voted on by the members.
(d) The subject matter of a meeting or the determination of the Board or committee, as applicable, to open or close a meeting, or portion of a meeting, to the public, may be changed following the public announcement required by paragraph (a) of this section only if:
(1) A majority of the entire voting membership of the Board of a majority of the entire voting membership of a committee, determines by a recorded vote that Board or committee business so requires and that no earlier announcement of the change was possible; and
(2) The Board or committee publicly announces such change and the vote of each member upon such change at the earliest practicable time.
(e) The
(f) Immediately following each public announcement required by this section, notice of the time, place and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and telephone number of the person designated by the Board or committee to respond to requests for information about the meeting, shall also be submitted for publication in the
(a) Action to close a meeting or portion thereof, pursuant to the exemptions set forth in § 242a.4 shall be taken only when a majority of the entire voting membership of the Board or a majority of the entire voting membership of a committee, as applicable, vote to take such action.
(b) A separate vote of the Board or committee members shall be taken with respect to each Board or committee meeting a portion or portions of which are proposed to be closed to the public pursuant to § 242a.4 or with respect to any information which is proposed to be withheld under § 242a.4.
(c) A single vote of the Board or committee may be taken with respect to a
(d) The vote of each member shall be recorded, and may be by notation voting, telephone polling or similar consideration.
(e) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the Board or a committee close such portion to the public under any of the exemptions relating to personal privacy, criminal accusation, or law enforcement information referred to in § 242a.4 (e), (f), and (g), the Board or committee, as applicable, upon request of any one of its members, shall vote by recorded vote whether to close such meeting. Where the Board receives such a request prior to a meeting, the Board's representative may ascertain by notation voting, or similar consideration, the vote of each member of the Board, or committee, as applicable, as to the following:
(1) Whether the business of the Board or committee permits consideration of the request at the next meeting, and delay of the matter in issue until the meeting following, or
(2) Whether the members wish to close such meeting.
(f) Within 1 day following any vote taken pursuant to paragraphs (a), (b), (c), or (e), of this section, the Board or committee shall make publicly available a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the Board or committee shall, within 1 day of the vote taken pursuant to paragraphs (a), (b), (c), or (e) of this section, make publicly available a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation. The information required by this paragraph shall be disclosed except to the extent it is exempt from disclosure under the provisions of § 242a.4.
(g) For every meeting closed pursuant to paragraphs (a) through (j) of § 242a.4, the General Counsel or chief legal officer of the USUHS shall publicly certify before the meeting that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained by the Board as part of the transcript, recording or minutes required by § 242a.7.
(a) The Board of Regents shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public, except that in the case of a meeting, closed to the public pursuant to § 242a.4(j), the Board shall maintain either such a transcript or recording, or a set of minutes.
(b) Where minutes are maintained they shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any action taken, and the reasons for such actions, including a description of each of the views expressed on any item and the record of any roll call vote (reflecting the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
(c) The Board shall maintain a complete, verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting or portion of a meeting, closed to the public, for a period of at least 2 years after such meeting, or until 1 year after the conclusion of any Board proceeding with respect to which the meeting or portion was held, whichever occurs later.
(d) Public availability of records shall be as follows:
(1) Within 10 days of receipt of a request for information (excluding Saturdays, Sundays, and legal public holidays), the Board shall make available to the public, in the offices of the Board of Regents, USUHS, Bethesda,
(2) Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be available at the actual cost of duplication or transcription.
(3) The determination of the Executive Secretary to withhold information pursuant to paragraph (d)(1) of this section may be appealed to the Board. The appeal shall be circulated to individual board members. The Board shall make a determination to withhold or release the requested information within 20 days from the date of receipt of a written request for review (excluding Saturdays, Sundays, and legal public holidays).
(4) A written request for review shall be deemed received by the Board when it has arrived at the offices of the Board in a form that describes in reasonable detail the material sought.
This part shall become effective on March 12, 1977.
Uniformed Services Health Professions Revitalization Act, 10 U.S.C. 2112-17.
(a)
(b)
(1) The number of Regents on the Board;
(2) The manner of selection of the Regents;
(3) The terms of office of the Regents;
(4) The powers and duties of the Regents;
(5) The manner of selection of a Chairman of the Board;
(6) The compensation of the Regents.
(c)
(2)
(ii) The Chairman of the Board shall have the power to execute on behalf of the Board all instruments in writing which have been authorized by the Board and shall exercise such other powers as may be conferred upon him or her from time to time by the Board.
(3)
(ii) The Vice Chairman shall serve for a term of one year or until a successor is elected.
(iii) The term of office of the Vice Chairman shall commence immediately upon election.
(iv) If the Chairman is absent or unable to act, the Vice Chairman shall exercise the powers and perform the duties of the Chairman.
(v) The Vice Chairman shall perform such other duties as may be directed from time to time by the Chairman and the Board.
(vi) If both the Chairman and Vice Chairman are absent or unable to act,
(4)
(ii) The Secretary shall have the power to perform such duties as generally pertain to the office and as may be conferred from time to time by the Board.
(iii) The Secretary shall notify the Regents of the time and place of all meetings of the Board, in accordance with these Procedures, and shall keep a complete record of its proceedings.
(iv) The Secretary shall furnish to every Regent prior to each meeting of the Board a copy of the Minutes of the preceding meeting.
(v) The Secretary shall give notice of the time and place of committee meetings, and if desired by the committee or its chairman, the Secretary or an assistant shall attend the meeting and keep a record of the meeting.
(vi) The Secretary shall prepare and distribute expeditiously the minutes of all meetings of standing committees to all Regents.
(vii) The Secretary shall keep at the office of the University a copy of these General Procedures and Delegations, and the Public Meeting Procedures of the Board of Regents as periodically amended.
(viii) During the Secretary's absence or inability to act, an Assistant Secretary, appointed by the Chairman, shall act in the Secretary's place.
(a)
(2) Unless otherwise determined by the Board, meetings shall be held at the offices of the University, 4301 Jones Bridge Road, Bethesda, Md. 20014.
(b)
(2) Additional meetings of the Board shall be held at such times and places as shall be specified in the notice of meeting.
(a) Notice of all meetings of the Board shall be sent by the Secretary to each Regent by mail, telegraph, or telephone.
(b) Mailing a notice not less than 7 days before any meeting, or sending a telegram not less than twenty-four hours before a meeting, addressed to each Regent at his or her residence or place of business; or actual notice by telephone to such person not less than twenty-four hours before the meeting, shall be sufficient notice of any meeting. The recital by the Secretary in the minutes that notice was given shall be sufficient evidence of the fact.
(c) A Regent may waive in writing notice of any meeting either prior to or subsequent to the holding of the meeting.
(d) Public announcement of meetings shall conform to the Public Meeting Procedures of the Board of Regents, 32 CFR 242a.5.
A majority of all Regents in being shall constitute a quorum of the Board.
(a) The concurrence of a majority of the Regents present at a meeting shall be necessary for the transaction of business.
(b) Unless a written ballot is required by a Regent, no actions taken by the Board need be by written ballot.
(c) The Chairman of the Board and of each Committee is entitled to move, second, vote, and participate fully in any session to the same extent as if not a presiding officer.
(d) At the direction of the Chairman, action may be taken by a majority of the Regents by notation voting, by voting on material circulated to Regents individually or serially, or by polling of Regents individually or collectively by telephone or by telegram, or by similar procedure. Such action shall be reported by the Secretary at the next Board meeting.
(a) The Executive Committee shall be the one regular standing committee of the Board.
(b) The Executive Committee will be composed of:
(1) The Chairperson of the Board;
(2) The Vice Chairperson of the Board;
(3) The Secretary of Defense or his designee;
(4) The Dean of the University (President); and
(5) A member of the Board appointed by the Chairperson. The Dean of the University will be a non-voting member whose presence will not be counted for the purpose of determining a quorum at any Executive Committee meeting.
(c) The Executive Committee will possess all powers of the Board of Regents except the power:
(1) To change the General Procedures and Delegations;
(2) To appoint or remove the Dean of the University (President), Dean of the School of Medicine, Dean of the Military Medical Education Institute, Chairpersons of Departments and tenured faculty;
(3) To amend the tenure policy of the University;
(4) To establish post doctoral, post graduate and technological institutes;
(5) To establish programs in continuing medical education;
(6) To agree to utilize Federal medical resources on a reimbursable basis;
(7) To affiliate with other universities.
(a)
(2) The President will be appointed or removed only by an affirmative vote of a majority of the Regents.
(3) At meetings of the Board of Regents, the President will be counted for the purpose of determining the presence of a quorum but will not vote.
(4) The President will be responsible for the management of the University and all its departments.
(5) The President will report to the Board at each regular meeting on the progress of the University, and will make recommendations for action.
(6) To assist in the performance of his or her duties, the President with the approval of the Board, will appoint, to act under the President's authority and direction, officers as follows:
(i) Vice President of the University.
(ii) Vice President for Operations of the University.
(iii) Commandant of the University.
(iv) Dean of the School of Medicine.
(v) Associate Dean for Academic Affairs of the School of Medicine.
(vi) Associate Dean for Operations of the School of Medicine.
(vii) Associate Dean for Continuing Education of the School of Medicine.
(viii) Associate Dean for Clinical and Academic Affairs.
(ix) Dean of the Military Medical Education Institute.
(7) The President, with the approval of the Board, may appoint and prescribe the powers and duties of other officers, as he or she may deem proper.
(8) If there is no one holding the office of President, the Board of Regents may appoint an Acting President to perform the duties of the President for such period of time as the Board may determine. If the Acting President is also a Regent, he or she will retain the powers and duties of a Regent while so acting.
(b)
(ii) In the absence of the President, the Vice President will act for the President.
(2)
(A) Financial Management;
(B) Building Services and Materiel Acquisition;
(C) Military Personnel;
(D) Civilian Personnel;
(E) Computer Operations; and
(F) Contracting.
(ii) He or she will be responsible for the preparation of the University budget estimates and program submission presentations for the approval of the Board.
(iii) He or she will recommend to the President persons for appointment as the Assistant Vice President for Administration and such other administrative positions as he or she deems proper.
(iv) For reporting purposes, Financial Management and Computer Operations will report directly to the Vice President for Operations; the Civilian Personnel Office, Military Personnel Office, Building Services and Material Acquisition, and Contracting will report to the Assistant Vice President for Administration, who in turn shall report to the Vice President for Operations.
(v) Serves as Acting President in absence of President and Vice President.
(3)
(ii) In the absence of the President; Vice President; Vice President for Operations; Dean, School of Medicine; and the Dean, MMEI, he or she will act for the President.
(4)
(ii) He or she will recommend to the President and to the Board, personnel for faculty appointments and will perform such duties as may be directed from time to time by the Board or the President.
(iii) He or she will recommend to the President persons for appointment as the Associate Dean for Operations, Associate Dean for Academic Affairs, Associate Dean for Continuing Education, Associate Deans for Clinical and Academic Affairs, and such other administrative positions as he or she deems proper.
(iv) For reporting purposes, the Associate Dean for Operations, Associate Dean for Academic Affairs, Associate Dean for Continuing Education, Associate Deans for Clinical and Academic Affairs, Assistant Dean for Clinical Sciences, Assistant Dean for Graduate Medical Education Liaison, and Assistant Dean for Student Affairs will report directly to the Dean, School of Medicine.
(5)
(ii) In the absence of the Dean, he or she will act for the Dean.
(6)
(A) Grants Management;
(B) Teaching and Research Support;
(C) Learning Resource Center; and
(D) Laser Biophysics Center.
(ii) He or she will be responsible for the preparation of the School of Medicine budget estimates and program submission presentations for the approval of the Board.
(iii) In the absence of the Dean and Associate Dean for Academic Affairs, he or she will act for the Dean.
(7)
(ii) The Associate Dean for Continuing Education will report to the Dean, School of Medicine, or to the individual acting on behalf of the Dean.
(8)
(ii) The respective Associate Dean for Clinical and Academic Affairs for each designated Center will exercise the authority and responsibilities of that position subject to respective Command regulations and policies. The incumbents will serve in a co-equal administrative status to each other within the School of Medicine's scope of authority and responsibility. Military medical officers will be appointed ex-officio and will serve in additional duty status in the Associate Dean for Clinical and Academic Affairs position in addition to their regular assignment.
(iii) Each Associate Dean for Clinical and Academic Affairs will be responsible to the Dean, School of Medicine, for central coordination, supervision, and implementation of School of Medicine/Uniformed Services University of the Health Sciences academic and investigative/research activities performed within his/her respective Military Medical Center Command. Additionally, each Associate Dean for Clinical and Academic Affairs will represent the interests of his/her affiliated Medical Center Command within the School of Medicine and serve as principal advisor to the Dean, School of Medicine, for all professional and military matters within that command which are relevant to the School of Medicine or the Uniformed Services University of the Health Sciences.
(9)
(ii) He or she will recommend to the President and to the Board, personnel for faculty appointments and will perform such duties as may be directed from time to time by the Board or the President.
(iii) He or she will recommend to the President persons for appointment to such administrative positions as he or she deems proper.
(a)
(b)
(c)
5 U.S.C. 301, 552.
This part:
(a) Is authorized by the Communications Act of 1934, as amended, 5 U.S.C. 301, 552, Executive Order 12656 (“Assignment of Emergency Preparedness Responsibilities”, November 18, 1988), as amended.
(b) Defines the jointly developed and agreed upon responsibilities of the Department of Transportation/Federal Aviation Administration (DOT/FAA), Department of Homeland Security/Transportation Security Administration (DHS/TSA), and Department of Defense (DoD) authorities for the security control of civil and military air traffic. It implements policy, assigns responsibilities, and prescribes procedures for implementation and performance of the ESCAT Plan. The Emergency Security Control of Air Traffic (ESCAT) is an emergency preparedness plan that prescribes the joint action to be taken by appropriate elements of the DoD, the DOT and the DHS in the interests of national security to control air traffic under emergency conditions.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Combatant Commands, the DOT, the FAA, the DHS, and the TSA.
The Assistant Secretary of Defense for Networks and Information Integration will ensure the responsibilities of the DoD are implemented. The DOT and the DHS shall implement the procedures and actions requested by the Department of Defense.
For the purpose of this part, the words “will” and “shall” denote mandatory action by the affected person(s) or agency(ies).
(1) Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301 (a), 12302, 12304, 12305, or 12406 of title 10 U.S.C., chapter 15, as amended by E.O. 13286, February 28 2003, or any other provision of law during a war or during a national emergency declared by the President or Congress.
(1) A major attack is made upon U.S. forces overseas or on allied forces in any theater and is confirmed by either the commander of a command established by the Secretary of Defense or higher authority; or
(2) An overt attack of any type is made upon the United States and is confirmed either by the commander of a command established by the Secretary of Defense or higher authority.
This part establishes responsibilities, procedures, and instructions for the security control of civil and military air traffic in order to provide effective use of airspace under various emergency conditions.
(a) E.O. 12656, 18 November 1988, which assigns emergency preparedness functions to Federal departments and agencies.
(b) E.O. 13074, Amendment to E.O. 12656, February 9, 1998.
(c) E.O. 13286, Amendment of E.O. 13276, 13274, 13271, 13260, 13257, 13254, and 13231, and Other Actions, in Connection With the Transfer of Certain Functions to the Secretary of Homeland Security, February 28, 2003.
(d) Title 10 U.S.C.—Armed Forces.
(e) Title 49 U.S.C., Subtitle VII—Aviation Programs.
(f) Communications Act of 1934, as amended.
(g) Aviation and Transportation Security Act of 2001 (Pub. L. 107-71), establishes the TSA and transfers civil aviation security responsibilities from FAA to TSA.
(h) Homeland Security Act of 2002 (Pub. L. 107-296), establishes DHS and transfers the transportation security functions of the DOT and Secretary of Transportation and the TSA to DHS.
(i) DoD Directive 5030.19,
This part applies to all U.S. territorial airspace and other airspace over which the FAA has air traffic control jurisdiction by international agreement.
The part defines the authorities, responsibilities, and procedures to identify and control air traffic within a specified air defense area during air defense emergencies, defense emergency, or national emergency conditions.
(a) For the purpose of this part, the appropriate military authorities are as follows:
(1) Contiguous 48 U.S. states, including Washington, DC; Alaska; and Canada—Commander NORAD or individual NORAD Region/Sector commanders.
(2) Hawaii, Guam, Wake Island, other U.S. Pacific Territories, and Pacific oceanic airspace over which FAA has air traffic control jurisdiction by international agreement—Commander, U.S. Pacific Command (USPACOM) or designated AADC.
(3) Puerto Rico and U.S. Virgin Islands—Commander, NORAD.
(b) This part provides for security control of both civil and military air traffic. It is intended to meet threat situations such as:
(1) An emergency resulting in the declaration of an Air Defense Emergency by the appropriate military authority. Under this condition, NORAD and USPACOM Commanders have authority to implement ESCAT and may consider executing this part.
(2) An adjacent Combatant Command is under attack and an Air Defense Emergency has not yet been declared. Under these conditions, NORAD and USPACOM Commanders may direct implementation of ESCAT for their own AORs individually, if airspace control measures are warranted and agreed upon by DoD/DHS/DOT.
(3) Emergency conditions exist that either threaten national security or national interests vital to the U.S., but do not warrant declaration of Defense Emergency or Air Defense Emergency. Under these conditions, NORAD and USPACOM Commanders may direct implementation of ESCAT for their own AORs individually, if airspace control measures are warranted and agreed upon by DoD/DHS/DOT.
(a) Prior to any formal ESCAT implementation, the appropriate military authority will consult with DOT through the FAA Administrator and DHS through the TSA Administrator to discuss the air traffic management, airspace and/or security measures required. Every effort will be made to obtain the approval of the Secretary of Defense prior to ESCAT declaration, time and circumstance permitting. Any ESCAT implementation will be passed as soon as possible through the Chairman of the Joint Chiefs of Staff to the Secretary of Defense.
(b) ESCAT may be implemented in phases to facilitate a smooth transition from normal air traffic identification and control procedures to the more restrictive identification and control procedures specific to the situation.
(c) Once ESCAT is implemented, the appropriate military authority will consult regularly with DOT (through the FAA Administrator) and DHS (through the TSA Administrator) as appropriate, regarding any changes in the air traffic management, airspace, and/or security measures required.
(d) Interference with normal air traffic should be minimized.
(e) The process for implementation of measures for mitigation of hostile use of NAVAID signals, when required, will be subject to separate agreement between DoD and other Departments and Agencies.
(f) Upon the formal declaration of ESCAT, the appropriate military authority has the final authority regarding the extent of measures necessary for successful mission completion.
(g) The rules/procedures governing Special Use Airspace (SUA) will remain in effect until notified by the appropriate military authority. The appropriate military authority will address SUA use in the ESCAT activation message.
(h) Appropriate Combatant Commanders, in conjunction with their FAA and TSA Liaisons, will prepare supplements to this part for their area of responsibility. These supplements are to consider the special requirement of organized civil defense and disaster relief flights, agricultural and forest fire flights, border patrol flights, and other essential civil air operations so that maximum use of these flights, consistent with air defense requirements, will be made when ESCAT is in effect.
(i) Flight operations vital to national defense, as determined by appropriate military commanders, will be given priority over all other military and civil aircraft.
(j) Prior to or subsequent to the declaration of an Air Defense Emergency, Defense Emergency, or National Emergency, there may be a requirement to disperse military aircraft for their protection. If such dispersal plans are implemented when any part of this part has been placed in effect, operations will be in accordance with the requirements of that portion of the ESCAT plan that is in effect. If any part of the ESCAT plan is ordered while dispersal is in progress, dispersal operations will be revised as required to comply with ESCAT.
(k) Direct communications are authorized between appropriate agencies and units for the purpose of coordinating and implementing the procedures in this part.
(l) To ensure implementation actions can be taken expeditiously, ESCAT tests will be conducted periodically, but at least annually in accordance with § 245.31 of this part.
(m) The area of responsibility of the appropriate military authority does not always align with ARTCC boundaries, especially in the NORAD area where one ARTCC's boundaries may lie within two or more CONUS NORAD Sectors. For NORAD and USPACOM, the FAA ARTCCs/CERAPs are aligned as follows:
(n) Commander NORAD, acting for the DoD, will process and distribute administrative and organizational changes as they occur; however, this part will be reviewed at least once every two years by DHS/TSA, DOT/FAA, and DoD and reissued or changed as required. Recommended changes should be forwarded to: Headquarters North American Air Defense Command, Commander NORAD/J3, ATTN: NJ33C, 250 Vandenberg Street, Suite B106, Peterson AFB, CO 80914-3818.
(a) The NORAD and USPACOM Commanders will:
(1) Establish the military requirements for ESCAT.
(2) Implement the plan as appropriate by declaring ESCAT (including the timing and scope) within their AOR.
(3) Terminate the plan as appropriate by discontinuing ESCAT (including the timing and scope) within their AOR.
(4) Coordinate with the Secretary of Defense or his designee, the CJCS, other Combatant Commands, the Department of Transportation, the Department of Homeland Security and the Canadian Minister of National Defence, as appropriate, regarding procedures for ESCAT implementation.
(b) The DOT (through the FAA Administrator) will:
(1) Establish the necessary FAA directives/plans including special ATC procedures to implement this part.
(2) Maintain liaison with Combatant Commands whose AORs include FAA areas of authority through the appropriate LNO, or FAA ADLO offices.
(3) Administer this part in accordance with established requirements.
(4) Ensure authorized FAA ADLO positions at NORAD facilities are staffed.
(5) Publish a common use document describing ESCAT and its purpose for use by civil aviation.
(6) Ensure FAA participation with the Combatant Commands in the testing of this part.
(7) Ensure the FAA Air Traffic Organization Service Units will:
(i) Disseminate information and instructions implementing this part within their AORs.
(ii) Place in effect procedures outlined in this part.
(iii) Assist appropriate military authorities in making supplemental agreements to this part as may be required.
(iv) Ensure each ARTCC/CERAP has a plan for diverting or landing expeditiously all aircraft according to the ESCAT priorities imposed upon implementation of ESCAT. Ensure a review and verification of the diversion plan is accomplished each calendar year.
(8) Ensure the ATCSCC/ARTCC/CERAPs will:
(i) Participate with Combatant Commanders in the training/testing of this part at all operational level.
(ii) Ensure dissemination of information and instructions implementing this part within their AORs.
(iii) Place in effect procedures outlined in this part.
(iv) Develop a plan for diverting or landing expeditiously all aircraft according to the ESCAT priorities imposed upon implementation of ESCAT. Review the diversion plan each calendar year.
(c) The DHS (through the TSA Administrator) will:
(1) Establish the necessary TSA directives/plans including special security procedures to implement this part.
(2) Maintain liaison with Combatant Commands whose AORs include TSA geographic areas of authority through the appropriate Federal Security Directors or other field offices.
(3) Administer this part in accordance with established requirements.
(4) Ensure authorized TSA liaison positions at NORAD facilities are staffed.
(5) Issue security directives describing ESCAT and its purpose for use by airport and aircraft operators.
(6) Ensure TSA participation with the Combatant Commands in the testing of this part.
(7) Ensure TSA Federal Security Directors and field offices:
(i) Disseminate information and instructions implementing this part within their AOR.
(ii) Implement procedures outlined in this part.
(iii) Assist appropriate military authorities in making supplemental agreements to this part, as necessary.
(d) The Commanders of Combatant Commands will:
(1) Ensure that departing North American strategic flights are coordinated with appropriate NORAD and FAA/NAVCANADA authorities.
(2) Ensure training/testing of this part at all levels within their command, as appropriate.
Appropriate military authority will take the following actions:
(a) Notify or coordinate, as appropriate, the extent or termination of ESCAT implementation with DOT and DHS.
(b) Disseminate the extent of ESCAT implementation through the Noble Eagle Conferences and the FAA DEN.
(c) Specify what restrictions are to be implemented. Some examples of restrictions to be considered include:
(1) Defining the affected area.
(2) Defining the type of aircraft operations that are authorized.
(3) Defining the routing restrictions on flights entering or operating within appropriate portions of the affected area.
(4) Defining restrictions for the volume of air traffic within the affected area, using the EATPL, paragraph 245.22 of this part) and Security Control Authorizations, as required.
(5) Setting altitude limitations on flight operations in selected areas.
(6) Restricting operations to aircraft operators regulated under specified security programs (e.g., the Aircraft Operator Standard Security Program (AOSSP), and the Domestic Security Integration Program (DSIP).
(d) Revise or remove restrictions on the movement of air traffic as the tactical situation permits.
ATCSCC will direct appropriate ARTCCs/CERAPs to implement ESCAT restrictions as specified by the appropriate military authority. ARTCCs/CERAPs will take the following actions when directed to implement ESCAT:
(a) Provide the appropriate military authority feedback through the ATCSCC on the impact of restrictions and when the restrictions have been imposed.
(b) Impose restrictions on air traffic as directed.
(c) Disseminate ESCAT implementation instructions to U.S. civil and military air traffic control facilities and advise adjacent air traffic control facilities.
U.S. civil and military air traffic control facilities will:
(a) Maintain current information on the status of restrictions imposed on air traffic.
(b) Process flight plans in accordance with current instructions received from the ARTCC. All flights must comply with the airspace control measures in effect, the EATPL, or must have been granted a Security Control Authorization.
(c) Disseminate instructions and restrictions to air traffic as directed by the ARTCCs.
TSOC will direct appropriate FSDs and field offices to implement ESCAT restrictions as specified by the appropriate military authority. FSDs and field offices will take the following actions when directed to implement ESCAT:
(a) Provide the appropriate military authority feedback through the TSOC on the impact of restrictions and when the restrictions have been implemented.
(b) Impose restrictions on civil aviation as directed by DOT/DHS.
(c) Disseminate ESCAT implementation instructions to U.S. civil aircraft operators and airports.
When ESCAT is implemented, a system of traffic priorities may be required to make optimum use of airspace, consistent with air defense requirements. The EATPL is a list of priorities that may be used for the movement of air traffic in a defined area. Priorities shall take precedence in the order listed and subdivisions within priorities are equal.
(a)
(2) Aircraft engaged in active continental defense missions, including anti-submarine aircraft, interceptors, air refueling tanker aircraft, and airborne early-warning and control aircraft (e.g., E-3, E-2, P-3).
(3) Military retaliatory aircraft, including direct tanker support aircraft, executing strategic missions.
(4) Airborne command elements which provide backup to command and control systems for the combat forces.
(5) Anchor annex flights.
(b)
(2) Aircraft operating in direct and immediate support of strategic missions.
(3) Search and rescue aircraft operating in direct support of military activities.
(4) Aircraft operating in direct and immediate support of special operations missions.
(5) Federal flight operations in direct support of homeland security, e.g., Law Enforcement Agencies (LEA) and aircraft performing security for high threat targets such as Nuclear Power Plants, Dams, Chemical Plants, and other areas identified as high threat targets.
(c)
(2) Aircraft deployed in support of CONUS installation/base defense, i.e., aircraft operating in direct/immediate security support, or deploying ground forces for perimeter defense.
(3) Search and rescue aircraft not included in Priority Two.
(4) Flight inspection aircraft flights in connection with emergency restoration of airway and airport facilities in support of immediate emergency conditions.
(5) Continental U.S. Airborne Reconnaissance for Damage Assessment (CARDA) missions in support of immediate emergency conditions.
(d)
(2) Dispersal of U.S. civil air carrier aircraft allocated to the CRAF Program.
(3) Repositioning of FAA/DoD/DND flight inspection aircraft.
(4) Flight inspection activity in connection with airway and airport facilities.
(5) Specific military tactical pilot currency or proficiency in support of homeland defense.
(6) Military tactical aircraft post-maintenance test flights.
(7) Federal aircraft post maintenance check flights in support of homeland security.
(e)
(2) Dispersal of non-tactical military aircraft for their protection.
(3) Aircraft contracted to and/or operated by Federal agencies
(f)
(2) Flight operations in accordance with approved Federal and State emergency plans.
(3) LIFEGUARD and MEDEVAC aircraft in direct support of emergency medical services.
(4) Flight operations essential to the development, production, and delivery of equipment, personnel, materials, and supplies essential to national security.
(5) Other essential CARDA missions not covered in Priority Three.
(g)
(h)
(a) The originator of an aircraft flight operation under the EATPL shall be responsible for determining and verifying that the mission meets the appropriate definition and priority in accordance with the list described in § 245.22 of this part , and ensuring a security check of crew, cargo and aircraft has been completed prior to take off.
(b) The individual filing the flight plan will be responsible for including the priority number as determined by the originator of the aircraft flight operation, in the remarks section of the flight plan.
(c) Situations may occur that cannot be controlled by the EATPL. Aircraft emergencies and inbound international flights that have reached the point of no return, including foreign air carrier flights en route to safe haven airports in accordance with specific international agreements are examples of such situations. These events must be treated individually through coordination between ATC and appropriate military authorities in consideration of the urgency of the in-flight situation and existing tactical military conditions.
(d)
(2) For Federal, State, local government agencies and aircraft in priority eight, a Security Control Authorization may be granted on a case-by-case basis. Requests for SCAs will be coordinated through TSA. TSA will forward those requests that it recommends for approval to the appropriate military authority. Aircraft with a SCA shall have a Security Assurance Check prior to take off. Refer to specific SCA procedures provided in separate agreement between the appropriate military authority and TSA.
Aircraft assigned an EATPL number 1 or 2 will not be delayed, diverted, or rerouted by Combatant Commanders. However, commanders may recommend that this traffic be rerouted to avoid critical or critically threatened areas.
Aircraft assigned an EATPL number other than 1 or 2 may be delayed, diverted, or rerouted by Combatant Commanders to prevent degradation of the air defense system.
Aircraft being recovered will be expedited to home or an alternate base.
Aircraft will file IFR or VFR flight plans, assigned a discrete transponder code, and must be in direct radio communication with ATC. The appropriate EATPL number will be entered in the remarks section of the flight plan. The EATPL number will be passed with flight plan data from one ATC facility to the next, and to the appropriate air defense control facilities.
The purpose of establishing training/test procedures is to specify procedures that will allow all participants to determine the time required and assure the capability to notify all agencies/personnel, down to the lowest action level, that ESCAT has been implemented. To ensure the proper level of participation, the appropriate military authority will provide, at a minimum, 30 days notice of a test to the appropriate civil agencies. Testing shall be conducted at least annually.
(a) Aircraft will not be grounded or diverted.
(b) Test messages will not be broadcast over air/ground frequencies.
(c) Radio communications will not be interrupted.
(d) Navigation Aids will not be affected.
For ESCAT testing, the responsible military commander will notify the ATCSCC using the following sample statement:
(a) Exercise, Exercise, Exercise, this is CONUS NORAD Region with a NORAD exercise message for ___ (State exercise name) ___.
Simulate implementing ESCAT for ___ (Specified Area) ___.
The following air control measures are being implemented. (Some examples are: Flight restricted zones, Temporary Flight Restrictions, and/or other specific air control measures for operators.) _____, _____, _____, _____.
All aircraft not previously mentioned as exemptions are restricted from flight in the affected area until further notice.
and/or
EATPL Priorities ____ through ____ are being implemented.
ATCSCC will advise the appropriate military commander when the affected FAA ATC facilities have reported simulating ESCAT.
This is an exercise message for ___ (State exercise name) ___. Exercise, Exercise, Exercise.
(b) ATCSCC will notify ARTCC(s)/CERAP(s).
(c) ARTCC(s)/CERAP(s) will notify all appropriate U.S. civil and military approach control facilities and FSS. Upon completion of all actions, the implementation completion time will be forwarded to the ATCSCC.
(d) ATCSCC will provide completion times to the appropriate military authority.
(e) Tests should normally be conducted in conjunction with scheduled headquarters NORAD approved exercises. Individual NORAD Regions and Sectors may conduct tests when test objectives are local in nature and prior coordination has been effected with the ATCSCC.
(g) A narrative summary of each test will be prepared by the ATCSCC and copies sent to the appropriate military authority. Each military authority will, in turn, forward copies of the summary to HQ NORAD and DHS.
Authentication will be accomplished via secure communications means between the appropriate military authority and the ATCSCC for the implementation of ESCAT. Implementation will be validated with a call back via secure communications to the appropriate
10 U.S.C. 136.
This part:
(a) Establishes policy, assigns responsibilities, and prescribes procedures for the S&S organizations owned by designated Unified Commands consistent with 32 CFR part 372.
(b) Supersedes policies and procedures in 32 CFR part 247 about the S&S newspapers.
(c) Authorizes the establishment, management, operation, and oversight of the Stars and Stripes, including the resale of commercial publications necessary to support the overall S&S mission, production, distribution authority, and business operations as mission-essential activities of the Department of Defense and the designated Unified Commands.
(d) Designates the Secretary of the Army as the DoD Executive Agent for providing administrative and logistical support to the American Forces Information Service (AFIS), designated Unified Commands, and the S&S.
(e) Authorizes the Commander in Chief, U.S. European Command, and the Commander in Chief (CINC), U.S. Pacific Command, to establish and maintain a S&S board of directors to address S&S business operations in their Unified Commands.
This part applies to the Office of the Secretary of Defense, the Military Departments (including their National Guard and Reserve components), the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “the Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
It is DoD policy that:
(a) The U.S. European Command and the U.S. Pacific Command are authorized to publish the Stars and Stripes and provide support to the S&S. The Unified Command component commanders and their public affairs staffs shall provide the Stars and Stripes editorial staffs the same help provided to commercial newspapers, in compliance with the principles governing the release of information to media in 32 CFR part 375.
(b) Editorial policies and practices of the Stars and Stripes shall be in accordance with journalistic standards governing U.S. daily commercial newspapers of the highest quality, with emphasis on matters of interest to the Stars and Stripes readership. Except as provided in paragraph (e) of this section, the DoD policy for the Stars and Stripes is that there shall be a free flow of news and information to its readership without news management or censorship. The calculated withholding of unfavorable news is prohibited.
(c) The S&S are basically self-sustaining operations. Each S&S shall be administered in accordance with DoD Directive 1015.1
(d) The Stars and Stripes personnel procedures shall differ from commercial newspapers only because the S&S are U.S. Government organizations that are required to operate in accordance with the following:
(1) 32 CFR part 40, other Federal laws and DoD Directives that affect all DoD employees, and the Manual for Courts Martial (MCM), 1984
(2) National security constraints prescribed by E.O. 12356 (47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166).
(3) Overseas status of forces agreements (SOFAs), where applicable.
(e)(1) The only circumstances under which news or information that is not in the public domain may be directed to be withheld from publication in the Stars and Stripes by a Unified Command CINC are when such publication:
(i) Involves disclosure of classified national security information.
(ii) Would adversely affect national security.
(iii) Clearly endangers the lives of U.S. personnel.
(2) Those circumstances in paragraphs (e)(1)(i) through (e)(1)(iii) may
(f) Sensitivities of host-nations shall not be a reason to withhold any story from publication in the Stars and Stripes. The Unified Command theater host-nation sensitivity lists prepared for the Armed Forces Radio and Television Service (AFRTS) shall not be used to restrict the content of the Stars and Stripes. If representatives of other governments show an interest in, or concern about, the content of the Stars and Stripes, they shall be informed that:
(1) The Stars and Stripes does not represent the official position of the U.S. Government, including the Department of Defense or the Unified Command.
(2) The Stars and Stripes is an unofficial, abstracted collection of commercial news and opinion available to commercial newspapers in the United States, along with Stars and Stripes editorial staff-generated DoD, command, and local news and information. The Stars and Stripes provides this information to the members of the Department of Defense and their family members serving overseas, as do commercial daily newspapers that are published and sold throughout the United States in keeping with the principles of the First Amendment to the U.S. Constitution.
(g) The Department of the Army shall be the DoD Executive Agency to provide APF and NAF support to the S&S. APFs shall be provided, when required by adverse conditions or special circumstances as defined in § 246.3, by the Military Services, as agreed on through a memorandum of agreement (MOA) detailing the shared responsibilities, and approved by the OSD and the Unified Commands.
(a) The Assistant to the Secretary of Defense (Public Affairs), under 32 CFR part 375, as the principal staff assistant to the Secretary of Defense for internal information policy and programs, including S&S matters, shall:
(1) Provide policy and broad operational guidance to the Director of the AFIS.
(2) Monitor and evaluate the overall effectiveness of the policies in § 246.4, and procedures in § 246.6.
(b) The Director, American Forces Information Service, under 32 CFR part 372 shall:
(1) Develop, issue, and oversee the implementation of policies and procedures for the Unified Commands and the Military Departments for the operation of the S&S.
(2) Provide business and policy counsel on the mission performance and financial operations of the S&S.
(3) Serve as the DoD point of contact with the Congressional Joint Committee on Printing (JCP) for S&S matters.
(4) In coordination with the Chairman of the Joint Chiefs of Staff and the ATSD(PA), provide broad and overall planning guidelines to the Unified Commands for S&S wartime operations that involve more than one area of responsibility.
(5) Chair, as required, at the Deputy Assistant to the Secretary of Defense level, or above, the steering committee providing guidance to the S&S MAG.
(6) Select and employ the S&S Ombudsman.
(c) The Secretaries of the Military Departments shall:
(1) Nominate the most highly-qualified military personnel for positions in the S&S in accordance with appendix C to this part.
(2) Enter into appropriate MOAs, as provided by the Unified Commanders and, as required by the Office of the Secretary of Defense (OSD), to provide
(d) The Secretary of the Army shall:
(1) Provide administrative and logistic support, as the DoD Executive Agent, to the S&S organizations.
(2) Support NAF and APF accounting and reporting procedures required by DoD Instruction 7000.12
(3) Designate the successor-in-interest to the S&S, as agreed upon by the applicable Unified Command and the Director of the AFIS.
(e) The Commander in Chief, U.S. European Command, and the Commander in Chief, U.S. Pacific Command, shall:
(1) Authorize a Stars and Stripes newspaper, provide operational direction to the S&S commander publisher, and support the S&S throughout the Unified Command area of responsibility, consistent with each organization's status as a category B NAFI.
(2) Provide Unified Command regulations and guidance, as needed, to carry out this part.
(3) Establish procedures to resolve situations wherein a U.S. Ambassador (or, if so designated, the chief of mission) believes a specific issue in his or her nation of responsibility, not already in the public domain through other news sources, would violate national security or endanger the safety of American citizens, or other persons under their jurisdiction, if it were to be published in the Stars and Stripes.
(4) Select the S&S commander/publisher and other military officers in S&S positions.
(5) Aid the S&S commander/publisher to educate the Stars and Stripes editorial staff about the missions of their Unified Command and Military Service component commands.
(6) Approve the selection of the Stars and Stripes editor.
(7) Establish and maintain a S&S board of directors to address S&S business operations. (See appendix E to this part)
(8) Establish and maintain Stars and Stripes readership forums, which may take many forms, to address Stars and Stripes matters of interest and S&S bookstore operations. Those forums are to provide community feedback to the S&S. This will enable the S&S commander/publisher and the Stars and Stripes editor to better understand and, thereby, better serve the interests and needs of the readers and bookstore customers.
(9) At the discretion of the Unified Command CINC, provide for meetings between the S&S commander/publisher and the Stars and Stripes editor, the Unified Command public affairs office, and the Unified Command component commands, represented by their directors of public affairs, to discuss the performance of the Stars and Stripes and the performance of related public affairs operations. The Unified Commands, their component commands, and the S&S may invite any attendees they choose. Representatives from the AFIS may attend. Those meetings may not serve as editorial advisory boards. The Unified Command and component commands represent the principal source, and a prominent subject, of Stars and Stripes staff-generated news coverage. Consequently, any involvement or appearance of involvement by component command staffs in the Stars and Stripes editorial policy creates an unacceptable conflict of interest damaging to the editorial integrity and credibility of the Stars and Stripes.
(10) Ensure that the S&S Commander/Publisher:
(i) Assumes the duties and responsibilities of command, leadership, management, and training for the S&S.
(ii) Executes DoD and Unified Command policy.
(iii) Is responsible to the Unified Command CINC for S&S operations to include the newspaper publication and timely circulation, the operation of the S&S resale and job printing activities, and associated distribution systems in the relevant Unified Command area of responsibility.
(iv) Provides planning and execution of initiatives to ensure support of U.S. Armed Forces during contingency operations and armed conflict. The S&S commander/publisher shall identify
(v) Selects the Stars and Stripes editor.
(vi) Approves, in coordination with the Stars and Stripes editor, military personnel selectees for the Stars and Stripes editorial staff. (See appendix C to this part)
(vii) Provides a current status briefing and 2-year financial forecast to the Director of the AFIS at the annual AFIS S&S meeting. Provides support to the S&S board of directors as required in appendix E to this part.
(viii) Conducts frequent independent readership surveys, in accordance with DoD Instruction 1100.13
(f) The Other Unified Commanders in Chief shall ensure that their deployment exercise, contingency, and war-time planning documents reflect the S&S transportation, funding or reimbursement, and in-theater distribution requirements, as applicable. Information copies of such planning documents or annexes shall be furnished to the following:
(1) U.S. European Command (ATTN: Director, Public Affairs).
(2) U.S. Pacific Command (ATTN: Director, Public Affairs).
(3) The AFIS (ATTN: Assistant Director for Plans and Policy).
(a)
(2) Classified information shall be protected in accordance with 32 CFR parts 159 and 159a.
(3) The Stars and Stripes and the S&S business operations shall conform to applicable regulations and laws involving libel, copyright, U.S. Government printing and postal regulations, and DoD personnel policies and procedures.
(4) With the concurrence of the Unified Command, the S&S is authorized direct communication with the Military Services on S&S personnel matters and with the Department of the Army on S&S financial matters. The S&S shall keep the Unified Command and the AFIS informed of all actions.
(b)
(2) The Director of the AFIS shall be assisted by a S&S MAG composed of senior representatives from the AFIS, the OASD(FM&P), and the other DoD offices with the authority and expertise to aid in solving S&S problems. As needed, the Director of the AFIS may organize a DoD steering committee to oversee and aid the S&S MAG to address specific concerns identified by the Director of the AFIS and the Unified Command CINCs.
(3) In accordance with DoD Instruction 7600.6
The reporting requirements in § 246.6, and appendix B to this part shall be submitted in accordance with DoD Instruction 7000.12, and 7600.6, unless specifically excepted by this part.
A.
B.
C.
D.
E.
A.
a. The S&S shall be authorized nonappropriated fund (NAF) and appropriated fund (APF) support as category B NAFIs as provided under DoD Instruction 1015.6.
b. The S&S shall be funded to the maximum extent possible through the sale and distribution of the newspaper, news magazines, books, periodicals, and similar products; job printing; authorized advertising revenues; and other authorized sources of revenue, as approved by the Department of Defense and the Congress.
c. APF support shall be kept to a minimum, consistent with the S&S mission.
2. The Secretary of the Army shall be the DoD Executive Agent for APF and NAF support to the S&S. If adverse conditions occur, the other Military Services shall provide proportionate funding support through a memorandum of agreement (MOA) containing funding procedures coordinated with the affected Unified Commands and the AFIS. Copies of the agreement shall be provided to all concerned parties.
3. The Stars and Stripes and other S&S commercial resale publications may be made available within the Unified Command to other U.S. Government Agency members, and U.S. Government contractors, as approved by the Unified Command.
4. The S&S system of accounting and internal control shall conform with the requirements of DoD Instruction 7000.12, Army regulations on Morale, Welfare and Recreation (MWR) activities and NAFIs, and NAF accounting policies and procedures, except as authorized by the S&S Comptroller's Manual to meet business and consolidation requirements. The S&S shall ensure that quarterly reports are furnished to the Unified Commands, the S&S Board of Directors, and the Director of the AFIS.
B.
1. As provided by the U.S. Army for direct funding support when adverse conditions make such funding necessary to ensure the survival of the newspaper without impairment of mission capability. The Secretary of the Army shall provide such funding when requested by the affected Unified Command Commander-in-Chief (CINC), through the Director of the AFIS.
2. For regional air transportation of the newspaper, overseas “transportation of things” as authorized to joint-Service NAFIs; and electronic, optical, or satellite transmission of the newspaper when long distances require these modes to ensure timely and economical delivery.
3. As required, to transport Stars and Stripes to officially designated “remote and isolated” locations. The Unified Commands may authorize DoD official postage to remote and isolated locations, if that action is required to ensure timely delivery. Each S&S shall annually review its mailing support to minimize APF expenditures. The U.S. postal regulations apply to the S&S.
a. The S&S shall use in-house or other non-postal means of transportation to distribute the newspaper to areas that are not designated as remote and isolated.
b. The S&S are authorized to use official managerial and administrative mail related exclusively to the business of the U.S. Government in accordance with DoD 4525.8-M,
4. For transportation of military personnel incident to mission-essential travel, required military training, participation in contingency operations, in military field exercises, such as “REFORGER” or “TEAM SPIRIT,” or to areas of armed conflict.
5. In times of armed conflict or national contingency deployment, as directed by the Chairman of the Joint Chiefs of Staff for production and free distribution of the Stars and Stripes to forces as designated. The other Military Services shall reimburse the Department of the Army for services as authorized in the MOA. The Unified Commands shall endeavor to provide the Stars and
6. In other agreements as made with the Unified Commands, the Department of Defense, and the U.S. Army as the DoD Executive Agency.
C.
2. Excess NAFs belonging to the S&S may be declared excess by the Unified Command CINC, upon the recommendation of the S&S board of directors, under the guidelines in section C.3. of this appendix. Disposition of excess NAFs shall be as directed by the Unified Command CINC. The S&S NAFs declared in excess in one theater may be allocated or loaned to the other Unified Command for S&S-related activities.
3. The S&S NAFs may be declared in excess only if the following conditions are met:
a. The S&S working capital is at a level to continue prudent operations.
b. The local national S&S employee retirement and severance accounts are fully funded. The other S&S employment agreements required by applicable NAF regulations must also be fully funded.
c. Sufficient capital is available from an investment and/or contingency fund to complete all planned and projected capital expenditure projects, and to fulfill the other legitimate S&S business obligations.
d. Additional sinking funds are available to sustain the S&S through foreseeable periods of financial crisis created by adverse conditions. The sinking fund level shall be determined by the S&S board of directors and recommended to the Unified Command CINC for approval.
e. The retail price of the Stars and Stripes is at, or below, the most prevalent charge for similar U.S. newspapers. That shall be determined by the S&S board of directors and recommended to the Unified Command CINC for approval. The Director of the AFIS will be informed of any decision to raise the retail sales price of Stars and Stripes and will provide the Unified Command CINC an assessment of average commercial newspaper sales prices throughout the United States. The availability of the Stars and Stripes at reasonable cost to overseas personnel, commensurate with the retail sales price of comparable commercial newspapers throughout the United States, is a major quality-of-life consideration. A reasonable retail sales price is critical to ensure the greatest access for all overseas personnel and their family members to current print news and information so that they may remain informed U.S. citizens.
f. The S&S books, periodicals, magazines, and similar products are to be sold at no more than cover price and should be discounted to an appropriate level that still sustains full S&S operations, as determined by the S&S board of directors and recommended to the Unified Command CINC for approval.
4. Under adverse conditions, the S&S commander/publisher may apply for NAF support through the Unified Commands to the Director of the AFIS. Following approval by the Unified Command, the Director of the AFIS shall forward the request to the Secretary of the Army for appropriate action. Such NAF requests must first be recommended by the S&S board of directors and approved by the Unified Command CINC. In these cases, the S&S NAFs in either Unified Command may be considered as the first source before forwarding a request to the Department of the Army. The Unified Commands may lend NAFs from one S&S to the other through an MOA.
D.
2. The Unified Command CINC shall adjudicate publications resale issues within the theater that cannot be resolved by the S&S at the operating level.
3. Both S&S shall consolidate their wholesale purchases of commercial publications to
4. The S&S bookstores shall be audited by the S&S management at least annually. Where bookstores are operating at a consistent financial loss, the S&S may consider servicing readers through arrangements with exchanges, other military outlets, or consider consolidation at central points.
a. Bookstore inventory levels shall be verified internally on a semiannual basis. Inventory levels shall be held to cost-effective levels that still consider the servicing needs of overseas customers.
b. The S&S shall establish affidavit-return procedures to vendors and/or publishers, where possible, to return damaged merchandise, overstock, or out-of-date publications to reduce APF expenditures necessary for “over-the-water” transportation.
5. The S&S shall conduct local “market-penetration” surveys. The S&S shall also operate a “customer-complaint” feedback system to monitor its service and provide the best possible service to its customers. The results of those surveys shall be provided to the Unified Command with recommendations to the S&S board of directors, as required.
E.
2. The Stars and Stripes may sell, through commercial advertising agencies, run-of-the-paper advertising of DoD recruiting and retention programs or activities.
3. The S&S has the right to refuse any advertising.
4. The Stars and Stripes may publish news stories on special DoD-affiliated tours or entertainment opportunities for DoD personnel and their dependents in accordance with DoD Instructions 1015.2
5. The S&S may promote the Stars and Stripes, books, periodicals, magazines and similar products; authorized advertising; and job printing services (except APF) in the Stars and Stripes. Books, periodicals, magazines, and similar product promotions may include publications by name, title, author, and price. The Stars and Stripes also may promote literacy, health, safety, and other community service issues.
6. The S&S may promote AFRTS schedules, programs, and services in their newspapers and bookstores. The S&S shall cooperate with AFRTS outlets to promote each others' programs and services as authorized by DoD Directive 5120.20
7. As a newspaper operated by the Department of Defense, the Stars and Stripes may not:
a. Contain any material that implies that the DoD Components or their subordinate levels endorse or favor a specific commercial and/or individually-owned product, commodity, or service.
b. Subscribe, even at no cost, to a commercial, feature wire, or other service whose primary purpose is the advertisement or promotion of commercial products, commodities, or services.
c. Carry any advertisement that implies discrimination as to race, age, origin, gender, politics, religion, or physical characteristics that include health.
F.
A.
2. As DoD employees, the S&S civilian personnel shall abide by 32 CFR part 40, the Department of Defense, the Unified Command, and the U.S. Army regulations, U.S. laws governing Government employees, the applicable host-nation laws, and the applicable status of forces agreements (SOFA) requirements. The S&S commander/publisher shall ensure that the S&S employees are made aware of those provisions before being hired and that employees receive adequate personnel training.
3. The S&S shall endeavor to recruit civilian personnel with solid experience, education, and performance credentials in the required business, publishing, or editorial disciplines. The S&S, as part of its hiring practices, shall specify terms of Government employment and include responsibilities, such as those in 32 CFR part 40, so that the S&S civilian employees are fully aware of their obligations as DoD employees.
B.
C.
a. The S&S commander/publisher should have military public affairs and joint-Service experience, and a journalism degree.
b. The S&S officers supervising business operations should have experience in DoD Comptroller functions and be familiar with laws and regulations applicable to DoD and NAFI business operations. A master's degree in business administration is desirable, but not mandatory.
c. Instead of an advanced degree or military public affairs experience, nominees may be authorized, by the Unified Command CINC and the AFIS, to substitute a DoD-funded “training-with-industry” program with comparable newspaper operations in the United States.
d. The Unified Commands shall forecast military vacancies in the S&S to allow time for the Military Services' nomination processes to be completed and provide for education before the S&S assignment.
e. The Military Services shall provide highly qualified officers for all S&S assignments at the required grade levels.
2. Military officers selected for duty as S&S commander/publisher shall undergo a “training-with-industry” program to provide real-world training with a commercial newspaper. That program shall be administered by the Director of the AFIS, in coordination with the Military Services and the Unified Commands.
D.
2. The S&S commander/publisher shall coordinate with the Unified Commands to ensure that there is an appropriate mixture of Military Service billets and/or assignments represented in the S&S to preserve the tradition of the Stars and Stripes as joint-Service newspapers.
A.
2. The Stars and Stripes editor, with the concurrence of the S&S commander/publisher, and the Unified Command Commander-in-Chief (CINC), as the owner of the newspaper, may establish a standard code of personal and professional ethics and general editorial principles similar to those developed at major metropolitan newspapers or by professional journalists in organizations such as the Society of Professional Journalists. Those codes usually stress the following:
a. Responsibility of the newspaper to fully inform its readership.
b. Freedom of the press.
c. Commitment to personal and professional ethics.
d. Emphasis on content accuracy, objectivity, and fair representation of all sides of an issue.
When developed, copies of the code and style guides shall be provided to the Unified Command CINC and the Director of the American Forces Information Service (AFIS).
3. The Stars and Stripes editor shall be responsible for developing editorial procedures and, if required, a style guide that mirrors daily U.S. commercial newspapers.
4. The editorial content of the Stars and Stripes shall be governed by the general principles applicable to quality commercial press as follows:
a.
b.
c.
d.
(2) The Stars and Stripes shall support the Federal Voting Assistance Program by carrying factual information about registration and voting laws.
e. The Stars and Stripes shall provide balance in commercial syndicated columns. Since the Stars and Stripes may not take an independent editorial position, a balanced selection of syndicated opinion columns shall be published over a reasonable time period. The presentation of syndicated editorial cartoons should reflect the full spectrum of topical editorial cartoons being published throughout the United States. The S&S commander/publisher shall provide the Unified Commands annual assurance that the required balance for syndicated opinion columns has been met.
B.
2. The Stars and Stripes shall have the following disclaimer placed in the masthead or at the extreme bottom of one of the prominent pages, segregated from copy in a box:
This newspaper is authorized for publication by the Department of Defense for members of the Military Services overseas. However, the contents of the Stars and Stripes
The appearance of advertising in this publication, including inserts or supplements, does not constitute endorsement by the Department of Defense or the Stars and Stripes of the products or services advertised.
Products or services advertised in this publication shall be made available for purchase, use, or patronage without regard to race, color, religion, sex, national origin, age, marital status, physical handicap, political affiliation or any other nonmerit factor of the purchaser, user, or patron.
C.
a. Since most journalistic reporting is investigative by nature, “investigative reporting,” as such, is not banned. The Stars and Stripes reporters have the same need to ask questions of sources, and expect responses, as do commercial newspaper journalists. While the Stars and Stripes staff cannot conduct independent investigations that fall under the jurisdiction of various military law enforcement or designated investigative agencies, the Stars and Stripes may report on open or completed investigations by agencies authorized to perform investigative functions. If the Stars and Stripes employees note unlawful or criminal actions in their performance of duty, they must report such incidents immediately to the S&S commander/publisher or to their immediate supervisor, in accordance with 32 CFR part 40, who shall also comply with 32 CFR part 40 and, as applicable, DoD Directive 7050.1
b. The Stars and Stripes staff may not knowingly place classified information in Stars and Stripes staff-generated material. That does not apply to public domain information attributed to commercially contracted news, features, or opinion columns.
2. The Stars and Stripes editorial staffs shall receive the same treatment as commercial media.
a. The Stars and Stripes reporters shall have the same right to ask questions, to gain help, to have access, and to attend gatherings available to reporters from the commercial media. Commanders or public affairs staffs may not use the U.S. Government status of Stars and Stripes reporters to block the release of, or access to, otherwise releasable news, information, or events. Under the same circumstances, the Stars and Stripes reporters may not use their U.S. Government status or credentials to gain special treatment, access to restricted areas or gatherings, or other advantages that are not given equally to civilian media.
b. In keeping with the “Principles of Information” in 32 CFR part 375 governing release of information to commercial media, the DoD Components are expected to make available timely and accurate information so that the Stars and Stripes news staffs and readers may assess and understand the facts about their military organizations, the national defense, and defense strategy. Consistent with statutory requirements, information shall be made fully and readily available under the principles for the release of information to the media issued by the Secretary of Defense. A Government organization may not file a request for information against another Government organization under 32 CFR part 285, which implements the Freedom of Information Act (FOIA) in the Department of Defense, but it is the responsibility of all commands to honor the DoD Principles of Information, particularly regarding the intent of open access as described in 32 CFR part 285 when responding to queries from Stars and Stripes reporters.
3. To meet organizational responsibilities, the Stars and Stripes editor, the S&S commander/publisher, and the Stars and Stripes staff members they select, should meet frequently with area commanders and public affairs officers and staffs to confer, as their counterparts in U.S. commercial daily newspapers do with local government and community interest representatives.
4. When matters of interest to the Stars and Stripes readership cut across the Unified Command component command responsibilities, the Stars and Stripes editor may use “special project reporting teams” to examine such concerns. Whether the areas of Stars and Stripes interest are military exercises, fast-breaking news affecting the entire Unified Command community, or policies that require a greater-than-individual-reporter effort, the Stars and Stripes editor, through the S&S commander/publisher, can gain help by keeping the Unified Command and its component command public affairs offices informed of the need for theater-wide assistance. Such aid could help dispel morale-damaging rumors.
5. The Stars and Stripes shall conduct readership surveys at least once every 3 years in the Unified Commands where the Stars and Stripes are distributed. Such formal surveys shall be conducted in accordance with DoD Instruction 1100.13. The S&S may make shorter market surveys through its bookstore operations to determine changing readership interests. The Stars and Stripes is also encouraged to make frequent use of readership focus groups throughout the Unified Command.
6. The Stars and Stripes may review commercial entertainment where relevant and where it supports readership interest.
7. All bureau personnel and field reporters shall have Stars and Stripes newsroom experience before being given independent assignments. The Stars and Stripes military reporters may wear military or civilian clothes at the discretion of the S&S commander/publisher. If authorized by the S&S commander/publisher, Stars and Stripes military members may be authorized a clothing allowance in accordance with individual Service directives.
8. The Stars and Stripes are both authorized to maintain a Washington, DC, bureau located with other correspondent bureaus in the OASD (PA) Correspondents' Corridor. A desk will be provided for each Stars and Stripes. The S&S shall select the most qualified reporters possible for assignment to the bureau. A joint memorandum of understanding on personnel support shall be established between the two newspapers and approved by the Unified Commands, with a copy provided to the Director of the AFIS.
A.
2. Each Unified Command CINC shall designate the chairman of its S&S board of directors.
3. Each S&S board of directors shall include a member from the Unified Command Offices of Public Affairs and the Comptroller, and at least one member from each of the Unified Command Service components. Members shall be appointed by the Unified Command CINC for 2 years to ensure continuity. They shall be the best qualified personnel available in business-related disciplines. Members should be at the grade of 0-5, GS-12, or higher. Other than the Unified Command and the S&S senior representatives, the S&S board members should not be members of any other S&S forums or councils. Representatives from the American Forces Information Service (AFIS) and one S&S may attend the meetings of the other S&S board of directors and have their observations included in the minutes, but they are not voting members. Recommendations approved by the S&S board of directors may be incorporated by the Unified Command CINC into the Unified Command S&S instruction or directive, as applicable.
4. The S&S board of directors should meet at least three times each year. The minutes of each meeting shall be approved by the Unified Command CINC. The approved S&S board recommendations shall be incorporated, as permanent policy, into the Unified Command S&S implementing instructions or directives. Where such recommendations affect DoD policy, the Unified Commands shall ask the Director of the AFIS for resolution. The S&S commander/publisher shall provide sufficient documentation to the S&S board members between meetings to inform them of on-going business operations and the execution of financial actions.
B.
2. The S&S board of directors shall aid the S&S commander/publisher with evaluation of external factors that impact the S&S, such as adverse conditions, as recommended by the S&S commander/publisher, the S&S board of directors, or the Unified Command CINC.
3. Annually, the S&S commander/publisher shall provide a financial plan that shall include a capital expenditure budget and a 2-year forecast for the S&S board of directors'
4. The S&S shall maintain a 5-year business strategic and corporate plan that shall be forwarded to the S&S board of directors. The Unified Commands shall forward the on-going strategic and corporate plan to the Director of the AFIS for overall DoD strategic goals.
10 U.S.C. 121 and 133.
This part implements DoD Directive 5122.10
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and includes the Coast Guard when operating as a Military Service in the Navy. The term Commander, as used herein, also means Heads of the DoD Components.
(b) Does not apply to the
(c) The term Commander, as used in this part, also means Heads of the DoD Components.
(1)
(2)
(1)
(2)
(3)
(4)
(2)
(3)
(4)
(5)
It is DoD policy that:
(a) A free flow of news and information shall be provided to all DoD personnel without censorship or news management. The calculated withholding of news unfavorable to the Department of Defense is prohibited.
(b) News coverage and other editorial content in DoD publications shall be factual and objective. News and headlines shall be selected using the dictates of good taste. Morbid, sensational, or alarming details not essential to factual reporting shall be avoided.
(c) DoD publications shall distinguish between fact and opinion, both of which may be part of a news story. When an opinion is expressed, the person or source shall be identified. Accuracy and balance in coverage are paramount.
(d) DoD publications shall distinguish between editorials (command position) and commentaries (personal opinion) by clearly identifying them as such.
(e) News content in DoD publications shall be based on releases, reports, and materials provided by the DoD Components and their subordinate levels, DoD newspaper staff members, and other government agencies. DoD publications shall credit sources of all material other than local, internal sources. This includes, but is not limited to, Military Department news sources, American Forces Information Service, and command news releases.
(f) DoD publications may contain articles of local interest to installation personnel produced outside official channels (e.g., stringers, local organizations), provided that the author's permission has been obtained, the source is credited, and they do not otherwise violate this part.
(g) DoD publications normally shall not be authorized the use of commercial news and opinion sources, such as Associated Press (AP), United Press International (UPI), New York Times, etc., except as stated in this paragraph and the following paragraph. The use of such sources is beyond the scope of the mission of command or installation publications and puts them in direct competition with commercial publications. The use of such sources may be authorized for a specific DoD newspaper by the cognizant DoD Component only when other sources of national and international news and opinion are not available.
(h) Overseas Combatant Command newspapers published outside the United States may purchase or contract for and carry news stories, features, syndicated columns, and editorial cartoons from commercial services or sources. A balanced selection of commercial news or opinion shall appear in the same issue and same page, whenever possible, but in any case, over a reasonable time period. Selection of commercial news sources, syndicated columns, and editorial cartoons to be purchased or contracted for shall be approved by the Commanders. Overseas Combatant Command newspapers, news bulletins, and news summaries authorized to carry national and world news may include coverage of U.S. political campaign news from commercial news sources. Presentation of such political campaign news shall be made on
(i) The masthead of all DoD publications shall contain the following disclaimer printed in type no smaller than 6-point: “This (DoD newspaper, magazine, guide or installation map) is an authorized publication for members of the Department of Defense. Contents of (name of the DoD newspaper/magazine/this guide/this installation map) are not necessarily the official views of, or endorsed by, the U.S. Government, the Department of Defense, or (the name of the publishing DoD Component).”
(j) The masthead of DoD CE publications shall contain the following statements in addition to that contained in paragraph (i) of this section:
(1) “Published by (name), a private firm in no way connected with the (Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air Force/the U.S. Marine Corps) under exclusive written contract with (DoD Component or subordinate level).”
(2) “The appearance of advertising in this publication, including inserts or supplements, does not constitute endorsement by the (Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air Force/the U.S. Marine Corps), or (name of commercial publisher) of the products or services advertised.”
(3) “Everything advertised in this publication shall be made available for purchase, use, or patronage without regard to race, color, religion, sex, national origin, age, marital status, physical handicap, political affiliation, or any other nonmerit factor of the purchaser, user, or patron.” If a violation or rejection of this equal opportunity policy by an advertiser is confirmed, the publisher shall refuse to print advertising from that source until the violation is corrected.
(k) DoD publications shall not contain campaign news, partisan discussions, cartoons, editorials, or commentaries dealing with political campaigns, candidates, issues, or which advocate lobbying elected officials on specific issues. DoD CE publications shall not carry paid political advertisements for a candidate, party, which advocate a particular position on a political issue, or which advocate lobbying elected officials on a specific issue. This includes those advertisements advocating a position on any proposed DoD policy or policy under review.
(l) DoD newspapers shall support the Federal Voting Assistance Program by carrying factual information about registration and voting laws, especially those on absentee voting requirements of the various States, the District of Columbia, Puerto Rico, and U.S. territories and possessions. DoD newspapers shall use voting materials provided by the Director, Federal Voting Assistance Program; the OSD; and the Military Departments. Such information is designed to encourage DoD personnel to register as voters and to exercise their right to vote as outlined in DoD Directive 1000.4.
(m) DoD publications shall comply with DoD Instruction 1100.13
(1) The DoD Components and subordinate levels may authorize polls on matters of local interest, such as soldier of the week, and favorite athlete.
(2) A DoD publication shall not conduct a poll, a survey, or a straw vote relating to a political campaign or issue.
(3) Opinion surveys must be in compliance with Military Service regulations.
(n) DoD newspapers will support officially authorized fund-raising campaigns (e.g., Combined Federal Campaign (CFC)) within the Department of Defense in accordance with DoD Directive 5035.1.
(o) DoD publications shall not:
(1) Contain any material that implies that the DoD Components or their subordinate levels endorse or favor a specific commercial product, commodity, or service.
(2) Subscribe, even at no cost, to a commercial or feature wire or other service whose primary purpose is the advertisement or promotion of commercial products, commodities, or services.
(3) Carry any advertisement that violates or rejects DoD equal opportunity policy. (See paragraph (j)(3) of this section).
(p) All commercial advertising, including advertising supplements, shall be clearly identifiable as such. Paid advertorials and advertising supplements may be included but must be clearly labeled as advertising and readily distinguishable from editorial content.
(q) Alteration of official photographic and video imagery will comply with DoD Directive 5040.5.
(r) Commercial sponsors of Armed Forces Professional Entertainment Program events and morale, welfare and recreation events may be mentioned routinely with other pertinent facts in news stories and announcements in DoD newspapers. (See DoD Instructions 1330.13
(s) Book, radio, television, movie, travel, and other entertainment reviews may be carried if written objectively and if there is no implication of endorsement by the Department of Defense or any of its Components or their subordinate levels.
(t) All printing using appropriated funds will be obtained in accordance with DoD Directive 5330.3.
(u) Although DoD internet web sites are normally discouraged from linking to commercial activities, the commander may authorize an installation web site to be linked to the web site carrying the authorized civilian enterprise publication.
(a) The Assistant Secretary of Defense for Public Affairs, consistent with DoD Directive 5122.5,
(1) Develop policies and provide guidance on the administration of the DoD Internal Information Program.
(2) Provide policy and operational direction to the Director, AFIS.
(3) Monitor and evaluate overall mission effectiveness within the Department of Defense for matters under this part.
(b) The Director, American Forces Information Service, shall:
(1) Develop and oversee the implementation of policies and procedures pertaining to the management, content, and publication of DoD publications encompassed by this part.
(2) Serve as DoD point of contact with the Joint Committee on Printing, Congress of the United States, for matters under this part.
(3) Serve as the DoD point of contact in the United States for Combatant Command newspaper matters.
(4) Provide guidance to the Combatant Commands, Military Departments, and other DoD Components pertaining to DoD publications.
(5) Monitor effectiveness of business and financial operations of DoD publications and provide business counsel and assistance, as appropriate.
(6) Sponsor a DoD Interservice Newspaper Committee and a Flagship Magazine Committee composed of representatives of the Military Departments to coordinate matters on publications encompassed by this part and flagship magazine matters, respectively.
(7) Provide a press service for joint-Service news and information for use by authorized DoD publication editors.
(c) The Secretaries of the Military Departments shall:
(1) Provide policy guidance and assistance to the Department's publications.
(2) Encourage the use of CE publications when they are the most cost-effective means of fulfilling the command communication requirement.
(3) Ensure that adequate resources are available to support authorized internal information products under this part.
(4) Designate a member of their public affairs staff to serve on the DoD Interservice Newspaper Committee.
(5) Ensure all printing obtained with appropriated funds complies with DoD Directive 5330.3.
(d) The Commanders of Combatant Commands shall:
(1) Publish Combatant Command newspapers, if authorized. In discharging this responsibility, the Commander shall ensure that policy, direction, resources, and administrative support are provided, as required, to produce a professional quality newspaper to support the command mission.
(2) Ensure that the newspaper is prepared to support U.S. forces in the command area during contingencies and armed conflict.
(a)
(2) Specific items of internal information of interest to DoD personnel and their family members prepared for publication in DoD publications may be made available to requesters if the information can be released as provided in DoD Directive 5400.7
(3) Editorial policies of DoD publications shall be designed to improve the ability of DoD personnel to execute the missions of the Department of Defense.
(4) DoD editors of publications covered under this part shall conform to applicable policies, regulations, and laws involving the collection, processing, storage, use, publication and distribution of information by DoD Components (e.g., libel, photographic image alteration, copyright, sexually explicit materials, classification of information, protection of sensitive information and U.S. Government printing and postal regulations).
(5) DoD publications shall comply with DoD Directive 5400.11
(b)
(i) A valid internal information mission requirement exists.
(A) Command or installation newspapers provide the commander a primary means of communicating mission-essential information to members of the command. They provide feedback through such forums as letters to the editor columns. This alerts the commander to the emotional status and state of DoD knowledge of the command. The newspaper is used as a return conduit for command information to improve attitudes and increase knowledge.
(B) News reports and feature stories on individuals and organizational elements of the command provides a crossfeed of DoD information, which improves internal cooperation and mission performance. Recognition of excellence in individual or organizational performance motivates and sets forth expected norms for mission accomplishment.
(C) The newspaper improves morale by quelling rumors and keeping members informed on DoD information that will affect their futures. It provides information and assistance to family members, which improve their spirits and thereby the effectiveness of their military service and/or civilian member. The newspaper encourages participation in various positive leisure-time activities to improve morale and deter alcohol abuse and other pursuits that impair their ability to perform.
(D) The newspaper provides information to make command members aware of the hazards of the abuse of drugs and other substances, and of the negative impact that substance abuse has on readiness.
(E) CE newspapers provide advertisements that guide command members to outlets where they may fulfill their purchasing needs. A by-product of this
(F) The newspaper increases organizational cohesiveness and effectiveness by providing a visual representation of the essence of the command itself.
(G) Good journalistic practices are vital, but are not an end unto themselves. They are the primary means to enhance receptivity of command communication through the newspaper.
(H) The newspaper exists to facilitate accomplishment of the command or installation mission. That is the only basis for the expenditure of DoD resources to produce them.
(ii) A newspaper is determined by the commander and the next higher level of command to be the most cost-effective means of fulfilling the command internal communication requirement.
(2) The use of appropriated funds is authorized to establish a Funded newspaper if a CE newspaper is not feasible. The process of establishing a newspaper must include an investigation of the feasibility of publishing under the CE concept. This investigation must include careful consideration of the potential for real or apparent conflict of interest. If publishing under the CE concept is determined to be feasible, commanders must ensure that they have obtained approval to establish the newspaper before authorizing their representatives to negotiate a contract with a CE publisher.
(3) DoD newspapers are mission activities. The use of nonappropriated funds for any aspect of their operations is not authorized.
(4) Appropriated funds shall not be used to pay any part of the commercial publisher's costs incurred in publishing a CE publication.
(5) Only one DoD newspaper or magazine is authorized for each command or installation.
(i) If a newspaper is required at an installation where more than one command or headquarters is collocated, the host commander shall be responsible for publication of one funded or CE newspaper for all. The host command shall provide balanced and sufficient coverage of the other commands, their personnel, and activities in that locality. These commands, or headquarters, shall assist the staff of the host newspaper with coverage. If required by unusual circumstance, a commander other than the host may publish the single authorized newspaper when the majority of affected organizations concur.
(ii) This provision is not intended to prohibit the headquarters of a geographically dispersed command that receives its local coverage in the host installation newspaper from publishing a command-wide newspaper; nor is it intended to prohibit a command that has information needs that are significantly different from the majority of the host installation audience from publishing a separate newspaper, when authorized by the designated approving authority. (See appendix E to this part).
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(6) When, in the opinion of the Assistant Secretary of Defense for Public Affairs, or the Combatant Command Commander, a Combatant Command newspaper is needed, establishment
(7)
(i) Serve a clearly defined purpose in support of the mission of the publishing DoD Component, and the purpose must justify the cost.
(ii) Not duplicate equivalent magazines serving the same, or substantially the same purpose.
(iii) Be published and distributed efficiently and economically.
(iv) Be reviewed every two years by the publishing DoD Component to ensure they are in compliance with this part, are mission essential, and are economically achieving their desired objective.
The biennial reporting requirement contained in this part has been assigned Report Control Symbol DD-PA(BI) 1638.
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
A.
B.
C.
D.
E.
F.
1. A funded newspaper shall not be distributed as an insert to a CE newspaper, unless provided for in the CE contract, nor shall a CE newspaper be distributed as an insert to a funded newspaper.
2. Supplements, clearly labeled as such, and advertising inserts, may be inserted into and distributed with a CE newspaper.
3. The commercial publisher of a CE publication shall make as much of the distribution to the intended readership as possible. CE publications may be distributed through official channels.
4. Except as authorized by the next higher headquarters for special situations or occasions (such as an installation open house), CE publications shall not be distributed outside the intended DoD audience and retirees, which includes family members. Electronic publication on the internet/world wide web is not considered distribution outside the intended DoD audience. The CE publisher may provide complete copies of each specific issue of a CE publication to an advertiser whose advertisement is carried therein.
5. The CE publisher of a CE newspaper will provide the appropriate number of news racks determined by the installation commander for publication distribution.
CE publishers are responsible for maintenance of these racks.
6. CE guides, magazines, and installation maps may be delivered in bulk quantities to the appropriate installation offices to distribute these publications through official channels as necessary.
G.
1. Only the CE publisher shall use the space agreed upon for advertising. While the editorial content of the publication is completely controlled by the installation, the advertising section, including its content, is the responsibility of the CE publisher. The public affairs staff, however, retains the responsibility to review advertisements before they are printed.
2. Any decision by a CE publisher to accept or reject an advertisement is final. The PAO may discuss with a publisher their decision not to run an advertisement, but cannot substitute his judgment for that of the publisher.
3. Before each issue of a CE publication is printed, the public affairs staff shall review advertisements to identify any that are contrary to law or to DoD or Military Service regulations, including this part, or that may pose a danger or detriment to DoD personnel or their family members, or that interfere with the command or installation missions. It is in the command's best interest to carefully apply DoD and Service regulations and request exclusion of only those advertisements that are clearly in violation of this part. If any such advertisements are identified, the public affairs office shall obtain a legal coordination of the proposed exclusion. After coordination, the public affairs office shall request, in writing if necessary, that the commercial publisher delete any such advertisements. If the publisher prints the issue containing the objectionable advertisement(s), the commander may prohibit distribution in accordance with DoD Directive 1325.6.
4. DoD Directive 1325.6 gives the commander authority to prohibit distribution on the installation of a CE publication containing advertising he or she determines likely to promote a situation leading to potential riots or other disturbances, or when the circulation of such advertising may present a danger to loyalty, discipline, or morale of personnel. Each commander shall determine whether particular advertisements to be placed by the publisher in a CE publication serving the command or installation may interfere with successful mission performance. Some considerations in this decision are the local situation, the content of the proposed advertisement, and the past performance of the advertiser. Prior to making a determination to prohibit distribution of a CE publication, the commander shall obtain a legal coordination.
5. CE publications may carry paid and nonpaid advertising of the products and services of nonappropriated fund activities and commissaries, if allowed by DoD and Military Service regulations. (See DoD Instruction 1015.2
6. The Military Departments will coordinate a standard set or ratios of advertising-to-editorial copy for multiples of pages for run of the publication advertising in CE publications that will be included in all DoD Component regulations supplementing this part. The recommended annual average is a ratio of 60/40. Inserts and advertising supplements will not count in the total ad-to-copy ratio; However, the commander may prohibit the distribution of supplemental advertising deemed excessive.
7. Bingo games and lotteries conducted by a commercial organization whose primary business is conducting lotteries may not be advertised in CE publications. Non-lottery activities (such as dining at a restaurant or
H.
1. The name of the publication may include the name and emblem of the command or installation.
2. At the discretion of the commander, an installation telephone directory may be included as a section of a CE guide. The telephone section shall be part of the guide contract specifications. Separate contracts for CE telephone directories are not authorized. Over-run printing of the telephone directory/yellow pages section of the installation guide is authorized. The number of guides with integral telephone directories and the number of over-run copies of the telephone directory/yellow pages will be clearly specified in the single guide contract. Required communication security information shall be printed on the first page of the telephone section and not on the cover of the guide. The cover of the guide may notify users that the publication contains the telephone directory.
3. CE contracts for guides and maps shall establish firm delivery dates and shall contain provisions to ensure distribution is controlled by the command. Delivery dates may vary for guides and maps to make them more attractive to advertisers. The contract provisions shall specify delivery dates.
I.
J.
1.
2.
3.
a. A general description of the scope of the proposed contract including the name and nature of the publication involved; for example, weekly newspaper, monthly magazine, annual guide and installation map. Normally, guides and installation maps are included in the same contract.
b. A description of editorial content to be carried; e.g., news, features, supplements, and factual information, along with provisions addressing the possible inclusion of contractor-furnished advertising supplements for newspapers, provided any such supplement shall have the prior approval of the commander.
c. A description of the rules for the inclusion of advertising in the publication, substantially as follows: “The contractor agrees not to include in the publication any advertising of the following types: (1) paid political advertisements for a candidate, party, or which advocate a particular position on a political issue, including advertisements advocating a position on any proposed DoD policy or policy under review, or which advocate lobbying elected officials on a specific issue; (2) advertisements for any establishment declared “off limits” by the command; (3) advertisements that are contrary to law or to DoD or Military Service regulations or that in the government's opinion pose a danger or detriment to DoD personnel or their family members, or that interfere with the command or installation missions; (4) advertisements for bingo games or lotteries conducted by a commercial organization whose primary business is conducting lotteries; (5) (other restrictions deemed appropriate by the Service/command, if any.)” Additionally, the contract will contain provisions which: (1) specify the annual average advertising-to-editorial ratio for newspapers and magazines; (2) state that the commander's representative shall have the authority to specify newspaper advertising layout when required to enhance communication's effectiveness of the publication; and (3) which requires the contractor to notify advertisers of the requirements in § 247.4(i) and § 247.4(j).
d. A provision substantially as follows: “The contractor agrees not to enter into any exclusive advertising agreement with any firm, broker, or individual for the purpose of selling advertising associated with this contract.”
e. A description of the CE contractor's responsibilities for distribution of the publication. This provision should address such matters as contractor furnishing of news racks along with contractor responsibility for maintenance of these racks.
f. A description of contractor-owned and/or contractor-furnished equipment such as text editing, copy terminals, and modems determined to be required to coordinate layout and ensure that the preparation of editorial material is performed in such a way as to enhance the efficiency and effectiveness of the publication process.
g. A description of contractor-furnished editorial support services determined to be required. Such description must be in terms of the end product required; e.g., photography service and/or writer/reporter services, and not as a requirement to make available certain contractor personnel. In day-to-day performance and administration of the CE contract, contractor personnel performing such support services shall not be treated in any way as though they are Government employees.
h. A provision that the use, where economically feasible, of recycled paper for internal products will be a consideration for awarding the contract, as stated in § 247.6 (e).
i. SOW's and RFP's for CE newspapers shall specify standard newsprint, recyclable, subject to requirements of applicable laws and regulations.
j. For CE magazines, a provision requiring the contractor to provide a bulk number of copies of each printing to the Government Printing Office (GPO) for distribution to Federal Depository Libraries. The number of copies to be provided will be determined on the number of libraries desiring to subscribe to the publication. The number could be a maximum of 1,400, but has historically averaged approximately 500 to 600 copies for military magazines. The contractor would be required to contact GPO to initiate this procedure at (202) 512-1071.
4.
a.
“The (name of DoD installation/unit/organization) is an element of the United States Government. This agreement is a United
b.
(1) “The Government may extend the term of this contract by written notice to the contractor within [insert in the clause the period of time in which the contracting officer has to exercise the option]; provided that the Government shall give the contractor a preliminary written notice of its intent to exercise the option at least 60 days before the contract expires. The preliminary notice does not commit the government to exercise the option.” In the case of base closure or realignment the publisher has the right to request a renegotiation of the contract.
(2) “If the Government exercises this option, the extended contract shall be considered to include this option provision.”
(3) “The total duration of this contract, including the exercise of any options under this clause, shall not exceed 6 years.”
c.
(1) “The Government may, by written notice of default to the contractor, terminate this contract in whole or in part if the contractor fails to:
(a) Deliver the CE publications in the quantities required or to perform the services within the time specified in this contract or any extension;
(b) Make progress, so as to endanger performance of this contract;
(c) Perform any of the other provisions of this contract.”
(2) “If the Government terminates this contract in whole or in part, it may acquire, under the terms and in the manner the contracting officer considers appropriate, supplies or services similar to those terminated. However, the contractor shall continue the work not terminated.”
(3) “The rights and remedies of the Government in this clause are in addition to any other rights and remedies provided by law or under this contract.”
d.
“The contracting officer, by written notice, may terminate this contract, in whole or in part if the services contracted for are no longer required by the Government, or when it is in the Government's interest, such as with installation closures. Any such termination shall be at no cost to the Government.” The Government will use its best efforts to mitigate financial hardship on the publisher.
5.
6.
7.
8.
a. The SSAC shall consist of a minimum of five voting members: a chairperson, who shall be a senior member of the command; senior representatives from public affairs and printing; and a minimum of two other functional specialists with skills relevant to the selection process. Each SSAC shall have non-voting legal and contracting advisors to assist in the selection process.
b. In arriving at its recommendations, the SSAC shall follow the SSP and avail itself of all relevant information, including the proposals submitted, independently derived data regarding offerors' performance records, the results of on-site surveys of offerors' facilities, where feasible, and in appropriate cases, personal presentations by offerors.
c. The work of the SSAC must be coordinated with the contracting officer to ensure that the process is objective and fair. All communications between the offerors and the Government shall be through the contracting officer. No member of the SSAC or the selecting official shall communicate directly with any offeror regarding the source selection.
d. In cases where a losing competitor requests a debriefing from the contracting officer, members of the SSAC may be called upon to participate so as to give the losing competitor the most thorough explanation
9.
10.
a.
b.
1. The objectives of this plan are:
a. To ensure an impartial, equitable, and thorough evaluation of all offerors' proposals in accordance with the evaluation criteria presented in the request for proposals (RFP).
b. To ensure that the contracting officer is provided technical evaluation findings of the SSAC in such a manner that selection of the offer most advantageous to the Government is ensured.
c. To document clearly and thoroughly all aspects of the evaluation and decision process to provide effective debriefings to unsuccessful offerors, to respond to legal challenges to the selection, and to ensure adherence to evaluation criteria.
2. This plan will be used to select a CE contractor for publication of the __________ newspaper (CE guide, magazine, or installation map) and will:
a. Give each SSAC member a clear understanding of his or her responsibilities as well as a complete overview of the evaluation process.
b. Establish a well-balanced evaluation structure, equitable and uniform scoring procedures, and a thorough and accurate appraisal of all considerations pertinent to the negotiated contracting process.
c. Provide the selecting official with meaningful findings that are clearly presented and founded on the collective, independent judgment of technical and managerial experts.
d. Ensure identification and selection of a contractor whose final proposal offers optimum satisfaction of the Government's technical and managerial requirements as expressed in the RFP.
e. Serve as part of the official record for the evaluation process.
1. The SSAC will consist of the Chairperson and a minimum of four other voting committee members plus the non-voting advisors to the SSAC.
2. The SSAC committee members are:
1. Selecting Official:
a. Approves the SSP.
b. Reviews the evaluation and findings of the SSAC.
c. Considers the SSAC's recommendation of award.
d. Selects the successful offeror.
2. Chairperson of the Source Selection Advisory Committee (C/SSAC):
a. Reviews the SSP.
b. Approves membership of the SSAC.
c. Analyzes the evaluation and findings of the SSAC and applies weights to the evaluation results.
d. Approves the SSAC report for submission to the selecting official.
3. Contracting Officer:
a. Is responsible for the proper and efficient conduct of the entire source selection process encompassing solicitation, evaluation, selection, and contract award.
b. Provides SSAC and the selecting official with guidance and instructions to conduct the evaluation and selection process.
c. Receives proposals submitted and makes them available to the SSAC, taking necessary precautions to ensure against premature or unauthorized disclosure of source selection information.
4. SSAC members shall:
a. Familiarize themselves with the RFP and SSP.
b. Provide a fair and impartial review and evaluation of each proposal against the solicitation requirements and evaluation criteria.
c. Provide written documentation substantiating their evaluations to include strengths, weaknesses, and any deficiencies of each proposal.
5. Legal advisor:
a. Reviews RFP and SSP for form and legality.
b. Advises the SSAC members of their duties and responsibilities, regarding procurement integrity issues and confidentiality requirements.
c. Participate in SSAC meetings and provide legal advice as required.
d. Provides legal review of all documents supporting the selection decision to ensure legal sufficiency and consistency with the evaluation criteria in the RFP and SSP.
e. Advises the selecting official on the legality of the selection decision.
1.
2.
a. Numerical scoring is merely reflective of the composite findings of the SSAC. The evaluation scoring system is used as a tool to assist the Chairperson of the SSAC in determining the proposal most advantageous to the Government.
b. The most important documents supporting the contract award will be the findings, conclusions, and reports of the SSAC.
3.
a. Inadvertent release of information could be a source of considerable misunderstanding and embarrassment to the Government. It is imperative, therefore, for all members of the SSAC to avoid any unauthorized disclosures of information pertaining to this evaluation. Evaluation participants will observe the following rules:
(1) All offeror and evaluation materials will be secured when not in use (i.e., during breaks, lunch, and at the end of the day).
(2) All attempted communications by offeror's representatives shall be directed to the contracting officer. No communications between members of the SSAC or the selecting official and offerors regarding the contract award or evaluation is permitted except when called upon under the provisions of paragraph J.8.d, of appendix B to this part.
(3) Neither SSAC members or the selecting official shall disclose anything pertaining to the source selection process to any offeror except as authorized by the contracting officer.
(4) Neither SSAC members or the selecting official shall discuss the substantive issues of the evaluation with any unauthorized individual, even after award of the contract.
1.
2.
a.
b.
c.
d.
(1) Interfacing with the PAO staff.
(2) Controlling the quality and timeliness of the finished product.
(3) Sale of ads of the type that enhance the publication's image in the community and with the readership at large.
(4) Ensuring that contractor's personnel are properly supervised and managed.
3.
4.
(
1. All proposals received in response to subject RFP have been evaluated by the Source Selection Advisory Committee (SSAC). The results and comments are listed below.
a. Offeror's proposals were rated as follows:
b. Summary Narrative Comments.
2. Recommendation.
A.
B.
C.
1. DoD appropriated fund postage shall be used only for:
a. Mailing copies to satisfy mandatory distribution requirements.
b. Mailing copies to other public affairs offices for administrative purposes.
c. Mailing copies to headquarters in the chain of command.
d. Bulk mailings of DoD newspapers and magazines to subordinate units for distribution to members of the units.
e. Mailing information copies to other U.S. Government Agencies, Members of Congress, libraries, hospitals, schools, and depositories.
f. Mailing of an individual copy of a DoD newspaper, magazine, or CE publication in response to an unsolicited request from a private person, firm, or organization, if such response is in the best interest of the DoD Component or its subordinate levels of command.
g. Mailing copies of DoD newspapers, magazines, guides, or installation maps to incoming DoD personnel and their families to orient them to their new command, installation, and community.
2. DoD appropriated fund postage shall not be used for mailing:
a. To the general readership of DoD newspapers, magazines, guides, and installation maps, unless specifically excepted in this part.
b. By a CE publisher.
c. CE publications other than newspapers and magazines in bulk. (See paragraph C.1.d. of this section).
3. Generally, DoD newspapers, magazines, and CE publications shall be mailed as second class Requester Publication Rate, third-class bulk, or third- or fourth-class mail.
D.
1. Prize (whatever items of value are offered in the particular game).
2. Chance (random selection of numbers to produce a winning combination).
3. Consideration (requirement to pay a fee to play).
E.
1. Mailing and distribution lists shall be reviewed annually to determine distribution effectiveness and continuing need of each recipient to receive the publication.
2. Distribution techniques, target audiences, readers-per-copy ratios, and use of the U.S. Postal Service to ensure the most economical use of mail services consistent with timeliness shall be revalidated annually.
F.
A.
1.
2.
3.
4. Pamphlets, booklets, and other posters covering a variety of joint interest information topics.
5. PMD posts the
6. Additional information may be obtained on the internet using the AFIS Uniform Resource Locator:
B.
C.
1. All authorized DoD newspapers and magazines.
2. Headquarters of the DoD Components and their subordinate commands.
3. Proponent offices of DoD periodicals published by the DoD Components.
4. Armed Forces Radio and Television Service networks and outlets.
5. Isolated commands and detachments at which DoD newspapers are not readily available.
A.
B.
C.
D. Reporting requirements.
1. The DoD Components (less the Military Departments) shall forward, by January 31 of each even numbered year, the information indicated at attachment 1 to this appendix
2. No later than April 15 of each even-numbered year, the Secretary (or designee) of each Military Department shall forward to the address above a report of the Military Department's review of newspapers and magazines. This report shall include summary data on total number of newspapers and magazines, along with a listing of the information indicated at attachment 1 to this appendix.
3. One information copy of each issue of all DoD newspapers and magazines shall be forwarded on publication date to the address in paragraph H.1. of this appendix.
4. Information copies of CE contracts shall be forwarded to the address in paragraph H.1. of this appendix, upon request.
5. Administrative Instructions shall be issued by the Director, AFIS, for the annual review and reporting of newspapers and magazines.
As required by section H. of this appendix, the following information shall be provided biennially regarding newspapers and magazines:
A. Name of newspaper or magazine.
B. Publishing command and mailing address.
C. Printing arrangement:
1. Government equipment.
2. Government contract with commercial printer.
3. CE contract with commercial publisher (provide name, mailing address, and phone number of commercial publisher).
D. Frequency and number of issues per year.
E. Number of copies printed and estimated readership.
F. Paper size (metro, tabloid, or magazine format).
10 U.S.C. 130.
This part amplifies policy set forth in DoD Directive 3200.12,
This part applies to the Office of the Secretary of Defense (OSD) DoD Field Activities, the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Defense Agencies, and the Unified and Specified Commands (hereafter referred to collectively as “DoD Components”).
It is DoD policy to:
(a) Encourage the presentation of scientific and technical information generated by or for the Department of Defense at technical meetings consistent with United States laws and the requirements of national security.
(b) Permit DoD Components to conduct scientific and technical conferences, and to permit DoD Component personnel to attend and participate in scientific and technical conferences that are of demonstrable value to the Department of Defense, and consult with professional societies and associations in organizing meetings of the societies and associations that are mutually beneficial.
(c) Allow the publication and public presentation of unclassified contracted fundamental research results. The mechanism for control of information generated by DoD-funded contracted fundamental research in science, technology, and engineering performed under contract or grant at colleges, universities, and non-government laboratories is security classification. No other type of control is authorized unless required by law.
(d) Release information at meetings in a manner consistent with statutory and regulatory requirements for protecting the information. Such requirements include, but are not limited to, protection of classified, unclassified export-controlled, proprietary, privacy, and foreign government provided information.
(e) Provide timely review of DoD employee and contractor papers intended for presentation at scientific and technical conferences and meetings, and if warranted and authorized by contract in the case of contractor employees, prescribe limitations on these presentations. Dissemination restrictions shall be used only when appropriate authority exists.
(f) Assist DoD contractors and, when practical, others in determining the sensitivity of or the applicability of export controls to technical data proposed for public disclosure.
(g) Approve release of classified or controlled unclassified DoD information to foreign representatives when such release promotes mutual security or advances the interests of an international military agreement or understanding in accordance with foreign disclosure policies of the Department of Defense. Presentation of such information at technical meetings attended by foreign representatives is appropriate when the release is made under the terms of existing security arrangements and when the Department of Defense and receiving government have established an understanding or agreement in that specific scientific or technical area.
(h) Refrain from interfering with the planning and organizing of meetings sponsored and conducted by non-government organizations. The type and level of DoD participation in such meetings will be determined taking account of such factors as benefit to the Department of Defense and how the meetings are being conducted.
(a)
(b)
(1) Classified information may be presented only at meetings organized in accordance with DoD Directive 5200.12.
(2) Unclassified export-controlled DoD technical data may be presented only in sessions where recipients are eligible to receive such data as established by 32 CFR part 250.
(3) Presentation of proprietary information, privacy data, and foreign government-provided data requires approval of the party controlling that information.
(c)
(1) Papers which have been cleared for public release may be presented at any location and before any audience.
(2) Criteria established by 32 CFR part 250 for releasing unclassified documents containing unclassified export-controlled DoD technical data also are applicable to presentations containing such data. Unclassified export-controlled DoD technical data may be released to:
(i) United States and Canadian government officials, with the understanding that the information is to be used for official government purposes only. Technical data that falls outside the exemptions for export to Canada in United States export regulations may not be transferred under this and the following provision.
(ii) United States and Canadian citizens and resident aliens when disclosure is subject to the terms of a current (DD Form 2345) “Militarily Critical Technical Data Agreement.”
(iii) Foreign nationals and United States citizens acting as representatives of foreign interests where disclosure is made in accordance with a license, approval, or exemption under the International Traffic in Arms Regulations or the Export Administration Regulations.
(3) Non-government organizations who organize meetings in the United States at which unclassified export-controlled DoD technical data is to be presented will be required to ensure that physical access to the presentations is limited to those eligible to receive such data (as described in paragraph (c)(2) of this section) before being permitted to present such data.
(4) Meetings sponsored by a United States Government agency at which unclassified export-controlled DoD technical data is to be presented may be held in any location in the United States when control of physical access to the sessions is provided by a United States Government employee or a contractor specifically tasked by Department of Defense for that duty.
(5) Presentation of unclassified export-controlled DoD technical data in meetings held outside the United States may be permitted on a case-by-case basis after review of the situation by officials authorized to do so by the Director of Defense Research and Engineering, Office of the Under Secretary of Defense (Acquisition) or heads of DoD Components.
(6) When it is necessary to limit access to presentations of DoD-related scientific and technical papers, and private or professional organizations are unwilling or unable to provide required controls, DoD Components may, at their discretion, conduct meetings which correlate in place and topic with open meetings of such societies to take advantage of the fact that interested parties are already gathered.
(7) Classified information may be presented only at meetings held in a
(d)
(2) For unclassified meetings sponsored and conducted by organizations other than the Department of Defense, the sole responsibility of determining whether foreign access is appropriate rests with the sponsor. The level and type of DoD participation in the meeting shall take into account the presence of foreign representatives, if any.
(3) In order to advance the interests of an international military agreement or understanding, the Department of Defense may wish to release to certain foreign nationals unclassified export-controlled DoD technical data being presented at unclassified, restricted access meetings sponsored and conducted by non-government societies and associations. Release in such cases by Department of Defense shall be pursuant to appropriate exemptions to the International Traffic in Arms Regulations (22 CFR part 126), which relieves the society or association from responsibility to obtain export approvals for these presentations. DoD sponsorship is for the sole purpose of granting access to DoD-sponsored technical information. When societies or associations agree to DoD sponsorship of foreign attendance under these circumstances, the visit request procedures established in DoD Instruction 5230.20 shall be used to obtain and process requests from foreign representatives for sponsorship, and to inform the requestor and the meeting sponsor of the decision to release the information and conditions pertaining to such release.
(e)
(1) Proposed presentations shall be reviewed to:
(i) Determine what information, if any, in the submitted paper and/or abstract is subject to security classification, is subject to withholding from public disclosure under 32 CFR part 250 or is otherwise restricted by statute, regulation or DoD policy.
(ii) Recommend specific changes, if any, to allow the paper to be presented as requested.
(iii) Indicate on the document its releasibility in original and amended versions.
(iv) Provide information on appeal procedures to be followed if requested clearance is denied.
(2) Reviews shall be completed as speedily as possible after receipt of the document by an appropriate public clearance authority. If a review cannot be completed in a timely manner, an explanation shall be provided. Every effort shall be made to complete the review in:
(i) Ten working days for all abstracts.
(ii) Twenty working days for papers submitted for presentation at sessions that will have unlimited access.
(iii) Thirty working days for papers submitted for presentation at unclassified sessions that will have limited access.
(iv) Thirty working days for papers submitted for presentation at sessions that will be classified.
(f)
(1) Inform the author that the Department of Defense has no objection to public presentation or
(2) Inform the author that the Department of Defense advises that presentation in a public forum would not be in the interest of national security, and provide appropriate reasons for the determination. The clearance for public presentation, paragraph (f)(1) of this section, satisfies an exemption from requirements for government review under the International Traffic in Arms Regulations. The latter determination, paragraph (f)(2) of this section, does not legally bar presentation. It is an advisory statement that, for the presentation concerned, Department of Defense is not providing the authority for public release. Such DoD action does not preclude recourse by the author through normal State Department export license procedures.
(g)
(2) Papers shall be submitted for public and/or foreign disclosure clearance in sufficient time to allow adequate review and possible revision. Authors should allow adequate time for their presentation to reach the appropriate review authority in addition to the review targets set in paragraph (e)(2) of this section.
(3) At time of submission of the full text of the presentation to the Conference Program Committee, authors should state that their papers have been approved for presentation at the meeting and specify the security level of degree of access control required. When submitting abstracts that have been cleared for release, authors should indicate when and what kind of approval is expected on the presentation in its final form.
(h) In accordance with DoD Directive 3200.12, copies of proceedings and/or reprints of papers sponsored by the Department of Defense for all scientific and technical meetings will be provided to the Defense Technical Information Center, Defense Logistics Agency, Cameron Station, Alexandria, VA 22304 for secondary distribution.
(a) The
(b) The
(1) Administer and monitor compliance with this part.
(2) Provide, when necessary, technical assistance to DoD Components in determining sufficiency of protection of unclassified technical information that is to be presented at meetings.
(3) Provide, upon request, information and advice regarding controls on unclassified DoD information to scientific and engineering societies and professional associations.
(c) The
(d) The
(e) The
(1) Promulgate this part within 180 days.
(2) Designate an individual who will be responsible for reviewing and approving requests for export-controlled meetings outside the United States, and for ensuring compliance with this part.
Sec. 1217, Pub. L. 98-94, (10 U.S.C. 140c).
This part establishes policy, prescribes procedures, and assigns responsibilities for the dissemination and withholding of technical data.
(a) This part applies to:
(1) All unclassified technical data with military or space application in the possession of, or under the control of, a DoD Component which may not be exported lawfully without an approval, authorization, or license under E.O. 12470 or the Arms Export Control Act. However, the application of this part is limited only to such technical data that disclose critical technology with military or space application. The release of other technical data shall be accomplished in accordance with DoD Instruction 5200.21 and DoD 5400.7-R.
(2) The Office of the Secretary of Defense (OSD) and activities support administratively by OSD, the Military Departments, the Organization of the Joint Chiefs of Staff, the Defense Agencies, and the Unified and Specified Commands (hereafter referred to collectively as “DoD Components”).
(b) This part does not:
(1) Modify or supplant the regulations promulgated under E.O. 12470 or the Arms Export Control Act governing the export of technical data, that is, 15 CFR part 379 of the Export Administration Regulations (EAR) and 22 CFR part 125 of the International Traffic in Arms Regulations (ITAR).
(2) Introduce any additional controls on the dissemination of technical data by private enterprises or individuals beyond those specified by export control laws and regulations or in contracts or other mutual agreements, including certifications made pursuant to § 250.3(a). Accordingly, the mere fact that the Department of Defense may possess such data does not in itself provide a basis for control of such data pursuant to this part.
(3) Introduce any controls on the dissemination of scientific, educational, or other data that qualify for General License GTDA under 15 CFR 379.3 of the EAR (see § 250.7) or for general exemptions under 22 CFR 125.11 of the ITAR (see § 250.8).
(4) Alter the responsibilities of DoD Components to protect proprietary data of a private party in which the Department of Defense has “limited rights” or “restricted rights” (as defined in 32 CFR 9-201(c) and 9-601(j) of the DoD Acquisition Regulation, or which are authorized to be withheld from public disclosure under 5 U.S.C. 552(b)(4).
(5) Pertain to, or affect, the release of technical data by DoD Components to foreign governments, international organizations, or their respective representatives or contractors, pursuant to official agreements or formal arrangements with the U.S. Government, or pursuant to U.S. Government-licensed transactions involving such entities or individuals. In the absence of such U.S. Government-sanctioned relationships, however, this part does apply.
(6) Apply to classified technical data. After declassification, however, dissemination of such data that are within the scope of § 250.2(a)(1) is governed by this part.
(a)
(1) The individual who will act as recipient of the export-controlled technical data on behalf of the U.S. contractor is a U.S. citizen or a person admitted lawfully into the United States for permanent residence and is located in the United States.
(2) Such data are needed to bid or perform on a contract with the Department of Defense, or other U.S. Government agency, or for other legitimate business purposes
(3) The U.S. contractor acknowledges its responsibilities under U.S. export control laws and regulations (including the obligation, under certain circumstances, to obtain an export license prior to the release of technical data within the United States) and agrees that it will not disseminate any export-controlled technical data subject to this part in a manner that would violate applicable export control laws and regulations.
(4) The U.S. contractor also agrees that, unless dissemination is permitted by § 250.5(h), it will not provide access to export-controlled technical data subject to this part to persons other than its employees or persons acting on its behalf, without the permission of the DoD Component that provided the technical data.
(5) To the best of its knowledge and belief, the U.S. contractor knows of no person employed by it, or acting on its behalf, who will have access to such data, who is debarred, suspended, or otherwise ineligible from performing on U.S. Government contracts; or has violated U.S. export control laws or a certification previously made to the Department of Defense under the provisions of this part.
(6) The U.S. contractor itself is not debarred, suspended, or otherwise determined ineligible by any agency of the U.S. Government to perform on U.S. Government contracts, has not been convicted of export control law violations, and has not been disqualified under the provisions of this part. When the certifications required by paragraphs (a) (5) and (6) of this section, cannot be made truthfully, the U.S. contractor may request the certification be accepted based on its description of extenuating circumstances.
(b)
(c)
(d)
(1) Providing or seeking to provide equipment or technology to a foreign government with the approval of the U.S. Government (for example, through a licensed direct foreign military sale).
(2) Bidding, or preparing to bid, on a sale of surplus property.
(3) Selling or producing products for the commercial domestic marketplace or for the commercial foreign marketplace, providing that any required export license is obtained.
(4) Engaging in scientific research in a professional capacity.
(5) Acting as a subcontractor to a concern described in paragraphs (d) (1) through (4) of this section; or
(6) Selling technical data subject to this part in support of DoD contractors or in supporting of the competitive process for DoD contracts, provided such sales are limited solely to DoD contractors or potential DoD contractors who also are qualified U.S. contractors and provided such technical data are related to the purpose for which the qualified U.S. contractor is certified, or selling technical data to foreign contractors or governments overseas after receiving the required export license or approval by the U.S. Government.
(e)
(1) The Department of the Army Qualitative Requirements Information Program.
(2) The Department of the Navy Industry Cooperative Research and Development Program.
(3) The Department of the Air Force Potential Contractor Program.
(4) The DoD Scientific and Technical Program; or
(5) Any similar program in use by other DoD Components.
(f)
(g)
(h)
(a) In accordance with 10 U.S.C. 140c, the Secretary of Defense may withhold from public disclosure, notwithstanding any other provision of law, any technical data with military or space application in the possession of, or under the control of, the Department of Defense, if such data may not be exported lawfully without an approval, authorization, or license under E.O. 12470 or the Arms Export Control Act. However, technical data may not be withheld under this section if regulations promulgated under either the Order or Act authorize the export of such data pursuant to a general, unrestricted license or exemption in such regulations. (Pertinent portions of such regulations are set forth in §§ 250.7 and 250.8).
(b) Because public disclosure of technical data subject to this part is tantamount to providing uncontrolled foreign access, withholding such data from public disclosure, unless approved, authorized, or licensed in accordance with export control laws, is necessary and in the national interest. Unclassified technical data that are not governed by this part, unless otherwise restricted, shall continue to be made available to the public as well as to state and local governments.
(c) Nothwithstanding the authority provided in paragraph (a), of this section, it is DoD policy to provide technical data governed by this part to individuals and enterprises that are determined to be currently qualified U.S. contractors, when such data relate to a legitimate business purpose for which the contractor is certified. However, when such data are for a purpose other than to permit the requester to bid or perform on a contract with the Department of Defense, or other U.S. Government agency, and the significance of such data for military purposes is such that release for purposes other than direct support of DoD activities may
(d) This part may not be used by DoD Components as authority to deny access to technical data to the Congress, or to any Federal, State, or local governmental agency that requires such data for regulatory or other official governmental purposes. Any such dissemination will include a statement that the technical data are controlled by the Department of Defense in accordance with this part.
(e) The authority provided herein may not be used to withhold from public disclosure unclassified information regarding DoD operations, policies, activities, or programs, including the costs and evaluations of performance and reliability of military and space equipment. When such information does contain technical data subject to this part, the technical data shall be excised from that which is disclosed publicly.
(f) This part may not be used as a basis for the release of “limited rights” or “restricted rights” data as defined in 32 CFR 9-201(c) and 9-601(j) of the DoD Acquisition Regulation or that are authorized to be withheld from public disclosure under the Freedom of Information Act (FOIA).
(g) This part may not be used to provide protection for technical data that should be classified in accordance with E.O. 12356 and DoD 5200.1-R.
(h) This part provides immediate authority to cite 5 U.S.C. 552(b)(3) as the basis for denials under the FOIA of technical data currently determined to be subject to the provisions of this part.
All determinations to disseminate or withhold technical data subject to this part shall be consistent both with the policies set forth in § 250.4 of this part, and with the following procedures:
(a) Requests for technical data shall be processed in accordance with DoD Directive 5230.24 and DoD Instruction 5200.21. FOIA requests for technical data subject to this part shall be handled in accordance with the procedures established in DoD 5400.7-R. Such FOIA requests for technical data currently determined to be subject to the withholding authority effected by this part shall be denied under citing the third exemption to mandatory disclosure, and the requester shall be referred to the provisions of this part permitting access by qualified U.S. contractors.
(b) Upon receipt of a request for technical data in the possession of, or under the control of, the Department of Defense, the controlling DoD office shall determine whether such data are governed by this part. The determination shall be based on the following:
(1) The office's finding
(2) The office's judgment that the technical data under consideration disclose critical technology with military or space application. For purposes of making this determination, the Militarily Critical Technologies List (MCTL) shall be used as general guidance. The controlling DoD office may request assistance in making such a determination from the Office of the Under Secretary of Defense for Research and Engineering (OUSDR&E) in accordance with procedures established by that office.
(c) The controlling DoD office shall ensure that technical data determined to be governed by this part are marked in accordance with DoD Directive 5230.24.
(d) The controlling DoD office shall authorize release of technical data governed by this part to currently qualified U.S. contractors only, as defined in § 250.3(a) of this part, unless one of the following apply:
(1) The qualification of the U.S. contractor concerned has been temporarily revoked in accordance with § 250.5(e) of this part; or
(2) The requested data are judged to be unrelated to the purpose for which
(3) The technical data are being requested for a purpose other than to permit the requester to bid or perform on a contract with the Department of Defense or other U.S. Government agency, in which case the controlling DoD office shall withhold such data if it has been determined by the DoD Component focal point (see § 250.5(e)(5)) that the significance of such data for military purposes is such that release for purpose other than direct support of DoD-approved activities may jeopardize an important technological or operational military advantage of the United States.
(e) Upon receipt of credible and sufficient information that a qualified U.S. contractor has (1) violated U.S. export control law, (2) violated its certification, (3) made a certification in bad faith, or (4) made an omission or misstatement of material fact, the DoD Component shall revoke temporarily the U.S. contractor's qualification. Such revocations having the potential for compromising a U.S. Government investigation may be delayed. Immediately upon such revocation, the DoD Component shall notify the contractor and the OUSDR&E. Such contractor shall be given an opportunity to respond in writing to the information upon which the temporary revocation is based before being disqualified. Any U.S. contractor whose qualification has been revoked temporarily may be reinstated upon presentation of sufficient information showing that the basis for such revocation was in error or has been remedied.
(f) When the basis for a contractor's temporary revocation cannot be removed within 20 working days, the DoD Component shall recommend to the OUSDR&E that the contractor be disqualified.
(g) Charges for copying, certifying, and searching records rendered to requesters shall be levied in accordance with DoD Instruction 7230.7. Normally, only one copy of the same record or document will be provided to each requester. Any release to qualified U.S. contractors of technical data controlled by this part shall be accompanied by a notice to the recipient as set forth in § 250.9.
(h) Qualified U.S. contractors who receive technical data governed by this part may disseminate such data for purposes consistent with their certification without prior permission of the controlling DoD office or when such dissemination is:
(1) To any foreign recipient for which the data are approved, authorized, or licensed under E.O. 12470 or the Arms Export Control Act.
(2) To another currently qualified U.S. contractor (as defined in § 250.3(a) above, including existing or potential subcontractors, but only within the scope of the certified legitimate business purpose of such recipient.
(3) To the Departments of State and Commerce, for purposes of applying for appropriate approvals, authorizations, or licenses for export under the Arms Export Control Act or E.O. 12470. Any such application shall include a statement that the technical data for which such approval, authorization, or license is sought are controlled by the Department of Defense in accordance with this part.
(4) To Congress or any Federal, State, or local governmental agency for regulatory purposes, or otherwise as may be required by law or court order. Any such dissemination shall include a statement that the technical data are controlled by the Department of Defense in accordance with this part.
(i) A qualified U.S. contractor desiring to disseminate technical data subject to this part in a manner not permitted expressly by the terms of this part shall seek authority to do so from the controlling DoD office.
(j) Any requester denied technical data, or any qualified U.S. contractor denied permission to redisseminate such data, pursuant to this part, shall be provided promptly a written statement of reasons for that action, and advised of the right to make a written
(k) Denials shall cite 10 U.S.C. 140c as implemented by this part, and, in the case of FOIA denials made in reliance on this statutory authority, 5 U.S.C. 552(b)(3). Implementing procedures shall provide for resolution of any appeal within 20 working days.
(a) The Under Secretary of Defense for Research and Engineering (USDR&E) shall have overall responsibility for the implementation of this Directive and shall designate an office to:
(1) Administer and monitor compliance with this Directive.
(2) Receive and disseminate notifications of temporary revocation in accordance with § 250.5(e) of this part.
(3) Receive recommendations for disqualification made in accordance with § 250.5(f) of this part, and act as initial disqualification authority.
(4) Provide, when necessary, technical assistance to DoD Components in assessing the significance of the military or space application of technical data that may be withheld from public disclosure under this Directive.
(5) Establish procedures to develop, collect, and disseminate certification statements and ensure their sufficiency, accuracy, and periodic renewal, and to make final determinations of qualification.
(6) Ensure that the requirements of this Directive are incorporated into the DoD Federal Acquisition Regulation Supplement for optional application to contracts involving technical data governed by this Directive.
(7) Develop, in conjunction with the General Counsel, Department of Defense, guidelines for responding to appeals.
(8) Develop procedures to ensure that DoD Components apply consistent criteria in authorizing exceptions under § 250.5(i) of this part.
(9) Establish procedures and appropriate mechanisms for the certification of qualified U.S. contractors, pursuant to § 250.6(a)(5) of this part, within 60 days of the effective date of this Directive. During this 60-day period, requests for technical data governed by this Directive shall be processed in accordance with procedures in effect before the promulgation of this Directive.
(10) Take such other actions that may be required to ensure consistent and appropriate implementation of this Directive within the Department of Defense.
(b) The Under Secretary of Defense for Policy shall:
(1) Develop and promulgate, as required, policy guidance to DoD Components for implementing this Directive.
(2) Develop procedures with the Departments of State and Commerce to ensure referral of export cases involving technical data governed by this Directive to the Department of Defense.
(c) The Assistant Secretary of Defense (Public Affairs) shall:
(1) Monitor the implementation of provisions of this Directive that pertain to DoD 5400.7-R.
(2) Provide such other assistance as may be necessary to ensure compliance with this Directive.
(d) The General Counsel, Department of Defense, shall:
(1) Assist in carrying out the provisions of this Directive by advising DoD Components with respect to the statutory and regulatory requirements governing the export of technical data.
(2) Advise the USDR&E regarding consistent and appropriate implementation of this Directive.
(e) The Heads of DoD Components shall:
(1) As the delegated authority, have the option to redelegate the authority to withhold technical data in accordance with this Directive.
(2) Disseminate and withhold from public disclosure technical data subject to this Directive in a manner consistent with the policies and procedures set forth herein.
(3) Designate a focal point to
(i) Ensure implementation of this Directive;
(ii) Identify classes of technical data the release of which is governed by § 250.5(d)(3) of this part;
(iii) Act on appeals relating to case-by-case denials of technical data;
(iv) Suspend a contractor's qualification pursuant to § 250.(e) of this part;
(v) Receive and evaluate requests for reinstatement of a contractor's qualification; and, when appropriate,
(vi) Recommend disqualification to the OUSDR&E.
(4) Promulgate and effect regulations to implement this Directive within 180 days.
(5) Disseminate technical data governed by this Directive in the manner prescribed herein, to the extent feasible, during the period after which certification procedures have been established under § 250.6(a)(9) of this part, but before DoD Components have issued implementing regulations under paragraph (e)(4) of this section. However, if such dissemination is not feasible, the DoD Component may process requests for such data in accordance with procedures in effect before the promulgation of this Directive.
The following pertinent section of the EAR is provided for the guidance of DoD personnel in determining the releasability technical data under the authority of this part.
A General License designated GTDA is hereby established authorizing the export to all destinations of technical data described in § 379.3(a), (b), or (c), below:
(a)
(1) Data released orally or visually at open conferences, lectures, trade show, or other media open to the public; and
(2) Publications that may be purchased without restrictions at a nominal cost, or obtained without costs, or are readily available at libraries open to the public.
The term “nominal cost” as used in § 379.3(a)(2), is intended to reflect realistically only the cost of preparing and distributing the publication and not the intrinsic value of the technical data. If the cost is as much as to prevent the technical data from being generally available to the public, General License GTDA would not be applicable.
(b)
(2) Instruction in academic institutions and academic laboratories, excluding information that involves research under contract related directly and significantly to design, production, or utilization in industrial processes.
(c)
The following pertinent section of the ITAR is provided for the guidance of DoD personnel in determining the releasibility of technical data under the authority of this part.
(a) Except as provided in § 26.01, district directors of customs and postal authorities are authorized to permit the export without a license of unclassified technical data as follows:
(1) If it is in published
(i) Sold at newsstands and bookstores;
(ii) Available by subscription or purchase without restrictions to any person or available without cost to any person;
(iii) Granted second class mailing privileges by the U.S. Government; or
(iv) Freely available at public libraries.
(2) If it has been approved for public release by any U.S. Government department or agency having authority to classify information or material under Executive Order [12356], as amended, and other applicable Executive Orders, and does not disclose the details of design, production, or manufacturing of any arms, ammunition, or implements of war on the U.S. Munitions List.
(3) If the export is in furtherance of a manufacturing license or technical assistance agreement approved by the Department of State in accordance with part 124 of this chapter.
(4) If the export is in furtherance of a contract with an agency of the U.S. Government or a contract between an agency of the U.S. Government and foreign persons, provided the contract calls for the export of relevant unclassified technical data, and such data are being exported only by the prime contractor. Such data shall not disclose the details of development, engineering, design, production, or manufacture of any arms, ammunition, or implements of war on the U.S. Munitions List. (This exemption does not permit the prime contractor to enter into subsidiary technical assistance or manufacturing license agreements, or any arrangement which calls for the exportation of technical data without compliance with part 124 of this subchapter.)
(5) If it relates to firearms not in excess of caliber .50 and ammunition for such weapons, except technical data containing advanced designs, processes, and munufacturing techniques.
(6) If it consists of technical data, other than design, development, or production information relating to equipment, the export of which has been previously authorized to the same recipient.
(7) If it consists of operations, maintenance and training manuals, and aids relating to equipment, the export of which has been authorized to the same recipient.
(8) If it consists of additional copies of technical data previously approved for export to the same recipient; or if it consists of revised copies of technical data, provided it pertains to the identical Munitions List article, and the revisions are solely editorial and do not add to the content of technology previously approved for export to the same recipient.
(9) If it consists solely of technical data being reexported to the original source of import.
(10) If the export is by the prime contractor in direct support and within the technical and/or product limitations of a “U.S. Government approved project” and the prime contractor so certifies. The Office of Munitions Control, Department of State, will verify, upon request, those projects which are “U.S. Government approved,” and accord an exemption to the applicant who applies for such verification and exemption, where appropriate, under this subparagraph.
(11) If the export is solely for the use of American citizen employees of U.S. firms provided the U.S. firm certifies its overseas employee is a U.S. citizen and has a “need to know.”
(12) If the export is directly related to classified information, the export of which has been previously authorized to the same recipient, and does not disclose the details of design, production, or manufacture of any arms, ammunition, or implements of war on the U.S. Munitions List.
(b)
(1) No license shall be required for the oral and visual disclosure of unclassified technical data during the course of a plant visit by foreign nationals provided the data [are] disclosed in connection with a classified plant visit or the visit has the approval of a U.S. Government agency having authority for the classification of information or material under Executive Order [12356], as amended, and other applicable Executive Orders, and the requirements of section V, paragraph [41(d)] of the Industrial Security Manual are met.
(2) No license shall be required for the documentary disclosure of unclassified technical data during the course of a plant visit
(3) No Department of State approval is required for the disclosure of oral and visual classified information during the course of a plant visit by foreign nationals provided the visit has been approved by the cognizant U.S. Defense agency and the requirements of section V, paragraph [41(d)] of the Defense Industrial Security Manual are met.
(a) Export of information contained herein, which includes, in some circumstances, release to foreign nationals within the United States, without first obtaining approval or license from the Department of State for items controlled by the International Traffic in Arms Regulations (ITAR), or the Department of Commerce for items controlled by the Export Administration Regulations (EAR), may constitute a violation of law.
(b) Under 22 U.S.C. 2778 the penalty for unlawful export of items or information controlled under the ITAR is up to 2 years imprisonment, or a fine of $100,000, or both. Under 50 U.S.C., appendix 2410, the penalty for unlawful export of items or information controlled under the EAR is a fine of up to $1,000,000, or five times the value of the exports, whichever is greater; or for an individual, imprisonment of up to 10 years, or a fine of up to $250,000, or both.
(c) In accordance with your certification that establishes you as a “qualified U.S. contractor,” unauthorized dissemination of this information is prohibited and may result in disqualification as a qualified U.S. contractor, and may be considered in determining your eligibility for future contracts with the Department of Defense.
(d) The U.S. Government assumes no liability for direct patent infringement, or contributory patent infringement or misuse of technical data.
(e) The U.S. Government does not warrant the adequacy, accuracy, currency, or completeness of the technical data.
(f) The U.S. Government assumes no liability for loss, damage, or injury resulting from manufacture or use for any purpose of any product, article, system, or material involving reliance upon any or all technical data furnished in response to the request for technical data.
(g) If the technical data furnished by the Government will be used for commercial manufacturing or other profit potential, a license for such use may be necessary. Any payments made in support of the request for data do not include or involve any license rights.
(h) A copy of this notice shall be provided with any partial or complete reproduction of these data that are provided to qualified U.S. contractors.
Pub. L. 83-131, 5 U.S.C. 301.
This rule reissues this part to update policy and procedures governing the investigation of American National Red Cross (hereafter “Red Cross”) employees and United Service Organizations, Inc. (USO), staff for the purpose of determining the security acceptability of such personnel for assignment to duty with the Military Services.
(a) This rule applies to the Office of the Secretary of Defense, the Military
(b) This rule does not apply to U.S. citizens or foreign nationals who are available locally at overseas locations for temporary or part-time employment with the Red Cross or the USO. Policy and procedures governing investigation and security acceptability of locally hired employees shall be determined by the Military Department concerned.
(a) It is the policy of the Department of Defense that an employee shall be accepted for assignment to duty with the Military Services overseas only after it first has been determined, based upon an appropriate personnel security investigation, that such acceptance for assignment is clearly consistent with the national interest.
(b) The standard and criteria for determining the security acceptability of an employee for assignment or continuation of assignment with the Military Services overseas shall be identical to those established for making security clearance determinations for personnel employed in private industry under §§ 155.4 and 155.5 of this title.
(a) The
(b)
(a) Employees who are U.S. citizens shall have been the subject of a national agency check (NAC), completed with favorable results, before being nominated for assignment with the Military Services overseas.
(b) Employees who are not U.S. citizens shall have been the subject of a background investigation (BI), completed with favorable results, before being nominated for assignment with the Military Services overseas.
(c) An employee will not be assigned for duty with the Military Services overseas or continued in such an assignment when it has been determined that assignment or continuation of assignment is not clearly consistent with the national interest.
(d) Completed security forms (DD Form 398, Personnel Security Questionnaire (BI/SBI), or 398-2, Personnel Security Questionnaire (National Agency Check)) shall be forwarded to the Defense Industrial Security Clearance Office (DISCO), Defense Investigative Service, for initiation of the NAC or BI, as appropriate.
(e) Upon completion of the appropriate investigation, the results shall be returned to the DISCO where a determination shall be made concerning security acceptability of the employee. If the determination is favorable, the DISCO shall provide a statement to that effect to the Red Cross or the USO. If the DISCO is unable to make a favorable security acceptability determination, the procedures described in paragraph (f)(3), of this section, shall apply.
(f) Whenever any DoD Component or the Red Cross or the USO receives information indicating that an employee's assignment or continuation of assignment with the Military Services overseas may not clearly be consistent with the national interest, the information shall be furnished to the DISCO for appropriate review. In such cases, the following actions shall be taken:
(1) The DISCO shall arrange for the conduct of any investigation warranted to resolve the adverse or questionable information.
(2) In cases arising after the initial security acceptability determination has been made, the DISCO shall review
(3) If, after reviewing the information or report of investigation, the DISCO is unable to make a favorable security acceptability determination, the case shall be referred for further processing in accordance with part 155 of this title.
National Security Act of 1947, as amended, 61 Stat. 495.
This part:
(a) Sets forth Department of Defense policy on achieving compatible use of public and private lands in the vicinity of military airfields;
(b) Defines (1) required restrictions on the uses and heights of natural and man-made objects in the vicinity of air installations to provide for safety of flight and to assure that people and facilities are not concentrated in areas susceptible to aircraft accidents; and
(2) Desirable restrictions on land use to assure its compatibility with the characteristics, including noise, of air installations operations;
(c) Describes the procedures by which Air Installations Compatible Use Zones (AICUZ) may be defined; and
(d) Provides policy on the extent of Government interest in real property within these zones which may be retained or acquired to protect the operational capability of active military airfields (subject in each case to the availability of required authorizations and appropriations).
This part applies to air installations of the Military Departments located within the United States, its territories, trusts, and possessions.
(a)
(b)
(c)
(ii) DoD fixed wing runways are separated into two types for the purpose of defining accident potential areas. Class A runways are those restricted to light aircraft (See § 256.6) and which do not have the potential for development for heavy or high performance aircraft use or for which no foreseeable requirement for such use exists. Typically these runways have less than 10% of
(iii) The following descriptions of Accident Potential Zones are guidelines only. Their strict application would result in increasing the safety of the general public but would not provide complete protection against the effects of aircraft accidents. Such a degree of protection is probably impossible to achieve. Local situations may differ significantly from the assumptions and data upon which these guidelines are based and require individual study. Where it is desirable to restrict the density of development of an area, it is not usually possible to state that one density is safe and another is not. Safety is a relative term and the objective should be the realization of the greatest degree of safety that can be reasonably attained.
(2)
(ii) Accident Potential Zone I (APZ I) is the area beyond the clear zone which possesses a significant potential for accidents.
(iii) Accident Potential Zone II (APZ II) is an area beyond APZ I having a measurable potential for accidents.
(iv) Modifications to APZs I and II will be considered if:
(A) The runway is infrequently used.
(B) The prevailing wind conditions are such that a large percentage (i.e., over 80 percent) of the operations are in one direction.
(C) Most aircraft do not overfly the APZs as defined herein during normal flight operations (modifications may be made to alter these zones and adjust them to conform to the line of flight).
(D) Local accident history indicates consideration of different areas.
(E) Other unusual conditions exist.
(v) The takeoff safety zone for VFR rotary-wing facilities will be used for the clear zone; the remainder of the approach-departure zone will be used as APZ I.
(vi) Land use compatibility with clear zones and APZs is shown in § 256.8.
(d)
(2)
(ii) See § 256.10 for a further discussion of Ldn use and conversion to Ldn from previously used systems.
(a)
(b)
(ii) Land use compatibility guidelines will be specified for each Clear Zone, Accident Potential Zone, Noise Zone and combination of these as appropriate.
(iii) The method of control and regulation of land usage within each zone will vary according to local conditions. In all instances the primary objective will be to identify planning areas and reasonable land use guidelines which will be recommended to appropriate agencies who are in control of the planning functions for the affected areas.
(2)
(ii)
(B) Outside the clear zone, program for the acquisition of interests, first in Accident Potential Zones and secondly in high noise areas only when all possibilities of achieving compatible use zoning, or similar protection, have been exhausted and the operational integrity of the air installation is manifestly threatened. If programming actions are considered necessary, complete records of all discussions, negotiations, testimony, etc., with or before all local officials, boards, etc., must be maintained. This will ensure that documentation is available to indicate that all reasonable and prudent efforts were made to preclude incompatible land use through cooperation with local governmental officials and that all recourse to such action has been exhausted. Such records shall accompany programming actions and/or apportionment requests for items programmed prior to the date of this part. In addition, a complete economic analysis and assessment of the future of the installation must be included.
(
(
(iii)
(A) Necessary rights to land within the defined compatible use area may be obtained by purchase, exchange, or donation, in accordance with all applicable laws and regulations.
(B) If fee title is currently held or subsequently acquired in an area where compatible uses could be developed and no requirement for a fee interest in the land exists except to prevent incompatible use, disposal actions shall normally be instituted. Only those rights and interests necessary to establish and maintain compatible uses shall be retained. Where proceeds from disposal would be inconsequential, consideration may be given to retaining title.
(C) If the cost of acquiring a required interest approaches closely the cost of fee title, consideration shall be given
(c)
(d)
(2) All such environmental impact statements must be forwarded to appropriate Federal and local agencies for review in accordance with DoD Directive 6050.1 (32 CFR part 214).
(3) Coordination with local agencies will be in accordance with OMB Circular A-95.
(a) The Secretaries of the Military Departments will develop, implement and maintain a program to investigate and study all air installations in necessary order of priority to develop an Air Installation Compatible Use Zone (AICUZ) program for each air installation consistent with § 256.4. AICUZ studies which contain an analysis of land use compatibility problems and potential solutions shall be developed and updated as necessary. As a minimum, each Study shall include the following:
(1) Determination by detailed study of flight operations, actual noise and safety surveys if necessary, and best available projections of future flying activities, desirable restrictions on land use due to noise characteristics and safety of flight;
(2) Identification of present incompatible land uses;
(3) Identification of land that if inappropriately developed would be incompatible;
(4) Indication of types of desirable development for various land tracts;
(5) Land value estimates for the zones in question.
(6) Review of the airfield master plans to ensure that existing and future facilities siting is consistent with the policies in this part.
(7) Full consideration of joint use of air installations by activities of separate Military Departments whenever such use will result in maintaining operational capabilities while reducing noise, real estate and construction requirements.
(8) Recommendations for work with local zoning boards, necessary minimum programs of acquisition, relocations, or such other actions as are indicated by the results of the Study.
(b)
(1) Follow the review and comment procedures established under OMB Circular A-95;
(2) Ensure that appropriate environmental factors are considered; and
(3) Ensure that other local, State or Federal agencies engaged in land use planning or land regulation for a particular area have an opportunity to review and comment upon any proposed plan or significant modification thereof.
(c)
(d)
(e)
(1) The Secretaries of the Military Departments or their designated representatives will review and approve the AICUZ Studies establishing the individual air installation AICUZ program.
(2) When relocation or abandonment of a mission or an installation is apparently required, the Secretaries of the Military Departments will submit the proposed plan for the installation, with appropriate recommendations, to the Secretary of Defense for approval.
(3) A time-phased fiscal year plan for implementation of the AICUZ program in priority order, consistent with budgetary considerations, will be developed for approval by the Secretaries of the Military Departments, or their designated representatives. These plans will serve as the basis for all AICUZ actions at the individual installations.
(f)
(1) As the first priority action in developing an AICUZ program, full attention is given to safety and noise problems.
(2) In all planning, acquisition and siting of noise generating items, such as engine test stands, full advantage is taken of available alleviating measures, such as remote sites or sound suppression equipment.
(3) The noise exposure of on-installation facilities and personnel are considered together with that off the installation.
(4) There is development or continuation with renewed emphasis, of programs to inform local governments, citizens groups, and the general public of the requirements of flying activities, the reasons therefore, the efforts which may have been made or may be taken to reduce noise exposure, and similar matters which will promote and develop a public awareness of the complexities of air installation operations, the problems associated therewith, and the willingness of the Department of Defense to take all measures possible to alleviate undesirable external effects.
(g) Responsibilities for the acquisition, management and disposal of real property are defined in DoD Directive 4165.6, “Real Property; Acquisition, Management and Disposal,” September 15, 1955 (20 FR 7113).
(h) The Deputy Assistant Secretary of Defense (Installations and Housing) will examine the program developed pursuant to this part, and from time to time review the progress thereunder to assure conformance with policy.
(a) The right to make low and frequent flights over said land and to generate noises associated with:
(1) Aircraft in flight, whether or not while directly over said land,
(2) Aircraft and aircraft engines operating on the ground at said base, and,
(3) Aircraft engine test/stand/cell operations at said base.
(b) The right to regulate or prohibit the release into the air of any substance which would impair the visibility or otherwise interfere with the operations of aircraft, such as, but not limited to, steam, dust and smoke.
(c) The right to regulate or prohibit light emissions, either direct or indirect (reflective), which might interfere with pilot vision.
(d) The right to prohibit electrical emissions which would interfere with
(e) The right to prohibit any use of the land which would unnecessarily attract birds or waterfowl, such as, but not limited to, operation of sanitary landfills, maintenance of feeding stations or the growing of certain types of vegetation attractive to birds or waterfowl.
(f) The right to prohibit and remove any buildings or other non-frangible structures.
(g) The right to top, cut to ground level, and to remove trees, shrubs, brush or other forms of obstruction which the installation commander determines might interfere with the operation of aircraft, including emergency landings.
(h) The right of ingress and egress upon, over and across said land for the purpose of exercising the rights set forth herein.
(i) The right to post signs on said land indicating the nature and extent of the Government's control over said land.
(j) The right to prohibit land uses other than the following:
(1) Agriculture.
(2) Livestock grazing.
(3) Permanent open space.
(4) Existing water areas.
(5) Rights of way for fenced two lane highways, without sidewalks or bicycle trails and single track railroads.
(6) Communications and utilities rights of way, provided all facilities are at or below grade.
(k) The right to prohibit entry of persons onto the land except in connection with activities authorized under paragraphs (a), (b), (c), and (f) of this section.
(l) The right to disapprove land uses not in accordance with § 256.8.
(m) The right to control the height of structures to insure that they do not become a hazard to flight.
(n) The right to install airfield lighting and navigational aids.
(a) Composite Noise Rating (CNR) and Noise Exposure Forecast (NEF) values as previously required by Sections III., IV., and V. of DoD Instruction 4165.57, “Air Installations Compatible Use Zones,” July 30, 1973
(b) Where CNR 100 (or the quietest boundary of CNR Zone 2 if otherwise computed) or NEF 30 would previously have been used, data shall be collected sufficient to permit computation of Ldn 65 noise contours and these noise contours shall be plotted on maps accompanying AICUZ studies.
(c) Where CNR 115 (or the boundary of CNR Zone 3 if otherwise computed) or NEF 40 would previously have been used, data shall be collected sufficient to permit computation of Ldn 75 noise contours and these noise contours shall be plotted on maps accompanying AICUZ studies.
(d) Where previous studies have used CNR or NEF, for meters of policy, noise planning and decisionmaking, areas quieter than Ldn 65 shall be considered approximately equivalent to the previously used CNR Zone 1 and to areas quieter than NEF 30. The area between Ldn 65 and Ldn 75 shall be considered approximately equivalent to the previously used CNR Zone 2 and to the area between NEF 30 and NEF 40. The area of higher noise than Ldn 75 shall be considered approximately equivalent to the previously used CNR Zone 3 and to noise higher the NEF 40. The procedures shall remain in effect only until sufficient data to compute land values can be obtained.
(e) When computing helicopter noise levels using data collected from meters, a correction of +7db shall be added to meter readings obtained under conditions where blade slap was present until and unless matters are developed which more accurately reflect true conditions.
(f) Noise contours less than Ldn 65 or more than Ldn 80 need not be plotted for AICUZ studies.
(g) Since CNR noise levels are not normally directly convertible to Ldn values without introducing significant
(h) Where intermittent impulse noises are such as are associated with bombing and gunnery ranges are of importance such noises will be measured using standard “C” weighing of the various frequencies to insure a description most representative of actual human response.
This part is effective immediately. Two copies of implementing regulations shall be forwarded to the Assistant Secretary of Defense (Installations and Logistics) within 90 days after publication of final rules.
5 U.S.C. 301, 133.
This rule updates DoD policy governing acceptance of service of process served on the Secretary of Defense and the Secretaries of the Military Departments.
This rule applies to the Office of the Secretary of Defense (OSD) and the Military Departments.
It is DoD policy to accept service of process directed to the Secretary of Defense or a Secretary of a Military Department in his official capacity. Acceptance of service of process will not constitute an admission or waiver with respect to the jurisdiction or to the propriety of service.
The following responsibilities may not be redelegated:
(a) The
(b) The
(c) The
(d) The
Section 213, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894, (42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101 Stat. 246-256 (42 U.S.C. 4601 note).
Regulations and procedures for complying with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Title IV of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C. 4601 note) are set forth in 49 CFR part 24.
This part:
(a) Assigns responsibilities in compliance with 20 U.S.C. 107
(1) Uniform policies for application of priority accorded the blind to operate vending facilities;
(2) Requirements for satisfactory vending facility sites on DoD-controlled property; and
(3) Vending machine income-sharing requirements on DoD-controlled property
(b) Prescribes requirements and operating procedures for the vending facility program for the blind on DoD-controlled property.
(c) Does NOT apply to full food services, mess attendant services, or services supporting the operation of a military dining facility.
This part applies to:
(a) Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the Department of Defense Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b) Vending facility sites on DoD-controlled property.
(2) Commissions received by any DoD Component activity from a commercial vending firm that provides vending machines on DoD-controlled property.
(3) “Costs incurred” include costs of goods, including reasonable service and maintenance costs in accordance with customary business practices of commercial vending concerns, repair, cleaning, depreciation, supervisory and administrative personnel, normal accounting, and accounting for income-sharing.
It is DoD policy that a DoD Component having accountability for real property shall extend priority on such property to the blind when implementing the Randolph-Sheppard Act, as set out in the following paragraphs:
(a) The blind shall be given priority in the establishment and operation of vending facilities.
(b) The blind shall be given priority in the award of contracts to operate cafeterias.
(c) In conjunction with acquisition or substantial alteration or renovation of a building, satisfactory sites shall be provided for operation of blind vending facilities.
(d) Specified income from vending machines operated on DoD-controlled property by a DoD Component either directly or by contract shall be given to State licensing agencies.
(a) The Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for Personnel and Readiness, shall establish policies and procedures and monitor the Vending Facility Program.
(b) The Heads of the DoD Components, in monitoring their respective programs, shall:
(1) Approve or disapprove State licensing agency applications for permits and the provision of satisfactory sites;
(2) Issue policies and procedures to designate and establish responsibilities of the on-site official;
(3) Suspend or terminate a permit to operate a vending facility after consulting with the PDUSD(P&R) where circumstances warrant.
(4) Ensure appropriate real property outgrants are accomplished in accordance with DoDI 4165.70, “Real Property Management,”
(5) The On-Site Official shall be the point of contact with State licensing agencies and shall:
(i) Consult with State licensing agencies on articles and services to be provided;
(ii) Establish appropriate limitations on the location or operation of a vending facility upon finding that the granting of a priority under the Act would adversely affect the interests of the United States. The On-Site Official shall justify this limitation in writing through the Head of the DoD Component concerned and the PDUSD(P&R) to the Secretary of Education for determination of whether the limitation is warranted.
(iii) Notify State licensing agencies of acquisition or substantial alteration or renovation of property;
(iv) Negotiate with State licensing agencies on other matters and adhere to guidance provided in § 260.6 of this part.
The DoD Components in control of the maintenance, operation, and protection of Federal property shall take necessary action to ensure the requirements set forth in this Section are implemented for these properties.
(a) The blind have a priority to operate vending facilities on DoD property, whenever feasible, in light of appropriate space and potential patronage. Implementation of this priority is not required when:
(1) The number of people using the property is or will be insufficient to support a vending facility; or
(2) The Secretary of Education determines that the limitation on the placement or operation of a vending facility
(b) Applications for permits by the State licensing agency to operate vending facilities (except cafeterias) on DoD-controlled property must be submitted in writing to the Head of the DoD Component concerned through the on-site official. When an application is not approved, the Head of the DoD Component concerned shall advise the State licensing agency in writing and shall indicate the reasons for the disapproval. Permits shall describe the location of the vending facility and shall be subject to the following requirements:
(1) The permit shall be issued in the name of the State licensing agency.
(2) The permit shall be issued for an indefinite period of time subject to suspension or termination upon failure to comply with agreed-upon terms. It shall be subject to termination by either party on 60 days' written notice to the other party, in cases of:
(i) Inactivation of the installation or activity.
(ii) Loss of use of a building or other facility housing the vending facility.
(iii) Change in the DoD Component's requirements for service.
(iv) Inability of the State licensing agency to continue to operate the vending facility.
(3) The permit shall provide:
(i) No charge shall be made by the DoD Component to the State licensing agency for normal repair and maintenance of the building, cleaning areas adjacent to the designated vending facility boundaries, or trash removal from a designated collection point (not to include any hazardous waste).
(ii) The State licensing agency shall be responsible for cleaning and maintaining the vending facility appearance and its security within the designated boundaries of such facility and for all costs of every kind in conjunction with vending facility equipment, merchandise, and other products to be sold, except as provided in paragraph (b)(3)(v) of this section. Neither party shall be responsible for loss or damage to the other's property, unless caused by its acts or omissions. The State licensing agency shall also be responsible for the acts or omissions of the blind vendor, the vendor's employees, or agents.
(iii) Articles sold at such vending facilities may consist of newspapers, periodicals, publications, confections, tobacco products, foods, beverages, chances for any lottery authorized by State law and conducted by an agency of a State within such State, and other articles or services traditionally found in blind-operated vending facilities operated under 20 U.S.C. 107, as determined by the State licensing agency, in consultation with the on-site official, to be suitable for a particular location. Articles and services may be automatically or manually dispensed.
(iv) Vending facilities shall be operated in compliance with applicable Federal, state, interstate and local laws and regulations, including those concerning health and sanitation, the environment, and building codes.
(v) Installation, modification, relocation, removal, and renovation of vending facilities shall be subject to the prior approval of the on-site official and the State licensing agency. The initiating party shall pay the costs of installation, modification, removal, relocation, or renovation. In any case of suspension or termination of a permit to operate a vending facility on the basis of noncompliance by either party, the costs of removal from the building shall be borne by the non-complying party.
(4) The permit shall state that no charge shall be made to the State Licensing Authority for the cost of normal cleaning, maintenance, and repair of the building structure in and adjacent to the vending facility areas, and no charge shall be made to the DoD for the cost of sanitation and the maintenance of vending facilities and vending machines in an orderly condition at all times, and the installation, maintenance, repair, replacement, servicing, and removal of vending facility equipment.
(5) In the event the blind licensee fails to provide satisfactory service or otherwise fails to comply with the requirements of the permit issued to the State licensing agency, the on-site official shall, after coordinating with the
(c) Any DoD Component-acquired (purchased, rented, leased, or constructed), substantially altered, or renovated building is required to have one or more satisfactory sites for a blind-operated vending facility, except as provided in paragraph (c)(1) of this section.
(1) A determination that a building contains a satisfactory site or sites is presumed if the State licensing agency and the on-site official consult and agree that the site or sites provided are satisfactory.
(i) The Heads of the DoD Components shall notify the appropriate State licensing agency
(A) State that a satisfactory site(s) for the location and operation of a blind vending facility is (are) included in the plans for the building.
(B) Include a copy of a single line drawing indicating the proposed location of such site(s).
(C) Advise the State licensing agency that, subject to the approval of the DoD Component, it shall be offered the opportunity to select the location and type of vending facility to be operated by a blind vendor prior to completion of the final space layout of the building.
(ii) Advise that the State licensing agency must respond within 30 days to the DoD Component, acknowledging receipt of the correspondence from the DoD Component and indicating whether it is interested in establishing a vending facility and, if interested, signifying its agreement or alternate selection of a location and its selection of type of vending facility. A copy of the written notice to the State licensing agency and the State licensing agency's response, if any, shall be provided to the Secretary of Education.
(iii) If the State licensing agency's response to the DoD Component indicates it does not desire to establish and operate a vending facility and sets forth any specific basis other than the insufficiency of patrons to support a vending facility, or if the State licensing agency does not respond within 30 days, then a site meeting the anticipated needs of the DoD Component shall be incorporated. Each such site shall have a minimum of 250 square feet for sale of items and for storage of articles necessary for the operation of a vending facility.
(iv) If the State licensing agency indicates that the number of persons using the property is or will be insufficient to support a vending facility, then a satisfactory site to be operated under the auspices of the State licensing agency shall not be incorporated. The On-Site Official shall, through the Head of the DoD component, notify the Secretary of Education of the State licensing agency's response.
(2) The requirement to provide a satisfactory site shall not apply:
(i) When fewer than 100 Federal employees (as defined in § 260.3 of this part) are located in the building during normal working hours; or
(ii) When the building contains fewer than 15,000 square feet to be used for Federal Government purposes and the Federal Government space is used to provide services to the general public.
(iii) The provisions of paragraphs (c)(2)(i) and (c)(2)(ii) of this section do not preclude arrangements under which blind vending facilities may be established in buildings of a size or with an employee population less than
(3) When a DoD Component is leasing all or part of a privately owned building in which the lessor or any of its tenants have an existing restaurant or other food facility in a part of the building not covered by the lease and operation of a vending facility would be in substantial direct competition with such restaurant or other food operation, the requirement to provide a satisfactory site does not apply.
(d) Vending machine income generated by the Department of Defense shall be shared with State licensing agencies as prescribed in paragraph (d)(1) of this section. The on-site official is responsible for collecting and accounting for such vending machine income (as defined in § 260.3 of this part) and for ensuring compliance with the requirements of this paragraph.
(1) The vending machine income-sharing requirements are as follows:
(i) One hundred percent of the vending machine income from vending machines in direct competition with blind-operated vending facilities shall be provided to the State licensing agency.
(ii) Fifty percent of the vending machine income from vending machines not in direct competition with blind-operated vending facilities shall be provided to the State licensing agency.
(iii) Notwithstanding paragraph (d)(1)(ii) of this section, thirty percent of the vending machine income from vending machines not in direct competition with blind-operated vending facilities and located where at least fifty percent of the total hours worked on the premises occurs during other than normal working hours (as defined in § 260.3 of this part) shall be provided to the State licensing agency.
(2) The determination of whether a vending machine is in direct competition with the blind-operated vending facility is the responsibility of the on-site official subject to the concurrence of the State licensing agency.
(3) These vending machine income-sharing requirements do not apply to:
(i) Income from vending machines operated by or for the military exchanges or ships' store systems; or
(ii) Income from vending machines, not in direct competition with a blind-operated vending facility, at any individual location, installation, or facility where the total of the vending machine income from all such machines at such location, installation, or facility does not exceed $3,000 annually.
(4) The payment to State licensing agencies under these income-sharing requirements must be made quarterly on a fiscal year basis.
(e) Pursuant to 34 CFR 395.37, whenever any State licensing agency for the blind determines that any DoD activity is failing to comply with the provisions of 20 U.S.C. 107 and all informal attempts to resolve the issues have been unsuccessful, the State licensing agency may file a complaint with the Secretary of Education.
Within 90 days after the end of each fiscal year, the DoD Components shall forward to the PDUSD(P&R) the total number of applications for vending facility locations received from State licensing agencies, the number accepted, the number denied, the number still pending, the total amount of vending machine income collected (as defined in § 260.3 of this part, excluding income exempt from the income sharing requirements by § 260.6(d)(3) of this part), and the amount of such vending machine income disbursed to State licensing agencies in each State. These reporting requirements have been assigned Report Control Symbol DD-P&R(A)2210, according to DoD 8910.1-M, “Department of Defense Procedures for Management of Information Requirements.”
63 Stat. 377 as amended, 18 U.S.C. 13, 40 U.S.C. 318 a through d, 50 U.S.C. 797, Delegations, 43 FR 56895, 46 FR 58306.
As used in this part:
(a)
(b)
The provisions of this regulation apply to all areas in the Brookmont site and to all persons on or within the site. They supplement those penal provisions of Title 18, U.S. Code, relating to crimes and criminal procedures, which apply without regard to the place of the offense and those provisions of state law which are made federal criminal offenses by virtue of the Assimilative Crimes Act, 18 U.S.C. 13.
(a) All persons entering the site shall comply with this regulation; with all official signs; and with the lawful directions or orders of a uniformed guard in connection with the control or regulation of traffic, parking or other conduct at the Brookmont site.
(b) At the request of a uniformed guard, a person must provide identification by exhibiting satisfactory credentials (such as driver's license).
(c) No person shall knowingly give any false or fictitious report concerning an accident or violation of this regulation to any person properly investigating an accident or alleged violation.
(d) All incidents resulting in injury to persons or damage to property must be reported to the Security Office immediately.
(e) No person involved in an accident shall leave the scene of that accident without first giving aid or assistance to the injured and making his or her identity known.
(a) Newly assigned or employed individuals who intend to operate a privately-owned vehicle at the site shall register it with the Security Police Division within 24 hours after entry on duty.
(b) Temporary registration for a specified period of time will be permitted for temporarily hired, detailed, or assigned personnel; consultants; contractors; visiting dignitaries, etc.
No person may operate any motor vehicle on the site without a valid, current operator's license, nor may any person, if operating a motor vehicle on the site, refuse to exhibit for inspection, upon request of a uniformed guard, his operator's license or proof of registration of the vehicle under his control at time of operation.
(a) No person shall drive a motor vehicle on the site at a speed greater than or in a manner other that what is reasonable and prudent for the particular location, given the conditions of traffic, weather, and road surface and having regard to the actual and potential hazards existing.
(b) Except when a special hazard exists that requires lower speed, the speed limit on the site is 15 m.p.h., unless another speed limit has been duly posted, and no person shall drive a motor vehicle on the site in excess of the speed limit.
No person shall fail or refuse to yield the right-of-way to an emergency vehicle when operating with siren or flashing lights.
Every driver shall comply with all posted traffic signs.
No person shall fail or refuse to yield the right-of-way to a pedestrian or bicyclist crossing a street in the marked crosswalk.
(a) No person, unless otherwise authorized by a posted traffic sign or directed by a uniformed guard, shall stand or park a motor vehicle:
(1) On a sidewalk, lawn, plants or shrubs.
(2) Within an intersection or within a crosswalk.
(3) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 feet of a stop sign or traffic control device.
(4) At any place which would result in the vehicle being double parked.
(5) At curbs painted yellow.
(6) In a direction facing on-coming traffic.
(7) In a manner which would obstruct traffic.
(8) In a parking space marked as not intended for his or her use.
(9) Where directed not to do so by a uniformed guard.
(10) Except in an area specifically designated for parking or standing.
(11) Except within a single space marked for such purposes, when parking or standing in an area with marked spaces.
(12) At any place in violation of any posted sign.
(13) In excess of 24 hours, unless permission has been granted by the Security Office.
(b) No person shall park bicycles, motorbikes or similar vehicles in areas not designated for that purpose.
(c) Visitors shall park in areas identified for that purpose by posted signs and shall register their vehicles at the front desk of Erskine Hall, Ruth Building or Fremont Building.
(d) No person, except visitors, shall park a motor vehicle on the Brookmont site without having a valid parking permit displayed on such motor vehicle in compliance with the instructions of the issuing authority.
(a) Except with respect to the laws of the State of Maryland assimilated under 18 U.S.C. 13, whoever shall be found guilty of violating these regulations is subject to a fine of not more than $50 or imprisonment of not more than 30 days, or both in accordance with 40 U.S.C. 318c. Except as expressly provided in this part, nothing contained in these regulations shall be construed to abrogate any other Federal laws or regulations, or any State and local laws and regulations applicable to the area in which the site is situated.
(b) In addition to the penalties described in subsection (a) of this section, parking privileges may be revoked by the issuing authority for violations of any of the provisions of this regulation.
(c) Any motor vehicle that is parked in violation of this regulation may be towed away or otherwise moved if a determination is made by a uniformed guard that it is a nuisance or hazard. A fee for the moving service and for the storage of the vehicle, if any, may be charged, and the vehicle is subject to a lien for that charge.
Secs. 601, 606, 75 Stat. 438, 440; 22 U.S.C. 2351, 2356.
The purpose of this part is to restate Department of Defense policy concerning the international interchange for defense purposes of patent rights
This part applies to the activities of all Department of Defense personnel involved in the international interchange for defense purposes of patent rights and technical information. The policy prescribed herein applies to unclassified as well as classified information, owned by the United States Government or privately owned, but does not apply to patents, patent applications, and technical information in the field of atomic energy.
(a) Pursuant to the provisions of the Mutual Security Act of 1954, as amended, and of predecessor legislation superseded by that Act, the United States has entered into agreements for the Interchange of Patent Rights and Technical Information for Defense Purposes with Australia, Belgium, Denmark, France, the Federal Republic of Germany, Greece, Italy, Japan, The Netherlands, Norway, Portugal, Spain, Turkey, and the United Kingdom. The agreements, which are published in the Treaties and Other International Act Series, are basically similar in substance but are not identical. Under the agreements:
(1) Each government undertakes to facilitate the interchange of privately owned patent rights and of technical information through the medium of commercial relationships, to the extent permitted by the laws and security requirements of the contracting governments.
(2) When technical information is supplied by one government to the other for information only, the recipient government undertakes to treat the information as disclosed in confidence and to use its best endeavors to ensure that the information is not dealt with in any manner likely to prejudice the rights of the owner to obtain patent or similar statutory protection.
(3) When technical information supplied by one government to the other discloses an invention which is the subject of a patent or patent application held in secrecy in the country of origin, the recipient government undertakes to accord similar treatment to a corresponding patent application filed in that country.
(4) When privately owned technical information is released by one government to the other and the recipient government uses or disclosed the information, the owner shall, subject to the extent that the owner may be entitled thereto under the applicable law and subject to arrangements between the contracting governments regarding the assumption as between them of liability for compensation, receive prompt, just and effective compensation for such use and for any damages resulting from such use or disclosure.
(5) Each government is entitled to use for defense purposes without cost any invention which the other government (including government corporations) owns or to which it has the right to grant a license to use, except to the extent that there may be liability to any private owner of an interest in the invention.
(b) Each of these agreements establishes a Technical Property Committee consisting of a representative of each contracting government, whose function it is to consider and make recommendations to the contracting governments on all matters relating to the subject of the agreement and to assist where appropriate in the negotiation of commercial or other agreements for the use of patent rights and technical information in the military assistance program.
(1) The Patent Advisor assigned to the Defense Staff of the U.S. Mission to the North Atlantic Treaty Organization and European Regional Organizations (USRO), Paris, France, is the United States representative to the Technical Property Committees in Europe. The J-4, Hq. United States Forces Japan, Tokyo, Japan is the United States representative to the United States-Japanese Technical Property Committee. A member of the Office of
(2) These representatives receive policy guidance from the Department of Defense. The Assistant Secretary of Defense for International Security Affairs is responsible within the Department of Defense for transmitting such policy guidance through appropriate channels. Guidance transmitted for the United States representative in Europe shall be forwarded to the Defense Advisor, USRO; guidance transmitted for the United States representative in Japan shall be transmitted to the Commanding General, United States Forces Japan.
(c) Department of Defense problems arising in the United States in connection with the interchange of patent rights and privately owned technical information should be referred to the patent activity of the appropriate Military Department.
It is the policy of the Department of Defense to encourage and facilitate international interchanges of patent rights and technical information to further the common defense of the United States and friendly nations. In achieving this purpose, the following principles shall be observed.
(a) Classified military information shall be released only through Government channels and only when consistent with the National Disclosure Policy, or when approved as an exception to that policy.
(b) In accordance with the Congressional policy prescribed by section 413(a) of the Mutual Security Act of 1954, as amended (22 U.S.C. 1933(a)), and pursuant to the bilateral agreements referred to in § 264.3, commercial relationships shall be utilized whenever appropriate and to the maximum extent feasible in order to encourage the participation of private enterprise in the Mutual Security Program, to relieve the Department of Defense of administrative burdens, and to reduce the costs to the United States of such interchanges.
(c) In accordance with section 414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934), the utilization of commercial channels for the exportation of unclassified privately owned technical information relating to articles designated as arms, ammunition, and implements of war in the United States Munitions List shall be subject to the regulations issued by the Secretary of State pursuant to section 414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934) (Title 22 CFR, chapter I, subchapter M). (The term “technical data” is used in those regulations to describe technical information relating to such articles).
(d) Technical information which might be privately owned may be released under paragraph (e) (1) or (2) of this section by Department of Defense Agencies to foreign governments if any one of the following conditions are met:
(1) The owner expressly consents to the proposed release;
(2) The United States, by contract or otherwise, has acquired or is entitled to acquire, the information under circumstances which permit the proposed release; or
(3) The Secretary of the Military Department concerned, or his designee, determines, under the authority of the Mutual Security Act of 1954, as amended, that:
(i) The exigencies of the requirement for release to further the common defense do not allow sufficient time to obtain the consent of the owner; or
(ii) The owner refuses consent and the best interests of the United States would be served by the release.
(e) In accordance with the provisions of the agreements referred to in § 264.3, the release to foreign governments by Department of Defense agencies of technical information which might be privately owned shall normally be in accord with the following two step procedure:
(1) Release for information only.
(2) Permission for manufacture, or use, for defense purposes.
(f)(1) All technical information, whether privately owned or government owned, released to a foreign government by Department of Defense Agencies shall be marked with the following restrictions:
1. This information is accepted for defense purposes only.
2. This information shall be accorded substantially the same degree of security protection as such information has in the United States.
3. This information shall not be disclosed to another country without the consent of the United States.
(2) When technical information which might be privately owned is released for information only, the restrictive marking shall also contain these additional notations:
4. This information is accepted upon the understanding that it might be privately owned.
5. This information is accepted solely for the purpose of information and shall accordingly be treated as disclosed in confidence. The recipient Government shall use its best endeavors to ensure that the information is not dealt with in any manner likely to prejudice the rights of the private owner thereof to obtain patent or other like statutory protection therefor.
6. The recipient Government shall obtain the consent of the United States if it desires that this information be made available for manufacture, or use, for defense purposes.
(g) When technical information which might be privately owned is released under the procedures set forth herein, the owner, if known, shall be furnished:
(1) Notice of the release;
(2) The identity of the recipient, if not contrary to security regulations;
(3) Notice that the recipient has been advised that the information might be privately owned; and
(4) Notice of the restrictions to which the release is subject.
(a) With respect to interchanges in furtherance of the purposes of the Mutual Security Act of 1954, as amended, section 506 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758) provides the exclusive remedy for compensation for infringement within the United States of a patent issued by the United States and for damage resulting from the disclosure by the United States of privately owned technical information.
(b) The Secretaries of the Military Departments are hereby authorized to exercise the power and authority conferred by section 506 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758) to enter into agreements with claimants in full settlement and compromise of any claim against the United States thereunder, subject to such rules and regulations, if any, as the Secretary of Defense may promulgate from time to time. The Secretaries of the Military Departments are authorized to make successive redelegations in writing of this power and authority to any officer, employee, board or agent of their respective departments.
(c) Funds appropriated for military assistance pursuant to the Mutual Security Act of 1954, as amended, which have been made available to a Military Department may be used to settle claims under section 506 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758). In addition, in those cases where the provisions of 10 U.S.C. 2386 are applicable, funds appropriated for a Military Department available for making or procuring supplies may be used to settle such claims.
10 U.S.C. 140.
This part:
(a) Updates policy, responsibilities, and procedures.
(b) Implements Public Law 98-502 (31 U.S.C. 7501-7507 and 3512) and Office of Management and Budget (OMB) Circulars A-128
(c) Assigns responsibilities within the Department of Defense for monitoring compliance with those requirements.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense (IG, DoD), the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”) that provide Federal financial assistance to State and local governments, institutions of higher education, and other nonprofit institutions.
Terms used in this part are defined in OMB Circulars A-128 and A-133 with the following deviation. Funds paid by the National Guard Bureau to States under facilities' operation and maintenance agreements do not constitute “Federal financial assistance” for purposes of Public Law 98-502 and OMB Circular A-128.
The DoD Components shall rely on and use financial and performance audits performed by non-Federal auditors under OMB Circular A-128 and independent auditors under OMB Circular A-133 in the oversight of Federal financial assistance provided to State and local governments, institutions of higher education, and other nonprofit institutions. Public Law 98-502 provides that a non-Federal audit of the operations of a State or local government performed under OMB Circular A-128 may exclude public colleges and universities, in which case an audit of the public college or university shall be made in accordance with OMB Circular A-133. The DoD Components, however, may request additional audits of such assistance when required by regulation or to ensure effective use of such assistance as deemed necessary. Any additional audit effort shall be planned and carried out in such a way as to avoid duplication and shall be separately funded.
(a) The Inspector General of the Department of Defense shall:
(1) Serve as the DoD senior official under OMB Circulars A-128 and A-133 for policy guidance, direction, and coordination with DoD Components and other Federal Agencies on audit matters related to State and local governments, institutions of higher education and other nonprofit institutions.
(2) For State and local governments, institutions of higher education, and other nonprofit institutions for which the OMB has assigned the DoD cognizance, do the following:
(i) Ensure that audits are made and reports are received in a timely manner and in accordance with the requirements of OMB Circulars A-128 and A-133.
(ii) Provide technical advice and liaison through the DoD Components to State and local governments, institutions of higher education, other nonprofit institutions, and independent auditors.
(iii) Make desk reviews of all reports received, and also make quality control reviews of selected audits made by non-Federal audit organizations and provide the results, when appropriate, to other interested organizations.
(iv) Promptly inform other affected Federal Agencies and appropriate law enforcement officials of any reported illegal acts or irregularities in accordance with requirements of OMB Circulars A-128 and A-133.
(v) Advise the recipient of audits that have been found not to have met the requirements in OMB Circulars A-128 and A-133. In such instances, the recipient will work with the auditor to
(vi) Coordinate, to the extent practicable, audits requested by other Federal Agencies, in addition to those required by OMB Circulars A-128 and A-133.
(vii) Ensure the resolution of audit findings and recommendations that affect DoD programs and those findings affecting programs of more than one Federal Agency. Ensure that a management decision affecting audit resolution shall be made within 6 months after receipt of the audit report.
(3) For local governments, institutions of higher education, and other nonprofit institutions for which the Department of Defense has assumed oversight responsibility, do the following:
(i) Provide technical advice and counsel through DoD Components to institutions and independent auditors when requested.
(ii) Assume all or some of the cognizant agency responsibilities (see paragraph (a)(2) of this section), as deemed necessary.
(4) For other State and local governments, institutions of higher education, and other nonprofit institutions, receive and distribute copies of single audit reports to appropriate DoD Components for appropriate action and followup by designated program officials.
(5) For audit reports that contain conditions affecting DoD programs, institute followup efforts to ensure that corrective actions have been taken by DoD organizations responsible for managing associated programs or funds.
(b) The Heads of the DoD Components shall:
(1) Designate an official to coordinate with the IG, DoD, on matters dealing with audits of financial assistance provided by the DoD Component to State and local governments, institutions of higher education, and other nonprofit institutions.
(2) Ensure input of accurate award data for Federal financial assistance to the appropriate DoD management information system.
(3) Ensure that the State or local government, institution of higher education, or other nonprofit institution takes appropriate actions to correct audit deficiencies involving financial assistance provided by the DoD Component.
(4) For State and local governments, institutions of higher education, and other nonprofit institutions for which the OMB has assigned DoD cognizance, do the following:
(i) Coordinate with the IG, DoD, on requests from other Federal Agencies for audits of State and local governments, institutions of higher education, and other nonprofit institutions, in addition to those required by OMB Circulars A-128 and A-133.
(ii) Seek the views of other interested agencies when a coordinated audit approach is to be used and before completing a coordinated program.
(iii) Help coordinate the audit work and reporting responsibilities among independent public accountants, State auditors, and both resident and non-resident Federal auditors to achieve the most cost-effective audit.
The costs of audits made by non-Federal auditors under OMB Circulars A-128 and A-133 are allowable charges to Federal financial assistance programs. The charges may be considered as a direct cost or an allocated indirect cost in accordance with OMB Circulars A-87, A-122 and A-21
Federal Claims Collection Act of 1966 (31 U.S.C. 951-953); Arms Export Control Act, sec. 23.
This part establishes standard procedures to be used for the collecting and reporting of foreign indebtedness. Such indebtedness may arise through the (a) sale of Defense articles and services pursuant to the Arms Export Control Act; (b) operation of military missions; and (c) logistical support provided under country-to-country agreements.
The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, and the Defense Agencies (hereafter referred to as “DoD Components”).
It is the policy of the Department of Defense that timely and aggressive collection efforts will be conducted to assure that foreign arrearages to DoD Components are held to the absolute minimum. Foreign indebtedness will be uniformly and accurately reported to the Department of the Treasury on forms prescribed by the Treasury Fiscal Requirements Manual. The information system on the status of collection actions will support the information requirements of the National Advisory Council on International Monetary and Financial Policies (NAC).
(a) The assistant Secretary of Defense (Comptroller) is the DoD point of contact for matters concerning foreign indebtedness requirements imposed on DoD from outside the Department, such as by the Congress, Treasury Department, and NAC.
(b) The Defense Security Assistance Agency (DSAA) is responsible for consolidation of feeder arrearage reports and submission of a single consolidated DoD arrearage report to the Treasury Department. The DSAA shall (1) monitor collection actions; (2) follow up when initial collection actions have been unsuccessful; and (3) serve as the focal point within DoD for responding to NAC information requests.
(c) Unless otherwise directed, the DoD Component which makes the sale, or is otherwise assigned responsibility, is responsible for taking initial collection action, accounting for indebtedness, preparation of feeder arrearage reports, and providing copies of arrearage reports to the DSAA.
Each DoD Component is responsible for taking timely and aggressive billing and followup collection actions for each category of indebtedness incurred by official and private obligors pursuant to authorized programs.
(a)
(2) Sales made by DoD Components under existing cases which provide for
(3) Foreign indebtedness to DoD Components for logistical support, mission support costs, and other programs is payable upon presentation of the appropriate billing documents. Reports of foreign indebtedness related to these programs will be submitted to the DSAA.
(b)
The DSAA is responsible for administering FMS long-term loans and credit programs authorized by Section 23 of the Arms Export Control Act, and likewise is responsible for determining foreign indebtedness against these programs. Debts remaining uncollected 90 days after the due date will be referred to the State Department for diplomatic assistance to effect settlement.
Major foreign debt arrearages are monitored by the NAC. Therefore, periodically DSAA will request flash reports from the DoD Components to satisfy NAC requirements for information on major foreign debt arrearages. For this purpose, a “major” foreign debt arrearage is any country program arrearage which involves the sum of $250,000 or more. Flash reports will be submitted directly to DSAA by the local command in message form with information copies to the next higher command. The report will reflect any significant changes in major foreign debt arrearages from the quarterly foreign indebtedness reports submitted in accordance with § 268.6. Collections, information on increased indebtedness, problems encountered in unsuccessful collection attempts, or country circumstances which may adversely affect collections are examples of the information which should be included in the flash reports.
(a)
(b)
(c)
(1)
(2)
(3)
(d)
(e)
(1) Any individual, including a citizen of the United States (excluding U.S. military members and U.S. Government employees) domiciled outside the United States.
(2) Any partnership, association, corporation, or other organization created or organized under the laws of a foreign country, excepting branches or agencies thereof located in the United States.
(3) Any branch, subsidiary, or allied organization within a foreign country of a partnership, association, corporation, or other organization created or organized under the laws of a foreign country or the United States.
(4) Any government of a foreign country and any subdivision, agency, or instrumentality thereof, including all foreign “Official” institutions, even though located in the United States.
(5) Any private relief, philanthropic, or other organization of a multinational or regional character with headquarters abroad.
(6) Any official multinational organization, defined as any international or regional organization (or affiliated agency thereof) created by treaty or convention between sovereign states.
(f)
(1) The disbursements of cash to be repaid at a future time (with or without interest),
(2) The extension of credit (by formal agreement or an open book account) in connection with the sale of products, property, or services,
(3) The formal deferral of interest collection,
(4) The purchase or repurchase of obligations that have been insured or guaranteed by the U.S. Government, and
(5) Payments by the U.S. Government in cases of default on insured or guaranteed loans and other investments when the U.S. Government acquires a debt instrument from the insured.
(g)
(h)
(1) Central governments or their departments (ministries) or components, whether administrative or commercial.
(2) Political subdivisions such as states, provinces, departments, and municipalities.
(3) Foreign central banks.
(4) Other institutions (such as corporations, development banks, railways, and utilities) when (i) the budget of the institution is subject to the approval of the government, or (ii) the government owns more than 50 percent of the voting stock or more than half of the members of the board of directors are government representatives, or (iii) in the case of default the government or central bank would become liable for the debt of the institution.
(5) Any official multinational organization.
(i)
(j)
(k)
(l)
28 U.S.C. 2461.
The purpose of this part is to establish a mechanism for the regular adjustment for inflation of civil monetary penalties and to adjust such penalties in conformity with the Federal Civil Penalties Inflation Adjustment Act of 1990, 46 U.S.C. 2461, as amended by the Debt Collection Improvement Act of 1996, Public Law 104-134, April 26, 1996, in order to maintain the deterrent effect of civil monetary penalties and to promote compliance with the law.
(a)
(b)
(1)(i) Is for a specific monetary amount as provided by Federal law; or
(ii) Has a maximum amount provided by Federal law;
(2) Is assessed or enforced by the Department pursuant to Federal law; and
(3) Is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal Courts.
(c)
The Department shall, not later than 180 days after the enactment of the Debt Collection Improvement Act on April 23, 1996, and at least once every 4 years thereafter—
(a) By regulation adjustment each civil monetary penalty provided by law within the jurisdiction of the Department of Defense by the inflation adjustment described in § 269.4; and
(b) Publish each such update in the
(a) The inflation adjustment under § 269.3 shall be determined by increasing the maximum civil monetary penalty for each civil monetary penalty by the cost-of-living adjustment. Any increase determined under this paragraph shall be rounded to the nearest:
(1) Multiple of $10 in the case of penalties less than or equal to $100;
(2) Multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000;
(3) Multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000;
(4) Multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000;
(5) Multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and
(6) Multiple of $25,000 in the case of penalties greater than $200,000.
(b) For purposes of paragraph (a) of this section, the term “cost-of-living adjustment” means the percentage (if any) for each civil monetary penalty by which the Consumer Price Index for the month of June of the calendar year preceding the adjustment, exceeds the Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law.
(c)
(d)
Any increase in a civil monetary penalty under this part shall apply only to violations which occur after the date the increase takes effect.
Sec. 657, Pub. L. 104-201, 110 Stat. 2422.
The purpose of this part is to implement section 657 of the National Defense Authorization Act for Fiscal Year 1997 (Pub. L. 104-201), which authorizes the Secretary of Defense to make payments to persons who demonstrate to the satisfaction of the Secretary of Defense that the persons were captured and incarcerated by the Democratic Republic of Vietnam as a result of the participation by the persons in certain operations conducted by the Republic of Vietnam.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
This part is effective on May 15, 1997.
The Secretary shall establish within OSD a Commission that is composed of the following voting members: one representative from the Office of the Under Secretary of Defense for Personnel and Readiness, who shall be the chairman of the Commission, one representative from the Office of the Under Secretary of Defense for Policy, and one representative from each of the military departments. Members of the Commission may be either military or civilian and all members must possess, at a minimum, a Secret clearance.
(a) The Commission will have a support staff, which will include staff members sufficient to expeditiously and efficiently process the applications for payments under this part. All members of the staff will possess, as a minimum, a Top Secret clearance because
(b) The Secretary will ensure that the Commission has all administrative support, including space, office and automated equipment and translation services, needed for the efficient and expeditious review and payment of claims. The Secretary may task appropriate Department of Defense elements to provide such support, either through assignment of personnel or the hiring of independent contractors.
(a) A person is eligible for payments under this part if such person:
(1) Was captured and incarcerated by North Vietnam as a result of his participation in operations conducted under OPLAN 34A or its predecessor operation; or
(2) Served as a Vietnamese operative under OP 35, and was captured and incarcerated by North Vietnamese forces as a result of the participation by the person in operations in Laos or along the Lao-Vietnamese border pursuant to OP 35, and
(i) Was captured and incarcerated by the North Vietnamese, and remained in captivity after 1973 (or died in captivity) after participation in OP 35, and
(ii) Has not previously received payment for the United States Government after 1972 from the period spent in captivity.
(b) In the case of a decedent who would have been eligible for a payment under this part if alive, payment will be made to the survivors of the decedent in the following order:
(1) To the surviving spouse of an eligible person; or
(2) If there is no surviving spouse of an eligible person, to the surviving children of an eligible person, in equal shares; or
(3) If there is no surviving spouse of an eligible person and no surviving children of an eligible person, to the surviving parents of an eligible person, in equal shares (step parents take equal shares the same as natural parents); or
(4) If there is no surviving spouse of an eligible person, no surviving children of an eligible person, and no surviving parents of an eligible person, to the surviving siblings of an eligible person, in equal shares. (Half siblings take equal shares in the same manner as full siblings.)
(c) A payment may not be made under this part to, or with respect to, a person who the Commission determines, based on the available evidence, served in the People's Army of North Vietnam or provided active assistance to the Government of North Vietnam or forces opposed to the Government of South Vietnam or the United States during any period from 1958 through 1975.
(d) The Commission will make reasonable efforts to publicize the availability of payments involved in this procedure, using existing public affairs channels.
(a) All persons applying for payment under this part shall first submit a properly completed, signed and notarized Application for Compensation of Vietnamese Commandos as set out in appendix A to this part, along will all corroborating documents and information required, to the Commission on Compensation, Office of the Secretary of Defense, 4000 Defense Pentagon, Washington, D.C. 20301-4000. Submission of an Application for Compensation of Vietnamese Commandos without properly signed and notarized declarations will automatically render the application ineligible for consideration by the Commission for payment. All applicants must sign and have notarized the declarations in Part C of the Application for Compensation of Vietnamese Commandos. In addition, all applicants must sign and have notarized the declaration in either Part A or Part B of the Application for Compensation of Vietnamese Commandos. If portions of the Application for Compensation of Vietnamese Commandos are not completed, the Commission may draw adverse inferences from the portions left incomplete.
(b) Staff Functions in the Verification of Eligibility Process. The Staff Director shall:
(1) Establish a database for logging and tracking Applications for Compensation of Vietnamese Commandos throughout the claims process, including appellate actions and final payment or denial of claims.
(2) Maintain a liaison with on-site personnel at the National Archives Center, College Park, Maryland, to organize and translate finance records for review.
(3) Upon receipt of each Application for Compensation of Vietnamese Commandos, research cases to verify eligibility of claimant to include reviewing and analyzing existing records.
(4) Forward applications (including support documentation) to other U.S. Government agencies as required (e.g., CIA, INS) for review of their records, as needed to acquire documentation that may aid in determining the eligibility of claimants to receive payments.
(5) Present any information or comments resulting from the research and review of cases, plus any reasonably available and probative information, to the Commission with a recommendation on the eligibility of applicants.
(6) If eligibility is favorably approved by the Commission, forward written requests to DFAS to effectuate payments.
(7) Prepare notification letters, on behalf of the Commission, for forwarding to claimants notifying them of the final determination concerning approval or disapproval of their applications.
(8) In coordination with the Army Budget Office and OSD, determine appropriate fund cite that will be used for payments.
(9) Assist in the preparation of required Reports to Congress.
(10) Determine administrative budgetary support requirements and submit funding request to OSD.
(11) Provide clerical and administrative support to the Commission.
(12) Create and maintain a system of records to manage all information generated by the processing of Applications for Compensation of Vietnamese Commandos under this part and to create an administrative record of actions by the Commission. All information received or originated from other Departments and agencies of the U.S. government will be retained, stored, and further disseminated only in accordance with pertinent law (e.g., 5 U.S.C. section 552(FOIA) and 5 U.S.C. section 552a (Privacy Act)) and conditions set by those originating Departments and agencies.
(c) Claims will be processed expeditiously. Within 18 months of actual receipt by the Commission of an Application for Compensation of Vietnamese Commandos, the Commission will determine the eligibility of the applicant. The standard for finding eligibility is whether the information reasonably available to the Commission indicates that the applicant is more likely than not to be eligible for a payment under this part. The burden of making a showing of eligibility shall be on the applicant. Upon determination of eligibility, the payment should be promptly accomplished.
(d) Applicants may request to appear in person before the Commission, which will retain discretion whether to grant such requests. The Commission may request the personal appearance or interview of any applicant as a condition of further consideration of his or her application if such appearance would significantly aid the Commission in its determination. All appearances shall be at the expense of the applicant.
Subject to the availability of appropriated funds, upon determination by the Commission of the eligibility of a person for payment, the Commission will authorize the Defense Finance and Accounting Service (DFAS) to make payments out of the funds appropriated for this purpose. Any payment authorized to a person under a legal disability, may, in the discretion of the Commission, be paid for the use of the person, to the natural or legal guardian, committee, conservator, or curator, or, if there is no such natural or legal guardian, committee, conservator, or curator, to any other person, including the spouse, children, parents,
The amount payable to, or with respect to, an eligible person under this part is $40,000. If an eligible person can demonstrate to the satisfaction of the Commission that confinement or incarceration exceeded 20 years, the Commission may authorize payment of an additional $2,000 for each full year in excess of 20 (and a proportionate amount for a partial year), but the total amount paid to, or with respect to, an eligible person under this part may not exceed $50,000.
To be eligible for payments under this part, applicants must file Applications for Compensation of Vietnamese Commandos with the Commission within 18 months of the effective date of these regulations, May 15, 1997.
Notwithstanding any agreement (including a power of attorney) to the contrary, the Commission must disburse a payment under this part only to the person who is eligible for the payment, i.e., the commando, his surviving spouse, children, parents, or siblings. The Commission may, in its discretion, require the person who is eligible for the payment to appear at any designated Defense Finance Accounting Service disbursement office in the United States to receive payment. The Commission may, in its discretion, coordinate with other U.S. governmental agencies to facilitate disbursement of payments to persons eligible for payments who reside outside the United States. If an eligible person makes a written request that payment be made at an alternate location or in an alternate manner, the Commission may, in its discretion, grant such request, provided that the actual disbursement of the payment (i.e., the physical delivery of the payment) is made only to the eligible person. The Commission will not disburse payment to any person other than an eligible person, notwithstanding any written request, assignment of rights, power of attorney, or other agreement. In the case of an application authorized for payment but not disbursed as a result of the foregoing, the Secretary will hold the funds in trust for the person authorized to receive payment in an interest bearing account until such time as the person complies with the conditions for disbursement set out in this part.
The acceptance of payment by, or with respect to, an eligible person under this part shall constitute full satisfaction of all claims by or on behalf of that person against the United States arising from the person's participation in operations under OPLAN 34A or OP35.
Subject to subpart E of this part, all determinations by the Commission pursuant to this part are final and conclusive, notwithstanding any other regulation. Applicants under this part have no right to judicial review, and such review is specifically precluded. This part does not create or acknowledge any legal right or obligation whatsoever.
Notwithstanding any contract or agreement, the representative of a person authorized to receive payment under this part may not receive, for services rendered in connection with the claim of, or with respect to, a person under this part, more than 10 percent of a payment made under this part on such claim.
In exceptional circumstances (e.g., overseas claimant) the requirement for notarizations may be waived at the discretion of the Commission.
Applicants whose claims for payment are denied in whole or in part by the Commission will be notified in writing of the determination. Applicants may petition the Assistant Secretary of Defense, Force Management Policy (or his designee) for a reconsideration of the Commission's determinations, and may submit any documentation in support of such petitions.
A request for reconsideration must be made to the Secretary, care of the Staff Director of the Commission at the address of the Commission set out in § 270.7, within 45 days of receipt of the notice from the Commission of ineligibility. The Commission may waive that time limit for good cause shown.
(a) The Assistant Secretary of Defense, Force Management Policy (or his designee) will:
(1) Review the Commission's administrative record of the original determination.
(2) Review additional information or documentation submitted by the applicant to support his or her petition for reconsideration.
(3) Determine whether the decision of the Commission should be affirmed, modified, or reversed.
(b) When there is a decision affirming the Commission's determinations, the Staff Director will notify the applicant in writing and include a statement of the reason for the affirmance.
(c) A decision of affirmance shall constitute the final action of the Department of Defense. The Secretary (or his designee) may decline to consider any subsequent petitions for reconsideration.
(d) When there is a decision modifying or reversing the Commission's determination, the notification should be immediately made to the Staff Director so as to implement the final action.
Not later than September 23, 1998, the Commission will prepare and the Secretary will submit to Congress a report on the payment of claims under this part. Subsequent to that initial report, the Commission will prepare and the Secretary will submit to Congress annual reports on the status of payment of claims.
All persons applying for payment shall submit a properly completed, signed and notarized Application for Compensation of Vietnamese Commandos, along with corroborating documents and information, to: Commission on Compensation, Office of the Secretary of Defense, 4000 Defense Pentagon, Washington, D.C. 20301-4000.
All applicants must sign and have notarized the declaration in Part C of the application. In addition, all applicants must sign and have notarized the declaration in either Part A or Part B of the application (as applicable).
Applicants must file applications within 18 months of the effective date of this part (15 May 1997): that is,
Privacy Act Statement:
National Defense Authorization Act for Fiscal Year 1997, Public Law 104-201, Section 657.
Principal Purpose: To evaluate applications for cash payments for those individuals, or their surviving spouse, children, parents, or siblings, who were captured and incarcerated by North Vietnam as a result of participating in specified joint United States-South Vietnamese operations.
Routine Uses: To the Immigration and Naturalization Service and the Central Intelligence Agency for purposes of verifying information relating to the claimant's eligibility for payment. To the Department of Justice for purposes of representing the Department of Defense in
Disclosure: Voluntary. However, if portions are not completed the Commission may draw adverse inferences from the incomplete portions.
Social Security Number: Providing a social security number is voluntary. If one is not provided, the application for payment will still be processed.
This application shall be executed by the person applying for eligibility, or his surviving spouse, children, parents, or siblings, or designated representatives of such persons.
Part A—Complete the following information on the person whose status as a former operative is the basis for applying for payment:
I served pursuant to OPLAN 34A or its predecessor operation and was captured and imprisoned by North Vietnam as a result of those activities. I did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). I did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
I served as a Vietnamese operative pursuant to OP 35, and was captured and imprisoned by North Vietnam as a result of my participation in operations in Laos or along the Lao-Vietnamese border under the direction of OP 35. I did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). I did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. I have not previously received payment from the United States Government as compensation for the period of captivity. I remained in captivity after 1973. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Part B—In addition to PART A, above, any applicant who is a surviving spouse, child, parent, or sibling by blood of a deceased commando must complete Part B, below, with information on themselves.
To the best of my information, knowledge, and belief, my deceased family member served pursuant to OPLAN 34A or its predecessor operation and was captured and imprisoned by North Vietnam as a result of those activities. He did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). He did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
To the best of my information, knowledge, and belief, my deceased family member served as a Vietnamese operative pursuant to OP 35, and was captured and imprisoned by North Vietnam as a result of his participation in operations in Laos or along the Lao-Vietnamese border under the direction of OP 35. He did not serve in the People's Army of Vietnam or provide active assistance to the Government of the Democratic Republic of Vietnam (North Vietnam). He did not serve in or provide active assistance to forces opposed to the Government of the Republic of Vietnam (South Vietnam) or forces opposed to the United States during the period from 1958 through 1975. He did not previously receive payment from the United States Government as compensation for the period of captivity. He remained in captivity after 1973. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Part C—Required Documents:
All documents submitted in support of an application for payment should be originals when possible, or copies of the originals certified by the official custodian of the documents. If certified copies cannot be obtained, uncertified copies should be submitted. If uncertified copies cannot be obtained, submit sworn affidavits from two or more persons who have personal knowledge of the information sought.
(1) Identification. A document with his current legal name and address (or legal name and address at death if deceased).
(2) Two or more sworn affidavits from individuals having personal knowledge of the person's identity (these should be submitted in addition to the document with current name and address).
(3) One document of date of birth. A birth certificate, or if unavailable, other proof of birth (e.g., passport).
(4) One document of name change,
(5) One document of evidence of guardianship. This is only required if you are executing this document as the guardian of the person identified in Part A. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the person and the extent to which you are responsible for the care of the person, or your position as an officer of the institution in which the person is institutionalized.
(6) One document of evidence of imprisonment. This should be a document issued by the government of North Vietnam showing the dates of the person's imprisonment.
(7) Any documents of evidence of participation in covered operations. These documents should be contracts, orders, or other operational documentation corroborating participation in clandestine operations under OPLAN 34A (or its predecessor) or OP 35.
In addition to documents (1) through (7) above concerning the deceased person described in Part A, submit the following:
(8) One of the following documents as evidence of the Commando's death:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(f) If you cannot obtain any of the above evidence of the commando/operative's death, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(g) If you are submitting an application as a surviving spouse, submit another document of the same type as evidence of the Commando's spouse's death.
In addition to documents described in Part C items (1) through (8), above, each surviving spouse should submit the following:
(9) One of the following documents as evidence of your marriage to the deceased person:
(a) A copy of the public records of marriage, certified or attested, or an abstract of the public records, containing sufficient information to identify the parties, the date and place of marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or other public official authorized to certify the record, or a certified copy of the religious record of marriage;
(b) An official report from a public agency as to a marriage which occurred while the deceased person was employed by such agency;
(c) An affidavit of the clergyman or magistrate who officiated;
(d) The certified copy of a certificate of marriage attested to by the custodian of the records;
(e) The affidavits of two or more eyewitnesses to the ceremony; or
(f) In jurisdictions where “common law” marriages are recognized, an affidavit by the surviving spouse setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage, including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife and whether they were generally accepted as such in the communities in which they lived.
(g) If you cannot obtain any of the above evidence of your marriage, you must submit any other evidence that would reasonably support a belief that a valid marriage actually existed.
(10) In addition, submit the following documents about ourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identity (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A birth certificate, or if unavailable, other proof of birth (e.g. passport).
(c) One document of name change. If your current legal name is the same as that during the marriage, this section does not apply. Spouses whose current legal name is different than that used when married should submit a document or affidavits to corroborate the name change.
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the spouse, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the spouse and the extent to which you are responsible for the care of the spouse or your position as an officer of the institution in which the spouse is institutionalized.
In addition to documents described in Part C items (1) through (8), above, each surviving child should submit the following:
(11) One document as evidence of your relationship to your parent (the deceased person described in Part A, above), as follows:
If A Natural Child:
(a) Birth certificate showing that the deceased person was your parent.
(b) If the birth certificate does not show the deceased person as your parent, a certified copy of:
(i) An acknowledgment in writing signed by the deceased person;
(ii) A judicial decree ordering the deceased person to contribute to your support;
(iii) The public record of birth or a religious record showing that the deceased person was named as your parent;
(iv) Affidavit of a person who knows that the deceased person accepted you as his child; or
(v) Public records, such as records of school or welfare agencies, which show that with the deceased person's knowledge, the deceased individual was named as your parent.
If An Adopted Child:
An adopted child must submit a certified copy of the decree of adoption.
If a Step-Child:
Submit all three of the following documents as evidence of the step-child relationship:
(a) One document as evidence of birth to the spouse of the deceased person, or other evidence that reasonably supports the existence of a parent-child relationship between you and the spouse of the deceased person;
(b) One document as evidence that you were either living with or in a parent-child relationship with the deceased person at the time of his death; and
(c) One document as evidence of the marriage of the deceased person and the spouse, such as a certified copy of the record of marriage, or an abstract of the public records
(12) In addition, submit the following documents about yourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identify (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A Birth certificate, or if unavailable, other proof of birth (e.g., passport).
(c) One document of name change. If your current legal name is the same as that shown on documents attesting to your birth, this section does not apply. Persons whose current legal name is different than that used on such documents should submit a document or affidavit to corroborate the name change.
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the person identified as a surviving child of a deceased person, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the child and the extent to which you are responsible for the care of the child, or your position as an officer of the institution in which the child is institutionalized.
Read the following statement carefully before signing this document. A false statement may be grounds for punishment by fine or imprisonment or both. This sworn declaration must accompany all documents submitted to the Commission, whether with or separate from the application.
In addition to documents described in Part C items (1) through (8), above, each surviving parent should submit the following:
(13) An affidavit certifying that the deceased individual described in Part A, above, has no surviving spouse.
(a) In addition to the above affidavit, if the individual described in Part A, above, was divorced at the time of his death, a copy of the divorce decree from his spouse shall be submitted as additional proof that he has no surviving spouse.
(b) In addition to the above affidavit, if the individual described in Part A, above, had been married at some point prior to his death, and his spouse pre-deceased him, one of the following documents as evidence of the death of the spouse of the individual described in Part A, above, shall be submitted as additional proof that he has no surviving spouse:
(i) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(ii) A certificate by the custodian of the public record of death;
(iii) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(iv) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(v) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(vi) If you cannot obtain any of the above evidence of death of the spouse of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(14) One of the following documents as evidence of the death of all of the children (if any), of the deceased individual described in Part A, above:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director are attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred o8tside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(f) If you cannot obtain any of the above evidence of death of all of the children of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(15) One document as evidence of your relationship to your child (the deceased person described in Part A, above), as follows:
If a Natural Parent:
(a) Birth certificate showing that the deceased person was your child.
(b) If the birth certificate does not show the deceased person as your child, a certified copy of:
(i) An acknowledgement in writing signed by the deceased person;
(ii) The public record of birth or a religious record showing that the deceased person was named as your child.
(iii) Public records, such as records of school or welfare agencies, which show that the deceased individual was named as your child; or
(iv) Other convincing evidence, such as signed, sworn statements of two or more persons who know that the deceased person was your child.
If An Adoptive Parent:
An adoptive parent must submit a certified copy of the decree of adoption. If the adoption took place outside of the United States and there is no decree of adoption, other convincing evidence must be submitted, such as signed, sworn statements of two or more persons with personal knowledge of the adoptive relationship, or a government official who can attest to the adoptive relationship.
If a Step-Parent:
Submit all three of the following documents as evidence of the step-parent relationship:
(a) One document as evidence of birth of the deceased person to the natural parent, or other convincing evidence that reasonably supports the existence of a parent-child relationship between the deceased person and the natural parent (see “If a Natural Parent,” above).
(b) One document as evidence that you had established a parent-child relationship with the deceased person; and
(c) One of the following documents as evidence that you were married to the natural parent of the deceased person:
(i) A copy of the public records of marriage, certified or attested, or an abstract of the public records, containing sufficient information to identify the parties, the date and place of marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or other public official authorized to certify the record, or a certified copy of the religious record of marriage;
(ii) An official report from a public agency as to a marriage which occurred while either parent was employed by such agency;
(iii) An affidavit of the clergyman or magistrate who officiated;
(iv) The certified copy of a certificate of marriage attested to by the custodian of the records;
(v) The affidavits of two or more eyewitnesses to the ceremony; or
(vi) In jurisdictions where “common law” marriages are recognized, an affidavit by the parent setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits from two or more persons who know as a result of personal observation the reputed relationship which existed between the parties to the alleged marriage, including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife and whether they were generally accepted as such in the communities in which they lived.
(vii) If you cannot obtain any of the above evidence of your marriage to the natural parent, you must submit any other evidence that would reasonably support a belief that a valid marriage actually existed.
(16) In addition, submit the following documents about yourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identity (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A Birth certificate, or if unavailable, other proof of birth (e.g., passport).
(c) One document of name change. If your current legal name is the same as that shown on documents attesting to your birth, this section does not apply. Persons whose current legal name is different than that used on such documents should submit a document or affidavit to corroborate the name change.
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the person identified as a surviving parent of the deceased person described in Part A, above, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the parent and the extent to which you are responsible for the care of the parent, or your position as an officer of the institution in which the parent is institutionalized.
In addition to documents described in Part C items (1) through (8), above, each surviving sibling by blood should submit the following:
(17) An affidavit certifying that the deceased individual described in Part A, above, has no surviving spouse.
(a) In addition to the above affidavit, If the individual described in Part A, above, was divorced at the time of his death, a copy of the divorce decree from his spouse shall be submitted as additional proof that he has no surviving spouse.
(b) In addition to the above affidavit, If the individual described in Part A, above, had been married at some point prior to his death, and his spouse pre-deceased him, one
(i) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(ii) A certificate by the custodian of the public record of death;
(iii) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(iv) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(v) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(vi) If you cannot obtain any of the above evidence of death of the spouse of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(18) One of the following documents as evidence of the death of all of the children (if any), of the deceased individual described in Part A, above:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(f) If you cannot obtain any of the above evidence of death of the children of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
(19) One of the following documents as evidence of the death of the parents of the deceased in individual described in Part A, above:
(a) A certified copy of extract from the public records of death, coroner's report of death, or verdict of a coroner's jury;
(b) A certificate by the custodian of the public record of death;
(c) A statement of the funeral director or attending physician or intern of the institution where death occurred;
(d) A certified copy, or extract from an official report or finding of death made by an agency or department of the United States government; or
(e) If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
(f) If you cannot obtain any of the above evidence of death of the parents of the deceased individual described in Part A, above, you must submit other convincing evidence, such as signed sworn statements of two or more persons with personal knowledge of the death, giving the place, date, and cause of death.
Each surviving sibling should submit the following:
(20) One document as evidence of your relationship to your sibling (the deceased individual described in Part A, above), as follows:
(a) Birth certificate showing that at least one of your deceased parents was also the natural parent of the deceased person described in Part A, above;
(b) If the birth certificate does not show the deceased individual described in Part A, above, as your sibling, a certified copy of:
(i) An acknowledgement in writing signed by the deceased person;
(ii) The public record of birth or a religious record showing that the deceased person was named as your sibling.
(iii) Affidavit of a person who knows that the deceased person was your sibling; or
(iv) Public records, such as records of school or welfare agencies, which show that the deceased individual was named as your sibling.
(v) If you cannot obtain any of the above evidence of your sibling relationship to the deceased individual described in Part A, above, you must submit any other evidence that would reasonably support a belief that a valid sibling relationship actually existed.
(21) In addition, submit the following documents about yourself:
(a) Identification. A document with your current legal name and address plus two or more sworn affidavits from individuals having personal knowledge of your identity (these should be submitted in addition to the document with current name and address).
(b) One document of date of birth. A Birth certificate, or if unavailable, other proof of birth (e.g., passport).
(c) One document of name change. If your current legal name is the same as that shown on documents attesting to your birth, this section does not apply. Persons whose
(d) One document of evidence of guardianship. If you are executing this document as the guardian of the person identified as a surviving sibling by blood of the deceased individual described in Part A, above, you must submit evidence of your authority. If you are a legally-appointed guardian, submit a certificate executed by the proper official of the court appointment. If you are not such a legally-appointed guardian, submit an affidavit describing your relationship to the sibling and the extent to which you are responsible for the care of the sibling, or your position as an officer of the institution in which the sibling is institutionalized.
I declare under penalty of perjury under the laws of the United States of America that the foregoing documents provided in Part C are true and correct.
5 U.S.C. 301 and 10 U.S.C. 113.
This part implements the:
(a) Policy on the support of scientific research in Executive Order 10521, “Administration of Scientific Research by Agencies of the Federal Government” (3 CFR, 1954-1958 Comp., p. 183), as amended; and
(b) Guiding principles for the government-university research partnership in Executive Order 13185, “To Strengthen the Federal Government-University Research Partnership” (3 CFR 2000 Comp., p. 341).
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
Basic research is systematic study directed toward greater knowledge or understanding of the fundamental aspects of phenomena and of observable facts without specific applications towards processes or products in mind. It includes all scientific study and experimentation directed toward increasing fundamental knowledge and understanding in those fields of the physical, engineering, environmental, and life sciences related to long-term national security needs. It is farsighted high payoff research that provides the basis for technological progress.
It is DoD policy that:
(a) Basic research is essential to the Department of Defense's ability to carry out its missions because it is:
(1) A source of new knowledge and understanding that supports DoD acquisition and leads to superior technological capabilities for the military; and
(2) An integral part of the education and training of scientists and engineers critical to meeting future needs of the Nation's defense workforce.
(b) The Department of Defense shall:
(1) Conduct a vigorous program of high quality basic research in the DoD Component laboratories; and
(2) Support high quality basic research done by institutions of higher
(c) The DoD Components' conduct and support of basic research shall be consistent with the principles stated in Appendix A to this part.
(a) The Director of Defense Research and Engineering, under the Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L)), shall:
(1) Provide technical leadership and oversight, issue guidance for plans and programs; develop policies; conduct analyses and studies; and make recommendations for DoD basic research.
(2) Recommend approval, modification, or disapproval of the DoD Components' basic research programs and projects to eliminate unpromising or unnecessarily duplicative programs, and to stimulate the initiation or support of promising ones.
(3) Recommend, through the USD(AT&L) to the Secretary of Defense, appropriate funding levels for DoD basic research.
(4) Develop and maintain a metrics program to measure and assess the quality and progress for DoD basic research, a required element of which is an independent technical review:
(i) At least biennially; and
(ii) With participation by all the Military Departments and all the other DoD Components that have basic research programs.
(5) Monitor the implementation of this part and issue any additional direction and guidance that may be necessary for that purpose.
(b) The Directors of the Defense Agencies supporting basic research and the Secretaries of the Military Departments, within their organizational purview, shall implement this part.
1. Basic research is an investment. The DoD Components are to view and manage basic research investments as a portfolio, with assessments of program success based on aggregate returns. There should be no expectation that every individual research effort will succeed because basic research essentially is an exploration of the unknown and specific outcomes are not predictable.
2. Basic research is a long-term activity that requires continuity and stability of support. Individual basic research efforts sometimes return immediate dividends, with transitions directly from research laboratories to defense systems in the field. However, most often the full benefits of basic research are not apparent until much later. Therefore, the DoD Components must engage in long-term planning and funding of basic research to the maximum possible extent.
3. Balance is essential in the portfolio of basic research investments. A wide range of scientific and engineering fields is of potential interest to the Department of Defense and the DoD Components. It is important to develop a balanced portfolio that includes investments not only in established research areas with promise for evolutionary advances, but also in areas that entail higher risk and offer potential for revolutionary advances with correspondingly higher benefits.
4. Coordination with other Federal agencies is important. The DoD Components are to consider other Federal agencies' basic research investments when making investment decisions, both to avoid unintended overlapping of support and to leverage those agencies' investments as appropriate.
5. Merit review is used to select basic research projects for support. It is crucial that the Department of Defense invest in the highest quality research for defense needs. Merit review relies on the informed advice of qualified individuals who are independent of the individuals proposing to do the research. The principal merit review factors used in selecting among possible projects are technical merit and potential long-term relevance to defense missions.
Sec. 24, Foreign Military Sales Act (22 U.S.C. 2764) and Executive Order 11501 (34 FR 20169).
The purpose of this memorandum is to prescribe regulations under which the Secretary of Defense or his designee may, from time to time, by public notice, offer financial institutions the opportunity to bid on the interest rates for the subject agreements. The bids made will be subject to the terms, conditions, and procedures herein set forth, except as they may be supplemented in the public notice or notices issued by the Secretary of Defense or his designee in connection with particular offerings.
(a) The terms
(b) The term
(a) Bids hereunder will be invited through a public notice issued by the Secretary of Defense or his designee which will prescribe the amount of the loan for which bids are invited, the repayment schedule, the conditions under which bidders may specify the rate of interest, and the date and closing hour for receipt of bids.
(b) Accompanying the notice will be the form of the Loan Agreement which the successful bidder must execute with the borrower, except for those terms which will be subject to bidding.
Under section 24 of the Foreign Military Sales Act (22 U.S.C. 2764), any individual, corporation, partnership, or other juridical entity (excluding U.S. Government agencies) will be guaranteed against political and credit risks of nonpayment arising out of their financing of credit sales of defense articles and defense services to friendly countries and international organizations. Section 24 explicitly provides that guarantees thereunder are backed by the full faith and credit of the United States. Fees in the amount of one-fourth of 1 percent of the amount of credits agreed upon shall be charged for such guaranties.
Any individual or organization, syndicates, or other group which intends to submit a bid, must, when required by the notice, give written notice of such intent on the appropriate form at the place and within the time specified in the public notice. Such notice, which shall be given to the Federal Reserve Bank of New York, 33 Liberty Street, New York, NY 10045, will not constitute a commitment to bid.
(a)
(b)
(c)
(a)
(b)
The Secretary of Defense or his designee in his discretion, may (a) revoke the public notice of invitation to bid at any time before opening bids, (b) return all bids unopened either at or prior to the time specified for their opening, (c) reject any or all bids, (d) postpone the time for presentation and opening of bids, and (e) waive any immaterial or obvious defect in any bid. Any action the Secretary of Defense or his designee may take in these respects shall be final. In the event of a postponement, known bidders will be advised thereof and their bids returned unopened.
There is hereby delegated to the Secretary or Acting Secretary of the Treasury the authority, in the name of and title of the Secretary of the Treasury, to invite bids under this memorandum, to issue, modify and revoke public notices, notices, and announcements concerning such bids, to prescribe additional terms and conditions with respect thereto, consistent with this memorandum, to receive, return, open, reject, and accept bids, and to take such other actions as may be necessary and proper to execute this delegation of authority to implement this memorandum, excluding, however, the issuance of guaranties under § 274.4.
The Secretary of Defense reserves the right, at any time, or from time to time, to amend, repeal, supplement, revise or withdraw all or any of the provisions of this memorandum.
12 U.S.C. 3401,
This part:
(a) Updates policies and responsibilities, and prescribes procedures for obtaining access to financial records maintained by financial institutions.
(b) Implements 12 U.S.C. Chapter 35 by providing guidance on the requirements and conditions for obtaining financial records.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD components”).
(b) Only to financial records maintained by financial institutions.
(a)
(b)
(c)
(2) A commercial bank or trust company.
(3) A private banker.
(4) An agency or branch of a foreign bank in the United States.
(5) Any credit union.
(6) A thrift institution.
(7) A broker or dealer registered with the Securities and Exchange Commission.
(8) A broker or dealer in securities or commodities.
(9) An investment banker or investment company.
(10) A currency exchange.
(11) An issuer, redeemer, or cashier of travelers' checks, checks, money orders, or similar instruments.
(12) An operator of a credit card system.
(13) An insurance company.
(14) A dealer in precious metals, stones, or jewels.
(15) A pawnbroker.
(16) A loan or finance company.
(17) A travel agency.
(18) A licensed sender of money or any other person who engages as a business in the transmission of funds, including any person who engages as a business in an informal money transfer system or any network of people who engage as a business in facilitating the transfer of money domestically or internationally outside of the conventional financial institutions system.
(19) A telegraph company.
(20) A business engaged in vehicle sales, including automobile, airplane, and boat sales.
(21) Persons involved in real estate closings and settlements.
(22) The United States Postal Service.
(23) An agency of the United States Government or of a State or local government performing a duty or power of a business described in this definition.
(24) A casino, gambling casino, or gaming establishment with an annual gaming revenue of more than $1,000,000 which is licensed as a casino, gambling casino, or gaming establishment under the laws of a State or locality or is an Indian gaming operation conducted pursuant to, and as authorized by, the Indian Gaming Regulatory Act.
(25) Any business or agency that engages in any activity which the Secretary of the Treasury, by regulation determines to be an activity in which any business described in this definition is authorized to engage; or any other business designated by the Secretary of the Treasury whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters.
(26) Any futures commission merchant, commodity trading advisor, or commodity pool operator registered, or required to register, under the Commodity Exchange Act that is located inside any State or territory of the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or the United States Virgin Islands.
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
It is DoD policy that:
(a) Authorization of the customer to whom the financial records pertain shall be sought unless doing so compromises or harmfully delays either a legitimate law enforcement inquiry or a lawful intelligence activity. If the person declines to consent to disclosure, the alternative means of obtaining the records authorized by subpart B shall be utilized.
(b) The provisions of 12 U.S.C. Chapter 35 do not govern obtaining access to financial records maintained by military banking contractors located outside the United States, the District of Columbia, Guam, American Samoa, Puerto Rico, and the Virgin Islands. The guidance set forth in Appendix N of subpart B may be used to obtain financial information from these contractor operated facilities.
(a) The Director of Administration and Management, Office of the Secretary of Defense shall:
(1) Exercise oversight to ensure compliance with this part.
(2) Provide policy guidance to affected DoD Components to implement this part.
(b) The Secretaries of the Military Departments and the Heads of the affected DoD Components shall:
(1) Implement policies and procedures to ensure implementation of this part when seeking access to financial records.
(2) Adhere to the guidance and procedures contained in this part.
A. A DoD law enforcement office may issue a formal written request for basic identifying account information to a financial institution relevant to a legitimate law enforcement inquiry. A request may be issued to a financial institution for any or all of the following identifying data:
1. Name.
2. Address.
3. Account number.
4. Type of account of any customer or ascertainable group of customers associated with a financial transaction or class of financial transactions.
B. The notice (paragraph B of Appendix C to this part), challenge (paragraph D of Appendix C to this part), and transfer (paragraph B. of Appendix G to this part) requirements of this part shall not apply when a Government authority is seeking only the above specified basic identifying information concerning a customer's account.
C. A format for obtaining basic identifying account information is set forth in Appendix I to this part.
A. A DoD law enforcement office or personal security element seeking access to a person's financial records shall, when feasible, obtain the customer's consent.
B. Any authorization obtained under paragraph A. of this appendix, shall:
1. Be in writing, signed, and dated.
2. Identify the particular financial records that are being disclosed.
3. State that the customer may revoke the authorization at any time before disclosure.
4. Specify the purposes for disclosure and to which Governmental authority the records may be disclosed.
5. Authorize the disclosure for a period not in excess of 3 months.
6. Contain a “State of Customer Rights” as required by 12 U.S.C. Chapter 35 (see Appendix J to this part).
7. Contain a Privacy Act Statement as required by 32 CFR part 310 for a personnel security investigation.
C. Any customer's authorization not containing all of the elements listed in paragraph B. of this appendix, shall be void. A customer authorization form, in a format set forth in Appendix J to this part, shall be used for this purpose.
D. A copy of the customer's authorization shall be made a part of the law enforcement or personnel security file where the financial records are maintained.
E. A certificate of compliance stating that the applicable requirements of 12 U.S.C. Chapter 35 have been met (Appendix M to this part), along with the customer's authorization, shall be provided to the financial institution as a prerequisite to obtaining access to financial records.
A. Access to information contained in financial records from a financial institution may be obtained by Government authority when the nature of the records is reasonably described and the records are acquired by:
1.
b. The Inspector General, DoD shall issue administrative subpoenas for access to financial records in accordance with established procedures but subject to the procedural requirements of this appendix.
2.
3.
a. Formal requests may only be used if an administrative summons or subpoena is not reasonably available to obtain the financial records.
b. A formal written request shall be in a format set forth in Appendix K to this part and shall:
B. A copy of the administrative or judicial subpoena or formal request, along with a notice specifying the nature of the law enforcement inquiry, shall be served on the person or mailed to the person's last known mailing address on or before the subpoena is served on the financial institution unless a delay of notice has been obtained under Appendix H of this part.
C. The notice to the customer shall be in a format similar to Appendix L to this part and shall be personally served at least 10 days or mailed at least 14 days prior to the date on which access is sought.
D. The customer shall have 10 days to challenge a notice request when personal service is made and 14 days when service is by mail.
E. No access to financial records shall be attempted before the expiration of the pertinent time period while awaiting receipt of a potential customer challenge, or prior to the adjudication of any challenge made.
F. The official who signs the customer notice shall be designated to receive any challenge from the customer.
G. When a customer fails to file a challenge to access to financial records within the above pertinent time periods, or after a challenge is adjudicated in favor of the law enforcement office, the head of the office, or a designee, shall certify in writing to the financial institution that such office has complied with the requirements of 12 U.S.C. Chapter 35. No access to any financial records shall be made before such certification (Appendix M to this part) is provided the financial institution.
A. A Government authority may obtain financial records by using a search warrant obtained under Rule 41 of the Federal Rules of Criminal Procedure.
B. Unless a delay of notice has been obtained under provisions of Appendix H to this part, the law enforcement office shall, no later than 90 days after serving the search warrant, mail to the customer's last known address a copy of the search warrant together with the following notice:
“Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this [DoD office or activity] on [date] for the following purpose: [state purpose]. You may have rights under the Right to Financial Privacy Act of 1978.”
C. In any state or territory of the United States, or in the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands, search authorizations signed by installation commanders, military judges, or magistrates shall not be used to gain access to financial records.
A. Financial records may be obtained from a financial institution (as identified at § 275.3) by an intelligence organization, as identified in DoD Directive 5240.1
B. The provisions of this part do not apply to the production and disclosure of financial records when requests are submitted by intelligence organizations except as may be required by this Appendix.
C. When a request for financial records is made under paragraph A. of this appendix, a Component official designated by the Secretary of Defense, the Secretary of a Military Department, or the Head of the DoD Component authorized to conduct foreign intelligence or foreign counterintelligence activities shall certify to the financial institution that the requesting Component has complied with the provisions of U.S.C. chapter 35. Such certification in a format similar to Appendix M to this part shall be made before obtaining any records.
D. An intelligence organization requesting financial records under paragraph A. of this appendix, may notify the financial institution from which records are sought 12 U.S.C. 3414(3) prohibits disclosure to any person by the institution, its agents, or employees that financial records have been sought or obtained. An intelligence organization requesting financial records under paragraph A. of this appendix, shall maintain an annual tabulation of the occasions in
E. An intelligence organization requesting financial records under paragraph A. of this appendix, shall maintain an annual tabulation of the occasions in which this access procedure was used.
A. Except as provided in paragraphs B. and C. of this appendix, nothing in this part shall apply to a request for financial records from a financial institution when a determination is made that a delay in obtaining access to such records would create an imminent danger of:
1. Physical injury to any person.
2. Serious property damage.
3. Flight to avoid prosecution.
B. When access is made to financial records under paragraph A of this appendix, a Component official designated by the Secretary of Defense or the Secretary of a Military Department shall:
1. Certify in writing, in a format set forth in Appendix M to this part, to the financial institution that the Component has complied with the provisions of 12 U.S.C. chapter 35, as a prerequisite to obtaining access.
2. Submit for filing with the appropriate court a signed sworn statement setting forth the grounds for the emergency access within 5 days of obtaining access to financial records.
C. When access to financial records are obtained under paragraph A. of this appendix, a
“Records concerning your transactions held by the financial institution named in the attached request were obtained by [Agency or Department] under the Right to Financial Privacy Act of 1978 on [date] for the following purpose: [state with reasonable specificity the nature of the law enforcement inquiry]. Emergency access to such records was obtained on the grounds that [state grounds].”
Mailings under this paragraph shall be by certified or registered mail.
A. Financial records obtained under 12 U.S.C. chapter 35 shall be marked: “This record was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401
B. Financial records obtained under this part shall not be transferred to another Agency or Department outside the Department of Defense unless the head of the transferring law enforcement office, personnel security element, or intelligence organization, or designee, certifies in writing that there is reason to believe that the records are relevant to a legitimate law enforcement inquiry, or intelligence or counterintelligence activity (to include investigation or analyses related to international terrorism) within the jurisdiction of the receiving Agency or Department. Such certificates shall be maintained with the DoD Component along with a copy of the released records.
C. Subject to paragraph D. of this appendix, unless a delay of customer notice has been obtained under Appendix H of this part, the law enforcement office or personnel security element shall, within 14 days, personally serve or mail to the customer, at his or her last known address, a copy of the certificate required by paragraph B., along with the following notice:
“Copies of or information contained in your financial records lawfully in possession of [name of Component] have been furnished to [name of Agency or Department] pursuant to the Right to Financial Privacy Act of 1978 for the following purposes: [state the nature of the law enforcement inquiry with reasonable specificity]. If you believe that this transfer has not been made to further a legitimate law enforcement inquiry, you may have legal rights under the Financial Privacy Act of 1978 or the Privacy Act of 1974.”
D. If a request for release of information is from a Federal Agency, as identified in E.O. 12333, authorized to conduct foreign intelligence or foreign counterintelligence activities, the transferring DoD Component shall release the information without notifying the customer, unless permission to provide notification is given in writing by the requesting Agency.
E. Whenever financial data obtained under this part is incorporated into a report of investigation or other correspondence; precautions must be taken to ensure that:
1. The reports or correspondence are not distributed outside the Department of Defense except in compliance with paragraph B.; and
2. The report or other correspondence contains an appropriate warning restriction on the first page or cover. Such a warning could read as follows:
“Some of the information contained herein (cite specific paragraph) is financial record information which was obtained pursuant to the Right to Privacy Act of 1978, 12 U.S.C. 3401
A. The customer notice required when seeking an administrative subpoena or summons (paragraph B. of appendix C to this part), obtaining a search warrant (paragraph B. of appendix D to this part), seeking a judicial subpoena (paragraph B. to appendix C to this part), making a formal written request (paragraph B. to appendix C to this part), obtaining emergency access (paragraph C. of appendix F to this part), or transferring information (paragraph C. of appendix G to this part), may be delayed for an initial period of 90 days and successive periods of 90 days. The notice required when obtaining a search warrant (paragraph B. of appendix D to this part) may be delayed for a period of 180 days and successive periods of 90 days. A delay of notice may only be made by an order of an appropriate court if the presiding judge or magistrate finds that:
1. The investigation is within the lawful jurisdiction of the Government authority seeking the records.
2. There is reason to believe the records being sought are relevant to a law enforcement inquiry.
3. There is reason to believe that serving the notice will result in:
a. Endangering the life or physical safety of any person.
b. Flight from prosecution.
c. Destruction of or tampering with evidence.
d. Intimidation of potential witnesses.
e. Otherwise seriously jeopardizing an investigation or official proceeding or unduly delaying a trial or ongoing official proceeding to the same degree as the circumstances in paragraphs A.2.a. through A.2.d. of this appendix.
B. When a delay of notice is appropriate, legal counsel shall be consulted to obtain such a delay. Application for delays of notice shall be made with reasonable specificity.
C. Upon the expiration of a delay of notification obtained under paragraph A. of this appendix for a search warrant, the law enforcement office obtaining such records shall mail to the customer a copy of the search warrant, along with the following notice:
“Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this [agency or department] on [date].
Notification was delayed beyond the statutory 180-day delay period pursuant to a determination by the court that such notice would seriously jeopardize an investigation concerning [state with reasonable specificity]. You may have rights under the Right to Financial Privacy Act of 1978.”
D. Upon the expiration of all other delays of notification obtained under paragraph A. of this appendix, the customer shall be served with or mailed a copy of the legal process or formal request, together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry.
“Records or information concerning your transactions which are held by the financial institution named in the attached process or request were supplied to or requested by the Government authority named in the process or request on (date). Notification was withheld pursuant to a determination by the (title of the court ordering the delay) under the Right to Financial Privacy Act of 1978 that such notice might (state the reason). The purpose of the investigation or official proceeding was (state the purpose).”
In connection with a legitimate law enforcement inquiry and pursuant to section 3413(g) of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et. seq., you are requested to provide the following account information:
[Name, address, account number, and type of account of any customer or ascertainable group of customers associated with a financial transaction or class of financial transactions.
I hereby certify, pursuant to section 3403(b) of the Right of Financial Privacy Act of 1978, that the provisions of the Act have been complied with as to this request for account information.
Under section 3417(c) of the Act, good faith reliance upon this certification relieves your institution and its employees and agents of any possible liability to the customer in connection with the disclosure of the requested financial records.
Pursuant to section 3404(a) of the Right to Financial Privacy Act of 1978, I, [Name of customer], having read the explanation of my rights on the reverse side, hereby authorize the [Name and address of financial institution] to disclose these financial records: [List the particular financial records] to [DoD Component] for the following purpose(s): [Specify the purpose(s)].
I understand that the authorization may be revoked by me in writing at any time before my records, as described above, are disclosed, and that this authorization is valid for no more than three months from the date of my signature.
Federal law protects the privacy of your financial records. Before banks, savings and loan associations, credit unions, credit card issuers, or other financial institutions may give financial information about you to a Federal Agency, certain procedures must be followed.
You may be asked to authorize the financial institution to make your financial records available to the Government. You may withhold your authorization, and your authorization is not required as a condition of doing business with any financial institution. If you provide authorization, it can be revoked in writing at any time before your
Without your authorization, a Federal Agency that wants to see your financial records may do so ordinarily only by means of a lawful administrative subpoena or summons, search warrant, judicial subpoena, or formal written request for that purpose. Generally, the Federal Agency must give you advance notice of its request for your records explaining why the information is being sought and telling you how to object in court.
The Federal Agency must also send you copies of court documents to be prepared by you with instructions for filling them out. While these procedures will be kept as simple as possible, you may want to consult an attorney before making a challenge to a Federal Agency's request.
In some circumstances, a Federal Agency may obtain financial information about you without advance notice or your authorization. In most of these cases, the Federal Agency will be required to go to court for permission to obtain your records without giving you notice beforehand. In these instances, the court will make the Government show that its investigation and request for your records are proper. When the reason for the delay of notice no longer exists, you will be notified that your records were obtained.
Generally, a Federal Agency that obtains your financial records is prohibited from transferring them to another Federal Agency unless it certifies in writing that the transfer is proper and sends a notice to you that your records have been sent to another Agency.
If the Federal Agency or financial institution violates the Right to Financial Privacy Act, you may sue for damages or seek compliance with the law. If you win, you may be repaid your attorney's fee and costs.
If you have any questions about your rights under this law, or about how to consent to release your financial records, please call the official whose name and telephone number appears below:
In connection with a legitimate law enforcement inquiry and pursuant to section 3402(5) and section 3408 of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et. seq., and [cite Component's implementation of this Part], you are requested to provide the following account information pertaining to the subject:
The [DoD Component] is without authority to issue an administrative summons or subpoena for access to these financial records which are required for [Describe the nature or purpose of the inquiry].
A copy of this request was [personally served upon or mailed to the subject on [date] who has [10 or 14] days in which to challenge this request by filing an application in an appropriate United States District Court if the subject desires to do so.
Upon the expiration of the above mentioned time period and absent any filing or challenge by the subject, you will be furnished a certification certifying in writing that the applicable provisions of the Act have been complied with prior to obtaining the requested records. Upon your receipt of a Certificate of Compliance with the Right to Financial Privacy Act of 1978, you will be relieved of any possible liability to the subject in connection with the disclosure of the requested financial records.
Information or records concerning your transactions held by the financial institution named in the attached [administrative subpoena or summons] [judicial subpoena] [request] are being sought by the [Agency/
If you desire that such records or information not be made available, you must:
1. Fill out the accompanying motion paper and sworn statement or write one of your own, stating that you are the customer whose records are being requested by the Government and either giving the reasons you believe that the records are not relevant to the legitimate law enforcement inquiry stated in this notice or any other legal basis for objecting to the release of the records.
2. File the motion and statement by mailing or delivering them to the clerk of any one of the following United States District Courts:
3. Serve the Government authority requesting the records by mailing or delivering a copy of your motion and statement to: [Give title and address].
4. Be prepared to come to court and present your position in further detail.
5. You do not need to have a lawyer, although you may wish to employ one to represent you and protect your rights.
If you do not follow the above procedures, upon the expiration of 10 days from the date of personal service or 14 days from the date of mailing of this notice, the records or information requested therein may be made available. These records may be transferred to other Government authorities for legitimate law enforcement inquiries, in which event you will be notified after the transfer.
1. Copy of request
2. Motion papers
3. Sworn statement
I certify, pursuant to section 3403(b) of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et. seq., that the applicable provisions of that statute have been complied with as to the [Customer's authorization, administrative subpoena or summons, search warrant, judicial subpoena, formal written request, emergency access, as applicable] presented on [date], for the following financial records of [customer's name]:
Pursuant to section 3417(c) of the Right to Financial Privacy Act of 1978, good faith reliance upon this certificate relieves your institution and its employees and agents of any possible liability to the customer in connection with the disclosure of these financial records.
A. The provisions of 12 U.S.C. Chapter 35 do not govern obtaining access to financial records maintained by military banking contractors overseas or other financial institutions in offices located on DoD installations outside the United States, the District of Columbia, Guam, American Samoa, Puerto Rico, or the Virgin Islands.
B. Access to financial records held by such contractors or institutions is preferably obtained by customer authorization. However, in those cases where it would not be appropriate to obtain this authorization or where such authorization is refused and the financial institution is not otherwise willing to provide access to its records:
1. A law enforcement activity may seek access by the use of a search authorization issued pursuant to established Component procedures; Rule 315, Military Rules of Evidence (Part III, Manual for Courts-Martial); and Article 46 of the Uniform Code of Military Justice.
2. An intelligence organization may seek access pursuant to Procedure 7 of DoD 5240.1-R.
3. Information obtained under this appendix shall be properly identified as financial information and transferred only where an official need-to-know exists. Failure to identify or limit access in accordance with this paragraph does not render the information inadmissible in courts-martial or other proceedings.
4. Access to financial records maintained by all other financial institutions overseas by law enforcement activities shall be in accordance with the local foreign statutes or procedures governing such access.
31 U.S.C. 3807.
This part establishes uniform policies, assigns responsibilities, and prescribes procedures for implementation of Pub. L. 99-509.
This part applies to the Office of the Secretary of Defense (OSD); the Military Departments; the Office of the Inspector General, Department of Defense (OIG, DoD); the Defense Agencies; and the DoD Field Activities (hereafter referred to collectively as “DoD Components”).
It is DoD policy to redress fraud in DoD programs and operations through the nonexclusive use of Pub. L. 99-509. All DoD Components shall comply with the requirements of this part in using this new remedy. Changes or modifications to this part by implementing organizations are prohibited. Implementing regulations are authorized only to the extent necessary to effectively carry out the requirements of this part.
(a) The
(b) The
(1) Establish procedures for carrying out the duties and responsibilities of the authority head, Department of Defense, which have been delegated to the GC, DoD, as set forth in appendix of this part.
(2) Establish procedures for carrying out the duties and responsibilities for appointment and support of presiding officers, as set forth in appendix of this part; and
(3) Review and approve the regulations and instructions required by this section to be submitted for approval by the GC, DoD.
(c) The
(1) Establish procedures for carrying out the duties and responsibilities of the “authority head” and of the “reviewing officials” for their respective Departments, and for obtaining and supporting presiding officers from other Agencies as specified in Office of Personnel Management (OPM) regulations; (see appendix of this part).
(2) Make all regulations or instructions promulgated subject to the approval of the GC, DoD; and
(3) Delegate duties as appropriate.
(d) The
1. The Department of Defense has the authority to impose civil penalties and assessments against persons who make, submit or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents.
2. This appendix:
a. Establishes administrative policies and procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents;
b. Specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
3. The uniform policies and procedures established by this enclosure are binding on the authorities and authority heads in the Department of Defense and Military Departments. Additional administrative regulations necessary to carry out the requirements of the PFCRA and this part may be written by the authority heads. Any such regulations shall be consistent with the provisions of this appendix.
Information sufficient to support the reasonable belief that a particular act or omission has occurred.
a. The Department of Defense, which includes OSD, Organization of the Joint Chiefs of Staff (OJCS), Unified and Specified Commands, Defense Agencies, and DoD Field Activities.
b. The Department of the Army.
c. The Department of the Navy.
d. The Department of the Air Force.
a. For the Department of Defense, the Deputy Secretary of the Department of Defense or an official or employee of the Department of Defense or the Military Departments designated in writing by the Deputy Secretary of Defense.
b. For the respective Military Departments, the Secretary of the Military Department or an official or employee of the Military Department designated in regulations promulgated by the Secretary to act on behalf of the Secretary.
In the context of statements, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling status, or loan guarantee.
Any request, demand, or submission made as follows:
a. To the authority for property, services, or money (including money representing grants, loans, insurance, or benefits);
b. To a recipient of property, services, or money from the authority or to a party to a contract with the authority:
(1) For property or services if the United States:
(a) Provided such property or services;
(b) Provided any portion of the funds for the purchase of such property or services; or
(c) Will reimburse such recipient or party for the purchase of such property or services; or
(2) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States:
(a) Provided any portion of the money requested or demanded; or
(b) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or
(3) Made to the authority that has the effect of decreasing an obligation to pay or account for property, services, or money.
The administrative complaint served by the reviewing official on the defendant under section G., below.
Any person alleged in a complaint under section G., below, to be liable for a civil penalty or assessment under Section C., below.
The U.S. Army Criminal Investigative Command, Naval Security and Investigative Command, U.S. Air Force Office of Special Investigations, and the Defense Criminal Investigative Service.
The U.S. Government.
A natural person.
The Written decision of the presiding officer required by section J. or KK., below. This includes a revised initial decision issued following a remand or a motion of reconsideration.
a. The IG, DoD; or
b. An officer or employee of the OIG designated by the IG;
c. Who, if a member of the Armed Forces of the United States on active duty, is serving in Grade 0-7 or above or, if a civilian employee, is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for Grade GS-16 under the General Schedule.
A person who, with respect to a claim or statement:
a. Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
b. Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
c. Acts in reckless disregard of the truth or falsity of the claim or statement.
Includes the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, making or made shall likewise include the corresponding forms of such terms.
Any individual, partnership, corporation, association or private organization, and includes the plural of that term.
The evidence necessary to support a presiding officer's decision that a violation of the PFCRA has occurred. Evidence that leads to the belief that what is sought to be proved is more likely true than not true.
An officer or employee of the Department of Defense or an employee detailed to the Department of Defense from another agency who:
a. Is selected under 5 U.S.C., chapter 33, pursuant to the competitive examination process applicable to administrative law judges;
b. Is appointed by the authority head of DoD to conduct hearings under this part for cases arising in the Department of Defense or the Military Departments;
c. Is assigned to cases in rotation so far as practicable;
d. May not perform duties inconsistent with the duties and responsibilities of a presiding officer;
e. Is entitled to pay prescribed by the Office of Personnel Management (OPM) independently of ratings and recommendations made by the authority and in accordance with 5 U.S.C., chapters 51 and 53, subchapter III;
f. Is not subject to a performance appraisal pursuant to 5 U.S.C., chapter 43; and
g. May be removed, suspended, furloughed, or reduced in grade or pay only for good cause established and determined by the Merit Systems Protection Board (MSPB) on the record after opportunity for hearing by such Board.
An Attorney-at-law duly licensed in any State, commonwealth, territory, the District of Columbia, or foreign country, who enters his or her appearance in writing to represent a party in a proceeding under this part, or an officer, director, or employee of a defendant or of its affiliate.
a. In all cases arising in the Department of Defense and any of the Military Departments, the reviewing official shall be an officer or employee of an authority as follows:
(1) Who is designated by the authority head to make the determination required under section E., below, of this enclosure;
(2) Who, if a member of the Armed Forces of the United States on active duty, is serving in Grade 0-7 or above or, if a civilian employee, is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for Grade GS-16 under the General Schedule; and
(3) Who is as follows:
(a) Not subject to supervision by, or required to report to, the investigating official;
(b) Not employed in the organizational unit of the authority in which the investigating official is employed; and
(c) Not an official designated to make suspension or debarment decisions.
b. The General Counsel, Defense Logistics Agency (GC, DLA), shall be the reviewing official for all cases involving a claim or statement made to the DLA or any other part of the Department of Defense other than a Military Department or the National Security Agency (NSA). The General Counsel, National Security Agency (GC, NSA), shall be the reviewing official for all cases involving claims or statements made to that Agency. The General Counsel, Defense Logistics Agency (GC, DLA), and GC, NSA, may redelegate their authority to act as reviewing officials to any individual(s) meeting the criteria set out in subparagraph (1) of this section.
c. The authority head of each Military Department shall select a reviewing official, who shall review all cases involving a claim or statement that was made to their Department.
Any written representation, certification, affirmation, document, record, accounting, or bookkeeping entry made:
a. With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or
b. With respect to (including relating to eligibility for):
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from the authority, or any State, political subdivision of a State, or other party; if the U.S. Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the U.S. Government will reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
a. Any person who makes a claim that the person knows or has reason to know:
(1) Is false, fictitious, or fraudulent;
(2) Includes or is supported by a written statement that asserts a material fact that is false, fictitious, or fraudulent;
(3) Includes or is supported by any written statement that:
(a) Omits a material fact;
(b) Is false, fictitious, or fraudulent as a result of such omission; and
(c) Is a statement in which the person making such statement has a duty to include such material fact; or
(4) Is for payment for the provision of property or services that the person had not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each such claim.
b. Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.
c. A claim shall be considered made to an authority, recipient, or party when such claim is received by an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of such authority, recipient, or party.
d. Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, service, or money is actually delivered or paid.
e. If the Government has made any payment (including transferred property or provided services) on a claim, a person subject to a civil penalty under subparagraph a.(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of subparagraph a.(1) of this section. Such assessment shall be in lieu of damages sustained by the Government because of such claim.
a. Any person who makes a written statement that:
(1) The person knows or has reason to know the following:
(a) Asserts a material fact that is false, fictitious, or fraudulent; or
(b) Is false, fictitious, or fraudulent because it omits a material fact that the person making the statement has a duty to include in such statement; and
(2) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each statement.
b. Each written representation, certification, or affirmation constitutes a separate statement.
c. A statement shall be considered made to an authority when such statement is received by an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of such authority.
3. No proof of specific intent to defraud is required to establish liability under this section.
4. In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each such person may be held jointly and severally liable for a civil penalty with respect to such claims or statements.
5. In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has made payment (including transferred property or provided services) an assessment may be imposed against any such person or jointly and severally against any combination of such persons.
1. If the investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted, then:
a. The subpoena so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued and shall identify the records or documents sought;
b. The investigating official may designate a person to act on his or her behalf to receive the documents sought; and
c. The person receiving such subpoena shall be required to tender to the investigating official, or to the person designated to receive the documents, a certification that the documents sought have been produced, or that such documents are not available and the reasons therefor, or that such documents, suitably identified, have been withheld based upon the assertion of an identified privilege.
2. If the investigating official concludes that an action under the PFCRA may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the appropriate reviewing official(s). In instances where the false claim or false statement involves more than one authority within the Department of Defense, or where the investigating official finds that more than one case has arisen from the same set of facts, the investigating official may, at his or her
3. Nothing in this section shall preclude or limit an investigating official's discretion to refer allegations directly to the Department of Justice for suit under 18 U.S.C. 287 or 31 U.S.C. 3729 and 3730, False Claims Act, or other civil relief, or to preclude or limit such official's discretion to defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution.
4. Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General.
5. Nothing in this section shall preclude or limit the investigating official's authority to obtain the assistance of any investigative units of the Department of Defense, including those of the Military Departments. In this regard, appropriate investigation may be conducted by the Defense criminal investigative organizations and other investigative elements of the Military Departments and Defense Agencies.
1. If, based on the report of the investigating official under subsection D.2., above, the reviewing official determines that there is adequate evidence to believe that a person is liable under section C., above, the reviewing official shall transmit to the Attorney General or his or her designated point of coordination within the Department of Justice a written notice of the reviewing official's intention to issue a complaint under section G., below.
2. Such notice shall include the following:
a. A statement of the reviewing official's reasons for issuing a complaint;
b. A statement specifying the evidence that supports the allegations of liability;
c. A description of the claims or statements upon which the allegations of liability are based;
d. An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of section C., above.
e. A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
f. A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
1. The reviewing official may issue a complaint under section G., below, only if:
a. The Attorney General or an Assistant Attorney General designated by the Attorney General approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1); and
b. In the case of allegations of liability under subsection C.1., above, with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in subsection 2. of this section), the amount of money or the value of property or services demanded or requested in violation of subsection C.1., above, does not exceed $150,000.00;
2. For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand, or submission.
3. Nothing in this section shall be construed to limit the reviewing official's authority to join in a single complaint against a person's claims that are unrelated or were not submitted simultaneously, regardless of the amount of money or the value of property or services demanded or requested.
4. In any case that involves claims or statements made to more than one entity within the Department of Defense or the Military Departments, or the reviewing officials having responsibility for each such entity, as stated in subsection D.2., above, shall have concurrent jurisdiction to make the required determinations under this section. In any such case, the responsible reviewing officials shall coordinate with each other prior to making any determination under this section. Where more than one case arises from the same set of facts, such cases shall be consolidated to the degree practicable, although the reviewing official shall have absolute discretion to make such determination. The requirements of this paragraph do not confer any procedural or substantive rights upon individuals, associations, corporations, or other persons or entities who might become defendants under the PFCRA.
1. On or after the date the Attorney General or an Assistant Attorney General designated by the Attorney General approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in section H., below.
2. The complaint shall state the following:
a. The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
b. The maximum amount of penalties and assessments for which the defendant may be held liable;
c. Instructions for filing an answer to a request including a specific statement of the defendant's right to request a hearing, by filing an answer and to be represented by a representative; and
d. That failure to file an answer within 30 days of service of the complaint shall result in the imposition of penalties and assessments without right to appeal, consistent with the provisions of section J., below.
3. At the same time the reviewing official serves the complaint, he or she shall notify the defendant with a copy of this part and any applicable implementing regulations.
1. Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete upon receipt.
2. Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service may be made by the following:
a. Affidavit of the individual serving the complaint by delivery;
b. A United States Postal Service return receipt card acknowledging receipt; or
c. Written acknowledgement of receipt by the defendant or his or her representative.
1. The defendant may request a hearing by filing an answer with the reviewing official within 30 days of service of the complaint. An answer shall be deemed to be a request for hearing.
2. In the answer, the defendant:
a. Shall admit or deny each of the allegations of liability made in the complaint;
b. Shall state any defense on which the defendant intends to rely;
c. May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and
d. Shall state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any.
3. If the defendant is unable to file an answer meeting the requirements of paragraph 2.b of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of subsection 2. of this section. The reviewing official shall, in such event, file promptly with the presiding officer the complaint, the general answer denying liability, and the request for an extension of time as provided in section K., below. For good cause shown, the presiding officer may grant the defendant additional time within which to file an answer meeting the requirements of subsection 2. of this section.
4. The 30-day limitation for filing an answer may be tolled for a reasonable period of time by written agreement of the parties and approval of the authority head to allow time for settlement.
1. If the defendant does not file an answer within the time prescribed in subsection I.1., above, and there is no approved written agreement as in subsection I.4, above, tolling the time prescribed, the reviewing official may then refer the complaint to the presiding officer.
2. Upon referral of the complaint pursuant to this section, the presiding officer shall promptly serve on defendant, in the manner prescribed in section H., above, a notice that an initial decision will be issued under this section.
3. Upon referral of the complaint pursuant to this section, the presiding officer shall assume the facts alleged in the complaint to be true and, if such facts establish liability under section C., above, the presiding officer shall issue an initial decision imposing penalties and assessments under the statute.
4. Except as otherwise provided in this section, by failing to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed under subsection 3. of this section, and the initial decision shall become final and binding upon the parties 30 days after it is issued.
5. If, before such an initial decision becomes final, the defendant files a motion with the presiding officer seeking to reopen on the grounds that good cause prevented the defendant from filing an answer, the initial decision shall be stayed pending the presiding officer's decision on the motion.
6. If, on a motion brought under subsection J.5., above, the defendant can demonstrate good cause excusing the failure to file a timely answer, the presiding officer shall withdraw the initial decision in subsection 3. of this section if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint.
7. A decision of the presiding officer denying a defendant's motion under subsections 5. and 6. of this section is not subject to reconsideration under section LL., below.
8. The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the presiding officer denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
9. If the defendant files a timely notice of appeal with the authority head, the presiding officer shall forward the record of the proceeding to the authority head.
10. The authority head shall decide expeditiously whether good cause excused the defendant's failure to file a timely answer based solely on the record before the presiding officer.
11. If the authority head decides that good cause excused the defendant's failure to file a timely answer, the authority head shall remand the case to the presiding officer with instructions to grant the defendant an opportunity to answer.
12. If the authority head decides that the defendant's failure to file a timely answer is not excused, the authority head shall approve the initial decision of the presiding officer, which shall become final and binding upon the parties 30 days after the authority head issues such decision.
1. Upon receipt of an answer, the reviewing official shall file the complaint and answer with the presiding officer.
2. To allow time for settlement, referral of complaint and answer to the presiding officer may be delayed for a reasonable period of time if there is a written agreement of the parties, approved by the authority head, in favor of such delay.
1. When the presiding officer receives the complaint and answer, the presiding officer shall promptly serve a notice of hearing upon the defendant in the manner prescribed by section H., above. At the same time, the presiding officer shall send a copy of such notice to the representative for the Government.
2. Such notice shall include:
a. The tentative time and place, and the nature of the hearing;
b. The legal authority and jurisdiction under which the hearing is to be held;
c. The matters of fact and law to be asserted;
d. A description of the procedures for the conduct of the hearing;
e. The name, address, and telephone number of the representative of the Government, the defendant, and other parties, if any; and
f. Such other matters as the presiding officer deems appropriate.
The parties to the hearing shall be the defendant and the authority. The reviewing official of each authority shall, with the concurrence of the DoD Component head, designate attorneys within that authority to represent the authority in hearings conducted under this part. Attorneys appointed as authority representatives shall remain under the supervision of their DoD Component.
1. The investigating official and the reviewing official, for any particular case or factually related case, may not do the following:
a. Participate in the hearing as the presiding officer;
b. Participate or advise in the initial decision or the review of the initial decision by the authority head, except as a witness or a representative in a public proceeding; or
c. Make the collecting of penalties and assessments under 31 U.S.C. 3806.
2. The presiding officer shall not be responsible to, or subject to the supervision or direction of, the investigating official or the reviewing official.
3. Except as provided in subsection 1. of this section, the representative for the Government may be employed anywhere in the authority, including in the offices of either the investigating official or the reviewing official.
No party or person (except employees of the presiding officer's office) shall communicate in any way with the presiding officer on any matter at issue in a case unless on notice and there is an opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures.
1. A reviewing official or presiding officer in a particular case may disqualify himself or herself at any time.
2. A party may file a motion for disqualification of the presiding officer or the reviewing official. Such motion, to be filed with the presiding officer, shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.
3. Such motion and affidavit shall be filed promptly upon the party's discovery of reasons requiring disqualification or such objections shall be deemed waived.
4. Such affidavit shall state specific facts that support the party's belief that personal
5. Upon the filing of such a motion and affidavit, the presiding officer shall proceed no further in the case until he or she resolves the matter of disqualification by taking one of the following actions:
a. If the presiding officer determines that a reviewing official is disqualified, the presiding officer shall dismiss the complaint without prejudice;
b. If the presiding officer disqualifies himself or herself, the case shall be reassigned promptly to another presiding officer;
c. The presiding officer may deny a motion to disqualify. In such event, the authority head may determine the matter only as part of his or her review of the initial decision upon appeal, if any.
Except as otherwise limited by this enclosure, all parties may:
1. Be accompanied, represented, and advised by a representative;
2. Participate in any conference held by the presiding officer;
3. Conduct discovery;
4. Agree to stipulations of fact or law, which shall be made part of the record;
5. Present evidence relevant to the issues at the hearing;
6. Present and cross-examine witnesses;
7. Present oral arguments at the hearing, as permitted by the presiding officer; and
8. Submit written briefs and proposed findings of fact and conclusions of law after the hearing.
1. The presiding officer shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
2. The presiding officer has the authority to do the following:
a. Set and change the date, time, and place of the hearing upon reasonable notice to the parties;
b. Continue or recess the hearing in whole or in part for a reasonable period of time;
c. Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
d. Administer oaths and affirmations;
e. Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings;
f. Rule on motions and other procedural matters;
g. Regulate the scope and timing of discovery;
h. Regulate the course of the hearing and the conduct of representatives and parties;
i. Examine witnesses;
j. Receive, rule on, exclude, or limit evidence;
k. Upon motion of a party, take official notice of facts;
l. Upon motion of a party, decide cases, in whole or in part by summary judgment where there is no disputed issue of material fact;
m. Conduct any conference, argument, or hearing on motions in person or by telephone; and
n. Exercise such other authority as is necessary to carry out the responsibilities of the presiding officer under this Directive.
3. The presiding officer does not have the authority to find Federal statutes or regulations invalid.
1. The presiding officer may schedule prehearing conferences as appropriate.
2. Upon the motion of any party, the presiding officer shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
3. The presiding officer may use prehearing conferences to discuss the following:
a. Simplification of the issues;
b. The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
c. Stipulations and admissions of fact or as to the contents and authenticity of documents;
d. Whether the parties can agree to submission of the case on a stipulated record;
e. Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objections of other parties) and written argument;
f. Limitation of the number of witnesses;
g. Scheduling dates for the exchange of witness lists and of proposed exhibits;
h. Discovery;
i. The time and place for the hearing; and
j. Such other matters as may tend to expedite the fair and just disposition of the proceedings.
4. The presiding officer may issue an order containing all matters agreed upon by the parties or ordered by the presiding officer at a prehearing conference.
1. Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under subsection D.2., above, are based, unless such documents
2. Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed, except if disclosure would violate Rule 6(e) of the Federal Rules of Criminal Procedure.
3. The notice sent to the Attorney General from the reviewing official as described in section E., above, is not discoverable under any circumstances.
4. The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section at any time after service of the complaint.
1. The following types of discovery are authorized:
a. Requests for production of documents for inspection and copying;
b. Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
c. Written interrogatories; and
d. Depositions.
2. For the purpose of this section and sections V. and W., below, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence contained in a form contemplated by the definition of “document” set forth in the Federal Rules of Civil Procedure, Rule 34. Nothing contained herein shall be interpreted to require the creation of a document.
3. Unless mutually agreed to by the parties, discovery is available only as ordered by the presiding officer. The presiding officer shall regulate the timing of discovery.
4. Motions for discovery may be filed with the presiding officer by the party seeking discovery.
a. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
b. Within 10 days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in section X., below.
c. The presiding officer may grant a motion of discovery only if he finds that the discovery sought:
(1) Is necessary for the expeditious, fair, and reasonable consideration of the issue;
(2) Is not unduly costly or burdensome;
(3) Will not unduly delay the proceeding; and
(4) Does not seek privileged information.
d. The burden of showing that discovery should be allowed is on the party seeking discovery.
e. The presiding officer may grant discovery subject to a protective order under section X., below.
5. Depositions
a. If a motion for deposition is granted, the presiding officer shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held. The presiding officer may order that parties produce deponents and/or documents without the need for subpoena.
b. The party seeking to depose shall serve the subpoena in the manner prescribed in section H., above.
c. The deponent may file with the presiding officer a motion to quash the subpoena or a motion for a protective order within 10 days of service.
d. The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all parties for inspection and copying.
6. Each party shall bear its own costs of discovery.
1. At least 15 days before the hearing or at such other time as may be ordered by the presiding officer, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with subsection GG.2., below. At the time the above documents are exchanged, any party that intends to rely upon the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the presiding officer, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
2. If a party objects, the presiding officer shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the presiding officer finds good cause for the failure or that there is no prejudice to the objecting party.
3. Unless another party objects within the time set by the presiding officer, documents exchanged in accordance with subsection 1. of this section shall be admitted into evidence at the hearing. Later challenges to admissibility at the hearing shall be permitted
1. A party wishing to procure the appearance and testimony of any individual at the hearing may request that the presiding officer issue a subpoena.
2. A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
3. A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the hearing, unless otherwise allowed by the presiding officer for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
4. The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
5. The party seeking the subpoena shall serve it in the manner prescribed in section H., above. A subpoena on a party or upon an individual under the control of a party may be served by first class mail.
6. A party or a representative of the individual to whom the subpoena is directed may file with the presiding officer a motion to quash the subpoena with 10 days after service or on or before the time specified in the subpoena for compliance if it is less than 10 days after service.
1. A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
2. In issuing a protective order, the presiding officer may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense including one or more of the following:
a. That the discovery not be had;
b. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
c. That the discovery may be had only through a method of discovery other than that requested;
d. That classified information not be released unless prior notice and arrangements reasonably acceptable to the representative of the authority are made in coordination with the Defense Investigative Service, and the presiding officer agrees to the use;
e. That certain matters not be inquired into or that the scope of discovery be limited to certain matters;
f. That discovery be conducted with no person except persons designated by the presiding officer;
g. That the contents of discovery or evidence be sealed;
h. That the defendant comply with 32 CFR part 97 concerning official witnesses;
i. That a deposition after being sealed be opened only upon order of the presiding officer;
j. That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
k. That the parties simultaneously file specified documents of information enclosed in sealed envelopes to be opened as directed by the presiding officer.
The party requesting a subpoena shall pay the cost of the witness fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in the United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority a check for witness fees and mileage need not accompany the subpoena.
1. Form
a. Documents filed with the presiding officer shall include an original and two copies.
b. Every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the presiding officer, and a designation of the paper (e.g., motion to quash subpoena).
c. Every pleading and paper shall be signed by, and shall contain the address and telephone number of, the party or the person on whose behalf the paper was filed, or his or her representative.
d. Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail.
2.
3.
1. In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal Government, in which event it includes the next business day.
2. When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal Government shall be excluded from the computation.
3. Where a document has been served or issued by placing it in the mail, an additional 5 days will be added to the time permitted for any response.
1. Any application to the presiding officer for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, the facts alleged, and shall be filed with the presiding officer and served on all other parties.
2. Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The presiding officer may require the oral motions be put in writing.
3. Within 15 days after a written motion is served, or such other time as may be fixed by the presiding officer, any party may file a response to such motion.
4. The presiding officer may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
5. The presiding officer shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.
6. Failure by a party to raise defenses or objections or to make requests that must be made prior to the beginning of the hearing shall constitute waiver thereof, but the presiding officer may grant relief from the waiver for good cause shown.
1. The presiding officer may sanction a person, including any party or representative, for the following:
a. Failing to comply with an order, rule, or procedure governing the proceeding;
b. Failing to prosecute or defend an action; or
c. Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
2. Any such sanction, including but not limited to those listed in subsections 3., 4., and 5. of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
3. When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the presiding officer may:
a. Draw an inference in favor of the requesting party with regard to the information sought;
b. In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
c. Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought; and
d. Strike any part of the pleadings or other submission of the party failing to comply with such request.
4. If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the presiding officer may dismiss the action or may issue an initial decision imposing penalties and assessments.
5. The presiding officer may refuse to consider any motion, request, response, brief, or other document that is not filed in a timely fashion.
1. The presiding officer shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under section C., above, and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors.
2. The authority shall prove defendant's liability and any aggravating factors by a preponderance of the evidence.
3. The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
4. The hearing shall be open to the public unless otherwise ordered by the presiding officer for good cause shown.
In determining an appropriate amount of civil penalties and assessments, the presiding officer and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and
1. The hearing may be held as follows:
a. In any judicial district of the United States in which the defendant resides or transacts business;
b. In any judicial district of the United States in which the claim or statement at issue was made; or
c. In such other place, including foreign countries, as may be agreed upon by the defendant and the presiding officer.
2. Each party shall have the opportunity to petition the presiding officer with respect to the location of the hearing.
3. The hearing shall be held at the place and at the time ordered by the presiding officer.
1. Except as provided in subsection 2. of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
2. At the discretion of the presiding officer, testimony may be admitted in the form of a written or videotaped statement or deposition. Any such written or videotaped statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for deposition or cross-examination at the hearing. Prior written or videotaped statements of witnesses proposed to testify at the hearings and deposition transcripts shall be exchanged as provided in subsection V.1., above.
3. The presiding officer shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
a. Make the interrogation and presentation effective for the ascertainment of the truth;
b. Avoid needless consumption of time; and
c. Protect witnesses from harassment or undue embarrassment.
4. The presiding officer shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
5. At the discretion of the presiding officer, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination.
6. Upon motion of any party, the presiding officer shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of the following:
a. A party who is an individual;
b. In the case of a party that is not an individual, an officer or employee of the party appearing for the party as its representative, or designated by the party's representative; or
c. An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.
1. The presiding officer shall determine the admissibility of evidence.
2. Except as provided herein, the presiding officer shall not be bound by the Federal Rules of Evidence. However, the presiding officer may apply the Federal Rules of Evidence where appropriate; e.g., to exclude unreliable evidence.
3. The presiding officer shall exclude irrelevant and immaterial evidence.
4. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by consideration of undue delay or needless presentation of cumulative evidence.
5. Evidence shall be excluded if it is privileged under Federal law and the holder of the privilege asserts it.
6. Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
7. The presiding officer shall permit the parties to introduce rebuttal witnesses and evidence.
8. All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the presiding officer pursuant to section X., above.
1. The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the presiding officer at a cost not to exceed the actual cost of duplication.
2. The transcript of testimony, exhibits, and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the presiding officer and the authority head.
3. The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the presiding officer.
4. Funding for the hearing and record, except for the cost of the presiding officer, shall be the responsibility of the authority in which the case arose.
The presiding officer may require or permit the parties to file post-hearing briefs.
1. The presiding officer shall issue an initial decision based only on the record that shall contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
2. The findings of fact shall include a finding on each of the following issues:
a. Whether the claims or statements identified in the complaint, or any portions thereof, violate section C., above; and
b. If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments.
3. The presiding officer shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The presiding officer shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the presiding officer or a notice of appeal with the authority head. If the presiding officer fails to meet the deadline contained in this subsection, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
4. Unless the initial decision of the presiding officer is timely appealed to the authority head, or a motion for reconsideration of the initial decision is timely filed, the initial decision of the presiding officer shall be final and binding on the parties 30 days after it is issued by the presiding officer.
1. Except as provided in subsection 4. of this section, any party may file a motion for reconsideration of the initial decision within 20 days of service of the initial decision in the manner set forth in section H., above, for service of the complaint. Service shall be proved in the manner provided in subsection H.2., above.
2. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall be accompanied by a supporting brief.
3. Responses to such motions shall be allowed only upon request of the presiding officer; however, the presiding officer shall not issue a revised initial determination without affording both parties an opportunity to be heard on the motion for reconsideration.
4. No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.
5. The presiding officer may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
6. If the presiding officer denies a motion for reconsideration, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the presiding officer denies the motion, unless the initial decision is timely appealed to the authority head in accordance with section MM., below.
7. If the presiding officer issues a revised initial decision, that decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the authority head in accordance with section MM., below.
1. Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the authority head by filing a notice of appeal with the authority head in accordance with this section.
2. A notice of appeal:
a. May be filed at any time within 30 days after the presiding officer issues an initial or a revised initial decision. If another party files a motion for reconsideration under section LL., above, consideration of the appeal shall be stayed automatically pending resolution of the motion for reconsideration, until the time period for filing a motion for reconsideration under section LL., above, has expired or the motion is resolved;
b. If a motion for reconsideration is timely filed, a notice of appeal may be filed within 30 days after the presiding officer denies the motion or issues a revised initial decision, whichever applies;
c. The authority head may extend the initial 30-day period for an additional 30 days if the defendant files with the authority head a request for an extension within the initial 30-day period and shows good cause.
3. If the defendant files a timely notice of appeal with the authority head, the presiding officer shall forward the record of the proceeding to the authority head when:
a. The time for filing a motion for reconsideration expires without the filing of such a motion, or
b. The motion for reconsideration is denied. Issuance of a revised initial decision upon motion for reconsideration shall require filing of a new notice of appeal.
4. A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
5. The representative for the Government may file a brief in opposition to the exceptions within 30 days of receiving the notice of appeal and accompanying brief.
6. There is no right to appear personally before the authority head, although the authority head may at his or her discretion require the parties to appear for an oral hearing on appeal.
7. There is no right to appeal any interlocutory ruling by the presiding officer.
8. In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the presiding officer, unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection.
9. If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the presiding officer for consideration of such additional evidence.
10. The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment determined by the presiding officer in any initial decision.
11. The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of any person determined to be liable for a penalty or assessment to seek judicial review.
12. Unless a petition for review is filed as provided in 32 U.S.C. 3805 after a defendant has exhausted all administrative remedies under this part and within 60 days after the date on which the authority head serves the defendant with a copy of the authority head's decision, a determination that a defendant is liable under section C., above, is final and is not subject to judicial review.
13. The authority heads (or their designees) may designate an officer or employee of the authority, who is serving in the grade of GS-17 or above under the General Schedule, or in the Senior Executive Service, to carry out these appellate responsibilities; however, the authority to compromise, settle, or otherwise discretionarily dispose of the case on appeal provided pursuant to subsection MM.10, hereof, may not be so redelegated pursuant to this subsection.
If at any time, the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this Directive with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General.
1. An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
2. No administrative stay is available following a final decision of the authority head.
31 U.S.C. 3805 authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessment under this part and specifies the procedures for such review.
31 U.S.C. 3806 and 3808(b) authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions.
The amount of any penalty or assessment that has become final, or for which a judgment has been entered under section QQ., above, or any amount agreed upon in a compromise or settlement under section TT., below, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this section against a refund of an overpayment of Federal taxes then or later owing by the United States to the defendant.
All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g).
1. Parties may make offers of compromise or settlement at any time.
2. The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the presiding officer issues an initial decision.
3. The authority head has exclusive authority to compromise or settle a case under this Directive at any time after the date on which the presiding officer issues an initial decision, except during the pendency of any review under section PP., above, or during
4. The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under section PP., above, of any action to recover penalties and assessments under 31 U.S.C. 3806.
5. The investigating official may recommend settlement terms to the reviewing official or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the Attorney General, as appropriate.
6. Any compromise or settlement must be in writing.
1. The notice of hearing with respect to a claim or settlement must be served in the manner specified in section H., above, within 6 years after the date on which such claim or statement is made.
2. If the defendant fails to file a timely answer, service of a notice under subsection J.2., above, shall be deemed a notice of hearing for purposes of this section.
3. If at any time during the course of proceedings brought pursuant to this section, the authority head receives or discovers any specific information concerning bribery, gratuities, conflict of interest, or other corruption or similar activity in relation to a false claim or statement, the authority head shall immediately report such information to the Attorney General and to the Inspector General, Department of Defense.
The General Counsel for the Department of Defense is designated to carry out the responsibilities of the authority head of the Department of Defense for the issuance of additional implementing regulations that are necessary to implement PFCRA and this part to decide cases upon appeal, and to hire or designate employees of the Department of Defense to decide cases on appeal. The General Counsel, Department of Defense, is also designated to appoint presiding officers for the Department of Defense, and may assist in the appointment of presiding officers on detail from other Agencies for all authorities within the Department of Defense.
Sec. 310, Pub. L. 111-32, as amended.
This part provides for Retroactive Stop Loss Special Pay as authorized and appropriated in section 310 of Public Law 111-32 and as described in this part.
(a) The Secretaries concerned shall employ the Retroactive Stop Loss Special Pay authority and appropriated funding to compensate Service members, including members of the Reserve components, former and retired members under the jurisdiction of the Secretary who, at any time during the period beginning on September 11, 2001, and ending on September 30, 2009, served on active duty while the Service members' enlistment or period of obligated service was extended, or whose eligibility for retirement was suspended pursuant to any provision of law authorizing the President to extend any period of obligated service, or suspend eligibility for retirement, of a Service member in time of war or of national emergency declared by Congress or the President (commonly referred to as a “stop loss authority”).
(b) Service members described in paragraph (a) of this section, who voluntarily reenlisted or extended their service or suspended their retirement and received a bonus for such reenlistment or extension of service are not eligible to receive the Retroactive Stop Loss Special Pay.
(c) Service members who were discharged or released from the Armed Forces under other than honorable conditions are not permitted to receive Retroactive Stop Loss Special Pay under section 310 of Public Law 111-32.
(a) The amount of compensation shall be $500 per month for each month or any portion of a month during the period specified above that the member was retained on active duty as a result
(b) Payment rules are:
(1) Service members will not receive a payment under “The Supplemental Appropriations Act, 2009”, section 310 of Public Law 111-32 and “Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009”, section 8116 of Public Law 110-329, for the same month or portion of a month during which the member was retained on active duty under Stop Loss Authority as outlined in the Secretary of Defense Memorandum dated March 19, 2009, Subject: Stop Loss Special Pay.
(2) By law, Reserve Component members retained under Stop Loss Authority will receive Retroactive Stop Loss Special Pay only for service on active duty. As such, Reserve Component members may have periods before mobilization and after demobilization while under Stop Loss Authority where no Retroactive Stop Loss Special Pay can be paid.
(3) If an eligible member dies before the payment is made, the Secretary of the Military Department concerned shall make the payment in accordance with section 2771 of title 10, United States Code.
(4) Retroactive Stop Loss Special Pay is subject to all applicable taxes.
(a) The last day for submission of claims to the Secretaries of the Military Departments for Retroactive Stop Loss Special Pay is October 21, 2010. The Secretaries concerned are not authorized to make payments on claims that are submitted after October 21, 2010.
(b) The additional period between the date of Under Secretary of Defense for Personnel and Readiness Memorandum, Subject: Retroactive Stop Loss Special Pay Compensation signed on September 23, 2009 and October 21, 2009 is provided for the Military Departments to:
(1) Identify and formally notify members or former members that official records indicate their potential eligibility for Retroactive Stop Loss Special Pay. This notification should reflect the estimated number of eligible months and the projected special pay amount along with guidance about how to submit a claim. Special care should be taken to work with family members of eligible Service members who are deceased. These family members may not be knowledgeable of the process and will require additional assistance after filing their claim.
(2) Make a public announcement of the Retroactive Stop Loss Special Pay Authority highlighting the scope of the program, who qualifies for the benefits, and how to submit a claim to a Service point of contact. The Service contact information will be provided in all public releases by the Office of Secretary of Defense (OSD) Public Affairs Office, as well as by each of the Services Public Affairs Offices.
(3) Establish and publish evidentiary requirements beyond those listed in this paragraph to support an unrecorded extension under Stop Loss Authority. Official documents may include but are not limited to:
(i) DD 214 Form, Certificate of Release or Discharge from Active Duty and/or DD 215, Correction to DD 214.
(ii) Personnel record or enlistment or reenlistment document recording original expiration of service date.
(iii) Approved retirement memorandum or orders establishing retirement prior to actual date of retirement as stipulated in DD Form 214 or DD Form 215.
(iv) Approved resignation memorandum or transition orders establishing a separation date prior to actual date of separation as stipulated in DD Form 214 or DD Form 215.
(v) Signed documentation or affidavit from knowledgeable officials from the individual's chain of command.
(4) Establish claim and appellate procedures, websites, points of contact for assistance or other outreach mechanisms to inform and expedite claims. Publish information on use of Board
(5) Claim is submitted and adjudicated by the Service, then sent forward to the Defense Finance and Accounting Service (DFAS) for payment. Upon arrival DFAS will route claim to Debt Claims Management who will process the claim. Payments are then routed through Dispersing and then to Standards and Compliance. Then Dispersing will make payment to the former Service member or estate. Standards and Compliance will build and route reports for OSD and personnel centers.
The Military Departments will maintain a by-name accounting of claims that will allow aggregate summaries to depict:
(a) The number of claims filed.
(b) The number of claims approved.
(c) The number of claims denied and the reasons why (especially with regard to subparagraph (h) of section 310 of Pub. L. 111-32).
(d) The number of appeals.
(e) The number of claims pending and the reasons why.
(f) The amount of funding that has been obligated, to include mean and median payments provided per claimant, the number of claims and payments made in accordance with section 2771 of title 10, United States Code for deceased claimants.
(g) The mean and median processing times from receipt of claim to payment.
The Department of Defense shall provide a consolidated report to the congressional defense committees on the implementation of section 310 of Public Law 111-32. As such, the Under Secretary of Defense for Personnel and Readiness, in coordination with the Under Secretary of Defense (Comptroller), will establish data formats and narrative requirements for a cumulative quarterly report beginning January 21, 2010, to monitor the program and the remaining balance of funding appropriated for this purpose.
10 U.S.C. 2575, 2771, 4712, 9712; 24 U.S.C. 420; 31 U.S.C. 3529, 3702; 32 U.S.C. 714; 37 U.S.C. 554.
This part establishes policy and assigns responsibilities for settling personnel and general claims (under 31 U.S.C. 3702; 10 U.S.C. 2575, 2771, 4712, and 9712; 24 U.S.C. 420; 37 U.S.C. 554, and 32 U.S.C. 714) and for processing requests for an advance decision under 31 U.S.C. 3529.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as “the DoD Components”).
(b) The Coast Guard, when it is not operating as a Service in the Navy under agreement with the Department of Homeland Security, and the Commissioned Corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA), under agreements with the Departments of Health and Human Services and Commerce (hereafter referred to collectively as “the non-DoD Components”).
It is DoD policy that:
(a) The claim settlement and advance decision authorities that, by statute or delegation, are vested in the Department of Defense or the Secretary of Defense shall be exercised by the officials designated in this part. The appendix to this part describes the claims included under these functional authorities.
(b) Claims shall be settled and advance decisions shall be rendered in accordance with pertinent statutes and regulations, and after consideration of other relevant authorities.
(a) The
(1) Settle claims that the Secretary of Defense is authorized to settle under 31 U.S.C. 3702; 10 U.S.C. 2575, 2771, 4712, and 9712; 24 U.S.C. 420; 37 U.S.C. 554, and 32 U.S.C. 714.
(2) Consider, and grant or deny, a request under 31 U.S.C. 3702 to waive the time limit for submitting certain claims.
(3) Render advance decisions under 31 U.S.C. 3529 that the Secretary of Defense is authorized to render, and oversee the submission of requests for an advance decision arising from the activity of a DoD Component that are addressed to officials outside the Department of Defense.
(4) Develop overall claim settlement and advance decision policies; and promulgate procedures for settling claims, processing requests for an advance decision (including overseeing the submission of requests for an advance decision arising from the activity of a DoD Component that are addressed to officials outside the Department of Defense), and rendering advance decisions. Procedures for settling claims shall include an initial determination process and a process to appeal an initial determination.
(b) The
(1) Establish procedures within their organization for processing claims and for submitting requests for an advance decision arising from it's activity in accordance with this part and responsibilities promulgated under paragraph (a)(4) of this section.
(2) Pay claims under 10 U.S.C. 2771 and 32 U.S.C. 714, if applicable.
(3) Ensure compliance with this part and policies and responsibilities promulgated under (a)(4) of this section.
(c) The
(1) Establish procedures within their organization for processing claims and for submitting requests for an advance decision in accordance with this part and responsibilities promulgated under paragraph (a)(4) of this section.
(2) Pay claims under 10 U.S.C. 2771, if applicable.
The Secretary of Defense is authorized to perform the claim settlement and advance decision functions for claims under the following statutes:
(a) 31 U.S.C. 3702, concerning claims in general when there is no other settlement authority specifically provided for by law.
(b) 10 U.S.C. 2575, concerning the disposition of unclaimed personal property on a military installation.
(c) 10 U.S.C. 2771, concerning the final settlement of accounts of deceased members of the armed forces (but not the National Guard).
(d) 24 U.S.C. 420, 10 U.S.C. 4712, and 10 U.S.C. 9712, concerning the disposition of the effects of a deceased person who was subject to military law at a place or command under the jurisdiction of the Army or Air Force or of deceased residents of the Armed Forces Retirement Home.
(e) 37 U.S.C. 554, concerning the sale of personal property of members of the Uniformed Services who are in a missing status.
(f) 32 U.S.C. 714, concerning the final settlement of accounts of deceased members of the National Guard.
5 U.S.C. 552; 10 U.S.C. 2575; 10 U.S.C. 2771; 10 U.S.C. 4712; 10 U.S.C. 9712; 24 U.S.C. 420; 31 U.S.C. 3529; 31 U.S.C. 3702; 32 U.S.C. 714; and 37 U.S.C. 554.
This part implements policy under 32 CFR part 281 and prescribes procedures for processing and settling personnel and general claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, 32 U.S.C. 714 and for processing requests for an advance decision under 31 U.S.C. 3529.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as “the DoD Components”).
(b) The Coast Guard, when it is not operating as a Service in the Navy under agreement with the Department of Homeland Security, and the Commissioned Corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA), under agreements with the Departments of Health and Human Services and Commerce (hereafter referred to collectively as “the non-DoD Components”).
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
It is DoD policy that:
(a) Claims shall be settled and advance decisions rendered in accordance with all pertinent statutes and regulations, and after consideration of other relevant authorities.
(b) This part applies to certain claim settlement and advance decision functions that, by statute or delegation, are vested in the Department of Defense or the Secretary of Defense. Appendix B to this part describes the claims included under these functional authorities.
(a) The
(1) Upon the request of the Director, Defense Office of Hearings and Appeals (DOHA), consult on, or render legal opinions concerning, questions of law that arise in the course of the performance of the Director's responsibilities under paragraph (b) of this section.
(2) Render advance decisions under 31 U.S.C. 3529 and oversee the submission of requests for an advance decision arising from the activity of a DoD Component that are addressed to the Director of the Office of Personnel Management or the Administrator General Services in accordance with this part.
(b) The
(1) Consider, and grant or deny, a request by the Secretary concerned under 31 U.S.C. 3702(e) to waive the time limit for submitting certain claims in accordance with 32 CFR part 281 and this part.
(2) Consider appeals from an initial determination, and affirm, modify, reverse, or remand the initial determination in accordance with 32 CFR part 281, this part, and relevant DoD Office of General Counsel opinions.
(c) The
(1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 32 U.S.C. 714 in accordance with this part.
(2) Ensure that requests for an advance decision that originate in their organizations are prepared and submitted in accordance with this part.
(3) Pay claims as provided in a final action in accordance with this part.
(d) The
(1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, or 37 U.S.C. 554 in accordance with this part.
(2) Ensure that requests for an advance decision that originate in their organizations are prepared and submitted in accordance with this part.
(3) Pay claims as provided in a final action in accordance with this part.
(a)
(b)
(c)
(d)
(2) Where state law requires, a committee must be appointed for a minor or incompetent person in accordance with State law before payment may be made.
(e)
(f)
The Secretary of Defense is authorized to perform the claims settlement and advance decision functions for claims under the following statutes:
(a) 31 U.S.C. 3702 concerning claims in general when there is no other settlement authority specifically provided for by law.
(b) 10 U.S.C. 2575 concerning the disposition of unclaimed personal property on a military installation.
(c) 10 U.S.C. 2771 concerning the final settlement of accounts of deceased members of the Armed Forces (but not the National Guard).
(d) 24 U.S.C. 420, 10 U.S.C. 4712, and 10 U.S.C. 9712 concerning the disposition of the effects of a deceased person who was subject to military law at a place or Command under the jurisdiction of the Army or the Air Force or of a deceased resident of the Armed Forces Retirement Home.
(e) 37 U.S.C. 554 concerning the sale of personal property of members of the Uniformed Services who are in a missing status.
(f) 32 U.S.C. 714 concerning the final settlement of accounts of deceased members of the National Guard.
(a)
(b)
(c)
(1) Provide the claimant's mailing address.
(2) Provide the claimant's telephone number.
(3) State the amount claimed.
(4) State the reasons why the Government owes the claimant that amount.
(5) Have attached copies of documents referred to in the claim.
(6) Include or have attached statements (that are attested to be true and correct to the best of the individual's knowledge and belief) of the claimant or other persons in support of the claim.
(d)
(e)
(1) If a guardian or committee has not been appointed, a claim submitted on behalf of a minor or incompetent person must:
(i) State the claimant's relationship to the minor or incompetent person.
(ii) Provide the name and address of the person having care and custody of the minor or incompetent person.
(iii) Include an affirmation that any moneys received shall be applied to the use and benefit of the minor or incompetent person, and that the appointment of a guardian or committee is not contemplated.
(2) If a guardian or committee has been appointed, a claim on behalf of a minor or incompetent person must include or have attached a certificate of the court showing the appointment and qualification of the guardian or committee.
(f)
(1) Claimants must submit claims within these statutory time limits:
(i) Claims on account of Treasury checks under 31 U.S.C. 3702(c) must be received within 1 year after the date of issuance.
(ii) Claims under 31 U.S.C. 3702 (b), 10 U.S.C. 2771 and 32 U.S.C. 714 must be received within 6 years of the date the claim accrued. (A claim accrues on the date when everything necessary to give rise to the claim has occurred.) The time limit for claims of members of the Armed Forces that accrue during war or within 5 years before war begins, is 6 years from the date the claim accrued or 5 years after peace is established, whichever is later.
(iii) Claims under 10 U.S.C. 2575(d)(3) must be received within 5 years after the date of the disposal of the property to which the claim relates.
(iv) Claims under 24 U.S.C. 420(d)(1), 10 U.S.C. 4712, and 10 U.S.C. 9712 must be received within 6 years after the death of the deceased resident.
(v) Claims under 37 U.S.C. 554(h) must be received before the end of the 5-year period from the date the net proceeds from the sale of the missing person's personal property are covered into the Treasury.
(2) The time limits set by statute may not be extended or waived.
(g)
(a)
(1) Date stamp the claim on the date received.
(2) Determine whether the claim was received within the required time limit (time limits are summarized at Appendix C to this part, paragraph (f)) and follow the procedures in paragraph (b) of this Appendix if the claim was not timely.
(3) Investigate the claim.
(4) Decide whether the claimant provided clear and convincing evidence that proves all or part of the claim.
(5) Issue an initial determination that grants the claim to the extent proved or denies the claim, as appropriate. The initial determination must state how much of the claim is granted and how much is denied,
(6) Notify the claimant of the initial determination. The Component must send the claimant a copy of the initial determination and a notice that explains:
(i) The action the Component shall take on the claim, if the initial determination is or becomes a final action (the finality of an initial determination is explained at paragraph (c) of this Appendix); and
(ii) The procedures the claimant must follow to appeal an initial determination that denies all or part of the claim (those appeal procedures are explained at Appendix E to this part), if applicable.
(b)
(1) The initial determination must cite the applicable statute and explain the reasons for the finding of untimely receipt. The Component must send the initial determination to the claimant with a notice that:
(i) States the claim was not received within the statutory time limit and, therefore, may not be considered, unless that finding is reversed on appeal, and explains how the claimant may appeal the finding (those appeal procedures are explained at Appendix E to this part); and either
(ii) If the claim does not qualify under 31 U.S.C. 3702(e), states that the statutory time limit may not be extended or waived; or
(iii) If the claim does qualify under 31 U.S.C. 3702(e), states that the claim may be further considered only if the time limit is waived, and explains how the claimant may apply for a waiver. (Paragraph (d) of this Appendix explains which claims qualify and the procedures for applying for a waiver).
(2) Except in cases where a claimant has applied under paragraph (d) of this Appendix to request a waiver of the time limit, the Component must return the claim to the claimant when the initial determination becomes a final action with a notice that the finding in the initial determination is final and, therefore, the claim may not be considered. If the claim qualifies under 31 U.S.C. 3702(e), the notice must also state that the claimant may resubmit the claim with an application under paragraph (d) of this Appendix.
(c)
(d)
(1) The claim must contain the information and documents that are generally required for claims (those requirements are explained at Appendix C to this part, paragraph (c)).
(2) The Component concerned must investigate the claim and make an initial determination concerning the merits of the claim.
(3) If the initial determination grants all or part of the claim, and if the Secretary concerned agrees with the determination, the Secretary may request or recommend that the time limit be waived.
(i) The Secretary concerned shall forward the request or recommendation to the following address: Defense Office of Hearings and Appeals, Claims Division, P.O. Box 3656, Arlington, VA 22203-1995.
(ii) The entire record concerning the claim, including the initial determination, must be attached to the request.
(4) The Director, DOHA, must review the request and the written record and must:
(i) Grant the request and waive the statutory time limit, if the Director finds that all or part of the claim has been proven. The Director may also modify the finding concerning the amount of the claim that has been proven.
(ii) Deny the request, if the Director finds that no part of the claim has been proven.
(iii) Notify the Secretary concerned and the claimant of the decision and the reasons for the findings.
(5) In the event the Director, DOHA, denies the request, or grants the request but modifies the finding concerning the amount of the claim proven, the Secretary concerned or the claimant may request reconsideration (the procedures are explained at Appendix E to this part). The Director's decision is a final action if the Director does not receive a request for reconsideration within 30 days of the date of the Director's decision (plus any extension of up to 30 additional days granted by the Director for good cause shown).
(a)
(b)
(c)
(1) Provide the claimant's mailing address;
(2) Provide the claimant's telephone number;
(3) State the amount claimed on appeal, or that the appeal is from a finding of untimely receipt, whichever applies;
(4) Identify specific:
(i) Errors or omissions of material and relevant fact;
(ii) Legal considerations that were overlooked or misapplied; and
(iii) Conclusions that were arbitrary, capricious, or an abuse of discretion;
(5) Present evidence of the correct or additional facts alleged;
(6) Explain the reasons the findings or conclusions should be reversed or modified;
(7) Have attached copies of documents referred to in the appeal; and
(8) Include or have attached statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the claimant or other persons in support of the appeal.
(d)
(1) If the appeal concerns the denial of all or part of the claim and the Component grants the entire claim, or grants the claim to the extent requested in the appeal, the Component must notify the claimant in writing and explain the action the Component shall take on the claim. This is a final action.
(2) If the appeal concerns the untimely receipt of the claim and the Component determines that the claim was received within the time limit required by statute, the Component must notify the claimant in writing and process the claim on the merits.
(3) In all other cases, the Component must forward the appeal to the DOHA in accordance with paragraph (e) of this Appendix. If the appeal concerns an initial determination of untimely receipt, the Component should not investigate, or issue an initial determination concerning, the merits of the claim before forwarding the appeal. The Component must prepare a recommendation and administrative report (as explained in paragraph (f) of this Appendix). The Component must send a copy of the administrative report to the claimant, with a notice that the claimant may submit a rebuttal to the Component (as explained in paragraph (g) of this Appendix).
(e)
The record sent to the DOHA shall include specific identification of any major policy issue(s) and a statement as to whether the amount in controversy exceeds $100,000 either in the instant claim or in the aggregate for directly related claims. If the amount in controversy exceeds $100,000, a full description of the financial impact shall be provided.
(f)
(1) The name of the claimant;
(2) The Component's file reference number;
(3) The Component's recommendation (and the reasons for it) for the disposition of the claim;
(4) Relevant and material documents (such as correspondence, business records, and witness statements), as attachments; and
(5) Complete copies of regulations, instructions, memorandums of understanding, tariffs and/or tenders, solicitations, contracts, or rules cited by the claimant or the Component, if a copy has not been previously provided, or is not available readily via electronic means.
(g)
(1) An explanation of the points and reasons for disagreeing with the report;
(2) The Component's file reference number;
(3) Any documents referred to in the rebuttal; and
(4) Statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the claimant or other persons in support of the rebuttal.
(h)
(1) Date stamp the claimant's rebuttal on the date it is received;
(2) Send the entire record to the DOHA, but no earlier than 31 days after the date of the report, or the day after the claimant's rebuttal period, as extended, expires (as explained in paragraph (e) of this Appendix).
(i)
(1) Major policy issues;
(2) Involves a claim that is quasi-contractual in nature and arises from the activity of a DoD Component, but the claim was not settled under usual acquisition procedures; or
(3) When the amounts in controversy exceed $100,000, either for the instant claim or in the aggregate for directly related claims. The written decision must:
(i) Affirm, modify, reverse, or remand the Component's determination (and, if the issue is untimely receipt and there is a finding that the claim was timely received, may either consider and decide the claim on the merits or return the claim to the Component concerned for investigation and initial determination on the merits);
(ii) State the amount of the claim that is granted and the amount that is denied and/or state that the claim was or was not received within the statutory time limit, as appropriate; and
(iii) Explain the reasons for the decision.
(j)
(1) Send the claimant the decision and notify the claimant of:
(i) The appropriate Component action on the claim as a consequence of the decision, if it is or becomes a final action (as explained in paragraph (k) of this Appendix); and
(ii) The procedures under this appendix to request reconsideration (as explained in paragraphs (l) through (n) of this Appendix), if the decision does not grant the claim to the extent requested, or does not contain a finding of timely receipt, as the case may be.
(2) Notify the Component concerned of the decision, and of the appropriate Component action on the claim as a consequence of the decision.
(k)
(l)
(m)
(n)
(o)
(i) Consider a request or requests for reconsideration;
(ii) Affirm, modify, reverse, or remand the appeal decision (and, if the issue is untimely receipt and there is a finding that the claim was timely received, may either consider and decide the claim on the merits or return the claim to the Component concerned for investigation and initial determination on the merits);
(iii) Prepare a response that explains the reasons for the finding; and
(iv) Send the response to the claimant and the Component concerned and notify both of the appropriate action on the claim.
(2) The response is a final action. It is precedent in the consideration of all claims covered by this part unless otherwise stated in the document.
(p)
(1) Take administrative notice of matters that are generally known or are capable of confirmation by resort to sources whose accuracy cannot reasonably be questioned.
(2) Remand a matter to the Component with instructions to provide additional information.
(a)
(1) A payment the disbursing official or Head of the Component shall make; or
(2) A voucher presented to a certifying official for certification.
(b)
(1) The Secretary of Defense for requests involving claims under:
(i) 31 U.S.C. 3702 for Uniformed Services members' pay, allowances, travel, transportation, retired pay, and survivor benefits, and by carriers for amounts collected from them for loss or damage to property they transported at Government expense.
(ii) 31 U.S.C. 3702 that are not described in paragraph (b)(1)(i) of this Appendix and that arise from the activity of a DoD Component, when there is no other settlement authority specifically provided by law.
(iii) 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 32 U.S.C. 714. Appendix B to this part describes these claims.
(2) The Director of the Office of Personnel Management for requests involving claims for civilian employees' compensation and leave.
(3) The Administrator of General Services for requests involving claims for civilian employees' travel, transportation, and relocation expenses.
(c)
(d)
(1) Specifically request an advance decision pursuant to 31 U.S.C. 3529;
(2) Describe all the relevant facts;
(3) Explain the reasons (both factual and legal) the requester considers the proposed payment to be questionable;
(4) Have attached vouchers, if any, and copies of all other relevant documents relating to the proposed payment;
(5) Have attached a legal memorandum from the General Counsel of the Component concerned that discusses the legality of the proposed payment under the circumstances presented in the request; and
(6) Comply with any other requirements established by the Director of the Office of Personnel Management or the Administrator of General Services.
(e)
(1) If the request is described in paragraph (b)(1) of this Appendix, the GC, DoD must review the request and issue an advance decision, unless the GC, DoD elects to proceed under paragraph (e)(3) of this Appendix.
(i) The GC, DoD must send the decision, through the General Counsel of the Component concerned, to the requester, and must send a copy of the decision to the Director, DOHA for publication according to Appendix A to this part, paragraph (f).
(ii) The decision is controlling in the case; the reliance of certifying and disbursing officials on it in their disposition of the case is evidence that those officials have exercised due diligence in the performance of their duties.
(iii) An advance decision is precedent in similar claims under this part unless otherwise stated in the decision.
(2) If the request is not described in paragraph (b)(1) of this Appendix, the GC, DoD must review the request and either:
(i) Forward the request to the appropriate advance decision authority and notify the requester of that action; or
(ii) Return the request, through the General Counsel of the Component concerned, to the requester, with a memorandum explaining that under existing legal authorities a request for an advance decision is not necessary. After considering the memorandum, the requester may resubmit the request, through the General Counsel of the Component concerned, to the GC, DoD. The GC, DoD must forward the request to the appropriate advance decision authority, and notify the requester of that action.
(3) If the request is described in paragraph (b)(1) of this Appendix, and the claim is for not more than $250, the GC, DoD may refer the request to the General Counsel, Defense Finance and Accounting Service (DFAS). The General Counsel, DFAS, shall review the request and issue an advance decision.
(i) The General Counsel, DFAS, must send the decision, through the General Counsel of the Component concerned, to the requester, and must send a copy of the decision to the GC, DoD.
(ii) The decision is controlling in the case; the reliance of certifying and disbursing officials on it in their disposition of the case is evidence that those officials have exercised due diligence in the performance of their duties.
(iii) An advance decision issued by the General Counsel, DFAS, under this paragraph is not precedent in similar claims under this part.
10 U.S.C. 2575, 2771, 4712, 9712; 24 U.S.C. 420; 31 U.S.C. 3529, 3702; 32 U.S.C. 714; 37 U.S.C. 554.
This part establishes policy and assigns responsibilities for considering applications for the waiver of debts resulting from erroneous payments of pay and allowances (including travel and transportation allowances) to or on behalf of members of the Uniformed Services and civilian DoD employees under 10 U.S.C. 2774, 32 U.S.C. 716, 5 U.S.C. 5584.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b) The Coast Guard, when it is not operating as a Service in the Navy under the agreement with the Department of Homeland Security, and the Commissioned Corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA) under agreements with the Departments of Health and Human Services and Commerce (hereafter referred to collectively as the “non-DoD Components”).
It is DoD policy that:
(a) The officials designated in this part exercise waiver authority that, by statute or delegation, is vested in the Department of Defense.
(b) Waiver applications shall be processed in accordance with all pertinent statutes and regulations, and after consideration of other relevant authorities.
(a) The
(1) If the aggregate amount of the debt is more than $1,500, deny or grant all or part of a waiver application.
(2) Decide appeals in accordance with procedures promulgated under paragraph (a)(3) of this section.
(3) Develop overall waiver policies and promulgate procedures for considering waiver applications, including an initial determination process and a process to appeal an initial determination.
(b) The
(1) Consistent with responsibilities promulgated under paragraph (a)(3) of this section, establish procedures within the DoD Component for the submission of waiver applications relating to debts resulting from the DoD Component's activity, which shall be referred to the appropriate official for consideration as set forth in paragraphs (a), (d), (e), or (f) of this section.
(3) Ensure compliance with this part and policies and procedures promulgated under paragraph (a)(3) of this section.
(c) The
(1) If the aggregate amount of the debt is $1,500 or less, deny or grant all or part of a waiver application pursuant to 10 U.S.C. 2774.
(2) If the aggregate amount of the debt is more than $1,500:
(i) Deny a waiver application in its entirety; or
(ii) Refer a waiver application for consideration with a recommendation that all or part of the application be granted, in accordance with procedures promulgated under paragraph (a)(3) of this section.
(d) The
(1) If the aggregate amount of the debt is $1,500 or less, deny or grant all or part of a waiver application pursuant to enclosure 2 of DoD Directive 5118.3.
(2) If the aggregate amount of the debt is more than $1,500:
(i) Deny a waiver application in its entirety; or
(ii) Refer a waiver application for consideration with a recommendation that all or part of the application be granted, in accordance with procedures promulgated under paragraph (a)(3) of this section.
(e) The
(1) If the aggregate amount of the debt is $1,500 or less, deny or grant all or part of a waiver application pursuant to enclosure 2 of DoD Directive 1342.6.
(2) If the aggregate amount of the debt is more than $1,500:
(i) Deny a waiver application in its entirety; or
(ii) Refer a waiver application for consideration with a recommendation that all or part of the application be granted, in accordance with procedures promulgated under paragraph (a)(3) of this section.
(f) The
(1) If the aggregate amount of the debt is $1,500 or less, deny or grant all or part of a waiver application.
(2) If the aggregate amount of the debt is more than $1,500:
(i) Deny a waiver application in its entirety; or
(ii) Refer a waiver application for consideration with a recommendation that all or part of the application be granted, in accordance with procedures promulgated under paragraph (a)(3) of this section.
10 U.S.C. 2575, 2771, 4712, 9712; 24 U.S.C. 420; 31 U.S.C. 3529, 3702; 32 U.S.C. 714; 37 U.S.C. 554.
This part implements policy under 32 CFR part 283 and prescribes procedures for considering waiver applications under 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of Inspector General of the Department of Defense, the Defense Agencies, the Department of Defense Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b) The Coast Guard, when it is not operating as a Service in the Navy under agreement with the Department of Homeland Security, the Commissioned Corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA) under agreements with the Departments of Health and Human Services and Commerce, respectively (hereafter referred to collectively as the “non-DoD Components”).
(c) Certain functions for considering waiver applications that, by statute or delegation, are vested in the Department of Defense or the Secretary of Defense.
It is DoD policy under 32 CFR part 283 that waiver applications for debts resulting from erroneous payments of pay and allowances (hereafter referred to as “waiver applications”) be processed according to all pertinent statutes, regulations, and other relevant authorities.
(a) The
(b) The
(1) Deny or grant all or part of a waiver application, if the aggregate amount of the debt is more than $1,500.
(2) Consider an appeal of an initial determination and affirm, modify, reverse, or remand the initial determination, according to this part and relevant GC, DoD opinions.
(3) Process waiver applications and appeals according to this part.
(c) The Heads of the DoD Components or designee shall process waiver applications according to this part.
(d) The
(1) Deny or grant all or part of a waiver application, if the aggregate amount of the debt is $1,500 or less.
(2) If the aggregate amount of the debt is more than $1,500:
(i) Deny a waiver application in its entirety, or
(ii) Refer a waiver application for consideration with a recommendation that part or all of the application be granted, according to this part.
(3) Process waiver applications, when the aggregate amount of the debt is more than $1,500, and appeals according to this part.
(4) Resolve a debt according to the final action that results from the waiver application process provided for in this part.
The standards that must be applied in determining whether all or part of a waiver application should be granted or denied are at Appendix B to this part.
The DoD Components shall ensure, if applicable, the submission and filing of waiver applications/appeals satisfy the requirements of 5 U.S.C. 552a. The procedures an applicant must follow to submit a waiver application are at Appendix C to this part.
The procedures a DoD Component must follow in processing a waiver application when the debt is $1,500 or less are at Appendix D to this part.
The procedures a DoD Component must follow in processing a waiver application when the debt is more than $1,500 are at Appendix E to this part.
The DoD Components shall ensure, if applicable, the submission and filing of waiver applications/appeals satisfy the requirements
When a final action waives all or part of a debt that has been repaid, the waiver application shall be interpreted as an application for a refund and the Component concerned shall, to the extent of the waiver, refund the amount repaid.
The Director, DOHA or designee shall make redacted copies of responses to requests for reconsideration available for public inspection and copying at the DOHA's public reading room and on the worldwide web according to 5 U.S.C. 552 and 552a.
1. Generally, persons who receive a payment erroneously from the Government acquire no right to the money. They are bound in equity and good conscience to make restitution. If a benefit is bestowed by mistake, no matter how careless the act of the Government may have been, the recipient must make restitution. In theory, restitution results in no loss to the recipient because the recipient received something for nothing. However, 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584 provide authority to waive, under certain conditions debts individuals owe the Government that are the result of erroneous payments of pay and allowances (including travel and transportation allowances). A waiver is not a matter of right. It is available to provide relief as a matter of equity, if the circumstances warrant.
2. Debts may be waived only when collection would be against equity and good conscience and would not be in the best interests of the United States. There must be no indication the erroneous payment was solely or partially the result of the fraud, misrepresentation, fault, or lack of good faith of the applicant.
3. The fact that an erroneous payment is solely the result of administrative error or mistake on the part of the Government is not sufficient basis in and of itself for granting a waiver.
4. A waiver usually is not appropriate when a recipient knows, or reasonably should know, that a payment is erroneous. The recipient has a duty to notify an appropriate official and to set aside the funds for eventual repayment to the Government, even if the Government fails to act after such notification.
5. A waiver generally is not appropriate when a recipient of a significant unexplained increase in pay or allowances, or of any other unexplained payment of pay or allowances, does not attempt to obtain a reasonable explanation from an appropriate official. The recipient has a duty to ascertain the reason for the payment and to set aside the funds in the event that repayment should be necessary.
6. A waiver may be inappropriate in cases where a recipient questions a payment (which ultimately is determined to be erroneous) and is mistakenly advised by an appropriate official that the payment is proper, if under the circumstances the recipient knew or reasonably should have known that the advice was erroneous.
7. Financial hardship is not a factor for consideration in determining whether a waiver is appropriate.
8. Waiver determinations under these standards depend on the facts in each case.
Any person (“applicant”) from whom collection is sought for a debt resulting from erroneous payments of pay or allowances (including travel and transportation allowances) may submit a waiver application under 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584. Additionally, an authorized official of the Component concerned, or the Director, DOHA or designee may initiate a waiver application during the processing of a claim under 32 CFR part 281.
An applicant must submit a waiver application to the Component concerned according to the guidance provided by that Component. A waiver application submitted somewhere other than to the Component concerned does not stop the calculation of the time limit as discussed in paragraph F to this Appendix. It is the applicant's responsibility to submit the waiver application properly.
An applicant must submit a waiver application in the format prescribed by the Component concerned. It must be written and signed by the applicant (in the case of an application on behalf of a minor or incompetent person, there are additional requirements explained at paragraph E to this Appendix) or by the applicant's authorized agent or attorney (there are additional requirements explained at paragraph D to this Appendix). In addition, the waiver application should include:
1. The applicant's mailing address.
2. The applicant's telephone number.
3. The applicant's social security number when required by the Component concerned.
4. The amount for which waiver is requested.
5. An explanation why a waiver should be granted under the standards explained at Appendix B to this part.
6. Copies of documents referred to in the application.
7. Statements (that are attested to be true and correct to the best of the individual's knowledge and belief) of the applicant or other persons in support of the application.
In addition to the requirements in paragraph C to this Appendix, a waiver application submitted by the applicant's agent or attorney must include or have attached a duly executed power of attorney or other documentary evidence of the agent's or attorney's right to act for the applicant.
In addition to the requirements in paragraph C to this Appendix:
1. If a guardian or committee has not been appointed, a waiver application submitted on behalf of a minor or incompetent person must:
i. State the applicant's relationship to the minor or incompetent person.
ii. Provide the name and address of the person having care and custody of the minor or incompetent person.
iii. Include an affirmation that any moneys received shall be applied to the use and benefit of the minor or incompetent person, and that the appointment of a guardian or committee is not contemplated.
2. If a guardian or committee has been appointed, a waiver application on behalf of a minor or incompetent person must include or have attached a certificate of the court showing the appointment and qualification of the guardian or committee.
An applicant must submit a waiver application so that it is received by the Component concerned within three years after the erroneous payment is discovered. The date of discovery is the date it is definitely determined by an appropriate official that an erroneous payment has been made. The time limit is set by 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584, whichever applies. It may not be extended or waived. Although the issue of timeliness is usually raised on initial submission (as explained in paragraph B to Appendix D in this part), the issue may be raised at any point during the waiver application consideration process.
Upon receipt of a waiver application, the Component concerned must:
1. Date stamp the application on the date received.
2. Determine whether the application was received within three years after the discovery of the erroneous payment. If the application was not timely, follow the procedures in paragraph B to this Appendix.
3. Investigate the circumstances relating to the erroneous payment.
4. Refer the application to the appropriate determining official (see paragraph C to this Appendix) for consideration and an initial determination.
When the Component concerned determines that a waiver application was not received within three years after the erroneous payment was discovered, the Component must send the applicant a notice of untimely receipt.
1. The notice must:
i. Cite the applicable statute and explain the reasons for the finding of untimely receipt.
ii. State that the application was not received within the statutory time limit and may not be considered unless that finding is reversed on appeal.
iii. Explain that the applicant may submit a rebuttal to the finding of untimely receipt (as explained in paragraph B.2.).
iv. State that the statutory time limit may not be extended or waived.
2. An applicant may submit a written rebuttal, signed by the applicant or the applicant's agent or attorney, to a notice of untimely receipt. The Component concerned must receive the rebuttal within 30 days of the date of the notice and may grant an extension of up to an additional 30 days for good cause shown. The rebuttal should:
i. Explain the points of, and reasons for, disagreement with the notice.
ii. Have any documents referred to in the rebuttal attached.
iii. Include or have attached statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the applicant or other persons in support of the rebuttal.
3. If the applicant does not submit a rebuttal within the time permitted, the notice of untimely receipt is a final action and the Component must return the application to the applicant with a notice that the finding is final and the application may not be considered.
4. If the applicant submits a timely rebuttal, the Component must consider the rebuttal.
i. If the Component finds that the application was received within the required time limit, the Component must reverse its finding of untimely receipt, notify the applicant in writing, and process the application on its merits.
ii. If the Component does not reverse the finding of untimely receipt, the Component must forward the record, including the application, notice of untimely receipt, and rebuttal, to the appropriate determining official (
5. After making an initial determination on the issue of untimely receipt, the determining official must follow the procedures in paragraph D to this Appendix. In addition, if the determining official finds that the application was timely, the official may:
i. Return the application to the Component concerned for processing on its merits according to this part, or
ii. Consider the application and make an initial determination on its merits according to paragraph C.2. to this Appendix.
The standards in Appendix B to this part must be applied when considering the merits of a waiver application. After making an initial determination, the determining official must follow the procedures at paragraph D to this Appendix.
1. The officials listed and referred to in this part as determining officials shall consider waiver applications and take the appropriate action described in paragraph C.2. to this Appendix. These officials are identified as follows:
i. The Head of a non-DoD Component or designee for debts of Uniformed Services personnel resulting from that Component's activity.
ii. The Director, DoDEA or designee for debts of civilian employees resulting from that Component's activity.
iii. The Director, NSA or designee for debts resulting from that Component's activity.
iv. The Director, DFAS or designee for debts resulting from the DoD Component activity not included in paragraphs C.1.ii. and C.1.iii. to this Appendix.
2. The officials listed in paragraph C.1. to this Appendix may make an initial determination for the following:
i. Whether or not a waiver application was received within three years after the discovery of the erroneous payment.
ii. Deny a waiver application in its entirety.
iii. Grant all or part of a waiver application.
After making an initial determination, the determining official must:
1. Notify the applicant. The notification must explain:
i. The determination and the reasons for it.
ii. The appropriate Component action to resolve the debt as a consequence of the determination if it is or becomes a final action (the finality of an initial determination is explained at paragraph E to this Appendix).
iii. The appeal process (as explained in Appendix F to this part) if the determination does not grant the entire application or does not contain a finding of timely receipt.
2. Notify the Component concerned if the determining official is not an official of the Component concerned when and if the determination is a final action. The notice must explain:
i. The determination and its reasons.
ii. The appropriate Component action to resolve the debt as a consequence of the determination.
A final action is an initial determination that grants the entire waiver application or finds that the application was timely received. Also, an initial determination (including one of untimely receipt) is a final action if the determining official does not receive an appeal within 30 days of the date of the initial determination (plus any extension of up to 30 additional days granted by the determining official for good cause shown).
Upon receipt of a waiver application, the Component concerned must:
1. Date stamp the application on the date received.
2. Determine whether the application was received within three years after the discovery of the erroneous payment. If the application was not timely, follow the procedures in paragraph B in this part.
3. Investigate the circumstances relating to the erroneous payment.
4. Refer the waiver application to the appropriate determining official (
i. Deny the application in its entirety, if appropriate, and follow the procedures in Appendix D to this part, or
ii. Refer the application with a recommendation that part or all of the application be granted to the DOHA for consideration and an initial determination under paragraph C to this Appendix. The determining official must send the entire record and prepare and submit a recommendation and administrative report (as explained in paragraphs D and E to this Appendix) with the application.
When the Component concerned determines that a waiver application was not received within three years after the erroneous payment was discovered, the Component must send the applicant a notice of untimely receipt.
1. The notice must:
i. Cite the applicable statute and explain the reasons for the finding of untimely receipt.
ii. State that the application was not received within the statutory time limit and may not be considered unless that finding is reversed on appeal.
iii. Explain that the applicant may submit a rebuttal to the finding of untimely receipt (as explained in paragraph B.2. to this Appendix.).
iv. State that the statutory time limit may not be extended or waived.
2. An applicant may submit a written rebuttal, signed by the applicant or the applicant's agent or attorney, to a notice of untimely receipt. The Component concerned must receive the rebuttal within 30 days of the date of the notice and may grant an extension of up to an additional 30 days for good cause shown. The rebuttal should:
i. Explain the points of, and reasons for, disagreement with the notice.
ii. Have any documents referred to in the rebuttal attached.
iii. Include or have attached statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the applicant or other persons in support of the rebuttal.
3. If the applicant does not submit a rebuttal within the time permitted, the notice of untimely receipt is a final action and the Component must return the application to the applicant with a notice that the finding is final and the application may not be considered.
4. If the applicant submits a timely rebuttal, the Component must consider the rebuttal:
i. If the Component finds that the application was received within the required time limit, the Component must reverse its finding of untimely receipt, notify the applicant in writing, and process the application on its merits.
ii. If the Component does not reverse the finding of untimely receipt, the Component must forward the record, including the application, notice of untimely receipt, and rebuttal, to the appropriate determining official (
5. After making an initial determination on the issue of untimely receipt, the determining official must follow the procedures in Appendix D to this part. In addition, if the determining official finds that the application was timely, the official may:
i. Return the application to the Component concerned for processing on the merits according to this part, or
ii. Make a recommendation to the DOHA to grant all or part of the application as described in paragraph D to this Appendix.
The standards in Appendix B to this part must be applied when considering the merits of a waiver application. After making an initial determination, the DOHA must follow the procedures at paragraph F to this Appendix and may take the following actions regarding waiver applications referred under paragraph A.4.ii. or B.5.ii. to this Appendix:
1. Make an initial determination denying a waiver application in its entirety; or
2. Make an initial determination granting all or part of a waiver application.
Referrals to the DOHA must include the entire record along with the recommendation and administrative report described in paragraph E to this Appendix. The record and the report must be sent to: Defense Office of Hearings and Appeals, Claims Division, P.O. Box 3656, Arlington, VA 22203-1995.
The recommendation and administrative report required by paragraph D to this Appendix must describe the recommended action (and its reasons) and the following:
1. The names and mailing addresses of each employee, member, or other person from whom collection is sought, or a statement that the person cannot reasonably be located.
2. The aggregate amount of the debt, including an itemization showing the elements of the aggregate amount.
3. The date the erroneous payment was discovered.
4. The date the recipient was notified of the error and a statement of the erroneous amounts paid before and after receipt of such notice.
5. A summary of the facts and circumstances describing how the erroneous payment occurred; the recipient's knowledge of the erroneous nature of the payment; the steps taken by the recipient to bring the matter to the attention of the appropriate official; and the Component's response, if any.
6. A finding of whether there is any indication of fraud, misrepresentation, fault, or lack of good faith on the part of the applicant and the reasons for such a finding.
7. Legible copies or the originals of supporting documents, such as leave and earnings statements, notifications of personnel actions, travel authorizations and vouchers, and military orders.
8. Statements (that are attested to be true and correct to the best of the individual's knowledge and belief) of the applicant or other persons in support of the application.
After making an initial determination, the DOHA must:
1. Notify the applicant if all or part of the waiver application is denied. The notification must explain:
i. The determination and the reasons for it.
ii. The appropriate Component action to resolve the debt as a consequence of the determination if it is or becomes a final action (the finality of an initial determination is explained at paragraph G to this Appendix).
iii. The appeal process (as explained in Appendix F to this part) if the determination does not grant the entire application or does not contain a finding of timely receipt.
2. Notify the Component concerned when and if the determination is a final action. The notice must explain:
i. The determination and its the reasons.
ii. The appropriate Component action to resolve the debt as a consequence of the determination.
A final action is an initial determination that grants the entire waiver application or finds that the application was timely received. Also, an initial determination (including one of untimely receipt) is a final action if the determining official does not receive an appeal within 30 days of the date of the initial determination (plus any extension of up to 30 additional days granted by the determining official for good cause shown).
An applicant may appeal if an initial determination denies all or part of a waiver application or finds that the application was not received by the Component concerned within the time limit required by statute.
1. When the determining official is not in the DOHA, the determining official must receive an applicant's appeal within 30 days of the date of the initial determination. The determining official may extend this period for up to an additional 30 days for good cause shown. No appeal may be accepted after this time has expired. The appeal shall be processed under the procedures in paragraphs C through K to this Appendix.
2. When the determining official is in the DOHA, the DOHA must receive an applicant's appeal within 30 days of the date of the initial determination. The DOHA may extend this period for up to an additional 30 days for good cause shown. No appeal may be accepted after this time has expired. The appeal shall be considered to be a request for reconsideration and shall be processed under the procedures in paragraphs L through Q of this Appendix.
No specific format for an appeal is required however it must be written and signed by the applicant, the applicant's authorized agent, or the applicant's attorney. In addition, it should:
1. Provide the applicant's mailing address.
2. Provide the applicant's telephone number.
3. Provide the applicant's social security number when required by the Component concerned.
4. Identify specific:
i. Errors or omissions of material and relevant facts.
ii. Legal or equitable (under the standards in Appendix B to this part) considerations that were overlooked or misapplied.
iii. Conclusions that were arbitrary, capricious, or an abuse of discretion.
5. Present evidence of the correct or additional facts alleged.
6. Explain the reasons why the findings or conclusions should be reversed or modified.
7. Have attached copies of documents referred to in the appeal.
8. Include or have attached statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the applicant or other persons in support of the appeal.
The determining official must review an applicant's appeal, and affirm, modify, or reverse the initial determination.
1. When the determining official grants the entire waiver appeal or grants the application to the extent requested in the appeal after review of an appeal in a case involving
2. When the determining official finds that the application was received within the time limit required by statute after review of an appeal concerning the untimely receipt of the waiver application, the determining official must notify the applicant in writing and take the appropriate action under paragraph B.5. of Appendix D to this part or paragraph B.5. of Appendix E to this part, as appropriate.
3. In all other cases, the determining official must forward the appeal to the DOHA according to paragraph E. of this Appendix. The determining official must prepare a recommendation and administrative report (as explained in paragraph F to this Appendix) and send a copy of the administrative report to the applicant with a notice that the applicant may submit a rebuttal to the determining official (as explained in paragraph G to this Appendix).
4. The determining official must date stamp the applicant's rebuttal on the date it is received.
The determining official must send the entire record along with the recommendation and administrative report required by paragraph F to this Appendix no earlier than 31 days after the date of the administrative report or the day after the applicant's rebuttal period, as extended, expires, to the following address: Defense Office of Hearings and Appeals, Claims Division, P.O. Box 3656, Arlington, Virginia 22203-1995.
The recommendation and administrative report required by paragraph D.3. to this Appendix must describe the recommended action (and its reasons) and include:
1. The names and mailing addresses of each employee, member, or other person from whom collection is sought, or a statement that the person cannot reasonably be located.
2. The aggregate amount of the debt, including an itemization showing the elements of the aggregate amount.
3. The date the erroneous payment was discovered.
4. The date the recipient was notified of the error and a statement of the erroneous amounts paid before and after receipt of such notice.
5. A summary of the facts and circumstances describing how the erroneous payment occurred; the recipient's knowledge of the erroneous nature of the payment; the steps taken by the recipient to bring the matter to the attention of the appropriate official; and the Component's response;
6. A finding of whether there is any indication of fraud, misrepresentation, fault, or lack of good faith on the part of the applicant and the reasons for such a finding.
7. Legible copies or the originals of supporting documents, such as leave and earnings statements, notifications of personnel actions, travel authorizations and vouchers, and military orders.
8. Statements (that are attested to be true and correct to the best of the individual's knowledge and belief) of the applicant or other persons in support of the application.
An applicant may submit a written rebuttal, signed by the applicant or the applicant's agent or attorney, in response to the recommendation and administrative report. The rebuttal must be received by the determining official within 30 days of the date of the recommendation and administrative report. The determining official may grant an extension of up to an additional 30 days for good cause shown. The rebuttal should include:
1. An explanation of the points and reasons for disagreeing with the report.
2. The file reference number.
3. Any documents referred to in the rebuttal.
4. Statements (that are attested to be true and correct to the best of the individual's knowledge and belief) by the applicant or other persons in support of the rebuttal.
Except as provided in paragraph P to this Appendix, the DOHA must base its decision on the written record, including the recommendation and administrative report and any rebuttal by the applicant. The written decision must:
1. Affirm, modify, reverse, or remand the initial determination and decide the application on its merits or return the application to the Component concerned for investigation and processing for an initial determination on the merits according to Appendix D to this part.
2. State the amount of the waiver application that is granted and the amount denied and/or that the application was or was not received within the statutory time limit, as appropriate.
3. Explain the reasons for the decision.
After issuing an appeal decision, the DOHA must:
1. Send the applicant the decision and notify the applicant of:
i. The appropriate Component action to resolve the debt as a consequence of the decision if it is or becomes a final action (as explained in paragraph J to this Appendix).
ii. The procedures under this Appendix to request reconsideration (as explained in paragraphs K through M to this Appendix), if the decision does not grant the waiver application to the extent requested, or does not contain a finding of timely receipt, when applicable.
2. Notify the Component concerned of the decision and the appropriate Component action to resolve the debt as a consequence of the decision.
An appeal decision that grants the waiver application to the extent requested on appeal, or that finds that the application was timely received, when applicable, is a final action when issued. An appeal decision is a final action if the DOHA does not receive a request for reconsideration within 30 days of the date of the appeal decision (plus any extension of up to 30 additional days granted by the DOHA for good cause shown).
An applicant may request reconsideration of a DOHA appeal decision.
The DOHA must receive a request for reconsideration within 30 days of the date of the appeal decision.
The requirements of paragraph C to this Appendix for the content of an appeal apply to a request for reconsideration.
No earlier than 31 days after the date of the appeal decision or the day after the last period for submitting a request, as extended, expires, the DOHA must:
1. Consider a request for reconsideration.
2. Affirm, modify, or reverse the appeal decision.
3. Prepare a response that explains the reasons for the finding.
4. Send the response to the applicant and the Component concerned and notify them of the appropriate action on the debt.
The response is a final action. It is precedent in the consideration of all waiver applications covered by this part unless otherwise stated in the document.
When considering an appeal or request for reconsideration, the DOHA may:
1. Take administrative notice of matters that are generally known or are capable of confirmation by resort to sources whose accuracy cannot reasonably be questioned.
2. Remand a matter to the Component with instructions to provide additional information.