National Defense

32 Part 800 to End Revised as of July 1, 2005

National Defense

Containing a codification of documents of general applicability and future effect

As of July 1, 2005

With Ancillaries

Published by Office of the Federal Register National Archives and Records Administration

A Special Edition of the Federal Register

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00001 Fmt 8091 Sfmt 8091 Y:\SGML\205127.XXX 205127 U.S. GOVERNMENT OFFICIAL EDITION NOTICE

Legal Status and Use of Seals and Logos The seal of the National Archives and Records Administration (NARA) authenticates the Code of Federal Regulations (CFR) as the official codification of Federal regulations established under the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the contents of the CFR, a special edition of the Federal Register, shall be judicially noticed. The CFR is prima facie evidence of the original documents published in the Federal Register (44 U.S.C. 1510). It is prohibited to use NARA’s official seal and the stylized Code of Federal Regulations logo on any republication of this material without the express, written permission of the Archivist of the United States or the Archivist’s designee. Any person using NARA’s official seals and logos in a manner inconsistent with the provisions of 36 CFR part 1200 is subject to the penalties specified in 18 U.S.C. 506, 701, and 1017.

Use of ISBN Prefix This is the Official U.S. Government edition of this publication and is herein identified to certify its authenticity. Use of the 0–16 ISBN prefix is for U.S. Government Printing Office Official Edi- tions only. The Superintendent of Documents of the U.S. Govern- ment Printing Office requests that any reprinted edition clearly be labeled as a copy of the authentic work with a new ISBN.

U.S. GOVERNMENT PRINTING OFFICE U.S. Superintendent of Documents • Washington, DC 20402–0001 http://bookstore.gpo.gov Phone: toll-free (866) 512-1800; DC area (202) 512-1800

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00002 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 e:\seals\archives.ai e:\seals\gpologo.eps Table of Contents

Page Explanation ...... vi

Title 32:

Subtitle A—Department of Defense (Continued)

Chapter VII—Department of the Air Force ...... 5

Subtitle B—Other Regulations Relating to National Defense

Chapter XII—Defense Logistics Agency ...... 267

Chapter XVI—Selective Service System ...... 303

Chapter XVIII—National Counterintelligence Center ...... 375

Chapter XIX—Central Intelligence Agency ...... 413

Chapter XX—Information Security Oversight Office, National Ar- chives and Records Administration ...... 465

Chapter XXI—National Security Council ...... 515

Chapter XXIV—Office of Science and Technology Policy ...... 525

Chapter XXVII—Office for Micronesian Status Negotiations ...... 541

Chapter XXVIII—Office of the Vice President of the United States 551

iii

VerDate Aug<04>2004 09:09 Aug 03, 2005 Jkt 205127 PO 00000 Frm 00003 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Page Finding Aids:

Table of CFR Titles and Chapters ...... 565

Alphabetical List of Agencies Appearing in the CFR ...... 583

List of CFR Sections Affected ...... 593

VerDate Aug<04>2004 11:33 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00004 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Cite this Code: CFR

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

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00005 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Explanation

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, July 1, 2005), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cutoff date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\205127.XXX 205127 Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. OBSOLETE PROVISIONS Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in 11 separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume. The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of textual material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd-numbered pages. For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail, [email protected]. SALES The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202- 512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-512-1803. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Pri- vacy Act Compilation are available in electronic format at www.gpoaccess.gov/ nara (‘‘GPO Access’’). For more information, contact Electronic Information Dis- semination Services, U.S. Government Printing Office. Phone 202-512-1530, or 888- 293-6498 (toll-free). E-mail, [email protected].

vii

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00007 Fmt 8008 Sfmt 8092 Y:\SGML\205127.XXX 205127 The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.archives.gov/federallregister. The NARA site also contains links to GPO Access.

RAYMOND A. MOSLEY, Director, Office of the Federal Register. July 1, 2005.

viii

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00008 Fmt 8008 Sfmt 8092 Y:\SGML\205127.XXX 205127 THIS TITLE

Title 32—NATIONAL DEFENSE is composed of six volumes. The parts in these volumes are arranged in the following order: parts 1–190, parts 191–399, parts 400– 629, parts 630–699, parts 700–799, and part 800 to End. The contents of these volumes represent all current regulations codified under this title of the CFR as of July 1, 2005.

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

For this volume, Ruth Green was Chief Editor. The Code of Federal Regula- tions publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00009 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00010 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 32–National Defense

(This book contains part 800 to End)

Part

SUBTITLE A—DEPARTMENT OF DEFENSE (CONTINUED)

CHAPTER VII—Department of the Air Force ...... 806

SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DEFENSE

CHAPTER XII—Defense Logistics Agency ...... 1280

CHAPTER XVI— Selective Service System ...... 1602

CHAPTER XVIII— National Counterintelligence Center ...... 1800

CHAPTER XIX— Central Intelligence Agency ...... 1900

CHAPTER XX— Information Security Oversight Office, Na- tional Archives and Records Administration ...... 2001

CHAPTER XXI— National Security Council ...... 2102

CHAPTER XXIV— Office of Science and Technology Policy ..... 2400

CHAPTER XXVII— Office for Micronesian Status Negotiations 2700

CHAPTER XXVIII— Office of the Vice President of the United States ...... 2800

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00011 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00012 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 Subtitle A—Department of Defense (Continued)

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00013 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00014 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 CHAPTER VII—DEPARTMENT OF THE AIR FORCE

SUBCHAPTER A—ADMINISTRATION

Part Page 800 [Reserved] 806 Air Force Freedom of Information Act program ..... 7 806b Privacy Act program ...... 36 807 Sale to the public ...... 71 809a Installation entry policy, civil disturbance intervention and disaster assistance ...... 72

SUBCHAPTER B—SALES AND SERVICES 811 Release, dissemination, and sale of visual information materials ...... 76 813 Visual information documentation program ...... 78

SUBCHAPTER C—PUBLIC RELATIONS [RESERVED]

SUBCHAPTER D—CLAIMS AND LITIGATION 841 Licensing government-owned inventions in the custody of the Department of the Air Force ...... 81 842 Administrative claims...... 86 845 Counsel fees and other expenses in foreign tribunals ...... 130

SUBCHAPTER E—SECURITY [RESERVED]

SUBCHAPTER F—AIRCRAFT 855 Civil aircraft use of United States Air Force airfields ...... 134

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00015 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 32 CFR Ch. VII (7–1–05 Edition)

Part Page 861 Department of Defense commercial air transportation quality and safety review program ...... 158

SUBCHAPTER G—ORGANIZATION AND MISSION—GENERAL 865 Personnel Review boards ...... 172

SUBCHAPTER H [RESERVED]

SUBCHAPTER I—MILITARY PERSONNEL 881 Determination of active military service and discharge for civilian or contractual groups ...... 199 884 Delivery of personnel to United States civilian authorities for trial ...... 201 887 Issuing of certificates in lieu of lost or destroyed certificates of separation ...... 207 888–888g [Reserved]

SUBCHAPTER J—CIVILIAN PERSONNEL [RESERVED]

SUBCHAPTER K—MILITARY TRAINING AND SCHOOLS 901 Appointment to the United States Air Force Acad- emy ...... 210 903 Air Force Academy Preparatory School ...... 219

SUBCHAPTERS L–M [RESERVED]

SUBCHAPTER N—TERRITORIAL AND INSULAR REGULATIONS 935 Wake Island Code ...... 224

SUBCHAPTER O—SPECIAL INVESTIGATION [RESERVED]

SUBCHAPTERS P–S [RESERVED]

SUBCHAPTER T—ENVIRONMENTAL PROTECTION 989 Environmental impact analysis process (EIAP) ...... 240

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00016 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 SUBCHAPTER A—ADMINISTRATION

PART 800 [RESERVED] United States Air Force (HQ USAF/SC) and Headquarters Air Force Commu- PART 806—AIR FORCE FREEDOM nications and Information Center/Cor- porate Information Division (HQ OF INFORMATION ACT PROGRAM AFCIC/ITC); contains significant changes and additions to implement Sec. the Electronic Freedom of Information 806.1 Summary of revisions. 806.2 Applicability. Act (EFOIA) Amendments of 1996; ad- 806.3 Public information. dresses electronic records; increases 806.4 Definitions. time limits to 20 working days; adds 806.5 Responsibilities. procedures for multiple tracking and 806.6 Prompt action on requests. expedited processing of requests; 806.7 Use of exemptions. changes annual report date and con- 806.8 Description of requested record. tent; adds major command (MAJCOM) 806.9 Referrals. inspectors general (IG), MAJCOM Di- 806.10 Records management. 806.11 FOIA reading rooms. rectors of Inquiries (IGQ), and wing 806.12 Record availability. commanders as initial denial authori- 806.13 5 U.S.C. 552 (a)(2) materials. ties (IDAs). 806.14 Other materials. 806.15 FOIA exemptions. § 806.2 Applicability. 806.16 For official use only. A list of Air Force MAJCOMs, field 806.17 Release and processing procedures. operating agencies (FOAs), and Direct 806.18 Initial determinations. 806.19 Reasonably segregable portions. Reporting Units (DRUs) is at § 806.26. 806.20 Records of non-U.S. government source. § 806.3 Public information. 806.21 Appeals. (a) Functional requests. Air Force ele- 806.22 Time limits. ments may receive requests for govern- 806.23 Delay in responding to an appeal. ment information or records from the 806.24 Fee restrictions. public that do not refer to the FOIA. 806.25 Annual report. Often these requests are sent to a pub- 806.26 Addressing FOIA requests. 806.27 Samples of Air Force FOIA proc- lic affairs office (PAO) or a specific essing documents. unit. All releases of information from 806.28 Records with special disclosure proce- Air Force records, whether the re- dures. quester cites the FOIA or not, must 806.29 Administrative processing of Air comply with the principles of the FOIA Force FOIA requests. and this part. If the requested material 806.30 FOIA exempt information examples. contains personal privacy information 806.31 Requirements of 5 U.S.C. 552(b)(4) to that the Air Force must withhold, it is submitters of nongovernment contract- particularly important to handle that related information. ‘‘functional’’ request as a request APPENDIX A TO PART 806—REFERENCES under the FOIA and coordinate it with APPENDIX B TO PART 806—ABBREVIATIONS AND the appropriate FOIA office and an Air ACRONYMS APPENDIX C TO PART 806—TERMS Force attorney. Regardless of the nature of the functional request, if the re- AUTHORITY: 5 U.S.C. 552. sponding element denies the release of SOURCE: 64 FR 72808, Dec. 28, 1999, unless information from Air Force records, otherwise noted. then control the request as a FOIA and follow FOIA denial procedures for § 806.1 Summary of revisions. records withheld (cite the pertinent This part makes this guidance an Air FOIA exemption and give the requester Force supplement to the DoD regula- FOIA appeal rights). tion at 32 CFR part 286. It transfers re- (b) HQ AFCIC/ITC will make the Air sponsibility for the Air Force Freedom Force handbook and guide for request- of Information Act (FOIA) Program ing records available on the World from the Office of the Secretary of the Wide Web (WWW) from Air ForceLINK, Air Force (SAF/AAI) to Headquarters at http://www.foia.af.mil/handbook.htm.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00017 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.4 32 CFR Ch. VII (7–1–05 Edition)

§ 806.4 Definitions. records. FOIA managers may: initially (a) Electronic reading room (ERR). deny fee category claims, requests for Rooms established on Internet web expedited processing, and waiver or re- sites for public access to FOIA-proc- duction of fees; review fee estimates; essed (a)(2)(D) records. and sign ‘‘no records’’ responses. IDAs (b) FOIA request. This includes FOIA are the deputy chiefs of staff and chiefs requests made by members of Congress of comparable offices or higher at HQ either on their own behalf or on behalf USAF and Secretary of the Air Force of one of their constituents. Process (SAF), and MAJCOM commanders. FOIA requests from members of Con- Deputy Chiefs of Staff and chiefs of gress in accordance with this Air Force comparable offices or higher at HQ supplement. Air Force-affiliated re- USAF and SAF may name one addi- questers, to include military and civil- tional position as denial authority. ian employees, should not use govern- MAJCOM commanders may appoint ment equipment, supplies, stationery, two additional positions at the head- postage, telephones, or official mail quarters and also the wing commander channels to make FOIA requests. at base level. MAJCOM IGs and (1) Simple requests can be processed MAJCOM Directors of Inquiries (IGQ) quickly with limited impact on the responding units. The request clearly may act as IDAs for IG records. identifies the records with no (or few) MAJCOM FOIA managers must notify complicating factors involved. There HQ AFCIC/ITC in writing (by facsimile, are few or no responsive records. Only e-mail, or regular mail) of IDA position one installation is involved and there titles. Send position titles only—no are no outside Office of Primary Re- names. HQ AFCIC/ITC sends SAF/IGQ a sponsibility (OPRs). There are no clas- copy of the correspondence designating sified or nongovernment records. No IDA positions for IG records. When the deliberative process/privileged mate- commander changes the IDA designee rials are involved. The responsive position, MAJCOM FOIA managers will records contain no (or limited) per- advise HQ AFCIC/ITC immediately. In sonal privacy information and do not the absence of the designated IDA, the come from a Privacy Act system of individual filling/assuming that posi- records. No time extensions are antici- tion acts as an IDA, however; all denial pated. documentation must reflect the posi- (2) Complex requests take substantial tion title of the approved or designated time and cause significant impact on IDA, even if in an acting capacity (for responding units. Complications and example, Acting Director of Commu- delays are likely. Records sought are nications and Information, Head- massive in volume. Multiple organizations must review/coordinate on re- quarters Air Combat Command). quested records. Records are classified; (e) Office of primary responsibility originated with a nongovernment (OPR). A DoD element that either pre- source; are part of the Air Force’s deci- pared, or is responsible for, records sion-making process; or are privileged. identified as responsive to a FOIA re- (c) Government Information Locator quest. OPRs coordinate with the office Service (GILS). GILS is an automated of corollary responsibility (OCR) and on-line card catalog of publicly acces- FOIA managers to assist IDAs in mak- sible information. The Office of Man- ing decisions on FOIA requests. agement and Budget (OMB) Bulletin (f) OCR. A DoD element with an offi- 95–01, December 7, 1994, and OMB cial interest in, and/or collateral re- Memorandum, February 6, 1998, man- sponsibility for, the contents of records dates that all federal agencies create a identified as responsive to a FOIA re- GILS record for information available quest, even though those records were to the public. The DoD GILS resides on either prepared by, or are the primary DefenseLINK, the official DoD home responsibility of, a different DoD ele- page, at http://www.defenselink.mil/loca- ment. OCRs coordinate with OPRs and tor/index.html. FOIA managers to assist IDAs in mak- (d) Initial denial authority. Only ap- ing decisions on FOIA requests. proved IDAs may deny all or parts of

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00018 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.5

(g) Appellate authority. The SAF has ments, when considering what deci- designated the Deputy General Coun- sions to make on pending FOIA ac- sel, Fiscal, Ethics, and Civilian Per- tions. Where any responsive records are sonnel (SAF/GCA) as the FOIA appel- denied, the IDA tells the requesters the late authority. nature of records or information de- (h) Reading room. Any place where a nied, the FOIA exemption supporting member of the public may view FOIA the denial, the reasons the records records. were not released, and gives the requester the appeal procedures. In addi- § 806.5 Responsibilities. tion, on partial releases, IDAs must en- (a) The Director, Communications sure requesters can see the placement and Information (HQ USAF/SC) has and general length of redactions with overall responsibility for the Air Force the applicable exemption indicated. FOIA Program. The Corporate Infor- This procedure applies to all media, in- mation Division (HQ AFCIC/ITC) ad- cluding electronic records. Providing ministers the procedures necessary to placement and general length of re- implement the Air Force FOIA Pro- dacted information is not required if gram, submits reports to the Director, doing so would harm an interest pro- Freedom of Information and Security tected by a FOIA exemption. When Review (DFOISR), and provides guidance and instructions to MAJCOMs. working FOIA appeal actions for the Responsibilities of other Air Force ele- appellate authority review: ments follow. (1) IDAs grant or recommend contin- (b) SAF/GCA makes final decisions ued denial (in full or in part) of the re- on FOIA administrative appeals. quester’s appeal of the earlier with- (c) Installation commanders will: holding of responsive records, or ad- Comply with FOIA electronic reading verse determination (for example, IDAs room (ERR) requirements by estab- may release some or all of the pre- lishing a FOIA site on their installa- viously denied documents). tion public web page and making fre- (2) IDAs reassess a request for expe- quently requested records (FOIA-proc- dited processing due to demonstrated essed (a)(2)(D)) records available compelling need, overturning or con- through links from that site, with a firming the initial determination made link to the Air Force FOIA web page at by the FOIA manager. http://www.foia.af.mil. See § 806.12(c). (3) When an IDA denies any appellate (d) MAJCOM commanders implement action sought by a FOIA requester, the this instruction and appoint a FOIA IDA, or MAJCOM FOIA manager (for manager, in writing. Send the name, no record, fee, fee estimates, or fee cat- phone number, office symbol, and e- egory appeals) will indicate in writing mail address to HQ AFCIC/ITC, 1250 Air that the issues raised in the FOIA ap- Force Pentagon, Washington, DC 20330– peal were considered and rejected (in 1250. full or in part). Include this written (e) Air Force attorneys review FOIA statement in the file you send to the responses for legal sufficiency, provide Secretary of the Air Force in the legal advice to OPRs, disclosure au- course of a FOIA appeal action. Send thorities, IDAs, and FOIA managers, all appeal actions through the and provide written legal opinions MAJCOM FOIA office. when responsive records (or portions of responsive records) are withheld. Air (g) OPRs: Force attorneys ensure factual and (1) Coordinate the release or denial of legal issues raised by appellants are records requested under the FOIA with considered by IDAs prior to sending the OCRs, FOIA offices, and with Air Force FOIA appeal files to the Secretary of attorneys on proposed denials. the Air Force’s designee for final ac- (2) Provide requested records. Indi- tion. cate withheld parts of records anno- (f) Disclosure authorities and IDAs tated with FOIA exemption. Ensure reapply the policies and guidance in this questers can see the placement and instruction, along with the written rec- general length of redactions. This pro- ommendations provided by staff ele- cedure applies to all media, including

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00019 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.6 32 CFR Ch. VII (7–1–05 Edition)

electronic records. Providing place- (10) Review publications for compli- ment and general length of redacted in- ance with this part. formation is not required if doing so (11) Conduct periodic program re- would harm an interest protected by a views. FOIA exemption. (12) Approve or deny initial fee waiv- (3) Provide written recommendations er requests. to the disclosure authority to deter- (13) Make the initial decision on mine whether or not to release records, chargeable fees. and act as declassification authority (14) Collect fees. when appropriate. (15) Send extension notices. (4) Make frequently requested records (16) Submit reports. (FOIA-processed (a)(2)(D)) available to (17) Sign ‘‘no record’’ responses. the public in the FOIA ERR via the (18) Provide the requester the basis Internet. As required by AFIs 33–129, for any adverse determination (i.e., no Transmission of Information Via the records, fee denials, fee category deter- Internet, and 35–205, Air Force Security minations, etc.) in enough detail to and Policy Review Program, OPRs re- permit the requester to make a deci- quest clearance of these records with sion whether or not to appeal the ac- the PAO before posting on the WWW, tions taken, and provide the requester and coordinate with JA and FOIA of- with appeal procedures. fice prior to posting. The FOIA man- (i) On appeals, FOIA managers: ager, in coordination with the func- (1) Reassess a fee category claim by a tional OPR or the owner of the records, requester, overturning or confirming will determine qualifying records, after the initial determination. coordination with any interested OCRs. (2) Reassess a request for expedited (5) Complete the required GILS core processing due to demonstrated com- record for each FOIA-processed pelling need, overturning or confirming (a)(2)(D) record. the initial determination. (6) Manage ERR records posted to the (3) Reassess a request for a waiver or installation public web page by updat- reduction of fees, overturning or con- ing or removing them when no longer firming the initial determination. needed. Software for tracking number (4) Review a fee estimate, over- of hits may assist in this effort. turning or confirming the initial deter- (h) FOIA managers: mination. (1) Ensure administrative correctness (5) Confirm that no records were lo- of all FOIA actions processed. cated in response to a request. (2) Control and process FOIA re- (j) The base FOIA manager acts as quests. the FOIA focal point for the FOIA site (3) Obtain recommendations from the on the installation web page. OPR for records. (k) When any appellate action sought (4) Prepare or coordinate on all pro- by a FOIA requester is denied by an posed replies to the requester. FOIA IDA or FOIA manager for authorized managers may sign replies to request- actions, the IDA or FOIA manager will ers when disclosure authorities approve indicate, in writing, that the issues the total release of records. If the raised in the FOIA appeal were consid- MAJCOM part directs the OPR to pre- ered and rejected (in full or in part). In- pare the reply, the OPR will coordinate clude this written statement in the file their reply with the FOIA office. you send to the Secretary of the Air (5) Make determinations as to wheth- Force in the course of a FOIA appeal er or not the nature of requests are action. Send all appeal actions through simple or complex where multitrack the MAJCOM FOIA office. FOIA request processing queues exist. (6) Approve or initially deny any re- § 806.6 Prompt action on requests. quests for expedited processing. (a) Examples of letters to FOIA re- (7) Provide interim responses to requesters (e.g., response determinations questers, as required. and interim responses) are included in (8) Provide a reading room for in- § 806.27. specting and copying records. (b) Multitrack processing. (1) Exam- (9) Provide training. ples of letters to FOIA requesters (e.g.,

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00020 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.10

letters to individuals who have had through the MAJCOM FOIA office. Co- their FOIA request placed in the com- ordinate release or denial of letters of plex track) are included in § 806.27. offer and acceptance (LOA) with SAF/ (2) Simple requests can be processed IA through 11 CS/SCSR (FOIA), 1000 Air quickly, with limited impact on the re- Force Pentagon, Washington DC 20330– sponding units. The request clearly 1000. identifies the records with no (or few) complicating factors involved. There § 806.8 Description of requested are few or no responsive records, only record. one installation is involved, there are Air Force elements must make rea- no outside OPRs, no classified or non- sonable efforts to find the records de- government records, no deliberative scribed in FOIA requests. Reasonable process/privileged materials are in- efforts means searching all activities volved, records contain no (or limited) and locations most likely to have the personal privacy information/did not records, and includes staged or retired come from Privacy Act systems of records, as well as complete and thor- records concerning other individuals, ough searches of relevant electronic or time extensions not anticipated. records, such as databases, word proc- (c) Complex requests will take sub- essing, and electronic mail files. stantial time, will cause significant impact on responding units. Complica- § 806.9 Referrals. tions and delays are likely. Records (a) Send all referrals through the sought are massive in volume, multiple FOIA office. The receiving FOIA office organizations must review/coordinate must agree to accept the referral be- on records, records are classified, fore transfer. The FOIA office will pro- records originated with a nongovern- vide the name, phone number, mailing ment source, records were part of the address, and e-mail address of both the Air Force’s decision-making process or FOIA office point of contact and the are privileged. record OPR point of contact in their (d) Expedited processing. Examples of referral letter. Include the requested letters to individuals whose FOIA re- record. If the requested records are quests and/or appeals were not expe- massive, then provide a description of dited are included in § 806.27. them. Referrals to, or consultations with, DFOISR are accomplished from § 806.7 Use of exemptions. the MAJCOM level. Section 806.27 has (a) A listing of some AFIs that pro- an example of a referral memo. vide guidance on special disclosure pro- (b) In some cases, requested records cedures for certain types of records is are available from the GPO and NTIS, provided in § 806.28. Refer to those in- 5285 Port Royal Road, Springfield VA structions for specific disclosure proce- 22161. These organizations offer certain dures. Remember, the only reason to records for sale to the public. Current deny a request is a FOIA exemption. standard releasable Air Force publica- (b) Refer requests from foreign gov- tions are available electronically on ernment officials that do not cite the the WWW at http://afpubs.hq.af.mil/. For FOIA to your foreign disclosure office requesters without electronic access, and notify the requester. NTIS has paper copies for sale. Give re- (c) If you have a non-U.S. Govern- questers the web address or NTIS ad- ment record, determine if you need to dress when appropriate. However, if the consult with the record’s originator be- requester prefers to pursue the FOIA fore releasing it (see § 806.9 and process, consult with HQ AFCIC/ITC § 806.15(c)). This includes records cre- through the MAJCOM. Refer FOIA re- ated by foreign governments and orga- quests for Air Force publications that nizations such as North Atlantic Trea- are classified, FOUO, rescinded, or su- ty Organization (NATO) and North perseded to the OPR through the ap- American Aerospace Defense (NORAD). propriate FOIA office. You may need to coordinate release of foreign government records with either § 806.10 Records management. the U.S. Department of State or with Keep records that were fully released the specific foreign embassy, directly for 2 years and denied records for 6

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00021 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.11 32 CFR Ch. VII (7–1–05 Edition)

years. Include in the 6-year record file ment to make all FOIA-released copies of records or parts of records records available electronically. The that were released in response to the FOIA manager, in coordination with same request. Refer to Air Force Man- the functional OPR, or the owner of ual (AFMAN) 37–139, Records Disposi- the records, determines qualifying tion Schedule (converting to AFMAN records, after coordination with any in- 33–339, see § 806.9(b)). The functional terested OCRs. As required by AFIs 33– OPR or FOIA office may keep the 129 and 35–205, OPRs request clearance records released or denied. The FOIA of these records with the PAO before office keeps the FOIA case file for each posting on the WWW. request. The FOIA case file consists of: (b) Normally, if the FOIA office or the initial request; tasking to OPRs; OPR receives, or anticipates receiving, OPR’s reply; memoranda for record five or more requests for the same (MFR) of phone calls or other actions record in a quarter, they will consider related to the FOIA request; DD Forms it a frequently requested record (FOIA- 2086, Record of Freedom of Information processed (a)(2)(D) record) and make it (FOI) Processing Cost, or 2086–1, Record publicly available in hard copy and of Freedom of Information (FOI) Proc- electronically as outlined in § 806.12(a). essing Cost for Technical Data; final OPRs may elect to make other records response; and any of the following, if publicly available if they receive, or applicable: extension letter; legal opin- expect to receive, less than five re- ions; submitter notification letters and quests a quarter. The purpose is to replies; the appeal and required attach- make records available in an ERR to ments (except for the released or de- potential future FOIA requesters in- nied records if maintained by the stead of waiting to receive a FOIA re- OPR); and all other correspondence to quest, and reduce the number of mul- and from the requester. tiple FOIA requests for the same records requiring separate responses. § 806.11 FOIA reading rooms. In making these determinations, recog- Each FOIA office will arrange for a nize there are some situations in which reading room where the public may in- a certain type of record becomes the spect releasable records. You do not subject of simultaneous FOIA requests need to co-locate the reading room from all interested parties and then with the FOIA office. The FOIA does ceases to be of interest. Activities may not require creation of a reading room typically receive a ‘‘flurry’’ of FOIA re- dedicated exclusively to this purpose. quests for contract records imme- A ‘‘reading room’’ is any location diately after a contract is awarded, but where a requester may review records. do not receive any subsequent requests For FOIA-processed (a)(3) records, if re- for such bulky records after that point. questers meet the criteria for search In some cases, activities may decide and review costs, they must be paid be- that placing records in the ERR would fore inspecting records. Assess repro- not serve the statutory purpose of ‘‘di- duction costs at the time of inspection, verting some potential FOIA requests if appropriate. for previously released records.’’ The following types of records should be § 806.12 Record availability. considered for inclusion in the ERR (a) HQ AFCIC/ITC will make the tra- (excluding individuals assigned to over- ditional FOIA-processed (a)(2) mate- seas, sensitive, and routinely rials (5 U.S.C. 552(a)(2)(A), (B), and (C)) deployable units): organizational available to the public. Each Air Force charts and limited staff directories; activity must make 5 U.S.C. lists of personnel reassigned with gain- 552(a)(2)(D) records (‘‘FOIA-processed ing base; MAJCOM FOIA supplements; (a)(2)(D) records’’—records which they lists of International Merchant Pur- determine will, or have become, the chase Authority Card (IMPAC) card subject of frequent or subsequent re- holders. Do not post lists of e-mail ad- quests) available to the public in a dresses. reading room in hard copy and elec- (c) GILS. Each activity that posts tronically by posting it to their appro- FOIA-processed (a)(2)(D) records priate web site. There is no require- (records which they determine will, or

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00022 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.15

have become, the subject of frequent or § 806.13 5 U.S.C. 552(a)(2) materials. subsequent requests) must create a The GILS records on DefenseLINK GILS record for each FOIA-processed will serve as the index for 5 U.S.C. (a)(2)(D) record and post it to 552(a)(2)(D) materials. DefenseLINK. The OPR prepares the GILS record. You can complete and § 806.14 Other materials. submit a GILS record on-line using a HQ AFCIC/ITC makes the appropriate web browser. Instructions for com- FOIA-processed (a)(1) materials avail- pleting the GILS record, and an on-line able for the Air Force. form are at http://www.defenselink.mil/ locator/index.html. Follow the steps list- § 806.15 FOIA exemptions. ed on the web page. The GILS site on (a) Exemption number 1. When a re- DefenseLINK will serve as the central quester seeks records that are classi- index of Air Force FOIA-processed fied, or should be classified, only an (a)(2)(D) records. initial classification authority, or a de- (d) In addition, installations will post classification authority, can make a list, or index, of locally produced final determinations with respect to FOIA-processed (a)(2)(D) records on classification issues. The fact that a their web page at their FOIA site. Each record is marked with a security classi- listing will point or link to the par- fication is not enough to support with- ticular record. In addition, MAJCOMs holding the document; make sure it is may choose to post their own index of ‘‘properly and currently classified.’’ MAJCOM specific FOIA-processed Review the record paragraph by paragraph for releasable information. Re- (a)(2)(D) records to their appropriate view declassified and unclassified parts web site. Installation web pages will in- before release to see if they are exempt clude the following phrase (or similar by other exemptions. Before releasing a words) on their FOIA site if they do not reviewed and declassified document, have any frequently requested FOIA draw a single black line through all the records: ‘‘There are no frequently reclassification markings so they are quested FOIA records to post at this still legible and stamp the document time.’’ Include the following state- unclassified. If the requested records ment, or a similar one, on the installa- are ‘‘properly and currently classified,’’ tion web page with the records: ‘‘Some and the Air Force withholds from re- records are released to the public under lease under FOIA exemption (b)(1), and the FOIA, and may therefore reflect de- the requester appeals the withholding, letion of some information in accord- include a written statement from an ance with the FOIA’s nine statutory initial classification authority or de- exemptions. A consolidated list of such classification authority certifying the records is on DefenseLINK.’’ Link the data was properly classified originally word ‘‘DefenseLINK’’ to and that it remains properly classified www.defenselink.mil/locator/ per Executive Order. Examples of ini- fprlindex.html. Qualifying releasable tial classification and declassification records with exempt information re- authority statements are included in dacted must show on the record the § 806.27. Guidance on document declas- amount of information withheld and sification reviews is in AFI 31–401, Managing the Information Security the exemption reason (for example, Program, and DoD 5200.1–R, Informa- (b)(6)). Activities with such records tion Security Program, January 1997. should provide the public an index and (b) Exemption number 3. HQ AFCIC/ explanation of the FOIA exemptions. ITC will provide the current FOIA- All installation FOIA pages will in- processed (b)(3) statutes list to the clude a link to the Air Force page. MAJCOMs. (e) FOIA web pages should be clearly (c) Exemption number 4. The Air accessed from the main installation Force, in compliance with Executive page, either by a direct link to ‘‘FOIA’’ Order 12600, will advise submitters of or ‘‘Freedom of Information Act’’ from contractor-submitted records when a the main page, or found under a logical FOIA requester seeks the release of heading such as ‘‘Library’’ or ‘‘Sites.’’ such records, regardless of any initial

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00023 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.15 32 CFR Ch. VII (7–1–05 Edition)

determination of whether FOIA exemp- scription of the records requested. Also tion (b)(4) applies. (See § 806.20(a) and include a statement that only releas- § 806.31). Due to a change to Title 48 able records will be provided and we CFR, Federal Acquisition Regulations will protect personal information as re- System, submitter notification is not quired by the FOIA and Privacy laws. required prior to release of unit prices (2) Personal information may not be contained in contracts awarded based posted at publicly accessible DoD web upon solicitations issued after January sites unless to do so is clearly author- 1. 1998. For solicitations issued before ized by law and implementing regula- January 1, 1998, conduct a normal sub- tion and policy. Personal information mitter notice. Unit prices contained in should not be posted at nonpublicly ac- proposals provided prior to contract cessible web sites unless it is mission award are protected from release, as essential and appropriate safeguards are all portions of unsuccessful pro- have been established. See also AFIs posals (before and after contract 33–129 and 35–205. award) (10 U.S.C. 2305(g), Prohibition (3) Withhold names and duty address- on Release of Contractor Proposals). es of personnel serving overseas or in (d) Exemption number 5. (1) Attorney- sensitive or routinely deployable units. client records could include, e.g., when Routinely deployable units normally a commander expresses concerns in leave their permanent home stations confidence to his or her judge advocate on a periodic or rotating basis for and asks for a legal opinion. The legal peacetime operations or for scheduled opinion and everything the commander training exercises conducted outside tells the judge advocate in confidence the United States or United States ter- qualify under this privilege. Unlike de- ritories. Units based in the United liberative process privilege, both facts States for a long time, such as those in and opinions qualify under the attor- extensive training or maintenance ac- ney work product or attorney-client tivities, do not qualify during that pe- privilege. Attorney work product riod. Units designated for deployment records are records an attorney pre- on contingency plans not yet executed pares, or supervises the preparation of, and units that seldom leave the United in contemplating or preparing for ad- States or United States territories ministrative proceedings or litigation. (e.g., annually or semiannually) are not (2) Based on court decisions in FOIA routinely deployable units. However, litigation, which led to the release of units alerted for deployment outside results of personnel surveys, FOIA the United States or United States ter- managers and IDAs should get advice ritories during actual execution of a from an Air Force attorney before contingency plan or in support of a cri- withholding survey results under FOIA sis operation qualify. The way the Air exemption (b)(5). Force deploys units makes it difficult (e) Exemption number 6. (1) AFI 37–132, to determine when a unit that has part Air Force Privacy Act Program (will of its personnel deployed becomes eligi- convert to AFI 33–332) provides guid- ble for denial. The Air Force may con- ance on collecting and safeguarding so- sider a unit deployed on a routine basis cial security numbers (SSN). It states: or deployed fully overseas when 30 per- ‘‘SSNs are personal and unique to each cent of its personnel have been either individual. Protect them as FOUO. Do alerted or actually deployed. In this not disclose them to anyone without context, alerted means that a unit has an official need to know.’’ Before re- received an official written warning of leasing an Air Force record to a FOIA an impending operational mission out- requester, delete SSNs that belong to side the United States or United States anyone other than the requester. In territories. Sensitive units are those any subsequent FOIA release to a dif- involved in special activities or classi- ferent requester of those same records, fied missions, including, for example, make sure SSNs are deleted. When fea- intelligence-gathering units that col- sible, notify Air Force employees when lect, handle, dispose of, or store classi- someone submits a FOIA request for fied information and materials, as well information about them. The notifica- as units that train or advise foreign tion letter should include a brief de- personnel.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00024 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.17

(i) Each MAJCOM and FOA will es- FOUO records over facsimile equip- tablish a system and assign OPRs to ment, balance the sensitivity of the identify United States-based units in records against the risk of disclosure. their command qualifying for the When faxing, use cover sheets to indi- ‘‘sensitive or routinely deployable cate FOUO attachments (i.e., AF Form unit’’ designation, under this exemp- 3227, Privacy Act Cover Sheet, for Pri- tion. Appropriate OPRs could include vacy Act information). Consider the lo- directors of operations, plans and pro- cation of sending and receiving ma- grams, and personnel. chines and ensure authorized personnel (ii) MAJCOM FOIA managers will en- are available to receive FOUO informa- sure the list of sensitive and routinely tion as soon as it is transmitted. deployable units is reviewed in Janu- (2) For Privacy Act records, refer to ary and July, and will follow that re- AFI 33–332 for specific disclosure rules. view with a memo to the Air Force For releases to GAO and Congress, Personnel Center (HQ AFPC/MSIMD), refer to AFI 90–401, Air Force Relations 550 C Street West, Suite 48, Randolph With Congress and AFI 65–401, Rela- AFB, TX 78150–4750, either validating tions With the General Accounting Of- the current list or providing a revised fice. See § 806.9(b) for availability. listing based on the current status of (c) Termination, disposal and unau- deployed units at that time. This list- thorized disclosures. You may recycle ing is in American Standard Code for FOUO material. Safeguard the FOUO Information Interchange (ASCII) for- documents or information to prevent mat on a 31⁄2’’ (double-sided, high-den- unauthorized disclosure until recy- sity) diskette, which contains the cling. Recycling contracts must in- unit’s eight-position personnel ac- clude specific responsibilities and re- counting symbol (PAS) code, with one quirements on protecting and destroy- PAS code per line (record) (8-byte ing FOUO and Privacy Act materials. record). The MAJCOM FOIA manager will send an electronic copy of the list § 806.17 Release and processing proce- of nonreleasable units to HQ AFPC/ dures. MSIMD which is included in the per- (a) Individuals seeking Air Force in- sonnel data system. The MAJCOM and formation should address requests to HQ AFPC FOIA offices will use it to de- an address listed in § 806.26. MAJCOM termine releasable lists of names and FOIA office phone numbers and mail- duty addresses. This reporting require- ing addresses are available on the Air ment is exempt from licensing with a Force FOIA Web Page at http:// reports control symbol (RCS) in ac- www.foia.af.mil. cordance with AFI 37–124, The Informa- (1) A list of Air Force FOIA proc- tion Collections and Reports Manage- essing steps, from receipt of the re- ment Program; Controlling Internal, quest through the final disposition of Public, and Interagency Air Force In- an administrative appeal is at § 806.29, formation Collections (will convert to which also includes guidance on pre- AFI 33–324). paring and processing an Air Force (f) Exemption number 7. Guidance pro- FOIA appeal package. vided in § 806.15(e)(1) also applies to (2) Air Force host tenant relation- SSNs in records compiled for law en- ships. The Air Force host base FOIA forcement purposes. Do not disclose manager may log, process, and report SSNs to anyone without an official FOIA requests for Air Force tenant need to know. units. In such cases, the host base FOIA office refers all recommended de- § 806.16 For official use only. nials and ‘‘no records’’ appeals to the (a) Markings. Record owners may Air Force tenant MAJCOM FOIA man- also add the following sentence to the ager. This does not apply to the Air statement above: ‘‘(Further distribu- National Guard (ANG), Air Force Re- tion is prohibited without the approval serves, or to disclosure authorities for of (owner’s organization, office symbol, specialized records. phone).)’’ (b) Use FOIA procedures in this part (b) Dissemination and transmission. to process any congressional request (1) When deciding whether to send citing FOIA, or covering a constituent

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00025 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.18 32 CFR Ch. VII (7–1–05 Edition)

letter citing FOIA. This does not apply issued after January 1, 1998. For solici- to requests from a Congressional Com- tations issued before January 1, 1998, mittee or Subcommittee Chair on be- conduct a normal submitter notice. half of the committee or sub- Unit prices contained in proposals pro- committee. vided prior to contract award are protected from release, as are all portions § 806.18 Initial determinations. of unsuccessful proposals (before and (a) Disclosure authorities make final after contract award) (10 U.S.C. decisions on providing releasable 2305(g)). records within the time limits and pro- (b) Department of State involvement. vide recommendations to the IDA on Air Force FOIA managers will notify proposed denials and partial denials their MAJCOM (or equivalent) FOIA after coordination with the appropriate office, in writing, via fax or e-mail FOIA and JA office. Normally, disclo- when the Department of State becomes sure authorities are division chiefs or involved in any Air Force FOIA ac- higher at Air Staff level. MAJCOMs tions. The MAJCOM FOIA office will will designate their disclosure author- provide 11 CS/SCSR, via fax or e-mail, ity levels. The level should be high a summary of the issues involved, and enough so a responsible authority the name, phone number, mailing ad- makes the disclosure according to the dress and e-mail address of: their own policies outlined in this part. At out FOIA office point of contact; the Air sourced units or functions, the disclo- Force record OPR point of contact, the sure authority must be a government DoD component FOIA office point of official. Contractors who are functional contact (if any), and the Department of OPRs for official government records State point of contact. 11 CS/SCSR will are not authorized to make the deci- inform SAF/IA of any State Depart- sion to disclose government records. ment involvement in Air Force FOIA (b) On receipt, Air Force FOIA offices actions. (See § 806.7(b).) An example of a will promptly inform Air Force PAOs memo advising 11 CS/SCSR of State of all FOIA requests that are poten- Department involvement in an Air tially newsworthy, or that are sub- Force FOIA action is provided in mitted by news media requesters. FOIA § 806.27. offices will coordinate final replies for such cases with public affairs. § 806.21 Appeals. § 806.19 Reasonably segregable por- (a) FOIA requesters seeking Air tions. Force records must address appeals to Delete information exempt from re- the Office of the Secretary of the Air lease under the FOIA from copies of Force, through the FOIA office of the otherwise releasable records. Do not re- IDA that denied the request. Request- lease copies that would permit the re- ers should attach a copy of the denial quester to ‘‘read through the mark- letter to their appeal and give reasons ing.’’ Examples of records with dele- for appealing. Air Force IDAs may re- tions of exempted data are in § 806.30. consider any prior denials and may grant all or part of a requester’s ap- § 806.20 Records of non-U.S. govern- peal. When any appellate action sought ment source. by a FOIA requester is denied by an (a) The Air Force, in compliance with IDA, the IDA will include a statement Executive Order 12600, will advise sub- that the issues raised in the appeal mitters of contractor-submitted were considered and rejected (in full or records when a FOIA requester seeks in part) in any file sent to the Sec- the release of such records, regardless retary of the Air Force in the course of of any initial determination as to a FOIA appeal action. Send all appeals whether FOIA exemption (b)(4) applies. to IDA decisions at the wing level See § 806.15(c) and § 806.31. Due to a through the MAJCOM FOIA office for change to 48 CFR, submitter notifica- sending to the Secretary of the Air tion is not required prior to release of Force’s designated appellate authority, unit prices contained in contracts SAF/GCA (and Air Force Legal Serv- awarded based upon solicitations ices Agency (AFLSA/JACL)). (See

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00026 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.25

§§ 806.4(g), 806.5(b), and § 806.5(k).) Addi- § 806.22 Time limits. tional steps are required prior to send- Any FOIA appeals received after the ing an appeal file. 60-day time limit are not processed, un- (1) MAJCOM FOIA offices and record less the requester provides adequate OPRs are responsible for ensuring ade- justification for failing to comply with quate preparation of the FOIA appeal the time limit. If a late appeal is re- package for reconsideration by the ceived, and there is no adequate jus- IDA. FOIA offices and records OPRs tification for failing to comply with will coordinate with Air Force attor- the time limit, the FOIA office will ad- neys, who will provide written opinions vise the FOIA requester their appeal on substantive issues raised in the ap- has been closed. An example of a clo- peal. sure letter is included in § 806.27. (2) If a requester appeals an Air Force § 806.23 Delay in responding to an ap- ‘‘no records’’ determination, Air Force peal. elements must search again or verify For an appeal in process and not yet the adequacy of their first search. The forwarded to AFLSA/JACL, the package must include documents that MAJCOM FOIA office is responsible for show the Air Force element systemati- advising the requester of the status of cally tried to find responsive records. the appeal. For an appeal in process at Tell, for example, what areas or offices AFLSA/JACL, that office will advise were searched and how the search was the requester regarding status of the conducted—manually, by computer, by appeal. telephone, and so forth. In the event a requester sues the Air Force to contest § 806.24 Fee restrictions. a determination that no responsive For FOIA purposes, Air Force activi- records exist, formal affidavits are re- ties will consider the cost of collecting quired to support the adequacy of any a fee to be $15 and will not assess re- searches conducted. questers’ fees for any amount less than (3) FOIA requesters seeking to appeal $15. denials involving Office of Personnel § 806.25 Annual report. Management’s controlled civilian personnel records must appeal to the Of- (a) MAJCOM FOIA managers and fice of the General Counsel, Office of AFLSA/JACL send a consolidated re- Personnel Management, 1900 E Street port for the fiscal year on DD Form NW, Washington, DC 20415. 2564, Annual Report Freedom of Infor- mation Act, to HQ AFCIC/ITC by Octo- (4) If a requester appeals a denial of a ber 30 via regular mail, e-mail, or fac- fee waiver, fee estimate, or fee reduc- simile. AFLSA/JACL will prepare the tion request, FOIA offices and record appeals and litigation costs sections of OPRs must account for actual and esti- the report. HQ AFCIC/ITC will make mated costs of processing a request, the Air Force report available on the and will include copies of the DD WWW. Forms 2086 or 2086–1 in the appeal pack- (b) Total requests processed. ‘‘Proc- age. essed’’ includes responses that give an (5) When any appellate action sought estimated cost for providing the by a FOIA requester is denied by an records, even if the requester has not IDA, prepare the FOIA appeal package paid. as specified in § 806.29, and then the (c) Denied in full. Do not report ‘‘no MAJCOM FOIA office forwards the ap- record’’ responses as denials. peal file to the Secretary of the Air (d) Other reasons. Force’s designated appellate authority, (1) Referrals. Also include referrals SAF/GCA (through AFLSA/JACL), for within Air Force in this category. (2) Not an agency record. The ‘‘not an a final administrative determination. agency record’’ other reason category (b) Air Force activities will process only applies to requests for: objects or appeal actions expeditiously to ensure articles such as structures, furniture, they reach the Office of the Secretary vehicles and equipment, whatever their of the Air Force in a timely manner. historical value, or value as evidence;

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00027 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.26 32 CFR Ch. VII (7–1–05 Edition)

anything that is not a tangible or doc- figure personnel costs, multiply the an- umentary record such as an individ- nual salary of each person by the per- ual’s memory or oral communication; centage of time spent on FOIA. and personal records of an individual (l) MAJCOMs and bases do not in- not subject to agency creation or re- clude the 25 percent. HQ AFCIC/ITC tention requirements, created and will add to the final Air Force report to maintained primarily for the conven- DoD. ience of an agency employee and not (m) Authentication. MAJCOM SCs distributed to other agency employees will sign as approving official (or two- for their official use. This category letter functional equivalent for FOIA does not include ‘‘no record’’ responses. offices in other functional areas). (e) Other. The ‘‘Other (Specify)’’ block must contain the reason with the § 806.26 Addressing FOIA requests. total number for the reason. For example: ‘‘FOIA request had no return ad- (a) FOIA requests concerning Air Na- dress–4.’’ tional Guard Inspector General records (f) 5 U.S.C. 552(b)(3) statutes invoked should be sent to 11 CS/SCSR (FOIA), on initial determinations. A cor- 1000 Air Force Pentagon, Washington, responding statute is required for each DC 20330–1000. instance entered in the Exemption 3 (b) Addressing Air Force Freedom of block. List the statute by number, not Information Act requests. The Depart- title. For any statute on the report ment of the Air Force, a component of that is not on DoD’s list of commonly the DoD, includes the Office of the Sec- used 5 U.S.C. 552(b)(3) statutes, attach retary of the Air Force, the Chief of a copy of the pertinent page of the Staff of the Air Force (who is sup- statute that states information must ported by Headquarters Air Force or be withheld from public disclosure. HQ ‘‘Air Staff’’ elements), the MAJCOMs, AFCIC/ITC makes the DoD list avail- the FOAs, and DRUs. This section lists able to FOIA managers electronically. the FOIA office addresses. A selected Statutes on the DoD list with an aster- subordinate unit is also included in isk indicate they are valid 5 U.S.C. this section. Realignment of Air Force 552(b)(3) statutes from litigation. Do elements is frequent; addresses listed not enter any of the following as 5 below are subject to change. U.S.C. 552(b)(3) statutes: (c) The Department of the Air Force 5 U.S.C. 552 does not have a central repository for 5 U.S.C. 552a Air Force records. FOIA requests are 28 U.S.C. 1498 addressed to the Air Force element 17 U.S.C. 101 18 U.S.C. 1905. that has custody of the record desired. In answering inquiries regarding FOIA (g) Appeal determinations. Enter the requests, Air Force personnel will as- total number of FOIA appeals received sist requesters in determining the cor- and total number of FOIA appeals com- rect Air Force element to address their pleted during the fiscal year. requests. If there is uncertainty as to (h) Average. Air Force will use the the ownership of the record desired, ‘‘median age’’ and will not collect or refer the requester to the Air Force report averages. element that is most likely to have the (i) Number of initial requests re- record. Two organizations that include ceived during the fiscal year. This Air Force elements, and hold some Air number includes open and closed cases. (j) Total number of initial requests. Force-related records, are also included ‘‘Processed’’ includes responses which in the addresses listed below. give an estimated cost for providing (d) MAJCOMs: the records, even if the requester has (1) Air Combat Command (ACC): HQ not paid. ACC/SCTC, 230 East Flight Line Road, (k) Total program cost. This figure Langley AFB VA 23665–2781. includes all costs from the DD Forms (2) Air Education and Training Com- 2086 and 2086–1, as well as personnel mand (AETC): HQ AETC/SCTS, 61 Main costs for individuals primarily involved Circle Suite 2, Randolph AFB TX 78150– in administering the FOIA program. To 4545.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00028 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.26

(3) Air Force Materiel Command (10) Air Force Personnel Center (AFMC): HQ AFMC/SCDP, 4225 Logis- (AFPC): HQ AFPC/MSIMD, 550 C Street tics Avenue, Suite 6, Wright-Patterson West, Suite 48, Randolph AFB, TX AFB, OH 45433–5745. 78150–4750. (4) Air Force Reserve Command (11) Air Force Center for Quality and (AFRC): HQ AFRC/SCSM, 155 2nd Innovation (AFCQMI): AFCQMI/CSP, Street, Robins AFB, GA 31098–1635. 550 E Street East, Randolph AFB, TX (5) Air Force Special Operations 78150–4451. Command (AFSOC): HQ AFSOC/SCMN, (12) Air Force Safety Agency (AFSA): 100 Bartley Street, Suite 201, Hurlburt (Shared FOIA office/function, AFIA, Field, FL 32544–5273. and AFSA) AFSA/JARF, 9700 Avenue G (6) Air Force Space Command SE, Suite 236B, Kirtland AFB, NM (AFSPC): HQ AFSPC/SCMA, 150 Van- 87117–5670. denberg Street, Suite 1105, Peterson (13) Air Force Security Forces Center AFB, CO 80914–4400. (AFSFC): AFSFC/CCQ 1720 Patrick (7) Air Mobility Command (AMC): HQ Street, Lackland AFB, TX 78236–5226. AMC/SCYNR, 203 West Losey Street, (14) Air Force Services Agency Room 3180, Scott AFB, IL 62225–5223. (AFSVA): AFSVA/SVSR, 9504 1H–35 (8) Pacific Air Forces (PACAF): HQ North, Suite 250, San Antonio, TX PACAF/SCT, 25 E Street, Suite C220, 78233–6635. Hickam AFB, HI 96853–5409. (15) Air Force Technical Applications (9) United States Air Forces in Eu- Center (AFTAC): AFTAC/LSCS, 1030 rope (USAFE): HQ USAFE/SCMI, Unit South Highway, Suite A1A, Patrick 3050, Box 125, APO AE 09094–0125. AFB, FL 32925–6001. (e) FOAs: (16) Air Intelligence Agency (AIA): (1) Air Force Audit Agency (AFAA): AIA/DOOI, 102 Hall Boulevard, Suite HQ AFAA/IMP, 1126 Air Force Pen- 229, San Antonio, TX 78243–7029. tagon, Washington, DC 20330–1126. (17) Air Reserve Personnel Center (2) Air Force Base Conversion Agency (ARPC): ARPC/SCS, 6760 East (AFBCA): AFBCA/ESA, 1700 North Irvington Place, #6600, Denver, CO Moore Street, Suite 2300, Arlington, 80280–6600. VA 22209–2802. (18) Air Force Weather Agency (3) Air Force Center for Environ- (AFWA): HQ AFWA/SCI, 106 Peace- mental Excellence (AFCEE): HQ keeper Drive Suite 2N3, Offutt AFB, AFCEE/MSI, 3207 North Road, Brooks NE 68113–4039. AFB, TX 78235–5363. (19) Air Force History Support Office (4) Air Force Civil Engineering Sup- (AFHSO): AFHSO, 500 Duncan Avenue port Agency (AFCESA): HQ AFCESA/ Box 94, Bolling AFB, DC 20332–1111. IMD, 139 Barnes Drive Suite 1, Tyndall (f) DRUs: AFB, FL 32403–5319. (1) Air Force Operational Test and (5) Air Force Historical Research Evaluation Center (AFOTEC): Agency (AFHRA): AFHRA/RSA, 600 AFOTEC/SCM, 8500 Gibson Boulevard Chennault Circle, Maxwell AFB, AL SE, Kirtland AFB, NM 87117–5558. 36112–6424. (2) 11th Wing: 11 CS/SCSR (FOIA), (6) Air Force Inspection Agency 1000 Air Force Pentagon, Washington, (AFIA): (Shared FOIA office/function, DC 20330–1000 (if a person is unsure AFIA and Air Force Safety Agency) where to send a FOIA request for Air AFSA/JAR, 9700 Avenue G SE, Suite Force records, or is seeking records 236B, Kirtland AFB, NM 87117–5670. from the Office of the Secretary of the (7) Air Force Medical Support Agency Air Force, or other Headquarters Air (AFMSA): AFMSA/CCEA, 2510 Kennedy Force records, use this address). Circle, Suite 208, Brooks AFB, TX (3) United States Air Force Academy 78235–5121. (USAFA): 10 CS/SCBD, 2304 Cadet (8) Air Force News Agency Drive, Suite 232, USAFA, CO 80840–5060. (AFNEWS): HQ AFNEWS/SCB, 203 Nor- (g) Selected subordinate units: Air ton Street, Kelly AFB, TX 78241–6105. Force Communications Agency (9) Air Force Office of Special Inves- (AFCA): HQ AFCA/CCQI, 203 West tigations (AFOSI): HQ AFOSI/SCR, P. Losey Street, Room 1022, Scott AFB, O. Box 2218, Waldorf, MD 20604–2218. IL 62225–5203.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00029 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.27 32 CFR Ch. VII (7–1–05 Edition)

(h) Organizations which include air sive records. We expect to reply to your re- force elements: quest not later than (give a date that is not (1) Army and Air Force Exchange more than 30 workdays from the initial re- Service (AAFES): HQ AAFES/GC-E, ceipt of the request); (or) If processing the FOIA request will take more than the al- P.O. Box 660202, Dallas, TX 75266–0202. lowed time limits to respond). We find we are (2) National Guard Bureau (NGB)/Air unable to meet the time limits imposed by National Guard: NGB-AD, 2500 Army the FOIA in this instance because (tell the Pentagon, Washington, DC 20310–2500. requester the reason for the delay) (example: (FOIA requests concerning Air Na- the records are classified and must be re- tional Guard IG records should be sent viewed for possible declassification by other to 11 CS/SCSR (FOIA), 1000 Air Force activities or agencies). We anticipate com- Pentagon, Washington, DC 20330–1000) pleting your request by (date). (When charging fees is appropriate.) The § 806.27 Samples of Air Force FOIA FOIA provides for the collection of fees processing documents. based on the costs of processing a FOIA request and your fee category. Based on the in- (a) This section includes suggested formation in your request, we have deter- language in paragraph format that mined your fee category is (commercial/edu- tracks Air Force and DoD FOIA guid- cational or noncommercial scientific institu- ance. The rest of the body of letters tion or news media/all others). As a result, and memorandums should comply with you (if commercial category) are required to Air Force administrative guidance. pay all document search, review and duplication costs over $15.00. (or) As a result, you (if Each MAJCOM may elect to prepare educational or noncommercial scientific in- their own verbiage to meet their spe- stitution or news media) will be provided the cific needs, so long as FOIA processing first 100 pages free of charge; you are re- actions are consistent with guidance in quired to pay any duplication costs over and DoD 5400.7–R and this part. In this sec- above those amounts. (or) As a result, you tion, language in parentheses is for ex- will be provided the first 2 hours of search planatory purposes only. Do not in- time and the first 100 pages free of charge; clude any of the parenthetical lan- you are required to pay any search and duplication costs over and above those guage of this section in your FOIA cor- amounts. respondence. When optional language must be selected, the optional language (d) Request for a more specific de- will be presented within parentheses. scription: Use only the portions that apply to the Your request does not sufficiently describe specific request or response. the desired records. The FOIA applies to ex- (b) Initial receipt of Freedom of In- isting Air Force records; without more spe- formation Act request. cific information from you, we cannot identify what documents might be responsive to We received your Freedom of Information your request. Please give us whatever addi- Act (FOIA) request dated ## Month year, for tional details you may have on the Air Force (summarize the request) on ## Month year records you want. Can you tell us when the (date received). We will provide you our re- records were created, and what Air Force lease determination by (enter date that is 20 element may have created the records? If workdays from date you received the re- this request involves an Air Force contract, quest). (Based on our initial review, we be- do you know the contract number and dates lieve we cannot process your request within it covered? Our address is (include name and 20 workdays.) (If ‘‘cannot’’ is used, add ap- complete mailing address), our fax number is propriate explanation; examples follow.) (give fax number), our e-mail address is (op- Please contact (name and commercial tele- tional—give complete e-mail address). Based phone number) if you have any questions and on the original request you sent us, we are refer to case number #######. unable to respond. (c) Interim response: (e) Single letter acknowledging re- Your request will be delayed because: all or ceipt of request and giving final re- part of the responsive records are not located sponse. (If you can complete a FOIA re- at this installation; (and/or) Processing this quest within the statutory 20-workday FOIA request will require us to collect and processing period, Air Force elements review a substantial number of records (and/ or) Other Air Force activities or other agen- may elect to send a single letter to the cies (if applicable) to include the submitter requester, along with responsive of the information, need to be involved in de- records which are released to the re- ciding whether or not to release the respon- quester in full).

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00030 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.27

We received your Freedom of Information an estimated date). Our policy is to process Act (FOIA) request dated ## Month year, for requests within their respective tracks in (summarize the request) on ## Month year the order in which we receive them. We do (date received). A copy (or) Copies of (de- process each FOIA request as quickly as we scribe the record(s) being released) (is/are) can. releasable and (is/are) attached. (h) If the request is placed in the (f) Collection of fees: complex track: The FOIA provides for the collection of In your case, processing your request is fees based on the costs of processing a FOIA complex because (give basic reasons this is a request and your fee category. We have complex case: request was vague or com- placed you in the (enter the fee category) fee plicated; the records sought are voluminous; category. In your case, we have assessed a multiple organizations will have to work on charge of $ll for processing your request. The fee was calculated in the following man- this request; records are classified; respon- ner: (Give a detailed cost breakdown: for ex- sive records came from another command/ ample, 15 pages of reproduction at $0.15 per another service/a nongovernment source; re- page; 5 minutes of computer search time at sponsive records were part of the Air Force’s $43.50 per minute, 2 hours of professional decision-making process, and the prerelease level search at $25 per hour.) Please make review will require policy determinations your check payable to (appropriate payee) from different Air Force elements; records and send it to (give your complete mailing describe law enforcement activities; records address) by (date 30 days after the letter is involve foreign policy issues; due to the na- signed). (or) The FOIA provides for the col- ture of your request and/or the nature of our lection of fees based on the costs of proc- computer system, responding to your request essing a FOIA request and your fee category. or providing a response in the electronic for- We have placed you in the (enter the fee cat- mat you requested will be technically com- egory); however, in this case, we have waived plex, etc.). Simplifying your request might collecting fees. permit quicker processing in the following ways: (describe ways the search could be nar- (g) Multitrack processing letters to rowed to fewer records, or ways policy issues FOIA requesters. (When using the mul- could be avoided, etc.) Can you tell us when titrack FOIA processing system, deter- the records were created, and what Air Force mine which of the following paragraphs element may have created the records? If to include in your letters to the re- this request involves an Air Force contract, quester. To the extent it may apply, in- do you know the contract number? Please clude language from paragraph 2 of the give us whatever additional details you may sample. If a requester asks for expe- have on the Air Force records you are seek- dited processing, answer carefully if ing, so we can attempt to streamline the processing of your request. Our address is you decide not to provide expedited (give complete mailing address), our fax processing, because requesters may ap- number is (give fax number), our e-mail ad- peal denial of their request for expe- dress is (optional—give complete e-mail ad- dited processing. Advise requesters dress). placed into the complex track in writing how they can simplify their request (i) If the requester asks that you ex- to qualify for the simple track.) pedite their request: We received your Freedom of Information Because individuals receiving expedited Act (FOIA) request dated ## Month year, for processing may receive a response before (summarize the request) on ## Month year other earlier requesters, there are adminis- (date received). Because our organization has trative requirements you must meet before a significant number of pending FOIA re- we can expedite a request. In your request, quests, which prevents us from making a re- you asked that we expedite processing. In sponse determination within 20 workdays, we order for us to expedite a request, the re- have instituted multitrack processing of requester must provide a statement certifying quests. Based on the information you pro- the reasons supporting their request are true vided, we have placed your request in the and correct to the best of their knowledge. (simple or complex) track. We have assigned In the second category, ‘‘urgently needed’’ number ##### to identify your request; means the information itself has a particular should you need to contact us about your re- value that it will lose if it is not dissemi- quest, please write or call (name and tele- nated quickly. Ordinarily this means the in- phone) and use this number to assist us in re- formation concerns a breaking news story of sponding more promptly. general public interest. Historic informa- Based on our current backlog, we expect to tion, or information sought for litigation or respond to your request not later than (give commercial activities usually would not

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00031 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.27 32 CFR Ch. VII (7–1–05 Edition)

qualify for expedited processing in the sec- support their response. Possible language for ond category. Also, the fact that a news or- this certification is provided below.) ganization has an internal broadcast or pub- I, (rank/grade and name) am the computer lication deadline, so long as the deadline was systems manager for (organization with elec- unrelated to the nature of the information tronic records responsive to FOIA request). itself (for example, the information was not In consultation with (FOIA office), I have a breaking news story of general public in- considered the FOIA request of (requester’s terest) would not make the information ‘‘ur- name), our ##### (FOIA identifier), which gently needed.’’ asked for (describe electronic record or for- In this case, we have determined your mat). We (do/do not) have electronic records FOIA request (will/will not) receive expe- that are responsive to this request (or) data dited processing. We came to this conclusion that we (can/cannot) configure into the re- because you (did/did not) demonstrate you quested format. (If there are electronic need the information because failure to ob- records) The existing electronic records (do/ tain the records on an expedited basis (could do not) contain nonreleasable data that we or could not) reasonably expect to pose an (can/cannot) remove from the electronic imminent threat to life or physical safety of record. Because of the way our (computer an individual (or) the information (is or is system/database/software) (use all that not) urgently needed in order to inform the apply, specify hardware and/or software no- public about actual or alleged Federal Gov- menclature if possible; for example, IBM ernment activity (or) failure to obtain the ###, Microsoft Excel) is configured, creating records on an expedited basis (could or could the electronic record (or) modifying the ex- not) reasonably expect to lead to an immi- isting record/format would entail a signifi- nent loss of substantial due process rights, cant expenditure of resources in time and (or) release (would or would not) serve a hu- manpower that would cause significant in- manitarian need by promoting the welfare terference with the operation of the informa- and interests of mankind (and/or) your re- tion system and adversely affect mission ac- quest for expedited processing did not meet complishment (describe how responding the statutory requirements of the FOIA; you would interfere and time/manpower re- did not provide enough information to make sources required, give estimated reprogram- a determination of compelling need for the ming time, if possible). I have applied the information you requested (and/or) you did DoD ‘‘standard of reasonableness’’ in consid- not properly certify your request. ering this request. I understand that when (j) If you deny a request for expedited the capability exists to respond to a FOIA processing: request that would require only a ‘‘business as usual’’ approach to electronically extract If you consider our decision not to expedite the data and compile an electronic record or your request incorrect, you may appeal our reformat data to satisfy a FOIA request, decision. Include in your appeal letter the then creation of the electronic record or re- reasons for reconsidering your request for formatting the data would be appropriate. In expedited processing, and attach a copy of this case, a significant expenditure of re- this letter. Address your appeal to Secretary sources and manpower would be required to of the Air Force through (address of compile the electronic record (or) reformat MAJCOM FOIA office). In the meantime, we existing data. This activity would cause a will continue to process your request in the significant interference with the operation (simple/complex) processing track. of our automated information system. I cer- (k) Certification, computer systems tify creation of the electronic record (or) re- formatting existing data in order to respond manager (electronic records or format to this request would not be reasonable, requested). under the circumstances. (When answering a request for electronic Signature records, based on the configuration of your (Date Signed) (Signature Block) hardware and/or software, certain factors may make a particular request complex. (NOTE: Some electronic data requests may Have your computer system manager advise include a request for software. You may have you whether or not they can create the new to release government-developed software record/format on a ‘‘business as usual’’ basis. that is not otherwise exempt, if requested If producing the record/format would entail a under the FOIA. Exemptions 1—classified significant expenditure of resources in time software, 2—testing, evaluation, or similar and manpower that would cause significant software, 3—exempt by statute, 5—delibera- interference with the operation of the infor- tive process/privileged software, and 7—law mation system and adversely affect mission enforcement operations software may apply, accomplishment, you do not need to process based on the nature of the requested soft- the request. The FOIA office needs to get a ware. If the software is commercial off-the- certification from the computer systems shelf software, as opposed to software devel- manager to document this determination to oped by the government, the software may

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00032 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.27

qualify to be withheld from release under mitter a FOIA request was received for FOIA exemption 4. information they submitted.)G56 (l) ‘‘No (paper or electronic) records’’ (1) Letter to requester. or ‘‘requested format not available’’ (If all or part of a request has been re- letters. ferred, write to the requester:) Your Free- This is in response to your Freedom of In- dom of Information Act (FOIA) request dated formation Act (FOIA) request dated ## ## Month year, for (summarize the request) Month year, for (summarize the request) on received on ## Month year (date received), ## Month year (date received), our number our number #####, was referred (or) must be #####. coordinated with (give mailing address of the A thorough search by (identify the unit(s) FOIA office to which you are referring all or that tried to locate responsive records) did part of the request, the identity of the fed- not locate any records responsive to your re- eral government organization you are either quest. (If the requester asked questions, and coordinating with or are referring all or part there are no responsive records that would of the request to, or that you must coordi- provide the answers to those questions): The nate with the nongovernment submitter of FOIA applies to existing Air Force records; responsive information). (On referrals:) That the Air Force need not create a record in office will process (all/part) of your request order to respond to a request. (describe which part is being referred if the (or) A thorough assessment by the OPR entire request is not being referred) and they and the computer systems manager has de- will respond directly to you. (On coordina- termined we cannot provide the (electronic tions:) That organization has a significant record data) in the format you requested. (If interest in the records (or) created the this can be done on a ‘‘business as usual records that may answer to your request. basis):’’ (Paper copies American Standard (Before notifying a requester of a referral to Code for Information Interchange (ASCII) another DoD component or federal agency, files) of the data you requested are attached. consult with them to determine if their asso- If you interpret this ‘‘o records’’ response ciation with the material is exempt. If so, as an adverse action, you may appeal it in protect the association and any exempt in- writing to the Secretary of the Air Force. formation without revealing the identity of Your appeal should be postmarked no later the protected activity.) (When a nongovern- than 60 calendar days from the date of this ment submitter is involved:) The nongovern- letter. Address your letter as follows: Sec- ment submitter of information that may an- retary of the Air Force, Thru: (MAJCOM swer your request needs time to respond to FOIA Office), (mailing address). The FOIA provides for the collection of the possible release of information under the fees based on the costs of processing a FOIA FOIA. request and your fee category. We have Because we must refer (or) coordinate your placed you in the (enter category) fee cat- request outside our organization, your re- egory; however, in this case, we have waived quest will be delayed. We will determine fees. (If paper copies or ASCII files are pro- whether any records are available; as soon as vided: ) The FOIA provides for the collection is practicable, a decision will be made of fees based on the costs of processing a whether to release or to withhold from dis- FOIA request and your fee category. In your closure any responsive records under the case, as a requester in the fee category of FOIA, 5 U.S.C. 552. Your request will be proc- (add appropriate category), we have assessed essed as expeditiously as circumstances per- a charge of $ll for processing your request. mit. The fee was calculated in the following man- (2) Letter to another government ner: (Give a detailed cost breakdown: for example, 15 pages of reproduction at $0.15 per agency. page; 5 minutes of computer search time at (If all or part of a request was referred or $43.50 per minute, 2 hours of professional requires coordination, write to the govern- level search at $25 per hour.) Please make ment entity): On ## Month year (date re- your check payable to (appropriate payee) ceived), our organization received a Freedom and send it to (give your complete mailing of Information Act (FOIA) request from address) by (date 30 days after the letter is (identity of requester), Attachment 1, dated signed). ## Month year, for (summarize the request). (m) Referral or coordination letters. Based on our assessment of that request, our (These letters are to tell the requester number #####, we need to (refer/coordinate) all or part of the request was referred (all/part) of that request to you (describe which part is being referred or coordinated, to another Air Force organization, to if it was not the entire request). (Name and refer or coordinate the request to an- phone number of person who agreed to the other federal government organization, referral or coordination) accepted this refer- and to advise a nongovernment sub- ral (or) coordination action was on (date).

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00033 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.27 32 CFR Ch. VII (7–1–05 Edition)

We notified the requester of this action (see On ## Month year (date received), our or- § 806.31). ganization received a Freedom of Informa- We (do/do not) hold records responsive to tion Act (FOIA) request from (identity of re- this request. (If do hold is used:) Copies of requester), our number #####, dated ## Month sponsive records located in our files are in- year, for (summarize the request). Because of cluded at Attachment 3 to assist you in mak- the nature of this request, we were advised ing your assessment on the releasability of by (note the individual and organization who (our/your) related records. If you need to told you to coordinate the request with the contact us, our phone number and address is State Department; this may be a MAJCOM (give name, phone and complete mailing ad- or Combatant Command—give telephone and dress), our fax number is (give fax number), facsimile numbers if known) we need to co- our e-mail address is (give complete e-mail ordinate this request with the Department of address). State. In accordance with DoD 5400.7–R, Air (3) Letter to submitter of contract- Force Supplement, we are informing you of their involvement in this FOIA request. related information. (Provide any specifics available.) Air Force (If contractor-submitted information is in- records are involved in this action. If you volved, write to the submitter:) On ## Month need to contact us, our phone number is year (date received), our organization re- (give commercial and DSN numbers), our ad- ceived a Freedom of Information Act (FOIA) dress is (give complete mailing address), our request from (identity of requester), our fax number is (give fax number), our e-mail number #####, dated ## Month year, for address is (give complete e-mail address). (summarize the request). Information you (n) Certification of initial classifica- submitted to the Air Force was identified as tion or declassification authority responsive to this request, see copies attached. (When denying a FOIA request, in To determine the releasability of the infor- whole or in part, because the informa- mation contained in these documents and to tion requested is classified, the initial give you the maximum protection under the classification authority, his or her suc- law, please review the attached documents cessor, or a declassification authority, and give us the information outlined in needs to determine if the records are § 806.31. If you feel the information is privi- ‘‘properly and currently classified,’’ leged or confidential, consists of proprietary and therefore must be withheld from commercial or financial information, and otherwise meets the statutory requirements release under FOIA exemption (b)(1); for withholding the information from release also, you need to determine that you under FOIA exemption 4, 5 U.S.C. 552(b)(4), cannot release any reasonably seg- respond to us in writing not later than ## regable additional portions. Language working days from the date of this letter that certifies such a determination was (usually 30 calendar days). If you object to made on a FOIA request involving clas- release of this information under the FOIA, sified records follows). identify the items, lines, columns or portions (1) Sample certification format—all you believe we should withhold from release. You will also need to provide a written ex- information remains classified. planation of how release would adversely im- I, (rank/grade and name) am the initial pact or cause harm to your competitive posi- classification authority (or) the successor to tion, your commercial standing, or other le- the original initial classification authority gally protected interests. An assertion that (or) the declassification authority for (give ‘‘we should deny because all of the informa- an unclassified description of the records tion was submitted in confidence’’ or ‘‘deny concerned). In consultation with (FOIA of- because all of the information was marked as fice), I have assessed the FOIA request of (re- proprietary in nature’’ would not justify quester’s name), our ##### (FOIA identi- withholding of the requested information fier), for records that were properly classi- under the FOIA. If you need to contact us, fied at the time of their creation and cur- call or write (give name), phone number is rently remain properly classified in accord- (give commercial number), our address is ance with Executive Order (E.O.) 12958, Na- (give complete mailing address), our fax tional Security Information, (or) contain in- number is (give fax number), our e-mail ad- formation that we have determined is classi- dress is (give complete e-mail address). fied in accordance with E.O. 12958 Section (4) Letter requesting State Depart- 1.5(l) (or) in accordance with E.O. 12958 Sec- ment coordination. (If the State De- tion 1.5(l) and is also exempt from declassification in accordance with Section 1.6(l) partment is involved in coordinating of the E. O. (or if the record is more than 25 on a request, fax or e-mail 11 CS/SCSR years old) contain information that we have so they can inform SAF/IA if appro- determined is exempt from declassification priate). in accordance with E.O. 12958 Section

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00034 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.28

3.4(b)(l). Unauthorized release could cause will not process FOIA appeals received (for TOP SECRET, use exceptionally grave; after the 60-day time limit, unless the for SECRET use serious; for CONFIDENTIAL requester provides adequate justifica- do not add language; should read cause damage) damage to national security. There are tion for failing to comply. If you re- no reasonably segregable portions that we ceive a late appeal, and it gives inad- can release. Consequently release of this in- equate justification for failing to com- formation is denied pursuant to 5 U.S.C. ply, the FOIA office will advise the re- 552(b)(1). quester their appeal was closed; sug- Signature gested language for a letter to an un- (Date Signed) (Signature Block) timely requester follows.) (2) Sample certification format—por- We received your Freedom of Information tions remain classified. Act (FOIA) appeal dated ## Month year, on ## Month year (date received). You did not I, (rank/grade and name) am the initial appeal within 60 days of the postmarked date classification authority (or) the successor to of our denial letter as outlined in our agency the original initial classification authority regulation. Therefore, we are closing our (or) the declassification authority for (give file. an unclassified description of the records concerned.) In consultation with (FOIA of- (q) Letter to a requester who has ap- fice), I have assessed the FOIA request of (re- pealed. (There are occasions when, on quester’s name), our ##### (FOIA identi- reconsideration, an IDA grants all or fier), that asked for records, (or) portions of part of an appeal. When sending their which were properly classified at the time of their creation. Portions of the records cur- appeal to higher headquarters, notify rently remain properly classified in accord- the requester. Suggested language to a ance with E.O. 12958. The bracketed informa- requester who has appealed follows): tion is currently and properly classified in accordance with Section 1.5 (add appropriate We received your Freedom of Information subparagraph), E.O. 12958, and is also exempt Act (FOIA) appeal, our number #####, dated from declassification in accordance with ## Month year, on ## Month year (date re- Section 1.6(l) of the Executive Order (or if ceived). We considered the issues raised in the record is more than 25 years old) contain your appeal carefully. We have decided to information that we have determined is ex- grant (or) partially grant your appeal. empt from declassification in accordance (If you grant all or part of the appeal): with E.O. 12958 Section 3.4(b)(l). Unauthor- Upon reconsideration, we are releasing the ized release could cause (for TOP SECRET requested records (or) granting your request. use exceptionally grave; for SECRET use se- (If the appeal is only partially granted, de- rious; for CONFIDENTIAL do not add lan- scribe what portions remain in dispute). (If guage; should read cause damage) damage to applicable): We are releasing and attaching national security. There are no other reason- all or portions of the responsive records. (If ably segregable portions that we can release. applicable): We will continue processing your Consequently this information is denied pur- appeal for the remaining withheld (records/ suant to 5 U.S.C. 552(b)(1). information). Signature (Date Signed) (Signature Block) § 806.28 Records with special disclosure procedures. (o) Letter to a requester who has withdrawn their request or appeal. (If a Certain records have special adminis- FOIA requester has withdrawn a FOIA trative procedures to follow before dis- request or appeal, sending a final letter closure. Selected publications that to the requester to close the file may contain such guidance are listed below. be wise. Suggested language to the re- (a) AFI 16–701, Special Access Pro- quester follows): grams. (b) AFI 31–206, Security Police Inves- We received your Freedom of Information tigations. Act (FOIA) request (or) appeal dated ## Month year, on ## Month year (date re- (c) AFI 31–501, Personnel Security ceived). After sending us your request (or) Program Management. appeal, you indicated by (facsimile, letter) (d) AFI 31–601, Industrial Security that you wished to withdraw your request Program Management. (or) appeal. We have, therefore, closed your (e) AFI 36–2603, Air Force Board for file without further action. Correction of Military Records. (p) Letter to a requester who has ap- (f) AFI 36–2706, Military Equal Oppor- pealed after the 60-day deadline. (We tunity and Treatment Program.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00035 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.29 32 CFR Ch. VII (7–1–05 Edition)

(g) AFI 36–2906, Personal Financial (i) Are responsive records kept at the Responsibility. same or different installations? (h) AFI 36–2907, Unfavorable Informa- (ii) Is referral of (all/part) of the re- tion File (UIF) Program. quest required? (i) AFI 40–301, Family Advocacy. (4) Determine appropriate processing (j) AFI 41–210, Patient Administra- track (simple/complex/expedited). (Air tion Functions. Force FOIA offices without backlogs do (k) AFI 44–109, Mental Health and not multitrack FOIA requests.) Military Law. NOTE: Requesters have a right to appeal an (l) AFI 51–201, Administration of adverse tracking decision (for example, when Military Justice. it is determined their request will not be ex- (m) AFI 51–301, Civil Litigation. pedited). Also, if their request qualifies for (n) AFI 51–303, Intellectual Property- the complex track, tell requesters so they Patents, Patent Related Matters, may limit the scope of their request in order Trademarks, and Copyrights. to qualify for the simple track. FOIA managers must assess a request before placing it (o) AFI 51–501, Tort Claims. into a specific processing track, and must (p) AFI 51–503, Aircraft, Missile, Nu- support their actions should the requester clear and Space Accident Investiga- appeal. If a request is determined to be com- tions. plex, or is not expedited when the requester (q) AFI 51–504, Legal Assistance, No- sought expedited processing, you must ad- tary and Preventive Law Programs. vise the requester of the adverse tracking de- (r) AFI 51–1102, Cooperation with the cision in writing. See § 806.27 for sample lan- Office of the Special Counsel. guage for this kind of letter to a requester. (s) AFI 61–204, Disseminating Sci- (i) Simple. Defines a request that can entific and Technical Information. be processed quickly, with limited im- (t) AFI 61–303, Licensing Inventions pact on the responding units. The re- Made Under Cooperative Research and quest clearly identifies the records, in- Development Agreements. volves no (or few) complicating factors (u) AFI 71–101, Volume 1, Criminal In- (e.g., there are few or no responsive vestigations, and Volume 2, Protective records, involves only one installation Service Matters. and there are no outside OPRs, in- (v) AFI 84–101, Historical Products, volves no classified records (Exemption Services, and Requirements. 1), a law exempts the responsive (w) AFI 90–301, Inspector General records from disclosure (Exemption 3), Complaints. no contractor-submitted records (Ex- (x) AFI 91–204, Safety Investigations emption 4), no deliberative process/ and Reports. privileged materials (Exemption 5), records contain no (or limited) per- § 806.29 Administrative processing of sonal privacy information/did not come Air Force FOIA requests. from Privacy Act systems of records (a) This section is a checklist format concerning other individuals (Exemp- of processing steps and explanations of tion 6), release of records would have Air Force and DoD guidance. Each minimal impact on law enforcement MAJCOM may elect to prepare its own (Exemption 7); no time extensions ex- checklists to tailor FOIA processing pected, other than the additional 10- actions within its own organizations to workdays allowed in situations out- meet their specific needs, so long as it lined in the FOIA). If the requested remains consistent with guidance con- data must come from electronic tained in DoD 5400.7–R, DoD Freedom records, response can be completed on of Information Act Program, and this a ‘‘business-as-usual’’ basis; requires no part. (or limited) reprogramming of auto- (b) Procedures: FOIA requests. mated information systems and would (1) Note the date the request was re- cause no significant interference with ceived, give the request a unique iden- operation of information systems by tifier/number, and log the request. processing a simple request/providing a (2) Assess the request to determine response in the electronic format re- initial processing requirements: quested. (3) Determine what Air Force ele- (ii) Complex. Defines a request whose ments may hold responsive records. processing will take substantial time,

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00036 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.29

will cause significant impact on re- (A) The requester asserts a ‘‘compel- sponding units. Complications and ling need’’ for the records, because a delays are likely (e.g., the request is failure to obtain records quickly could vague (poor description of records, unreasonably be expected to pose an im- clear who or when records were cre- minent threat to the life or physical ated), records are massive in volume, safety of an individual. multiple organizations will receive (B) The requester asserts a ‘‘compel- tasking, records are classified (Exemp- ling need’’ for the records, because the tion 1), records came from another information is ‘‘urgently needed’’ by an command/service/a nongovernment individual engaged in disseminating in- source (Exemption 4), records are part formation to inform the public (pri- of the Air Force’s decision-making marily news media requesters; and process, and not incorporated into a could also include other persons with final decision (IG/audit reports, legal the ability to disseminate information). opinions, misconduct or mishap investigations etc.) or are attorney-client NOTE: ‘‘Urgently needed,’’ in this case, records (Exemption 5), records are means the information has a particular largely personal information on an- value that will be lost if it is not disseminated quickly. This normally would apply to other individual or came from Privacy a breaking news story of general public in- Act systems of records (Exemption 6), terest. Information of historical interest records describe law enforcement ac- only, or sought for litigation or commercial tivities or information from (and/or activities would not qualify, nor would the identities of) confidential sources (Ex- fact a news media entity had an internal emption 7); response cannot be com- broadcast deadline of its own, which was unrelated to the ‘‘news breaking nature’’ of the pleted on a ‘‘business as usual’’ basis information itself, cause the requested infor- and would require extensive re- mation to qualify as ‘‘urgently needed.’’ programming or cause significant interference with operation of the auto- (C) Failure to obtain records quickly mated information systems. (Advise re- could cause imminent loss of substan- quester, in writing, of right to limit tial due process rights or providing the information quickly would serve a the scope of their request in order to ‘‘humanitarian need’’ (i.e., disclosing qualify for simple track.) the information will promote the wel- (iii) An expedited request is when a fare and interests of mankind). While requester asks for expedited processing FOIA requests falling into these third and explains the compelling need (im- and fourth categories can qualify for minent threat to life or physical safe- expedited processing, process them in ty; urgently needed by a person pri- the expedited track behind the requests marily engaged in disseminating infor- qualifying for expedited processing mation; due process; or humanitarian based on ‘‘compelling need’’ (the first need) for the requested information. In two types of expedited FOIA requests). order to receive expedited processing, (5) Determine fee category of re- requesters must provide a statement quester (commercial/educational-— certifying their ‘‘demonstration’’ (de- noncommercial scientific institution— scription) of their specific ‘‘compelling news media/all others) and assess fee need’’ or due process/humanitarian issues. When all assessable costs are need is true and correct to the best of $15.00 or less, waive fees automatically their knowledge. When a requester for all categories of requesters. Assess seeks expedited processing, FOIA of- other fee waiver or reduction requests fices must respond in writing to the re- on a case-by-case basis. quester within 10 calendar days after (6) Apply fee waiver/fee reduction cri- receipt of the request approving or de- teria in appropriate cases (when re- nying their request for expedited proc- quester asks for fee waiver/reduction). essing. Requesters have a right to ap- (7) Find the responsive Air Force peal an adverse decision (e.g., when it records (if any). is determined their requests will not be (i) Send the request to the appro- expedited). There are four categories of priate OPRs to search for responsive FOIA requests that qualify for expe- records and to decide whether to rec- dited processing: ommend release of any responsive

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00037 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.29 32 CFR Ch. VII (7–1–05 Edition)

records. Include a DD Form 2086, (2) Contacts with the FOIA Re- Record of Freedom of Information quester. See § 806.27 for samples of lan- (FOI), or a DD Form 2086–1, Record of guage to use in various types of Air Freedom of Information (FOI) Proc- Force FOIA letters. If any part of a essing Cost for Technical Data, in each FOIA request is denied, and the re- request. The OPR must complete and quester appeals that denial, submit return the appropriate forms and state- documents sent by Air Force elements ments to the FOIA office. to the requester in the FOIA appeal (ii) If the OPRs find no responsive package in chronological order (see records, or if the OPRs desire to with- paragraph (d)(5) of this section). Let- hold any responsive records from re- ters that Air Force FOIA offices may lease to the requester, the OPRs must need to send to a FOIA requester in- provide a written certificate detailing clude: either their unsuccessful search, or (i) An initial notification letter that their reasons why the documents the FOIA request was received. This should be withheld from release under letter may advise the requester that the FOIA; the written OPR statements processing of the FOIA request may be must accompany the copies of the delayed because: records the OPR desires to withhold as (A) All or part of the requested the FOIA action is processed (e.g., in- records are not located at the installa- clude it in any denial or appeal file). tion processing the FOIA request (see NOTE: If any part of a FOIA request is de- § 806.29(c)(2)(ii)). nied, and the requester appeals that denial, (B) An enormous number of records include all forms, certificates and documents must be collected and reviewed. prepared by the OPRs in the FOIA appeal (C) Other Air Force activities or package required in paragraph (d)(5) of this section. other agencies, to include (if applicable) the nongovernment submitter of (c) Contacts with FOIA requesters information, need to be involved in de- and non-Air Force submitters of data. ciding whether or not to release the (1) Contacts with Air Force elements. records. A FOIA request is considered ‘‘re- (D) If you cannot complete proc- ceived’’ (and therefore ready to processing of a FOIA request within 20 ess) when the FOIA office responsible workdays, advise the requester of the for processing the request physically reasons for the delay and give a date receives it, when the requester states a (within 30 workdays after receiving the willingness to pay fees set for the ap- request) when the requester can expect propriate fee category, or, if applica- a final decision. ble, when the requester has paid any (ii) The initial notification letter past FOIA debts and has reasonably de- may advise the requester all/part of the scribed the requested records. Keep hard/paper copies of all memoranda request was referred to another Air documenting requester contacts with Force element or government activity. Air Force elements regarding a pending (iii) The initial notification letter FOIA request in the requester’s FOIA may advise the requester of the appro- file. If the requester contacts Air Force priate fee category. In cases where fees elements telephonically about a pend- are appropriate, and requesters have ing FOIA request, the Air Force mem- not agreed to pay for responsive ber participating in the conversation records and fees are likely to be more must prepare notes or memorandums than $15.00, seek assurances that the for record (MFR), and keep those notes requester agrees to pay appropriate or MFRs in the requester’s FOIA file. If fees. If more information is needed to any part of a FOIA request is denied, make a fee category determination, or and the requester appeals that denial, to determine whether fees should be submit documentation of requester waived/reduced, inform the requester. contacts with Air Force elements in FOIA offices may determine fee waiver/ chronological order in the FOIA appeal reduction requests before processing a package (see paragraph (d)(1) of this FOIA request; if a fee waiver/reduction section). request is denied, the requester may

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00038 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.29

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

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00039 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.29 32 CFR Ch. VII (7–1–05 Edition)

provide justification for withholding quest for the same contract, will be the documents. If the submitter does processed as a first-time FOIA request not respond, advise the submitter in for those newly created documents. No- writing that you have not received a tify the nongovernment submitter of reply and plan to release the records. the pending FOIA action, and give Provide the submitter with the reasons them the same opportunity to respond the Air Force will release the records, as is detailed above. Passage of a sig- and give the submitter your expected nificant period of time since the prior release date (at least 2 weeks from the FOIA release can also require Air date of your letter). This permits the Force elements to comply with the no- submitter time to seek a temporary re- tice requirements in this paragraph. straining order (TRO) in federal court, (d) Denying all or part of a request. if they can convince the judge to issue When responsive records are withheld such an order. See § 806.27 for samples from release (denied), the appropriate of language to use in Air Force letters offices must prepare a denial package to both the FOIA requester and non- for the IDA. Air Force elements must government submitters. Remember to send the request, related documents, include a copy of § 806.31 as an attach- and responsive records through their ment to the letter sent to the non- IDA’s FOIA office to the IDA for a deci- government submitter. sion. The denial package must include: (i) The notice requirements of this (1) The FOIA request and any modi- section need not be followed if the Air fications by the requester. Force determines that the information (2) A copy of the responsive records, should not be disclosed, the informa- including both records that may be re- tion has been lawfully published or of- leased and records recommended for ficially made available to the public, or denial. disclosure of the information is re- (3) Written recommendations from quired by law. the OPRs and an Air Force attorney. (ii) If the submitter objects to release (4) The exemptions cited and a dis- of the records, but the Air Force disclo- cussion of how the records qualify for sure authority considers the records re- withholding under the FOIA. This dis- leasable, tell the submitter before re- cussion should also include the reasons leasing the data. Include in the letter for denial: to deny release of responsive to the submitter a brief explanation records requested under the FOIA, you and a specific release date at least 2 must determine that disclosure of the weeks from the date of the letter. Ad- records would result in a foreseeable vise the submitter once a determina- harm to an interest protected by a tion is made that release of the data is FOIA exemption (or exemptions), that required under the FOIA, failure to op- the record is exempt from release pose the proposed release will lead to under one or more of the exemptions of release of submitted data. Also advise the FOIA, and that a discretionary re- the requester such a release under the lease is not appropriate. FOIA will result in the released infor- (5) Any collateral documents that re- mation entering the public domain, late to the requested records. For ex- and that subsequent requests for the ample: same information will be answered (i) If the requested records came from without any formal coordination be- a non-Air Force or non-U.S. Federal tween the Air Force and the submitter, Government submitter, include any unless the information is later amend- documents from the submitter that re- ed, changed, or modified. A person late to the release or denial of the re- equal to, or higher in rank than, the quested records. If you are not sure denial authority makes the final deci- whether or not the non-Air Force or sion to disclose responsive records over non-U.S. Federal Government sub- the submitter’s objection. mitted information is potentially ex- (iii) When a previously released con- empt from release under the FOIA, tract document has been modified, any contact an Air Force attorney. FOIA contract documents not in existence at Exemptions 3, 4, 5, 6, and 7 may apply. the time of an earlier FOIA request (ii) If the requested records came that are responsive to a later FOIA re- from Privacy Act systems of records,

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00040 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.29

include a written discussion of any Pri- MAJCOM FOIA offices and 11 CS/SCSR vacy Act issues. (for OPRs at HQ USAF and SAF), send (iii) If any requested records came all appeals to the Secretary of the Air from another Air Force element, or re- Force through AFLSA/JACL for con- lease of the requested records would af- sideration, unless the IDA has recon- fect another Air Force element, FOIA sidered the initial denial action, and offices should coordinate with that granted the appeal. other element. If the FOIA request is (3) If a requester appeals a ‘‘no not completely referred to the other records’’ determination, organizations element, include documents from that must search again or verify the ade- element. quacy of their first search (for exam- (iv) If any requested records are clas- ple, if a second search would be fruit- sified, include a written certification less, the organization may include a from a classification authority or designed statement from either the classification authority stating the records OPR or the MAJCOM FOIA data was properly classified originally, manager detailing why another search that it remains properly classified (per was not practical). The appeal package E.O. 12958), and, if applicable, that no must include documents (to include a reasonably segregable portions can be certification from the records OPR) released. that show how the organization tried (e) FOIA appeal actions. to find responsive records. In the event (1) If an IDA, or a FOIA office re- a requester sues the Air Force to con- sponding on behalf of an IDA, with- test a determination that no respon- holds a record from release because sive records exist, formal affidavits they determine the record is exempt will be required to support the ade- under one or more of the exemptions to the FOIA, the requester may appeal quacy of any searches conducted. that decision, in writing, to the Sec- (4) General administrative matters. retary of the Air Force. The appeal FOIA requesters may ultimately sue should be accompanied by a copy of the the Air Force in federal court if they denial letter. FOIA appeals should be are dissatisfied with adverse deter- postmarked within 60 calendar days minations. In these suits, the contents after the date of the denial letter, and of the administrative appeal file are should contain the reasons the re- evaluated to determine whether the quester disagrees with the initial de- Air Force complied with the FOIA and nial. Late appeals may be rejected, ei- its own guidance. Improper or inad- ther by the element initially proc- equate appeal files make defending essing the FOIA appeal, or by subse- these cases problematic. Include all the quent denial authorities, if the re- documents related to the requester’s quester does not provide adequate jus- FOIA action in the appeal file. If ap- tification for the delay. Appeal proce- peal file documents are sensitive, or dures also apply to the denial of a fee are classified up to the SECRET level, category claim by a requester, denial send them separately to AFLSA/JACL, of a request for waiver or reduction of 1501 Wilson Boulevard, 7th Floor, Ar- fees, disputes regarding fee estimates, lington, VA 22209–2403. Make separate review on an expedited basis of a deter- arrangements with AFLSA/JACL for mination not to grant expedited access processing classified appeal file docu- to agency records, and for ‘‘no record’’ ments TOP SECRET or higher. Cover or ‘‘requested format not available’’ de- letters on appeal packages need to list terminations when the requester con- all attachments. If a FOIA action is siders such responses adverse in na- complicated, a chronology of events ture. helps reviewers understand what hap- (2) Coordinate appeals with an Air pened in the course of the request and Force attorney (and the OPR, if appro- appeal. If an appeal file does not in- priate) so they can consider factual and clude documentation described below, legal arguments raised in the appeal, include a blank sheet in proper place and can prepare written assessments of and mark as ‘‘not applicable,’’ ‘‘N/A,’’ issues raised in the appeal to assist the or ‘‘not used.’’ Do not renumber and IDA in considering the appeal. move the other items up. If any part of

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00041 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.30 32 CFR Ch. VII (7–1–05 Edition)

the requester’s appeal is denied, the ap- ‘‘several cubic feet’’) and AFLSA/JACL peal package must include a signed agrees, an index or description of the statement by the IDA, demonstrating records may be provided in place of the the IDA considered and rejected the re- denied records. Do not send appeal files quester’s arguments, and the basis for without copies of denied records with- that decision. This may be a separate out the express agreement of AFLSA/ memorandum, an endorsement on a JACL. Usually AFLSA/JACL requires legal opinion or OPR opinion, or the all the denied records in appeal files. If cover letter which forwards the appeal you do not send the denied records to for final determination. Include in the AFLSA/JACL, when a FOIA requester cover letter forwarding the appeal to has appealed a denial, retain a copy of the Secretary of the Air Force the what was denied for 6 years.) name, phone number and e-mail ad- (vii) All legal opinions in chrono- dress (if any) of the person to contact logical order. Include a point-by-point about the appeal. The order and con- discussion of factual and legal argu- tents of appeal file attachments follow. ments in the requester’s appeal (pre- (i) The original appeal letter and en- pared by an Air Force attorney and/or velope. the OPR). If the IDA does not state in (ii) The initial FOIA request, any the cover letter he/she signed, that he/ modifications of the request by the re- she considered and rejected the requester or any other communications quester’s arguments, asserting the from the requester, in chronological basis for that decision (e.g., the IDA order. concurs in the legal and/or OPR assess- (iii) The denial letter. ments of the requester’s arguments) in- (iv) Copies of all records already re- clude a signed, written statement con- leased. (An index of released docu- taining the same information from the ments may be helpful, if there are a IDA, either as a separate document or number of items. If the records re- an endorsement to a legal or OPR as- leased are ‘‘massive’’ (which means sessment. Include any explanation of ‘‘several cubic feet’’) and AFLSA/JACL the decision-making process for intra- agrees, an index or description of the agency documents denied under the de- records may be provided in place of the liberative process privilege and how released records. Do not send appeal the denied material fits into that proc- files without copies of released records ess (if applicable). without the express agreement of AFLSA/JACL. Usually AFLSA/JACL § 806.30 FOIA exempt information ex- requires all the released records in ap- amples. peal files. If you do not send the released records to AFLSA/JACL when a (a) Certain responsive records may FOIA requester has appealed a partial contain parts that are releasable, along denial, retain a copy of what was re- with other parts that the Air Force leased for 6 years.) must withhold from release. Carefully (v) Copies of all administrative proc- delete information exempt from release essing documents, including extension under the FOIA from copies of other- letters, search descriptions, and initial wise releasable records. Do not release OPR recommendations about the re- copies that would permit the requester quest, in chronological order. to ‘‘read through the marking.’’ In (vi) Copies of the denied records or order to assist FOIA managers in re- portions marked to show what was dacting records, selected items appro- withheld. If your organization uses a priate to withhold in commonly re- single set of highlighted records (to quested Air Force records are illus- show items redacted from records re- trated below. When providing releas- leased to the requester), ensure the able portions from classified para- records are legible and insert a page in graphs, line through and do not delete, the appropriate place stating where the the classification marking preceding records are located. (An index of denied the paragraph. documents may be helpful, if there are (b) Exemption 1. Example used is an a number of items. If the records de- extract from a ‘‘simulated’’ contin- nied are ‘‘massive’’ (which means gency plan (all information below is

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00042 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806.30

fictional and UNCLASSIFIED; par- Duty Station: Date Assigned: enthetical information and marking is Hickam AFB 12 June 1998 used for illustrative purposes only). HI 11111– 1111 (U) Air Force members will safeguard all Marital Status: Dependents: 01 Home Address: FELLOW YELLOW data (NOTE: FELLOW Divorced 12 Anystreet, YELLOW simulates an UNCLASSIFIED code Downtown name). ST 11112 During the contingency deployment in Home Phone: Shambala, those members assigned to force (112) 223– element FELLOW YELLOW will cover their 3344 (Exemp- movements by employing specified camou- tion 6) flage and concealment activities while behind enemy lines. Only secure communications of limited duration as specified in the (f) Exemption 7. Example used is communications annex will be employed summary of a law enforcement report until FELLOW YELLOW personnel return to on a domestic disturbance at on-base base. (Exemption 1) family housing (all information below (c) Exemption 2. Example used is an is fictional and all parenthetical infor- extract from a ‘‘simulated’’ test admin- mation is used for illustrative purposes istration guide (all information below only): is fictional and is used for illustrative purposes only). At 2140, the law enforcement desk, extension 222–3456, took an anonymous call that When administering the test to determine reported a disturbance at 1234 Basestreet, which technicians are ranked fully qualified, quarters allegedly occupied by two military make sure to allow only the time specified in members. SrA Patrolman (names of law en- HQ AETC Pamphlet XYZ, which the techni- forcement investigators usually are withheld cians were permitted to review as part of under Exemptions 6 and 7(C)) arrived on the their test preparation. For ease in scoring scene at 2155. SrA Patrolman met Nora this exam, correct answers are A, A, B, B, A, Neighbor, (names of witnesses usually are B, C, C, A, B, D, D, C, C, C, D; the cor- withheld under Exemptions 6 and 7(C)) who responding template for marking the stand- was very agitated. Because she feared her ard answer sheet is kept locked up at all times when not in use to grade answer neighbors would retaliate against her if they sheets. (Exemption ‘‘high’’ 2) knew she reported their fight, she asked that her name not be released before she would (d) Exemption 5. Example used is a talk. After she was promised her identity simulated IG Report of Investigation would remain anonymous, she stated: (Nora (ROI) recommendation. All parenthet- Neighbor became a confidential informant; ical information in this example is fic- data that could identify her, and in some tional and is used for illustrative pur- cases, the information she related, should be poses only: withheld from release under Exemptions 6, 7(C) and (D).) ‘‘I heard cursing and heard fur- Having interviewed the appropriate per- niture and dishes breaking. They fight all sonnel and having reviewed the appropriate the time. I’ve seen Betty Battle (unless documents, I recommend additional training Betty is the requester, redact her name Ex- sessions for all branch personnel on accepted emptions 6 and 7(C)) with a black eye, and I Air Force standards, and the Air Force pur- also saw Bob Battle (unless Bob is the re- sue administrative or judicial disciplinary quester, redact his name Exemptions 6 and action with respect to Terry Hardcase. (Ex- 7(C)) with bruises the day after they had emption 5) their last fight, last Saturday night. This (e) Exemption 6. Example used is a time, there was a tremendous crash; I heard simulated personnel computer report a man scream ‘‘My Lord NO!’’ then I saw on a military member selected for a Betty Battle come out of the house with special assignment (all information dark stains on her clothes—she got into her below is fictional; information and car and drove away. I could see this really marking is used for illustrative pur- well, because the streetlight is right between poses only.): our houses; I’m the wife of their NCOIC. If only Nick, my husband, was here now, he’d SSgt Doe, Kerry SSN: 111–11– Date of Birth: know what to do! I haven’t heard anything E. 1112 22 Jun 71 from Bob Battle.’’ (Exemptions 6 and 7) Duty Title: Spe- Office Symbol: cial Assistant CINCPAC/ to CINCPAC CCSA

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00043 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806.31 32 CFR Ch. VII (7–1–05 Edition)

§ 806.31 Requirements of 5 U.S.C. losses, and expenditures, offered and 552(b)(4) to submitters of non- received in confidence from a con- government contract-related infor- tractor or potential contractor. mation. (3) Personal statements given during (a) The FOIA requires federal agen- inspections, investigations, or audits, cies to provide their records, except received and kept in confidence be- those specifically exempted, for the cause they reveal trade secrets or com- public to inspect and copy. Section (b) mercial or financial information, nor- of the Act lists nine exemptions that mally considered confidential or privi- are the only basis for withholding leged. records from the public. (4) Financial data that private em- (b) In this case, the fourth exemp- ployers give in confidence for local tion, 5 U.S.C. 552(b)(4), may apply to wage surveys used to set and adjust records or information the Air Force pay schedules for the prevailing wage maintains. Under this exemption, agen- rate of DoD employees. cies must withhold trade secrets and (5) Information about scientific and commercial or financial information manufacturing processes or develop- they obtained from a person or organi- ments that is technical or scientific or zation outside the government that is other information submitted with a re- privileged or confidential. This gen- search grant application, or with a re- erally includes information provided port while research is in progress. and received during the contracting (6) Technical or scientific data a con- process with the understanding that tractor or subcontractor develops en- the Air Force will keep it privileged or tirely at private expense, and technical confidential. or scientific data developed partly with (c) Commercial or financial matter is Federal funds and partly with private ‘‘confidential’’ and exempt if its refunds, in which the contractor or sub- lease will probably: contractor retains legitimate propri- (1) Impair the government’s ability etary interests per 10 U.S.C. 2320 to 2321 to obtain necessary information in the and 48 CFR, Chapter 2, 227.71–227.72. future. (7) Computer software copyrighted (2) Substantially harm the source’s under the Copyright Act of 1976 (17 competitive position or impair some U.S.C. 106), the disclosure of which other legitimate government interest would adversely impact its potential such as compliance and program effec- market value. tiveness. (e) Submitter’s Written Response. If (d) Applicability of exemption. The release of the requested material would exemption may be used to protect in- prejudice your commercial interests, formation provided by a nongovern- give detailed written reasons that iden- ment submitter when public disclosure tify the specific information and the will probably cause substantial harm competitive harm public release will to its competitive position. Examples cause to you, your organization, or of information that may qualify for your business. The act requires the Air this exemption include: Force to provide any reasonably seg- (1) Commercial or financial informa- regable part of a record after deleting tion received in confidence with loans, exempt portions. If deleting key words bids, contracts, or proposals, as well as or phrases would adequately protect other information received in con- your interests, advise us in writing fidence or privileged, such as trade se- which portions you believe we can safe- crets, inventions, discoveries, or other ly release, and which portions you be- proprietary data. lieve we need to withhold from release. NOTE: Certain proprietary and source se- If you do not provide details on the lection information may also fall under ex- probability of substantial harm to your emption (b)(3), under the provisions of 10 competitive position or other commer- U.S.C. 2305(g) or 41 U.S.C. 423, if statutory re- cial interests, which would be caused quirements are met. by releasing your material to the re- (2) Statistical data and commercial quester, we may be required to release or financial information concerning the information. Records qualify for contract performance, income, profits, protection on a case by case basis.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00044 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806, App. B

(f) Pricing Information. Generally, AFI 40–301, Family Advocacy the prices a contractor charges the AFI 41–210, Patient Administration Func- government for goods or services would tions AFI 44–109, Mental Health and Military Law be released under the FOIA. Examples AFI 51–201, Administration of Military Jus- of releasable data include: bids sub- tice mitted in response to an invitation for AFI 51–301, Civil Litigation bids (IFB), amounts actually paid by AFI 51–303, Intellectual Property-Patents, the government under a contract, and Patent Related Matters, Trademarks, and line item prices, contract award price, Copyrights and modifications to a contract. Unit AFI 51–501, Tort Claims prices contained in a contract award AFI 51–503, Aircraft, Missile, Nuclear and Space Accident Investigations are considered releasable as part of the AFI 51–504, Legal Assistance, Notary and post award notification procedure pre- Preventive Law Programs scribed by 48 CFR 15.503, unless they AFI 51–1102, Cooperation with the Office of are part of an unsuccessful proposal, the Special Counsel then 10 U.S.C. 2305(g) protects every- AFI 61–204, Disseminating Scientific and thing including unit price. Technical Information AFI 61–303, Licensing Inventions Made Under APPENDIX A TO PART 806—REFERENCES Cooperative Research and Development Agreements Title 5, United States Code, Section 552, The AFI 65–401, Relations With the General Ac- Freedom of Information Act, as amended counting Office Title 5, United States Code, Section 552a, AFI 71–101, Volume 1, Criminal Investiga- The Privacy Act (as amended) tions Title 10, United States Code, Section 2305(g), AFI 71–101, Volume 2, Protective Service Prohibition on Release of Contractor Pro- Matters posals AFI 84–101, Historical Products, Services, Title 48, Code of Federal Regulations (CFR), and Requirements Federal Acquisition Regulations (FAR) AFI 90–301, Inspector General Complaints System AFI 90–401, Air Force Relations With Con- OMB Bulletin 95–01, 7 December 1994 gress OMB Memorandum, 6 February 1998 AFI 91–204, Safety Investigations and Re- DoD 5200.1–R, Information Security Pro- ports gram, January 1997 AFI 16–701, Special Access Programs APPENDIX B TO PART 806— AFI 31–206, Security Police Investigations ABBREVIATIONS AND ACRONYMS AFI 31–401, Information Security Program Management AFCA—Air Force Communications Agency AFI 31–501, Personnel Security Program AFCIC—Air Force Communications and In- Management formation Center AFI 31–601, Industrial Security Program AFRC—Air Force Reserve Command Management AFI—Air Force Instruction AFI 33–129, Transmission of Information Via AFLSA/JACL—Air Force Legal Services the Internet Agency, General Litigation Division AFI 35–205, Air Force Security and Policy AFMAN—Air Force Manual Review Program AFPC/MSIMD—Air Force Personnel Center/ AFI 36–2603, Air Force Board for Correction Records Management, FOIA, and Privacy of Military Records Act Office AFI 36–2706, Military Equal Opportunity and AFPD—Air Force Policy Directive Treatment Program ANG—Air National Guard AFI 36–2906, Personal Financial Responsi- ASCII—American Standard Code for Infor- bility mation Interchange AFI 36–2907, Unfavorable Information File CFR—Code of Federal Regulations (UIF) Program DFAS—Defense Finance and Accounting AFPD 37–1, Air Force Information Manage- Service ment (will convert to AFPD 33–3) DFOISR—Director, Freedom of Information AFI 37–124, The Information Collections and and Security Review Reports Management Program; Controlling DoD—Department of Defense Internal, Public, and Interagency Air DRU—Direct Reporting Unit Force Information Collections (will con- EFOIA—Electronic Freedom of Information vert to AFI 33–324) Act AFI 37–132, Air Force Privacy Act Program ERR—Electronic Reading Room (will convert to AFI 33–332) FOA—Field Operating Agency AFMAN 37–139, Records Disposition Schedule FOIA—Freedom of Information Act (will convert to AFMAN 33–339) FOUO—For Official Use Only

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00045 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806, App. C 32 CFR Ch. VII (7–1–05 Edition)

GAO—General Accounting Office ties and informs citizens about what their GILS—Government Information Locator government is doing. Service Reading Room—A place where the public GPO—Government Printing Office may inspect and copy, or have copied, re- IDA—Initial Denial Authority leasable records. IG—Inspector General Records—The products of data compilation, IMPAC—International Merchant Purchase such as all books, papers, maps, and photo- Authority Card graphs, machine readable materials inclu- LOA—Letters of Offer and Acceptance sive of those in electronic form or format, MAJCOM—Major Command or other documentary materials, regard- MFR—Memorandum for Record less of physical form or characteristics, NATO—North Atlantic Treaty Organization made or received by an agency of the U.S. NORAD—North American Aerospace Defense Government under Federal Law in connec- NTIS—National Technical Information Serv- tion with the transaction of public busi- ice ness and in the agency’s possession and OCR—Office of Corollary Responsibility control at the time the FOIA request is OMB—Office of Management and Budget made. Records include notes, working pa- OPR—Office of Primary Responsibility pers, and drafts. PA—Privacy Act Redact—To remove nonreleasable material. PAO—Public Affairs Office PAS—Personnel Accounting Symbol RCS—Reports Control Symbol PART 806b—PRIVACY ACT SAF—Secretary of the Air Force PROGRAM SSN—Social Security Number USAF—United States Air Force Subpart A—Overview of the Privacy Act U.S.C.—United States Code WWW—World Wide Web Program Sec. APPENDIX C TO PART 806—TERMS 806b.1 Summary of revisions. Appellate Authority—The Office of the Gen- 806b.2 Basic guidelines. eral Counsel to the Secretary of the Air 806b.3 Violation penalties. Force (SAF/GCA). 806b.4 Privacy Act complaints. Denial—An adverse determination on no 806b.5 Personal notes. records, fees, expedited access, or not dis- 806b.6 Systems of records operated by a con- closing records. tractor. Determination—The written decision to re- 806b.7 Responsibilities. lease or deny records or information that is responsive to a request. Subpart B—Obtaining Law Enforcement Disclosure—Providing access to, or one copy Records and Confidentiality Promises of, a record. Disclosure Authority—Official authorized to 806b.8 Obtaining law enforcement records. release records, normally division chiefs or 806b.9 Confidentiality promises. higher. FOIA Manager—The person who manages the Subpart C—Collecting Personal FOIA Program at each organizational Information level. FOIA Request—A written request for DoD 806b.10 How to collect personal information. records from the public that cites or im- 806b.11 When To Give Privacy Act State- plies the FOIA. ments (PAS). Functional Request—Any request for records 806b.12 Requesting the Social Security from the public that does not cite the Number. FOIA. Government Information Locator Service Subpart D—Giving Access to Privacy Act (GILS)—An automated on-line card cata- Records log of publicly accessible information. Glomar Response—A reply that neither con- 806b.13 Making a request for access. firms nor denies the existence or nonexist- 806b.14 Processing a request for access. ence of the requested record. 806b.15 Fees. Initial Denial Authority (IDA)—Persons in 806b.16 Denying or limiting access. authorized positions that may withhold 806b.17 Special provision for certain med- records. ical records. Partial Denial—A decision to withhold part 806b.18 Third party information in a Pri- of a requested record. vacy Act System of records. Public Interest—The interest in obtaining 806b.19 Information compiled in anticipa- official information that sheds light on tion of civil action. how an agency performs its statutory du- 806b.20 Denial authorities.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00046 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.2

Subpart E—Amending the Record Subpart M—Training

806b.21 Amendment reasons. 806b.52 Who needs training? 806b.22 Responding to amendment requests. 806b.53 Training tools. 806b.23 Approving or denying a record 806b.54 Information collections, records, amendment. and forms or Information Management 806b.24 Seeking review of unfavorable Agen- Tools (IMT). cy determinations. 806b.25 Contents of Privacy Act case files. APPENDIX A TO PART 806b—DEFINITIONS APPENDIX B TO PART 806b—PREPARING A SYS- Subpart F—Appeals TEM NOTICE APPENDIX C TO PART 806b—DOD ‘‘BLANKET 806b.26 Appeal procedures. ROUTINE USES’’ Subpart G—Privacy Act Notifications APPENDIX D TO PART 806b—GENERAL AND SPECIFIC EXEMPTIONS 806b.27 When to include a Privacy Act warn- APPENDIX E TO PART 806b—PRIVACY IMPACT ing statement in publications. ASSESSMENT 806b.28 Warning banners. 806b.29 Sending personal information over AUTHORITY: Pub. L. 93–579, 88 Stat. 1896 (5 electronic mail. U.S.C. 552a). SOURCE: 69 FR 954, Jan. 7, 2004, unless oth- Subpart H—Privacy Impact Assessments erwise noted. 806b.30 Evaluating information systems for Privacy Act compliance. Subpart A—Overview of the Privacy Act Program Subpart I—Preparing and Publishing System Notices for the Federal Register § 806b.1 Summary of revisions. 806b.31 Publishing System notices. This part moves responsibility for 806b.32 Submitting notices for publication the Air Force Privacy Program from in the FEDERAL REGISTER. 806b.33 Reviewing notices. Air Force Communications and Infor- mation Center to the Air Force Chief Subpart J—Protecting and Disposing of Information Officer; prescribes Air Records Force Visual Aid 33–276, Privacy Act Label as optional; adds the E-Gov Act of 806b.34 Protecting records. 806b.35 Balancing protection. 2002 requirement for a Privacy Impact 806b.36 Disposing of records. Assessment for all information systems that are new or have major changes; Subpart K—Privacy Act Exemptions changes appeal processing from Air 806b.37 Exemption types. Force Communications and Informa- 806b.38 Authorizing exemptions. tion Center to Air Force Legal Services 806b.39 Requesting an exemption. Agency; adds Privacy Act warning lan- 806b.40 Exemptions. guage to use on information systems subject to the Privacy Act, includes Subpart L—Disclosing Records to Third guidance on sending personal informa- Parties tion via e-mail; adds procedures on 806b.41 Disclosure considerations. complaints; and provides guidance on 806b.42 Social rosters. recall rosters; social rosters; consent 806b.43 Placing personal information on statements, systems of records oper- shared drives. ated by a contractor, and placing infor- 806b.44 Personal information that requires protection. mation on shared drives. 806b.45 Releasable information. 806b.46 Disclosing other information. § 806b.2 Basic guidelines. 806b.47 Rules for releasing Privacy Act in- This part implements the Privacy Act formation without the consent of the of 1974 1 and applies to records on living subject. 806b.48 Disclosing the medical records of U.S. citizens and permanent resident minors. aliens that are retrieved by name or 806b.49 Disclosure accountings. 806b.50 Computer matching. 806b.51 Privacy and the Web. 1 http://www.usdoj.gov/04foia/privstat.htm.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00047 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.3 32 CFR Ch. VII (7–1–05 Edition)

personal identifier. This part also pro- (5) Amend and correct records on re- vides guidance on collecting and dis- quest. seminating personal information in (6) Allow individuals to review and general. receive copies of their own records un- (a) Records that are retrieved by less the Secretary of the Air Force ap- name or personal identifier are subject proved an exemption for the system; or to Privacy Act requirements and are the Air Force created the records in referred to as Privacy Act systems of anticipation of a civil action or pro- records. The Air Force must publish ceeding (5 U.S.C. 552a(d)(5)). notices in the FEDERAL REGISTER, de- (7) Provide a review of decisions that scribing the collection of information deny individuals access to or amend- for new, changed or deleted systems to ment of their records through appellate inform the public and give them an op- procedures. portunity to comment before implementing or changing the system. (see § 806b.3 Violation penalties. Appendix B to this part). An individual may file a civil law (b) An official system of records is: suit against the Air Force for failing to (1) Authorized by law or Executive comply with the Privacy Act. The Order. courts may find an individual offender (2) Needed to carry out an Air Force guilty of a misdemeanor and fine that mission or function. individual offender not more than (3) Published in the FEDERAL REG- $5,000 for: ISTER. (a) Willfully maintaining a system of (c) The Air Force will not: records that doesn’t meet the public (1) Keep records on how a person ex- notice requirements. ercises First Amendment rights. Ex- (b) Disclosing information from a ceptions are when: The Air Force has system of records to someone not enti- the permission of that individual or is tled to the information. authorized by Federal statute; or the information pertains to, and is within (c) Obtaining someone else’s records the scope of, an authorized law enforce- under false pretenses. ment activity. First Amendment rights include, but are not limited to, freedom § 806b.4 Privacy Act complaints. of religion, freedom of political beliefs, (a) Process Privacy Act complaints freedom of speech, freedom of the or allegations of Privacy Act violations press, the right to assemble, and the through the appropriate base or Major right to petition. Command Privacy Act office, to the (2) Penalize or harass an individual local systems manager. The base or for exercising rights guaranteed under Major Command Privacy Act officer di- the Privacy Act. We must reasonably rects the process and provides guidance help individuals exercise their rights to the system manager. The local sys- under the Privacy Act. tems manager will investigate com- (d) Air Force members will: plaints, or allegations of Privacy Act (1) Keep paper and electronic records violations; will establish and review that are retrieved by name or personal the facts when possible; interview indi- identifier only in approved Privacy Act viduals as needed; determine validity systems published in the FEDERAL REG- of the complaint; take appropriate cor- ISTER. rective action; and ensure a response is (2) Collect, maintain, and use infor- sent to the complainant through the mation in such systems, for purposes Privacy Act Officer. In cases where no described in the published notice, to system manager can be identified, the support programs authorized by law or local Privacy Act officer will assume Executive Order. these duties. Issues that cannot be re- (3) Safeguard the records in the sys- solved at the local level will be ele- tem and keep them the minimum time vated to the Major Command Privacy required. Office. When appropriate, local system (4) Ensure records are timely, accu- managers will also: refer cases for more rate, complete, and relevant. formal investigation, refer cases for

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00048 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.7

command disciplinary action, and con- system number, as required by the De- sult the servicing Staff Judge Advo- fense Acquisition Regulation and this cate. In combatant commands, process part. component unique system complaints (a) Contracts for systems of records through the respective component operated or maintained by a contractor chain of command. will be reviewed annually by the appro- (b) For Privacy Act complaints filed priate Major Command Privacy Officer in a U.S. District Court against the Air to ensure compliance with this part. Force, an Air Force activity, or any (b) Disclosure of personal records to a Air Force employee, Air Force Legal contractor for use in the performance Services Agency, General Litigation of an Air Force contract is considered Division (JACL) will provide Air Force a disclosure within the agency under Chief Information Officer/P a litigation exception (b)(1) of the Privacy Act (see summary to include: The case number, § 806b.47(a)). requester name, the nature of the case (denial of access, refusal to amend, in- § 806b.7 Responsibilities. correct records, or specify the par- (a) The Air Force Chief Information ticular violation of the Privacy Act), Officer is the senior Air Force Privacy date complaint filed, court, defendants, Official with overall responsibility for and any appropriate remarks, as well the Air Force Privacy Act Program. as updates during the litigation proc- (b) The Office of the General Counsel ess. When the court renders a formal to the Secretary of the Air Force, Fis- opinion or judgment, Air Force Legal cal and Administrative Law Division Services Agency, General Litigation (GCA) makes final decisions on ap- Division (JACL) sends Air Force Chief peals. Information Officer/P a copy of the judgment and opinion. (c) The General Litigation Division, Air Force Legal Services Agency § 806b.5 Personal notes. (JACL), receives Privacy Act appeals and provides recommendations to the The Privacy Act does not apply to appellate authority. Service unique ap- personal notes on individuals used as peals, from combatant commands, memory aids. Personal notes may be- should go through the respective chain come Privacy Act records if they are of command. retrieved by name or other personal identifier and at least one of the fol- (d) The Plans and Policy Directorate, lowing three conditions apply: Keeping Office of the Chief Information Officer or destroying the records is not at the manages the program through the Air sole discretion of the author; the notes Force Privacy Act Officer who: are required by oral or written direc- (1) Administers procedures outlined tive, regulation, or command policy; or in this part. they are shown to other agency per- (2) Reviews publications and forms sonnel. for compliance with this part. (3) Reviews and approves proposed § 806b.6 Systems of records operated new, altered, and amended systems of by a contractor. records; and submits system notices Contractors who are required to oper- and required reports to the Defense ate or maintain a Privacy Act system Privacy Office. of records by contract must follow this (4) Serves as the Air Force member part for collecting, safeguarding, main- on the Defense Privacy Board and the taining, using, accessing, amending Defense Data Integrity Board. and disseminating personal informa- (5) Provides guidance and assistance tion. The record system affected is con- to Major Commands, field operating sidered to be maintained by the Air agencies, direct reporting units and Force and is subject to this part. Sys- combatant commands for which AF is tems managers for offices who have executive agent in their implementa- contractors operating or maintaining tion and execution of the Air Force such record systems must ensure the Privacy Program. Ensures availability contract contains the proper Privacy of training and training tools for a va- Act clauses, and identify the record riety of audiences.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00049 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.8 32 CFR Ch. VII (7–1–05 Edition)

(6) Provides advice and support to (10) Provide guidance as needed to those commands to ensure that infor- functionals on implementing the Pri- mation requirements developed to col- vacy Act. lect or maintain personal data conform (j) Base Privacy Act Officers: to Privacy Act standards; and that ap- (1) Provide guidance and training to propriate procedures and safeguards base personnel. are developed, implemented, and main- (2) Submit reports as required. tained to protect the information. (3) Review publications and forms for (e) Major Command commanders, and compliance with this part. Deputy Chiefs of Staff and comparable (4) Review system notices to validate officials at Secretary of the Air Force currency. and Headquarters United States Air (5) Direct investigations of complaints/violations. Force offices implement this part. (6) Evaluate the health of the pro- (f) 11th Communications Squadron gram at regular intervals using this will provide Privacy Act training and part as guidance. submit Privacy Act reports for Head- (k) System Managers: quarters United States Air Force and (1) Manage and safeguard the system. Secretary of the Air Force offices. (2) Train users on Privacy Act re- (g) Major Command Commanders: quirements. Appoint a command Privacy Act offi- (3) Protect records from unauthorized cer, and send the name, office symbol, disclosure, alteration, or destruction. phone number, and e-mail address to (4) Prepare system notices and re- Air Force Chief Information Officer/P. ports. (h) Major Command and Head- (5) Answer Privacy Act requests. quarters Air Force Functional Chief In- (6) Records of disclosures. formation Officers: (7) Validate system notices annually. (1) Review and provide final approval (8) Investigate Privacy Act com- on Privacy Impact Assessments (see plaints. Appendix E of this part). (l) System owners and developers: (2) Send a copy of approved Privacy (1) Decide the need for, and content Impact Assessments to Air Force Chief of systems. Information Officer/P. (2) Evaluate Privacy Act require- (i) Major Command Privacy Act Offi- ments of information systems in early cers: stages of development. (3) Complete a Privacy Impact As- (1) Train base Privacy Act officers. sessment and submit to the Privacy May authorize appointment of unit Act Officer. Privacy Act monitors to assist with implementation of the program. (2) Promote Privacy Act awareness Subpart B—Obtaining Law En- throughout the organization. forcement Records and Con- (3) Review publications and forms for fidentiality Promises compliance with this part (do forms re- § 806b.8 Obtaining law enforcement quire a Privacy Act Statement; is Pri- records. vacy Act Statement correct?). The Commander, Air Force Office of (4) Submit reports as required. Special Investigation; the Commander, (5) Review system notices to validate Air Force Security Forces Center; currency. Major Command, Field Operating (6) Evaluate the health of the pro- Agency, and base chiefs of security gram at regular intervals using this forces; Air Force Office of Special In- part as guidance. vestigations detachment commanders; (7) Review and provide recommenda- and designees of those offices may ask tions on completed Privacy Impact As- another agency for records for law en- sessments for information systems. forcement under 5 U.S.C. 552a(b)(7). The (8) Resolve complaints or allegations requesting office must indicate in writ- of Privacy Act violations. ing the specific part of the record de- (9) Review and process denial rec- sired and identify the law enforcement ommendations. activity asking for the record.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00050 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.12

§ 806b.9 Confidentiality promises. § 806b.12 Requesting the Social Secu- rity Number. Promises of confidentiality must be prominently annotated in the record to When asking an individual for his or protect from disclosure any ‘‘confiden- her Social Security Number, always tial’’ information under 5 United give a Privacy Act Statement that tells the person: The legal authority States Code 552a(k)(2), (k)(5), or (k)(7) for requesting it; the uses that will be of the Privacy Act. made of the Social Security Number; and whether providing the Social Secu- Subpart C—Collecting Personal rity Number is voluntary or manda- Information tory. Do not deny anyone a legal right, benefit, or privilege for refusing to give § 806b.10 How to collect personal in- their Social Security Number unless formation. the law requires disclosure, or a law or Collect personal information directly regulation adopted before January 1, from the subject of the record when- 1975 required the Social Security Num- ever possible. Only ask third parties ber and the Air Force uses it to verify a person’s identity in a system of when: records established before that date. (a) You must verify information. (a) The Air Force requests an individ- (b) You want opinions or evaluations. ual’s Social Security Number and pro- (c) You can’t contact the subject. vides the individual information re- (d) You are doing so at the request of quired by law when anyone enters mili- the subject individual. tary service or becomes an Air Force civilian employee. The Air Force uses § 806b.11 When to give Privacy Act the Social Security Number as a serv- Statements (PAS). ice or employment number to reference (a) Give a PAS orally or in writing to the individual’s official records. When the subject of the record when you are you ask someone for a Social Security collecting information from them that Number as identification to retrieve an will go in a system of records. Note: Do existing record, you do not have to re- this regardless of how you collect or state this information. record the answers. You may display a (b) Executive Order 9397, Numbering sign in areas where people routinely System for Federal Accounts Relating to 2 furnish this kind of information. Give a Individual Persons , authorizes using the Social Security Number as a per- copy of the Privacy Act Statement if sonal identifier. This order is not ade- asked. Do not ask the person to sign quate authority to collect a Social Se- the Privacy Act Statement. curity Number to create a record. (b) A Privacy Act Statement must When law does not require disclosing include four items: the Social Security Number or when (1) Authority: The legal authority, the system of records was created after that is, the U.S.C. or Executive Order January 1, 1975, you may ask for the authorizing the program the system Social Security Number, but the indi- supports. vidual does not have to disclose it. If (2) Purpose: The reason you are col- the individual refuses to respond, use lecting the information and what you alternative means of identifying intend to do with it. records. (c) Social Security Numbers (3) Routine Uses: A list of where and are personal and unique to each indi- why the information will be disclosed vidual. Protect them as for official use outside DoD. only (FOUO). (4) Disclosure: Voluntary or Manda- Within DoD, do not disclose them to tory. (Use Mandatory only when disclo- anyone without an official need to know. Outside DoD, they are not re- sure is required by law and the indi- leasable without the person’s consent, vidual will be penalized for not providing information.) Include any con- 2 sequences of nondisclosure in non- http://resource.lawlinks.com/content/ legallresearch/ExecutivelOrders/1940–1960/ threatening language. executivelorderl9397.htm.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00051 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.13 32 CFR Ch. VII (7–1–05 Edition)

or unless authorized under one of the 12 (c) Tell the requester if a record ex- exceptions to the Privacy Act (see ists and how to review the record. If § 806b.47). possible, respond to requests within 10 workdays of receipt. If you cannot an- Subpart D—Giving Access to swer the request in 10 workdays, send a Privacy Act Records letter explaining why and give an approximate completion date no more § 806b.13 Making a Request for Access. than 20 workdays after the first office received the request. Persons or their designated rep- (d) Show or give a copy of the record resentatives may ask for a copy of to the requester within 30 workdays of their records in a system of records. receiving the request unless the system Requesters need not state why they is exempt and the Air Force lists the want access to their records. Verify the exemption in Appendix D to this part; identity of the requester to avoid unau- or it is published in this section; or thorized disclosures. How you verify published as a final rule in the FED- identity will depend on the sensitivity ERAL REGISTER. Give information in a of the requested records. Persons may form the requester can understand. If use a notary or an unsworn declaration the system is exempt under the Pri- in the following format: ‘‘I declare vacy Act, provide any parts releasable under penalty of perjury (if outside the under the Freedom of Information Act, United States, add ‘‘under the laws of with appeal rights (See subpart F of the United States of America’’) that this part), citing appropriate exemp- the foregoing is true and correct. Exe- tions from the Privacy Act and the cuted on (date). (Signature).’’ Freedom of Information Act, if applica- § 806b.14 Processing a Request for Ac- ble. cess. (e) If the requester wants another person present during the record re- Consider a request from an individual view, the system manager may ask for for his or her own records in a system written consent to authorize discussing of records under both the Freedom of the record with another person present. Information Act and the Privacy Act regardless of the Act cited. The re- § 806b.15 Fees. quester does not need to cite either Act if the records they want are contained Give the first 100 pages free, and in a system of records. Process the re- charge only reproduction costs for the quest under whichever Act gives the remainder. Copies cost $.15 per page; most information. When necessary, tell microfiche costs $.25 per fiche. Charge the requester which Act you used and fees for all pages for subsequent re- why. quests for the same records. Do not (a) Requesters should describe the charge fees: records they want. They do not have to (a) When the requester can get the name a system of records number, but record without charge under another they should at least name a type of publication (for example, medical record or functional area. For requests records). that ask for ‘‘all records about me,’’ (b) For search. ask for more information and tell the (c) For reproducing a document for person how to review the Air Force the convenience of the Air Force. systems of records published in the (d) For reproducing a record so the FEDERAL REGISTER or at http:// requester can review it. www.defenselink.mil/privacy/notices/usaf. Fee waivers. Waive fees automati- (b) Requesters should not use govern- cally if the direct cost of reproduction ment equipment, supplies, stationery, is less than $15, unless the individual is postage, telephones, or official mail seeking an obvious extension or dupli- channels for making Privacy Act re- cation of a previous request for which quests. System managers will process he or she was granted a waiver. Deci- such requests and tell requesters that sions to waive or reduce fees that ex- using government resources to make ceed $15 are made on a case-by-case Privacy Act requests is not authorized. basis.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00052 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.21

§ 806b.16 Denying or limiting access. ject’s records). Consult your servicing System managers process access de- Staff Judge Advocate before disclosing nials within 5 workdays after you re- third party information. Generally, if ceive a request for access. When you the requester will be denied a right, may not release a record, send a copy privilege or benefit, the requester must of the request, the record, and why you be given access to relevant portions of recommend denying access (include the the file. applicable exemption) to the denial authority through the legal office and the § 806b.19 Information compiled in an- Privacy Act office. Judge Advocate of- ticipation of civil action. fices will include a written legal opin- Withhold records compiled in connec- ion. The Privacy Act officer reviews tion with a civil action or other pro- the file, and makes a recommendation ceeding including any action where the to the denial authority. The denial au- Air Force expects judicial or adminis- thority sends the requester a letter trative adjudicatory proceedings. This with the decision. If the denial author- exemption does not cover criminal ac- ity grants access, release the record. If tions. Do not release attorney work the denial authority refuses access, tell the requester why and explain perti- products prepared before, during, or nent appeal rights (see subpart F of after the action or proceeding. this part). Before you deny a request § 806b.20 Denial authorities. for access to a record, make sure that: (a) The system has an exemption rule These officials or a designee may published in the FEDERAL REGISTER as deny access or amendment of records a final rule. as authorized by the Privacy Act. Send (b) The exemption covers each docu- a letter to Air Force Chief Information ment. (All parts of a system are not Officer/P with the position titles of des- automatically exempt.) ignees. Authorities are: (c) Nonexempt parts are segregated. (a) Deputy Chief of Staffs and chiefs of comparable offices or higher level at § 806b.17 Special provision for certain medical records. Secretary of the Air Force or Head- quarters United States Air Force or If a physician believes that disclosing designees. requested medical records could harm the person’s mental or physical health, (b) Major Command, Field Operating you should: Agency, or direct reporting unit com- (a) Ask the requester to get a letter manders or designees. from a physician to whom you can send (c) Director, Personnel Force Man- the records. Include a letter explaining agement, 1040 Air Force Pentagon, to the physician that giving the Washington, DC 20330–1040 (for civilian records directly to the individual could personnel records). be harmful. (d) Commander, Air Force Office of (b) Offer the services of a military Special Investigations, Washington, DC physician other than one who provided 20332–6001 (for Air Force Office of Spe- treatment if naming the physician cial Investigations records). poses a hardship on the individual. (e) Unified Commanders or designees. (c) The Privacy Act requires that we ultimately insure that the subject receives the records. Subpart E—Amending the Record

§ 806b.18 Third party information in a § 806b.21 Amendment reasons. Privacy Act System of Record. Individuals may ask to have their Ordinarily a person is entitled to records amended to make them accu- their entire record under the Privacy rate, timely, relevant, or complete. Act. However, the law is not uniform System managers will routinely cor- regarding whether a subject is entitled rect a record if the requester can show to information that is not ‘‘about’’ him that it is factually wrong (e.g., date of or her (for example, the home address birth is wrong). of a third party contained in the sub-

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00053 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.22 32 CFR Ch. VII (7–1–05 Edition)

§ 806b.22 Responding to amendment U.S. Air Force personnel, should pur- requests. sue service-unique record corrections (a) Anyone may request minor cor- through their component chain of com- rections orally. Requests for more seri- mand. ous modifications should be in writing. § 806b.25 Contents of Privacy Act case (b) After verifying the identity of the files. requester, make the change, notify all known recipients of the record, and in- Do not keep copies of disputed form the individual. records in this file. File disputed (c) Acknowledge requests within 10 records in their appropriate series. Use workdays of receipt. Give an expected the file solely for statistics and to completion date unless you complete process requests. Do not use the case the change within that time. Final de- files to make any kind of determina- cisions must take no longer than 30 tion about an individual. Document workdays. reasons for untimely responses. These files include: § 806b.23 Approving or denying a (a) Requests from and replies to indi- record amendment. viduals on whether a system has The Air Force does not usually records about them. amend a record when the change is (b) Requests for access or amend- based on opinion, interpretation, or ment. subjective official judgment. Deter- (c) Approvals, denials, appeals, and minations not to amend such records final review actions. constitutes a denial, and requesters (d) Coordination actions and related may appeal (see Subpart F of this part). papers. (a) If the system manager decides not to amend the record, send a copy of the Subpart F—Appeals request, the record, and the recommended denial reasons to the denial § 806b.26 Appeal procedures. authority through the legal office and Individuals who receive a denial to the Privacy Act office. Legal offices their access or amendment request will include a written legal opinion. may request a denial review by writing The Privacy Act officer reviews the to the Secretary of the Air Force, proposed denial and legal opinion and through the denial authority, within 60 makes a recommendation to the denial calendar days after receiving a denial authority. letter. The denial authority promptly (b) The denial authority sends the re- sends a complete appeal package to Air quester a letter with the decision. If Force Legal Services Agency, General the denial authority approves the re- Litigation Division (JACL). The pack- quest, amend the record and notify all age must include: previous recipients that it has been (1) The original appeal letter; changed. If the authority denies the re- (2) The initial request; quest, give the requester the statutory (3) The initial denial; authority, reason, and pertinent appeal (4) A copy of the record; rights (see subpart F of this part). (5) Any internal records or coordination actions relating to the denial; § 806b.24 Seeking review of unfavor- (6) The denial authority’s comments able Agency determinations. on the appellant’s arguments; and Requesters should pursue record cor- (7) The legal reviews. rections of subjective matters and (a) If the denial authority reverses an opinions through proper channels to earlier denial and grants access or the Civilian Personnel Office using amendment, notify the requester im- grievance procedures or the Air Force mediately. Board for Correction of Military (b) Air Force Legal Services Agency, Records. Record correction requests de- General Litigation Division (JACL) re- nied by the Air Force Board for Correc- views the denial and provides a final tion of Military Records are not sub- recommendation to Secretary of the ject to further consideration under this Air Force, Fiscal and Administrative part. Military personnel, other than Law Division (GCA). Secretary of the

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00054 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.29

Air Force, Fiscal and Administrative Order number). System of records no- Law Division (GCA) tells the requester tice (number and title) applies.’’ the final Air Force decision and explains judicial review rights. § 806b.28 Warning banners. (c) The requester may file a concise Information systems that contain in- statement of disagreement with the formation on individuals that is re- system manager if Secretary of the Air trieved by name or personal identifier Force, Fiscal and Administrative Law are subject to the Privacy Act. The Division (GCA) denies the request to Privacy Act requires these systems to amend the record. Secretary of the Air have a Privacy Act system notice pub- Force, Fiscal and Administrative Law lished in the FEDERAL REGISTER that Division (GCA) explains the requester’s covers the information collection be- rights when they issue the final appeal fore collection begins. In addition, all decision. information systems subject to the Pri- (d) The records should clearly show vacy Act will have warning banners that a statement of disagreement is displayed on the first screen (at a min- filed with the record or separately. imum) to assist in safeguarding the in- (e) The disputed part of the record formation. Use the following language must show that the requester filed a for the banner: ‘‘PRIVACY ACT IN- statement of disagreement. FORMATION—The information (f) Give copies of the statement of accessed through this system is FOR disagreement to the record’s previous OFFICIAL USE ONLY and must be recipients. Inform subsequent record protected in accordance with the Pri- users about the dispute and give them vacy Act and Air Force Instruction 33– a copy of the statement with the 332.’’ record. (g) The system manager may include § 806b.29 Sending personal informa- a brief summary of the reasons for not tion over electronic mail. amending the record. Limit the sum- (a) Exercise caution before transmit- mary to the reasons Secretary of the ting personal information over e-mail Air Force, Fiscal and Administrative to ensure it is adequately safeguarded. Law Division (GCA) gave to the indi- Some information may be so sensitive vidual. The summary is part of the in- and personal that e-mail may not be dividual’s record, but it is not subject the proper way to transmit it. When to amendment procedures. sending personal information over e- mail within DoD, ensure: There is an Subpart G—Privacy Act official need; all addressee(s) (including Notifications ‘‘cc’’ addressees) are authorized to receive it under the Privacy Act; and it § 806b.27 When to include a Privacy is protected from unauthorized disclo- Act warning statement in publica- sure, loss, or alteration. Protection tions. methods may include encryption or Include a Privacy Act Warning State- password protecting the information in ment in each Air Force publication a separate Word document. When that requires collecting or keeping in- transmitting personal information over formation in a system of records. Also e-mail, add ‘‘FOUO’’ to the beginning include the Warning Statement when of the subject line, followed by the sub- publications direct collection of the ject, and apply the following statement Social Security Number, or any part of at the beginning of the e-mail: the Social Security Number, from the individual. The warning statement will ‘‘This e-mail contains For Official Use cite legal authority and when part of a Only (FOUO) information which must be protected under the Privacy Act and Air Force record system, the Privacy Act system Instruction 33–332.’’ of records number and title. You can use the following warning statement: (b) Do not indiscriminately apply ‘‘This instruction requires collecting this statement to e-mails. Use it only and maintaining information protected in situations when you are actually by the Privacy Act of 1974 authorized transmitting personal information. by (U.S.C. citation and or Executive DoD Regulation 5400.7/Air Force Supp,

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.30 32 CFR Ch. VII (7–1–05 Edition)

Chapter 43, provides additional guid- (2) Initiating a new electronic collec- ance regarding For Official Use Only tion of information in identifiable form information. for 10 or more persons excluding agen- (c) Do not disclose personal informa- cies, instrumentalities, or employees of tion to anyone outside DoD unless spe- the Federal Government. cifically authorized by the Privacy Act (b) In general, Privacy Impact As- (see § 806b.47). sessments are required to be performed (d) Do not send Privacy Act informa- and updated as necessary where a sys- tion to distribution lists or group e- tem change creates new privacy risks. mail addresses unless each member has (c) No Privacy Impact Assessment is an official need to know the personal required where information relates to information. When in doubt, send only internal government operations, has to individual accounts. been previously assessed under an eval- (e) Before forwarding e-mails you uation similar to a Privacy Impact As- have received that contain personal in- sessment, or where privacy issues are formation, verify that your intended unchanged. recipients are authorized to receive the (d) The depth and content of the Pri- information under the Privacy Act (see vacy Impact Assessment should be ap- § 806b.47). propriate for the nature of the information to be collected and the size and Subpart H—Privacy Impact complexity of the information tech- Assessments nology system. (e) The system owner will conduct a § 806b.30 Evaluating information sys- Privacy Impact Assessment as outlined tems for Privacy Act compliance. in appendix E to this part and send it Information system owners and de- to their Major Command Privacy Act velopers must address Privacy Act re- office for review and final approval by quirements in the development stage of the Major Command or Headquarters the system and integrate privacy pro- Air Force Functional Chief Informa- tections into the development life tion Officer. The Major Command or cycle of the information system. This Headquarters Air Force Functional is accomplished with a Privacy Impact Chief Information Officer will send a Assessment. copy of approved Privacy Impact As- (a) The Privacy Impact Assessment sessments to Air Force Chief Informa- addresses what information is to be tion Officer/P, 1155 Air Force Pentagon, collected; why the information is being Washington DC 20330–1155; or e-mail collected; the intended use of the infor- [email protected]. mation; with whom the information (f) Whenever practicable, approved will be shared; what notice or opportu- Privacy Impact Assessments will be nities for the individual to decline or posted to the Freedom of Information consent to providing the information Act/Privacy Act Web site for public ac- collected, and how that information is cess at http://www.foia.af.mil (this re- shared; secured; and whether a system quirement will be waived for security of records is being created, or an exist- reasons, or to protect classified, sen- ing system is being amended. The E- sitive, or private information con- Government Act of 2002 4 requires Pri- tained in an assessment). vacy Impact Assessments to be conducted before: Subpart I—Preparing and Pub- (1) Developing or procuring informa- lishing System Notices for the tion technology systems or projects Federal Register that collect, maintain, or disseminate information in identifiable form from § 806b.31 Publishing system notices. or about members of the public. The Air Force must publish notices in the FEDERAL REGISTER of new, 3 http://www.dtic.mil/whs/directives/corres/pdf/ 54007rl0998/p54007r.pdf. changed, and deleted systems to inform 4 http://frwebgate.access.gpo.gov/cgi-bin/ the public of what records the Air getdoc.cgi?dbname=107 Force keeps and give them an oppor- lconglpublicllaws&docid=f:publ347.107.pdf. tunity to comment before the system

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.36

is implemented or changed. The Pri- FOUO. Refer to DoD 5400.7–R/Air Force vacy Act also requires submission of Supp, DoD Freedom of Information Act new or significantly changed systems Program, for protection methods. to the Office of Management and Budg- et and both houses of Congress before § 806b.35 Balancing protection. publication in the FEDERAL REGISTER. Balance additional protection This includes: against sensitivity, risk and cost. In (a) Starting a new system. some situations, a password may be (b) Instituting significant changes to enough protection for an automated an existing system. system with a log-on protocol. Others (c) Sending out data collection forms may require more sophisticated secu- or instructions. rity protection based on the sensitivity (d) Issuing a request for proposal or of the information. Classified computer invitation for bid to support a new sys- systems or those with established audit tem. and password systems are obviously § 806b.32 Submitting notices for publi- less vulnerable than unprotected files. cation in the Federal Register. Follow Air Force Instruction 33–202, Computer Security,5 for procedures on At least 120 days before implementing a new system, or a major safeguarding personal information in change to an existing system, subject automated records. to this part, system managers must (a) AF Form 3227, Privacy Act Cover 6 send a proposed notice, through the Sheet, is optional and available for use Major Command Privacy Office, to Air with Privacy Act material. Use it to Force Chief Information Officer/P. cover and protect personal information Send notices electronically to that you are using in office environ- [email protected] using Microsoft ments that are widely unprotected and Word, using the Track Changes tool in accessible to many individuals. After Word to indicate additions/changes to use, such information should be pro- existing notices. Follow the format tected as outlined in DoD 5400.7–R/Air outlined in Appendix B to this part. Force Supp. For new systems, system managers (b) Privacy Act Labels. Use of Air must include a statement that a risk Force Visual Aid 33–276, Privacy Act assessment was accomplished and is Label, is optional to assist in pro- available should the Office of Manage- tecting Privacy Act information on ment and Budget request it. compact disks, diskettes, and tapes.

§ 806b.33 Reviewing notices. § 806b.36 Disposing of records. System managers will review and You may use the following methods validate their Privacy Act system no- to dispose of records protected by the tices annually and submit changes to Privacy Act and authorized for de- Air Force Chief Information Officer/P struction according to records reten- through the Major Command Privacy tion schedules: Office. (a) Destroy by any method that prevents compromise, such as tearing, Subpart J—Protecting and burning, or shredding, so long as the Disposing of Records personal data is not recognizable and beyond reconstruction. § 806b.34 Protecting records. (b) Degauss or overwrite magnetic Maintaining information privacy is tapes or other magnetic medium. the responsibility of every federal em- (c) Dispose of paper products through ployee, military member, and con- the Defense Reutilization and Mar- tractor who comes into contact with keting Office or through activities that information in identifiable form. Pro- manage a base-wide recycling program. tect information according to its sensitivity level. Consider the personal sen- 5 http://www.e-publishing.af.mil/pubfiles/af/33/ sitivity of the information and the risk afi33-202/afi33-202.pdf. of disclosure, loss or alteration. Most 6 http://www.e-publishing.af.mil/formfiles/af/ information in systems of records is af3227/af3227.xfd.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.37 32 CFR Ch. VII (7–1–05 Edition)

The recycling sales contract must contained by law-enforcement activities tain a clause requiring the contractor whose principal function is criminal to safeguard privacy material until its law enforcement. destruction and to pulp, macerate, (b) The (k)(1) exemption. Applies to in- shred, or otherwise completely destroy formation specifically authorized to be the records. Originators must safe- classified under the DoD Information guard Privacy Act material until it is Security Program Regulation, 32 CFR transferred to the recycling contractor. part 159. A Federal employee or, if authorized, a (c) The (k)(2) exemption. Applies to in- contractor employee must witness the vestigatory information compiled for destruction. This transfer does not re- law-enforcement purposes by nonlaw quire a disclosure accounting. enforcement activities and which is not within the scope of Sec. 806b.40(a) of Subpart K—Privacy Act this part. However, the Air Force must Exemptions allow an individual access to any record that is used to deny rights, § 806b.37 Exemption types. privileges or benefits to which he or she would otherwise be entitled by Fed- There are two types of exemptions eral law or for which he or she would permitted by 5 U.S.C. 552a: otherwise be eligible as a result of the (a) A General exemption authorizes the maintenance of the information (unless exemption of a system of records from doing so would reveal a confidential most parts of the Privacy Act. source). (b) A authorizes the Specific exemption (d) The (k)(3) exemption. Applies to exemption of a system of records from records maintained in connection with only a few parts. providing protective services to the § 806b.38 Authorizing exemptions. President and other individuals under 18 U.S.C. 3506. Denial authorities may withhold (e) The (k)(4) exemption. Applies to records using Privacy Act exemptions records maintained solely for statis- only when an exemption for the system tical research or program evaluation of records has been published in the purposes and which are not used to FEDERAL REGISTER as a final rule. Ap- make decisions on the rights, benefits, pendix D lists the systems of records or entitlement of an individual except that have published exemptions with for census records which may be dis- rationale. closed under 13 U.S.C. 8. (f) The (k)(5) exemption. Applies to in- § 806b.39 Requesting an exemption. vestigatory material compiled solely A system manager who believes that for the purpose of determining suit- a system needs an exemption from ability, eligibility, or qualifications for some or all of the requirements of the federal civilian employment, military Privacy Act will send a request to Air service, federal contracts, or access to Force Chief Information Officer/P classified information, but only to the through the Major Command or Field extent such material would reveal the Operating Agency Privacy Act Officer. identity of a confidential source. This The request will detail the reasons for provision allows protection of con- the exemption, the section of the Act fidential sources used in background that allows the exemption, and the spe- investigations, employment inquiries, cific subsections of the Privacy Act and similar inquiries that are for per- from which the system is to be exempt- sonnel screening to determine suit- ed, with justification for each sub- ability, eligibility, or qualifications. section. (g) The (k)(6) exemption. Applies to testing or examination material used § 806b.40 Exemptions. solely to determine individual quali- Exemptions permissible under 5 fications for appointment or promotion U.S.C. 552a (subject to § 806b.38 of this in the Federal or military service, if part): the disclosure would compromise the (a) The (j)(2) exemption. Applies to in- objectivity or fairness of the test or ex- vestigative records created and main- amination process.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.45

(h) The (k)(7) exemption. Applies to § 806b.43 Placing personal information evaluation material used to determine on shared drives. potential for promotion in the Military Personal information should never be Services, but only to the extent that placed on shared drives for access by the disclosure of such material would groups of individuals unless each per- reveal the identity of a confidential son has an official need to know the in- source. formation to perform their job. Add appropriate access controls to ensure ac- Subpart L—Disclosing Records to cess by only authorized individuals. Recall rosters are FOUO because they Third Parties contain personal information and § 806b.41 Disclosure considerations. should be shared with small groups at the lowest levels for official purposes The Privacy Act requires the written to reduce the number of people with ac- consent of the subject before releasing cess to such personal information. personal information to third parties, Commanders and supervisors should unless one of the 12 exceptions of the give consideration to those individuals Privacy Act applies (see § 806b.47). Use with unlisted phone numbers, who do this checklist before releasing personal not want their number included on the information to third parties: Make sure office recall roster. In those instances, it is authorized under the Privacy Act; disclosure to the Commander or imme- consider the consequences; and check diate supervisor, or deputy, should nor- the accuracy of the information. You mally be sufficient. can release personal information to § 806b.44 Personal information that re- third parties when the subject agrees quires protection. in writing. Air Force members consent to releasing their home telephone num- Following are some examples of in- ber and address when they sign and formation that is not releasable without the written consent of the subject. check the ‘‘Do Consent’’ block on the This list is not all-inclusive. AF Form 624, Base/Unit Locator and (a) Marital status (single, divorced, 7 Postal Service Center Directory (see widowed, separated). Air Force Instruction 33–329, Base and (b) Number, name, and sex of depend- Unit Personnel Locators 8). ents. (c) Civilian educational degrees and § 806b.42 Social rosters. major areas of study (unless the re- Before including personal informa- quest for the information relates to the tion such as spouses names, home ad- professional qualifications for Federal dresses, home phones, and similar in- employment). formation on social rosters or direc- (d) School and year of graduation. tories that are shared with groups of (e) Home of record. individuals, ask for signed consent (f) Home address and phone. statements. Otherwise, do not include (g) Age and date of birth (year). the information. Consent statements (h) Present or future assignments for overseas or for routinely deployable or must give the individual a choice to sensitive units. consent or not consent, and clearly tell (i) Office and unit address and duty the individual what information is phone for overseas or for routinely being solicited, the purpose, to whom deployable or sensitive units. you plan to disclose the information, (j) Race/ethnic origin. and that consent is voluntary. Main- (k) Educational level (unless the retain the signed statements until no quest for the information relates to the longer needed. professional qualifications for Federal employment). (l) Social Security Number. 7 http://www.e-publishing.af.mil/formfiles/af/ af624/af624.xfd § 806b.45 Releasable information. 8 http://www.e-publishing.af.mil/pubfiles/af/33/ Following are examples of informa- afi33-329/afi33-329.pdf. tion normally releasable to the public

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.46 32 CFR Ch. VII (7–1–05 Edition)

without the written consent of the sub- than the subject of the record without ject. This list is not all-inclusive. his or her written consent. There are (a) Name. twelve exceptions to the ‘‘no disclosure (b) Rank. without consent’’ rule. Those excep- (c) Grade. tions permit release of personal infor- (d) Air Force specialty code. mation without the individual’s con- (e) Pay (including base pay, special sent only in the following instances: pay, all allowances except Basic Allow- (a) Exception 1. DoD employees who ance for Quarters and Variable Housing have a need to know the information in Allowance). the performance of their official duties. (f) Gross salary for civilians. (b) Exception 2. In response to a Free- (g) Past duty assignments, unless dom of Information Act request for in- sensitive or classified. formation contained in a system of (h) Present and future approved and records about an individual and the announced stateside assignments. Freedom of Information Act requires (i) Position title. release of the information. (j) Office, unit address, and duty (c) Exception 3. To agencies outside phone number (Continental United DoD only for a Routine Use published States (CONUS) only). in the FEDERAL REGISTER. The purpose (k) Date of rank. of the disclosure must be compatible (l) Entered on active duty date. with the intended purpose of collecting (m) Pay date. and maintaining the record. When ini- (n) Source of commission. tially collecting the information from (o) Professional military education. the subject, the Routine Uses block in (p) Promotion sequence number. the Privacy Act Statement must name (q) Military awards and decorations. the agencies and reason. (r) Duty status of active, retired, or NOTE TO PARAGRAPH (c): In addition to the reserve. Routine Uses established by the Department (s) Active duty official attendance at of the Air Force within each system of technical, scientific, or professional records, the DoD has established ‘‘Blanket meetings. Routine Uses’’ that apply to all record sys- (t) Biographies and photos of key per- tems maintained by the Department of the sonnel. Air Force. These ‘‘Blanket Routine Uses’’ (u) Date of retirement, separation. have been published only once at the beginning of the Department of the Air Force’s § 806b.46 Disclosing other information. FEDERAL REGISTER compilation of record systems notices in the interest of simplicity, Use these guidelines to decide wheth- economy and to avoid redundancy. Unless a er to release information: system notice specifically excludes a system (a) Would the subject have a reason- of records from a ‘‘Blanket Routine Use,’’ all able expectation of privacy in the in- ‘‘Blanket Routine Uses’’ apply to that sys- formation requested? tem (see Appendix C to this part). (b) Would disclosing the information (d) Exception 4. The Bureau of the benefit the general public? The Air Census to plan or carry out a census or Force considers information as meet- survey under Title 13, U.S.C. Section 8. ing the public interest standard if it re- (e) Exception 5. A recipient for statis- veals anything regarding the oper- tical research or reporting. The recipi- ations or activities of the agency, or ent must give advanced written assur- performance of its statutory duties. ance that the information is for statis- (c) Balance the public interest tical purposes only. NOTE: No one may against the individual’s probable loss use any part of the record to decide on of privacy. Do not consider the request- individuals’ rights, benefits, or entitle- er’s purpose, circumstances, or pro- ments. You must release records in a posed use. format that makes it impossible to identify the real subjects. § 806b.47 Rules for releasing Privacy (f) Exception 6. The National Archives Act information without consent of and Records Administration to evalu- the subject. ate records for permanent retention. The Privacy Act prohibits disclosing Records stored in Federal Records Cen- personal information to anyone other ters remain under Air Force control.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 806b.50

(g) Exception 7. A Federal, State, or lines. The laws of each state define the local agency (other than DoD) for civil age of majority. or criminal law enforcement. The head (a) The Air Force must obey state of the agency or a designee must send laws protecting medical records of drug a written request to the system man- or alcohol abuse treatment, abortion, ager specifying the record or part need- and birth control. If you manage med- ed and the law enforcement purpose. In ical records, learn the local laws and addition, the ‘‘blanket routine use’’ for coordinate proposed local policies with law enforcement allows the system the servicing Staff Judge Advocate. manager to disclose a record to a law (b) Outside the United States (over- enforcement agency if the agency sus- seas), the age of majority is 18. Unless pects a criminal violation. parents or guardians have a court order (h) Exception 8. An individual or agen- granting access or the minor’s written cy that needs the information for com- consent, they will not have access to pelling health or safety reasons. The minor’s medical records overseas when affected individual need not be the the minor sought or consented to record subject. treatment between the ages of 15 and 17 (i) Exception 9. Either House of Con- in a program where regulation or stat- gress, a congressional committee, or a ute provides confidentiality of records subcommittee, for matters within their and he or she asked for confidentiality. jurisdictions. The request must come from the committee chairman or rank- § 806b.49 Disclosure accountings. ing minority member (see Air Force In- System managers must keep an accu- struction 90–401, Air Force Relations rate record of all disclosures made With Congress).9 from any system of records except dis- (1) Requests from a Congressional closures to DoD personnel for official member acting on behalf of the record use or disclosures under the Freedom subject are evaluated under the routine of Information Act. System managers use of the applicable system notice. If may use Air Force Form 77110, Ac- the material for release is sensitive, counting of Disclosures. Retain disclo- get a release statement. sure accountings for 5 years after the (2) Requests from a Congressional disclosure, or for the life of the record, member not on behalf of a committee whichever is longer. or the record subject are properly ana- (a) System managers may file the ac- lyzed under the Freedom of Informa- counting record any way they want as tion Act, and not under the Privacy long as they give it to the subject on Act. request, send corrected or disputed in- (j) Exception 10. The Comptroller Gen- formation to previous record recipi- eral or an authorized representative of ents, explain any disclosures, and pro- the General Accounting Office (GAO) vide an audit trail for reviews. Include to conduct official GAO business. in each accounting: (k) Exception 11. A court of competent (1) Release date. jurisdiction, with a court order signed (2) Description of information. by a judge. (3) Reason for release. (l) Exception 12. A consumer reporting (4) Name and address of recipient. agency in accordance with 31 U.S.C. (5) Some exempt systems let you 3711(e). Ensure category element is rep- withhold the accounting record from resented within the system of records the subject. notice. (b) You may withhold information about disclosure accountings for law § 806b.48 Disclosing the medical enforcement purposes at the law en- records of minors. forcement agency’s request. Air Force personnel may disclose the medical records of minors to their par- § 806b.50 Computer matching. ents or legal guardians in conjunction Computer matching programs elec- with applicable Federal laws and guide- tronically compare records from two or

9 http://www.e-publishing.af.mil/pubfiles/af/90/ 10 http://www.e-publishing.af.mil/formfiles/af/ afi90-401/afi90-401.pdf. af771/af771.xfd.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 806b.51 32 CFR Ch. VII (7–1–05 Edition)

more automated systems that may in- § 806b.51 Privacy and the Web. clude DoD, another Federal agency, or Do not post personal information on a state or other local government. A system manager proposing a match publicly accessible DoD web sites un- that could result in an adverse action less clearly authorized by law and im- against a Federal employee must meet plementing regulation and policy. Ad- these requirements of the Privacy Act: ditionally, do not post personal infor- (1) Prepare a written agreement be- mation on .mil private web sites unless tween participants; authorized by the local commander, for (2) Secure approval of the Defense official purposes, and an appropriate Data Integrity Board; risk assessment is performed. See Air (3) Publish a matching notice in the Force Instruction 33–129 Transmission of 11 FEDERAL REGISTER before matching be- Information Via the Internet. gins; (a) Ensure public Web sites comply (4) Ensure full investigation and due with privacy policies regarding restric- process; and tions on persistent and third party (5) Act on the information, as nec- cookies, and add appropriate privacy essary. and security notices at major web site (a) The Privacy Act applies to match- entry points and Privacy Act state- ing programs that use records from: ments or Privacy Advisories when col- Federal personnel or payroll systems lecting personal information. Notices and Federal benefit programs where must clearly explain where the collec- matching: tion or sharing of certain information (1) Determines Federal benefit eligi- is voluntary, and notify users how to bility; provide consent. (2) Checks on compliance with ben- (b) Include a Privacy Act Statement efit program requirements; on the web page if it collects informa- (3) Recovers improper payments or tion directly from an individual that delinquent debts from current or we maintain and retrieve by his or her former beneficiaries. name or personal identifier (i.e., Social (b) Matches used for statistics, pilot Security Number). We may only main- programs, law enforcement, tax admin- tain such information in approved Pri- istration, routine administration, vacy Act systems of records that are background checks and foreign coun- published in the FEDERAL REGISTER. In- terintelligence, and internal matching form the visitor when the information that won’t cause any adverse action is maintained and retrieved by name or are exempt from Privacy Act matching personal identifier in a system of requirements. records; that the Privacy Act gives (c) Any activity that expects to par- them certain rights with respect to the ticipate in a matching program must government’s maintenance and use of contact Air Force Chief Information information collected about them, and Officer/P immediately. System man- provide a link to the Air Force Privacy agers must prepare a notice for publi- Act policy and system notices at http:// cation in the FEDERAL REGISTER with a Routine Use that allows disclosing the www.foia.af.mil. information for use in a matching pro- (c) Anytime a web site solicits per- gram. Send the proposed system notice sonally-identifying information, even to Air Force Chief Information Officer/ when not maintained in a Privacy Act P. Allow 180 days for processing re- system of records, it requires a Privacy quests for a new matching program. Advisory. The Privacy Advisory in- (d) Record subjects must receive forms the individual why the informa- prior notice of a match. The best way tion is solicited and how it will be to do this is to include notice in the used. Post the Privacy Advisory to the Privacy Act Statement on forms used web page where the information is in applying for benefits. Coordinate being solicited, or through a well- computer matching statements on marked hyperlink ‘‘Privacy Advisory— forms with Air Force Chief Information Officer/P through the Major Command 11 http://www.e-publishing.af.mil/pubfiles/af/33/ Privacy Act Officer. afi33-129/afi33-129.pdf.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00062 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. A

Please refer to the Privacy and Secu- § 806b.54 Information collections, rity Notice that describes why this in- records, and forms or information formation is collected and how it will management tools (IMT). be used.’’ (a) Information Collections. No information collections are required by this Subpart M—Training publication. (b) Records. Retain and dispose of § 806b.52 Who needs training. Privacy Act records according to Air Force Manual 37–139, Records Disposi- The Privacy Act requires training for tion Schedule.12 all persons involved in the design, de- (c) Forms or Information Manage- velopment, operation and maintenance ment Tools (Adopted and Prescribed). of any system of records. More special- (1) Adopted Forms or Information ized training is needed for personnel Management Tools. Air Force Form who may be expected to deal with the 624, Base/Unit Locator and PSC Direc- news media or the public, personnel tory, and AF Form 847, Recommenda- specialists, finance officers, information for Change of Publication. tion managers, supervisors, and indi- (2) Prescribed Forms or Information viduals working with medical and secu- Management Tools. AF Form 3227, Pri- rity records. Commanders will ensure vacy Act Cover Sheet, Air Force Form that above personnel are trained annu- 771, Accounting of Disclosures, and Air ally in the principles and requirements Force Visual Aid 33–276. of the Privacy Act. APPENDIX A TO PART 806b—DEFINITIONS § 806b.53 Training tools. Access: Allowing individuals to review or Helpful resources include: receive copies of their records. (a) The Air Force Freedom of Infor- Amendment: The process of adding, deleting, or changing information in a system of mation Act Web page which includes a records to make the data accurate, relevant, Privacy Overview, Privacy Act train- timely, or complete. ing slides, the Air Force systems of Computer matching: A computerized com- records notices, and links to the De- parison of two or more automated systems of fense Privacy Board Advisory Opinions, records or a system of records with non-Fed- the DoD and Department of Justice eral records to establish or verify eligibility for payments under Federal benefit programs Privacy web pages. Go to http:// or to recover delinquent debts for these pro- www.foia.af.mil. Click on ‘‘Resources.’’ grams. (b) ‘‘The Privacy Act of 1974,’’ a 32- Confidential source: A person or organiza- minute film developed by the Defense tion giving information under an express or Privacy Office. Contact the Joint Vis- implied promise of confidentiality made before September 27, 1975. ual Information Activity at DSN 795– Confidentiality: An expressed and recorded 6543/7283 or commercial (717) 895–6543/ promise to withhold the identity of a source 7283, and ask for #504432 ‘‘The Privacy or the information provided by a source. The Act of 1974.’’ Air Force promises confidentiality only (c) A Manager’s Overview, What You when the information goes into a system Need to Know About the Privacy Act. with an approved exemption for protecting the identity of confidential sources. This overview gives you Privacy Act Cookie: Data created by a Web server that 101 and is available on-line at http:// is stored on a user’s computer either tempo- www.foia.af.mil. rarily for that session only or permanently (d) Training slides for use by the on the hard disk (persistent cookie). It pro- Major Command and base Privacy Act vides a way for the Web site to identify users and keep track of their preferences. It is officers, available from the Freedom of commonly used to ‘‘maintain the state’’ of Information Act web page at http:// the session. A third-party cookie either www.foia.af.mil, under ‘‘Resources.’’ originates on or is sent to a Web site different from the one you are currently view- NOTE: Formal school training groups that ing. develop or modify blocks of instruction must send the material to Air Force Chief Infor- mation Officer/P for coordination. 12 http://www.e-publishing.af.mil/pubfiles/af/37/ afman37-139/afman37-139.pdf.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00063 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. B 32 CFR Ch. VII (7–1–05 Edition)

Defense Data Integrity Board: Composed of existence and content of the system of representatives from DoD components and records. the services who oversee, coordinate, and approve all DoD computer matching programs APPENDIX B TO PART 806b—PREPARING A covered by the Act. SYSTEM NOTICE Denial Authority: The individuals with authority to deny requests for access or amend- The following elements comprise a system ment of records under the Privacy Act. of records notice for publication in the FED- Disclosure: Giving information from a sys- ERAL REGISTER: tem, by any means, to anyone other than the System identifier: Air Force Chief Informa- record subject. tion Officer/P assigns the notice number, for Federal benefit program: A Federally funded example, F033 AF PC A, where ‘‘F’’ indicates or administered program for individuals that ‘‘Air Force,’’ the next number represents the provides cash or in-kind assistance (pay- publication series number related to the sub- ments, grants, loans, or loan guarantees). ject matter, and the final letter group shows Individual: A living U.S. citizen or a perma- the system manager’s command or Deputy nent resident alien. Chief of Staff. The last character ‘‘A’’ indi- Minor: Anyone under the age of majority cates that this is the first notice for this se- according to local state law. If there is no ries and system manager. applicable state law, a minor is anyone System name: Use a short, specific, plain- under age 18. Military members and married language title that identifies the system’s persons are not minors, no matter what their general purpose (limited to 55 characters). chronological age. System location: Specify the address of the Personal identifier: A name, number, or primary system and any decentralized ele- symbol that is unique to an individual, usu- ments, including automated data systems ally the person’s name or Social Security with a central computer facility and input or Number. output terminals at separate locations. Use Personal information: Information about an street address, 2-letter state abbreviations individual other than items of public record. and 9-digit ZIP Codes. Spell out office Privacy Act request: An oral or written re- names. Do not use office symbols. quest by an individual about his or her Categories of individuals covered by the sys- records in a system of records. tem: Use nontechnical, specific categories of Privacy advisory: A statement required individuals about whom the Air Force keeps when soliciting personally-identifying infor- records. Do not use categories like ‘‘all Air mation by an Air Force web site and the in- Force personnel’’ unless they are actually formation is not maintained in a system of true. records. The Privacy Advisory informs the Categories of records in the system: Describe individual why the information is being so- in clear, plain language, all categories of licited and how it will be used. records in the system. List only documents Privacy Impact Assessment: A written as- actually kept in the system. Do not show sessment of an information system that ad- source documents that are used to collect dresses the information to be collected, the data and then destroyed. Do not list form purpose and intended use; with whom the in- numbers. formation will be shared; notice or opportu- Authority for maintenance of the system: Cite nities for consent to individuals; how the in- the specific law or Executive Order that au- formation will be secured; and whether a new thorizes the program the records support. system of records is being created under the Cite the DoD directive/instruction or Air Privacy Act. Force instruction(s) that authorizes the sys- Record: Any information about an indi- tem of records. Always include titles with vidual. the citations. Routine use: A disclosure of records to indi- NOTE: Executive Order 9397 authorizes viduals or agencies outside DoD for a use using the Social Security Number as a per- that is compatible with the purpose for sonal identifier. Include this authority when- which the Air Force created the records. ever the Social Security Number is used to System manager: The official who is respon- retrieve records. sible for managing a system of records, in- Purpose: Describe briefly and specifically cluding policies and procedures to operate what the Air Force does with the informa- and safeguard it. Local system managers option collected. erate record systems or are responsible for Routine uses of records maintained in the sys- part of a decentralized system. tem including categories of users and the pur- System of records: A group of records re- pose of such uses: List each specific agency or trieved by the individual’s name, personal activity outside DoD to whom the records identifier; or individual identifier through a may be released and the purpose for such re- cross-reference system. lease. System notice: The official public notice The DoD ‘Blanket Routine Uses’ published published in the FEDERAL REGISTER of the in the Air Force Directory of System Notices

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00064 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. C

apply to all system notices unless you indi- APPENDIX C TO PART 806b—DOD cate otherwise. ‘BLANKET ROUTINE USES’ Polices and practices for storing, retrieving, accessing, retaining, and disposing of records in Certain DoD ‘‘blanket routine uses’’ have the system: been established that are applicable to every Storage: State the medium in which the Air record system maintained by the Depart- Force keeps the records; for example, in file ment of the Air Force, unless specifically folders, card files, microfiche, computer, or a stated otherwise within the particular record system notice. These additional routine uses combination of those methods. Storage does of the records are published only once in the not refer to the storage container. Air Force’s Preamble to its compilation of Retrievability: State how the Air Force re- records systems in the interest of simplicity, trieves the records; for example, by name, economy and to avoid redundancy. Social Security Number, or personal characteristics (such as fingerprints or a. Law Enforcement Routine Use voiceprints). If a system of records maintained by a DoD Safeguards: List the kinds of officials who Component to carry out its functions indi- have immediate access to the system. List cates a violation or potential violation of those responsible for safeguarding the law, whether civil, criminal, or regulatory in records. Identify the system safeguards; for nature, and whether arising by general stat- example, storage in safes, vaults, locked ute or by regulation, rule, or order issued cabinets or rooms, use of guards, visitor con- pursuant thereto, the relevant records in the trols, personnel screening, computer systems system of records may be referred, as a rou- software, and so on. Describe safeguards tine use, to the agency concerned, whether fully without compromising system security. federal, state, local, or foreign, charged with Retention and disposal: State how long Air the responsibility of investigating or pros- Force Manual 37–139 requires the activity to ecuting such violation or charged with en- maintain the record. Indicate when or if the forcing or implementing the statute, rule, records may be transferred to a Federal regulation, or order issued pursuant thereto. Records Center and how long the record b. Disclosure when Requesting Information stays there. Specify when the Records Center Routine Use sends the record to the National Archives or destroys it. Indicate how the records may be A record from a system of records main- destroyed. tained by a Component may be disclosed as System manager(s) and address: List the po- a routine use to a federal, state, or local sition title and duty address of the system agency maintaining civil, criminal, or other manager. For decentralized systems, show relevant enforcement information or other the locations and the position or duty title pertinent information, such as current li- of each category of officials responsible for censes, if necessary to obtain information relevant to a Component decision concerning any segment of the system. the hiring or retention of an employee, the Notification procedure: List the title and issuance of a security clearance, the letting duty address of the official authorized to tell of a contract, or the issuance of a license, requesters if their records are in the system. grant, or other benefit. Specify the information a requester must submit; for example, full name, military sta- c. Disclosure of Requested Information Routine tus, Social Security Number, date of birth, Use or proof of identity, and so on. A record from a system of records main- Record access procedures: Explain how indi- tained by a Component may be disclosed to viduals may arrange to access their records. a federal agency, in response to its request, Include the titles or categories of officials in connection with the hiring or retention of who may assist; for example, the system an employee, the issuance of a security manager. clearance, the reporting of an investigation Contesting records procedures: Air Force of an employee, the letting of a contract, or Chief Information Officer/P provides this the issuance of a license, grant, or other ben- standard caption. efit by the requesting agency, to the extent Record source categories: Show categories of that the information is relevant and nec- individuals or other information sources for essary to the requesting agency’s decision on the system. the matter. Exemptions claimed for the system: When a d. Congressional Inquiries Routine Use system has no approved exemption, write ‘‘none’’ under this heading. Specifically list Disclosure from a system of records main- any approved exemption including the sub- tained by a Component may be made to a section in the Act. congressional office from the record of an individual in response to an inquiry from the

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00065 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. C 32 CFR Ch. VII (7–1–05 Edition)

congressional office made at the request of ment in pending or potential litigation to that individual. which the record is pertinent.

e. Private Relief Legislation Routine Use j. Disclosure to Military Banking Facilities Relevant information contained in all sys- Overseas Routine Use tems of records of the Department of Defense Information as to current military ad- published on or before August 22, 1975, will be dresses and assignments may be provided to disclosed to the Office of Management and military banking facilities who provide Budget in connection with the review of pri- banking services overseas and who are reim- vate relief legislation as set forth in Office of bursed by the Government for certain check- Management and Budget Circular A–19 (ref- ing and loan losses. For personnel separated, erence (u)) at any stage of the legislative co- discharged, or retired from the Armed ordination and clearance process as set forth Forces, information as to last known resi- in that Circular. dential or home of record address may be provided to the military banking facility f. Disclosures Required by International upon certification by a banking facility offi- Agreements Routine Use cer that the facility has a returned or dis- A record from a system of records main- honored check negotiated by the individual tained by a Component may be disclosed to or the individual has defaulted on a loan and foreign law enforcement, security, investiga- that if restitution is not made by the indi- tory, or administrative authorities to com- vidual, the U.S. Government will be liable ply with requirements imposed by, or to for the losses the facility may incur. claim rights conferred in, international agreements and arrangements including k. Disclosure of Information to the General those regulating the stationing and status in Services Administration (GSA) Routine Use foreign countries of DoD military and civil- A record from a system of records main- ian personnel. tained by this component may be disclosed g. Disclosure to State and Local Taxing as a routine use to the General Services Ad- Authorities Routine Use ministration (GSA) for the purpose of records management inspections conducted Any information normally contained in In- under authority of 44 U.S.C. 2904 and 2906. ternal Revenue Service (IRS) Form W–2 which is maintained in a record from a sys- l. Disclosure of Information to the National Ar- tem of records maintained by a Component chives and Records Administration (NARA) may be disclosed to state and local taxing Routine Use authorities with which the Secretary of the Treasury has entered into agreements under A record from a system of records main- 5 U.S.C., sections 5516, 5517, and 5520 (ref- tained by this component may be disclosed erence (v)) and only to those state and local as a routine use to the National Archives and taxing authorities for which an employee or Records Administration (NARA) for the pur- military member is or was subject to tax re- pose of records management inspections con- gardless of whether tax is or was withheld. ducted under authority of 44 U.S.C. 2904 and This routine use is in accordance with Treas- 2906. ury Fiscal Requirements Manual Bulletin m. Disclosure to the Merit Systems Protection No. 76–07. Board Routine Use h. Disclosure to the Office of Personnel A record from a system of records main- Management Routine Use tained by this component may be disclosed A record from a system of records subject as a routine use to the Merit Systems Pro- to the Privacy Act and maintained by a tection Board, including the Office of the Component may be disclosed to the Office of Special Counsel for the purpose of litigation, Personnel Management (OPM) concerning including administrative proceedings, ap- information on pay and leave, benefits, re- peals, special studies of the civil service and tirement deduction, and any other informa- other merit systems, review of OPM or com- tion necessary for the OPM to carry out its ponent rules and regulations, investigation legally authorized government-wide per- of alleged or possible prohibited personnel sonnel management functions and studies. practices; including administrative proceedings involving any individual subject of i. Disclosure to the Department of Justice for a DoD investigation, and such other func- Litigation Routine Use tions, promulgated in 5 U.S.C. 1205 and 1206, A record from a system of records main- or as may be authorized by law. tained by this component may be disclosed n. Counterintelligence Purpose Routine Use as a routine use to any component of the De- partment of Justice for the purpose of rep- A record from a system of records main- resenting the Department of Defense, or any tained by this component may be disclosed officer, employee or member of the Depart- as a routine use outside the DoD or the U.S.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00066 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. D

Government for the purpose of counterintel- (2) System identifier and name: F071 AF ligence activities authorized by U.S. Law or OSI C, Criminal Records. Executive Order or for the purpose of enforc- (3) System identifier and name: F071 AF ing laws, which protect the national security OSI D, Investigative Support Records. of the United States. (4) System identifier and name: F031 AF SP E, Security Forces Management Informa- APPENDIX D TO PART 806b—GENERAL tion System (SFMIS). AND SPECIFIC EXEMPTIONS (i) Exemption: Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if in- (a) All systems of records maintained by formation is compiled and maintained by a the Department of the Air Force shall be ex- component of the agency which performs as empt from the requirements of 5 U.S.C. its principle function any activity pertaining 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the to the enforcement of criminal laws. There- extent that the system contains any infor- fore, portions of this system of records may mation properly classified under Executive be exempt pursuant to 5 U.S.C. 552a(j)(2) Order 12958 and that is required by Executive from the following subsections of 5 U.S.C. Order to be kept classified in the interest of 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), national defense or foreign policy. This ex- (e)(4)(G), and (I), (e)(5), (e)(8), (f), and (g). emption is applicable to parts of all systems (ii) Authority: 5 U.S.C. 552a(j)(2). of records including those not otherwise spe- (iii) Reasons: (A) To protect ongoing inves- cifically designated for exemptions herein, tigations and to protect from access crimi- which contain isolated items of properly nal investigation information contained in classified information. this record system, so as not to jeopardize (b) An individual is not entitled to have ac- any subsequent judicial or administrative cess to any information compiled in reason- process taken as a result of information con- able anticipation of a civil action or pro- tained in the file. ceeding (5 U.S.C. 552a(d)(5)). (B) From subsection (c)(3) because the re- (c) No system of records within Depart- lease of the disclosure accounting, for disclo- ment of the Air Force shall be considered ex- sures pursuant to the routine uses published empt under subsection (j) or (k) of the Pri- for this system, would permit the subject vacy Act until the exemption rule for the criminal investigation or matter under in- system of records has been published as a vestigation to obtain valuable information final rule in the FEDERAL REGISTER. concerning the nature of that investigation (d) Consistent with the legislative purpose which will present a serious impediment to of the Privacy Act of 1974, the Department of law enforcement. the Air Force will grant access to non-ex- (C) From subsection (c)(4) because an exempt material in the records being main- emption is being claimed for subsection this tained. Disclosure will be governed by the subsection will not be applicable. Department of the Air Force’s Privacy In- (D) From subsection (d) because access the struction, but will be limited to the extent records contained in this system would in- that identity of confidential sources will not form the subject of an investigation of exist- be compromised; subjects of an investigation ence of that investigation, provide subject of of an actual or potential violation will not the investigation with information that be alerted to the investigation; the physical might enable him to avoid detection, and safety of witnesses, informants and law en- would present a serious impediment to law forcement personnel will not be endangered, enforcement. the privacy of third parties will not be vio- (E) From subsection (e)(4)(H) because sys- lated; and that the disclosure would not oth- tem of records is exempt from individual ac- erwise impede effective law enforcement. cess pursuant to subsection (j) of the Privacy Whenever possible, information of the above Act of 1974. nature will be deleted from the requested (F) From subsection (f) because this sys- documents and the balance made available. tem of records has been exempted from ac- The controlling principle behind this limited cess provisions of subsection (d). access is to allow disclosures except those in- (5) System identifier and name: F031 AF dicated above. The decisions to release infor- SF A, Correction and Rehabilitation mation from these systems will be made on Records. a case-by-case basis. (i) Exemption: Parts of this system may be (e) General Exemptions. The following sys- exempt pursuant to 5 U.S.C. 552a(j)(2) if in- tems of records claim an exemption under 5 formation is compiled and maintained by a U.S.C. 552a(j)(2), with the exception of F090 component of the agency which performs as AF IG B, Inspector General Records and F051 its principle function any activity pertaining AF JA F, Courts-Martial and Article 15 to the enforcement of criminal laws. Por- Records. They claim both the (j)(2) and (k)(2) tions of this system of records may be ex- exemption, and are listed under this part: empt pursuant to 5 U.S.C. 552a(j)(2) from the (1) System identifier and name: F071 AF following subsections of 5 U.S.C. 552a(c)(3), OSI A, Counter Intelligence Operations and (c)(4), (d), (e)(3), (e)(4)(G), (H) and (I), (e)(5), Collection Records. (e)(8), (f), and (g).

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00067 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. D 32 CFR Ch. VII (7–1–05 Edition)

(ii) Authority: 5 U.S.C. 552a(j)(2). purposes and has been exempted from the ac- (iii) Reasons: (A) From subsection (c)(3) be- cess provisions of subsections (d) and (f). cause the release of the disclosure account- (6) System identifier and name: F090 AF IG ing, for disclosures pursuant to the routine B, Inspector General Records. uses published for this system, would permit (i) Exemption: (A) Parts of this system of the subject of a criminal investigation or records may be exempt pursuant to 5 U.S.C. matter under investigation to obtain valu- 552a(j)(2) if the information is compiled and able information concerning the nature of maintained by a component of the agency that investigation which will present a seri- which performs as its principle function any ous impediment to law enforcement. activity pertaining to the enforcement of (B) From subsection (c)(4) because an ex- criminal laws. Therefore, portions of this emption is being claimed for subsection (d), system of records may be exempt pursuant this subsection will not be applicable. to 5 U.S.C. 552a(j)(2) from the following sub- (C) From subsection (d) because access to sections of 5 U.S.C. 552a(c)(3), (c)(4), (d), the records contained in this system would inform the subject of a criminal investiga- (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), tion of the existence of that investigation, (e)(5), (e)(8), (f), and (g). provide the subject of the investigation with (B) Investigative material compiled for law information that might enable him to avoid enforcement purposes, other than material detection or apprehension, and would present within the scope of subsection 5 U.S.C. a serious impediment to law enforcement. 552a(j)(2), may be exempt pursuant to 5 (D) From subsection (e)(3) would constitute U.S.C. 552a(k)(2). However, if an individual is a serious impediment to law enforcement in denied any right, privilege, or benefit for that it could compromise the existence of a which he would otherwise be entitled by Fed- confidential investigation, reveal the iden- eral law or for which he would otherwise be tity of confidential sources of information eligible, as a result of the maintenance of and endanger the life and physical safety of the information, the individual will be pro- confidential informants. vided access to the information exempt to (E) From subsections (e)(4)(G) and (H) be- the extent that disclosure would reveal the cause this system of records is exempt from identity of a confidential source. Note: When individual access pursuant to subsections claimed, this exemption allows limited pro- (j)(2) of the Privacy Act of 1974. tection of investigative reports maintained (F) From subsection (e)(4)(I) because the in a system of records used in personnel or identity of specific sources must be withheld administrative actions. Therefore, portions in order to protect the confidentiality of the of this system of records may be exempt pur- sources of criminal and other law enforce- suant to 5 U.S.C. 552a(k)(2) from the fol- ment information. This exemption is further lowing subsections of 5 U.S.C. 552a(c)(3), (d), necessary to protect the privacy and phys- (e)(1), (e)(4)(G), (H) and (I), and (f). ical safety of witnesses and informants. (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2). (G) From subsection (e)(5) because in the (iii) Reasons: (A) From subsection (c)(3) be- collection of information for law enforce- cause the release of accounting of disclosure ment purposes it is impossible to determine would inform a subject that he or she is in advance what information is accurate, rel- under investigation. This information would evant, timely, and complete. With the pas- provide considerable advantage to the sub- sage of time, seemingly irrelevant or un- ject in providing him or her with knowledge timely information may acquire new signifi- concerning the nature of the investigation cance as further investigation brings new de- and the coordinated investigative efforts and tails to light and the accuracy of such infor- techniques employed by the cooperating mation can only be determined in a court of law. The restrictions of subsection (e)(5) agencies. This would greatly impede the Air would restrict the ability of trained inves- Force IG’s criminal law enforcement. tigators and intelligence analysts to exercise (B) From subsection (c)(4) and (d), because their judgment reporting on investigations notification would alert a subject to the fact and impede the development of intelligence that an open investigation on that individual necessary for effective law enforcement. is taking place, and might weaken the ongo- (H) From subsection (e)(8) because the in- ing investigation, reveal investigative tech- dividual notice requirements of subsection niques, and place confidential informants in (e)(8) could present a serious impediment to jeopardy. law enforcement as this could interfere with (C) From subsection (e)(1) because the na- the ability to issue search authorizations ture of the criminal and/or civil investiga- and could reveal investigative techniques tive function creates unique problems in pre- and procedures. scribing a specific parameter in a particular (I) From subsection (f) because this system case with respect to what information is rel- of records has been exempted from the access evant or necessary. Also, information may provisions of subsection (d). be received which may relate to a case under (J) From subsection (g) because this sys- the investigative jurisdiction of another tem of records compiled for law enforcement agency. The maintenance of this information

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00068 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. D

may be necessary to provide leads for appro- tained by a component of the agency which priate law enforcement purposes and to es- performs as its principle function any activ- tablish patterns of activity that may relate ity pertaining to the enforcement of crimi- to the jurisdiction of other cooperating agen- nal laws. Therefore, portions of this system cies. of records may be exempt pursuant to 5 (D) From subsection (e)(2) because col- U.S.C. 552a(j)(2) from the following sub- lecting information to the fullest extent pos- section of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), sible directly from the subject individual (e)(2), (e)(3), (e)(4)(G), (H) and (I), (e)(5), (e)(8), may or may not be practical in a criminal (f), and (g). and/or civil investigation. (B) Investigatory material compiled for (E) From subsection (e)(3) because sup- law enforcement purposes, other than mate- plying an individual with a form containing rial within the scope of subsection 5 U.S.C. a Privacy Act Statement would tend to in- 552a(j)(2), may be exempt pursuant to 5 hibit cooperation by many individuals in- U.S.C. 552a(k)(2). However, if an individual is volved in a criminal and/or civil investiga- denied any right, privilege, or benefit for tion. The effect would be somewhat adverse which he would otherwise be entitled by Fed- to established investigative methods and eral law or for which he would otherwise be techniques. eligible, as a result of the maintenance of (F) From subsections (e)(4)(G), (H), and (I) the information, the individual will be pro- because this system of records is exempt vided access to the information exempt to from the access provisions of subsection (d) the extent that disclosure would reveal the and (f). identity of a confidential source. NOTE: (G) From subsection (e)(5) because the re- When claimed, this exemption allows limited quirement that records be maintained with protection of investigative reports main- attention to accuracy, relevance, timeliness, tained in a system of records used in per- and completeness would unfairly hamper the sonnel or administrative actions. Therefore, investigative process. It is the nature of law portions of this system of records may be ex- enforcement for investigations to uncover empt pursuant to 5 U.S.C. 552a(k)(2) from the the commission of illegal acts at diverse following subsections of 5 U.S.C. 552a(c)(3), stages. It is frequently impossible to deter- (d), (e)(1), (e)(4)(G), (H) and (I), and (f). mine initially what information is accurate, (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2). relevant, timely, and least of all complete. (iii) Reason: (A) From subsection (c)(3) be- With the passage of time, seemingly irrele- cause the release of the disclosure account- vant or untimely information may acquire ing, for disclosures pursuant to the routine new significance as further investigation uses published for this system, would permit brings new details to light. the subject of a criminal investigation or (H) From subsection (e)(8) because the no- matter under investigation to obtain valu- tice requirements of this provision could able information concerning the nature of present a serious impediment to law enforce- that investigation which will present a seri- ment by revealing investigative techniques, ous impediment to law enforcement. procedures, and existence of confidential in- (B) From subsection (c)(4) because an ex- vestigations. emption is being claimed for subsection (d), (I) From subsection (f) because the agen- his subsection will not be applicable. cy’s rules are inapplicable to those portions (C) From subsection (d) because access to of the system that are exempt and would the records contained in this system would place the burden on the agency of either con- inform the subject of a criminal investiga- firming or denying the existence of a record tion of the existence of that investigation, pertaining to a requesting individual might provide the subject of the investigation with in itself provide an answer to that individual information that might enable him to avoid relating to an ongoing investigation. The detection or apprehension, and would present conduct of a successful investigation leading a serious impediment to law enforcement. to the indictment of a criminal offender pre- (D) From subsection (e)(1) because in the cludes the applicability of established agen- course of criminal investigations informa- cy rules relating to verification of record, tion is often obtained concerning the viola- disclosure of the record to that individual, tion of laws or civil obligations of others not and record amendment procedures for this relating to an active case or matter. In the record system. interests of effective law enforcement, it is (J) From subsection (g) because this sys- necessary that this information be retained tem of records should be exempt to the ex- since it can aid in establishing patterns of tent that the civil remedies relate to provi- activity and provide valuable leads for other sions of 5 U.S.C. 552a from which this rule ex- agencies and future cases that may be empts the system. brought. (7) System identifier and name: F051 AF (E) From subsection (e)(2) because in a JA F, Courts-Martial and Article 15 Records. criminal investigation the requirement that (i) Exemptions: (A) Parts of this system information be collected to the greatest ex- may be exempt pursuant to 5 U.S.C. 552a(j)(2) tent possible from the subject individual if the information is compiled and main- would present a serious impediment to law

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00069 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. D 32 CFR Ch. VII (7–1–05 Edition)

enforcement in that the subject of the inves- U.S.C. 552a(j)(2) may be exempt from the fol- tigation would be placed on notice of the ex- lowing subsections of 5 U.S.C. 552a(c)(3), istence of the investigation and would there- (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), fore be able to avoid detection. and (I), (e)(5), (e)(8), (f), and (g). (F) From subsection (e)(3) because the re- (B) Investigatory material compiled for quirement that individuals supplying infor- law enforcement purposes, other than mate- mation be provided with a form stating the rial within the scope of subsection 5 U.S.C. requirements of subsection (e)(3) would con- 552a(j)(2), may be exempt pursuant to 5 stitute a serious impediment to law enforce- U.S.C. 552a(k)(2). However, if an individual is ment in that it could compromise the exist- denied any right, privilege, or benefit for ence of a confidential investigation, reveal which he would otherwise be entitled by Fed- the identity of confidential sources of infor- eral law or for which he would otherwise be mation and endanger the life and physical eligible, as a result of the maintenance of safety of confidential informants. the information, the individual will be pro- (G) From subsections (e)(4)(G) and (H) be- vided access to the information exempt to cause this system of records is exempt from the extent that disclosure would reveal the individual access pursuant to subsections (j) identify of a confidential source. and (k) of the Privacy Act of 1974. NOTE: When claimed, this exemption al- (H) From subsection (e)(4)(I) because the lows limited protection of investigative re- identity of specific sources must be withheld ports maintained in a system of records used in order to protect the confidentiality of the in personnel or administrative actions. Any sources of criminal and other law enforce- portion of this system of records which falls ment information. This exemption is further within the provisions of 5 U.S.C. 552a(k)(2) necessary to protect the privacy and phys- may be exempt from the following sub- ical safety of witnesses and informants. sections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (I) From subsection (e)(5) because in the collection of information for law enforce- (e)(4)(G), (H) and (I), and (f). ment purposes it is impossible to determine (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2). in advance what information is accurate, rel- (iii) Reasons: (A) From subsection (c)(3) be- evant, timely, and complete. With the pas- cause the release of accounting of disclosure sage of time, seemingly irrelevant or un- would inform a subject that he or she is timely information may acquire new signifi- under investigation. This information would cance as further investigation brings new de- provide considerable advantage to the sub- tails to light and the accuracy of such infor- ject in providing him or her with knowledge mation can only be determined in a court of concerning the nature of the investigation law. The restrictions of subsection (e)(5) and the coordinated investigative efforts and would restrict the ability of trained inves- techniques employed by the cooperating tigators and intelligence analysts to exercise agencies. This would greatly impede crimi- their judgment in reporting on investiga- nal law enforcement. tions and impede the development of intel- (B) From subsection (c)(4) and (d), because ligence necessary for effective law enforce- notification would alert a subject to the fact ment. that an open investigation on that individual (J) From subsection (e)(8) because the indi- is taking place, and might weaken the on- vidual notice requirements of subsection going investigation, reveal investigative (e)(8) could present a serious impediment to techniques, and place confidential inform- law enforcement as this could interfere with ants in jeopardy. the ability to issue search authorizations (C) From subsection (e)(1) because the na- and could reveal investigative techniques ture of the criminal and/or civil investiga- and procedures. tive function creates unique problems in pre- (K) From subsection (f) because this sys- scribing a specific parameter in a particular tem of records has been exempted from the case with respect to what information is rel- access provisions of subsection (d). evant or necessary. Also, information may (L) From subsection (g) because this sys- be received which may relate to a case under tem of records is compiled for law enforce- the investigative jurisdiction of another ment purposes and has been exempted from agency. The maintenance of this information the access provisions of subsections (d) and may be necessary to provide leads for appro- (f). priate law enforcement purposes and to es- (8) System identifier and name: F071 JTF tablish patterns of activity that may relate A, Computer Network Crime Case System. to the jurisdiction of other cooperating agen- (i) Exemption: (A) Parts of this system cies. may be exempt pursuant to 5 U.S.C. 552a(j)(2) (D) From subsection (e)(2) because col- if the information is compiled and main- lecting information to the fullest extent pos- tained by a component of the agency, which sible directly from the subject individual performs as its principle function any activ- may or may not be practical in a criminal ity pertaining to the enforcement of crimi- and/or civil investigation. nal laws. Any portion of this system of (E) From subsection (e)(3) because sup- records which falls within the provisions of 5 plying an individual with a form containing

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00070 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. D

a Privacy Act Statement would tend to in- (iii) Reasons: To ensure the frankness of hibit cooperation by many individuals in- information used to determine whether ca- volved in a criminal and/or civil investiga- dets are qualified for graduation and com- tion. The effect would be somewhat adverse missioning as officers in the Air Force. to established investigative methods and (2) System identifier and name: F036 AFPC techniques. N, Air Force Personnel Test 851, Test Answer (F) From subsections (e)(4)(G), (H), and (I) Sheets. because this system of records is exempt (i) Exemption: Testing or examination ma- from the access provisions of subsection (d). terial used solely to determine individual (G) From subsection (e)(5) because the re- qualifications for appointment or promotion quirement that records be maintained with in the federal or military service may be ex- attention to accuracy, relevance, timeliness, empt pursuant to 5 U.S.C. 552a(k)(6), if the and completeness would unfairly hamper the disclosure would compromise the objectivity investigative process. It is the nature of law or fairness of the test or examination proc- enforcement for investigations to uncover ess. Therefore, portions of this system of the commission of illegal acts at diverse records may be exempt pursuant to 5 U.S.C. stages. It is frequently impossible to deter- 552a(k)(6) from the following subsections of 5 mine initially what information is accurate, U.S.C. 552a(c)(3); (d); (e)(4)(G), (H), and (I); relevant, timely, and least of all complete. and (f). With the passage of time, seemingly irrele- (ii) Authority: 5 U.S.C. 552a(k)(6). vant or untimely information may acquire (iii) Reasons: To protect the objectivity of new significance as further investigation the promotion testing system by keeping the brings new details to light. test questions and answers in confidence. (H) From subsection (e)(8) because the no- (3) System identifier and name: F036 tice requirements of this provision could USAFA A, Cadet Personnel Management present a serious impediment to law enforce- System. ment by revealing investigative techniques, (i) Exemption: Evaluation material used to procedures, and existence of confidential in- determine potential for promotion in the vestigations. Military Services may be exempt pursuant (I) From subsection (f) because the agen- to 5 U.S.C. 552a(k)(7), but only to the extent cy’s rules are inapplicable to those portions that the disclosure of such material would of the system that are exempt and would reveal the identify of a confidential source. place the burden on the agency of either con- Therefore, portions of this system of records firming or denying the existence of a record may be exempt pursuant to 5 U.S.C. pertaining to a requesting individual might 552a(k)(7) from the following subsections of 5 in itself provide an answer to that individual U.S.C. 552a(d), (e)(4)(H), and (f). relating to an on-going investigation. The (ii) Authority: 5 U.S.C. 552a(k)(7). conduct of a successful investigation leading (iii) Reasons: To maintain the candor and to the indictment of a criminal offender pre- integrity of comments needed to evaluate an cludes the applicability of established agen- Air Force Academy cadet for commissioning cy rules relating to verification of record, in the Air Force. disclosure of the record to that individual, (4) System identifier and name: F036 AETC and record amendment procedures for this I, Cadet Records. record system. (i) Exemption: Investigatory material com- (J) From subsection (g) because this sys- piled solely for the purpose of determining tem of records should be exempt to the ex- suitability, eligibility, or qualifications for tent that the civil remedies relate to provi- federal civilian employment, military serv- sions of 5 U.S.C. 552a from which this rule ex- ice, federal contracts, or access to classified empts the system. information may be exempt pursuant to 5 (f) Specific Exemptions. The following sys- U.S.C. 552a(k)(5), but only to the extent that tems of records are subject to the specific ex- such material would reveal the identity of a emptions shown: confidential source. Therefore, portions of (1) System identifier and name: F036 this system of records may be exempt pursu- USAFA K, Admissions Records. ant to 5 U.S.C. 552a(k)(5) (Detachment Pro- (i) Exemption: Evaluation material used to fessional Officer Course Selection Rating determine potential for promotion in the Sheets; Air Force Reserve Officer Training Military Services may be exempt pursuant Corps Form 0–24—Disenrollment Review; to 5 U.S.C. 552a(k)(7), but only to the extent Memoranda for Record and Staff Papers with that the disclosure of such material would Staff Advice, Opinions, or Suggestions) may reveal the identify of a confidential source. be exempt from the following subsections of Therefore, portions of this system of records 5 U.S.C. 552a(c)(3), (d), (e)(4)(G) and (H), and (Liaison Officer Evaluation and Selection (f). Panel Candidate Evaluation) may be exempt (ii) Authority: 5 U.S.C. 552a(k)(5). pursuant to 5 U.S.C. 552a(k)(7) from the fol- (iii) Reasons: To protect the identity of a lowing subsections of 5 U.S.C. 552a(d), confidential source who furnishes informa- (e)(4)(H), and (f). tion necessary to make determinations (ii) Authority: 5 U.S.C. 552a(k)(7). about the qualifications, eligibility, and

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00071 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. D 32 CFR Ch. VII (7–1–05 Edition)

suitability of cadets for graduation and com- (6) System identifier and name: F036 AF missioning in the Air Force. PC A, Effectiveness/Performance Reporting (5) System identifier and name: F044 AF System. SG Q, Family Advocacy Program Records. (i) Exemption: Evaluation material used to (i) Exemption: (A) Investigative material determine potential for promotion in the compiled for law enforcement purposes, Military Services (Brigadier General Se- other than material within the scope of sub- lectee Effectiveness Reports and Colonel and section 5 U.S.C. 552a(j)(2), may be exempt Lieutenant Colonel Promotion Rec- pursuant to 5 U.S.C. 552a(k)(2). However, if ommendations with close out dates on or be- an individual is denied any right, privilege, fore January 31, 1991) may be exempt pursu- or benefit for which he would otherwise be ant to 5 U.S.C. 552a(k)(7), but only to the ex- entitled by Federal law or for which he tent that the disclosure of such material would otherwise be eligible, as a result of the would reveal the identity of a confidential maintenance of the information, the indi- source. Therefore, portions of this system of vidual will be provided access to the infor- records may be exempt pursuant to 5 U.S.C. mation exempt to the extent that disclosure 552a(k)(7) from the following subsections of 5 would reveal the identity of a confidential U.S.C. 552a(c)(3), (d), (e)(4)(H), and (f). source. NOTE: When claimed, this exemption (ii) Authority: 5 U.S.C. 552a(k)(7). allows limited protection of investigative re- (iii) Reasons: (A) From subsection (c)(3) be- ports maintained in a system of records used cause making the disclosure accounting in personnel or administrative actions. available to the individual may compromise (B) Investigative material compiled solely express promises of confidentiality by re- for the purpose of determining suitability, vealing details about the report and identify eligibility, or qualifications for federal civil- other record sources, which may result in ian employment, military service, federal circumvention of the access exemption. contracts, or access to classified information (B) From subsection (d) because individual may be exempt pursuant to 5 U.S.C. disclosure compromises express promises of 552a(k)(5), but only to the extent that such confidentiality conferred to protect the in- material would reveal the identity of a con- tegrity of the promotion rating system. fidential source. (C) From subsection (e)(4)(H) because of (C) Therefore, portions of this system of and to the extent that portions of this record records may be exempt pursuant to 5 U.S.C. system are exempt from the individual ac- 552a(k)(2) and (k)(5) from the following sub- cess provisions of subsection (d). sections of 5 U.S.C. 552a(c)(3) and (d). (D) From subsection (f) because of and to (ii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5). the extent that portions of this record sys- (iii) Reasons: From subsections (c)(3) and tem are exempt from the individual access (d) because the exemption is needed to en- provisions of subsection (d). courage those who know of exceptional med- (7) System identifier and name: F036 AFDP ical or educational conditions or family A, Files on General Officers and Colonels As- maltreatments to come forward by pro- signed to General Officer Positions. tecting their identities and to protect such (i) Exemption: Evaluation material used to sources from embarrassment or recrimina- determine potential for promotion in the tions, as well as to protect their right to pri- Military Services may be exempt pursuant vacy. It is essential that the identities of all to 5 U.S.C. 552a(k)(7), but only to the extent individuals who furnish information under that the disclosure of such material would an express promise of confidentiality be pro- reveal the identity of a confidential source. tected. Granting individuals access to infor- Therefore, portions of this system of records mation relating to criminal and civil law en- may be exempt pursuant to 5 U.S.C. forcement, as well as the release of certain 552a(k)(7) from the following subsections of 5 disclosure accounting, could interfere with U.S.C. 552a(c)(3), (d), (e)(4)(G), (H), and (I); ongoing investigations and the orderly ad- and (f). ministration of justice, in that it could re- (ii) Authority: 5 U.S.C. 552a(k)(7). sult in the concealment, alteration, destruc- (iii) Reasons: To protect the integrity of tion, or fabrication of information; could information used in the Reserve Initial Brig- hamper the identification of offenders or al- adier General Screening Board, the release of leged offenders and the disposition of which would compromise the selection proc- charges; and could jeopardize the safety and ess. well being of parents and their children. Ex- (8) System identification and name: F036 empted portions of this system also contain AF PC O, General Officer Personnel Data information considered relevant and nec- System. essary to make a determination as to quali- (i) Exemption: Evaluation material used to fications, eligibility, or suitability for Fed- determine potential for promotion in the eral employment and Federal contracts, and Military Services may be exempt pursuant that was obtained by providing an express or to 5 U.S.C. 552a(k)(7), but only to the extent implied promise to the source that his or her that the disclosure of such material would identity would not be revealed to the subject reveal the identity of a confidential source. of the record. Therefore, portions of this system of records

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00072 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. D

(Air Force General Officer Promotion and fice of Special Investigations applicant in- Effectiveness Reports with close out dates on quiries. Fear of harassment could cause or before January 31, 1991) may be exempt sources not to make frank and open re- pursuant to 5 U.S.C. 552a(k)(7) may be ex- sponses about applicant qualifications. This empt from following subsections of 5 U.S.C. could compromise the integrity of the Air 552a(c)(3), (d), (e)(4)(H), and (f). Force Office of Special Investigations per- (ii) Authority: 5 U.S.C. 552a(k)(7). sonnel program that relies on selecting only (iii) Reason: (A) From subsection (c)(3) be- qualified people. cause making the disclosure accounting (11) System identifier and name: F036 available to the individual may compromise USAFA B, Master Cadet Personnel Record express promises of confidentiality by re- (Active/Historical). vealing details about the report and identify (i) Exemptions: Evaluation material used other record sources, which may result in to determine potential for promotion in the circumvention of the access exemption. Military Services may be exempt pursuant (B) From subsection (d) because individual to 5 U.S.C. 552a(k)(7), but only to the extent disclosure compromises express promises of that the disclosure of such material would confidentiality conferred to protect the in- reveal the identify of a confidential source. tegrity of the promotion rating system. Therefore, portions of this system of records (C) From subsection (e)(4)(H) because of may be exempt pursuant to 5 U.S.C. and to the extent that portions of this record 552a(k)(7) from the following subsections of 5 system are exempt from the individual ac- U.S.C. 552a(d), (e)(4)(H), and (f). cess provisions of subsection (d). (ii) Authority: 5 U.S.C. 552a(k)(7). (D) From subsection (f) because of and to (iii) Reasons: To maintain the candor and the extent that portions of this record sys- integrity of comments needed to evaluate a tem are exempt from the individual access cadet for commissioning in the Air Force. provisions of subsection (d). (12) System identifier and name: F031 497IG (9) System identifier and name: F036 AFPC A, Sensitive Compartmented Information K, Historical Airman Promotion Master Test Personnel Records. File. (i) Exemption: (A) Investigatory material (i) Exemption: Testing or examination ma- compiled for law enforcement purposes, terial used solely to determine individual other than material within the scope of sub- qualifications for appointment or promotion section 5 U.S.C. 552a(j)(2), may be exempt in the federal or military service, if the dis- pursuant to 5 U.S.C. 552a(k)(2). However, if closure would compromise the objectivity or an individual is denied any right, privilege, fairness of the test or examination process or benefit for which he would otherwise be may be exempt pursuant to 5 U.S.C. entitled by Federal law or for which he 552a(k)(6), if the disclosure would com- would otherwise be eligible, as a result of the promise the objectivity or fairness of the maintenance of the information, the indi- test or examination process. Therefore, por- vidual will be provided access to the infor- tions of this system of records may be ex- mation exempt to the extent that disclosure empt pursuant to 5 U.S.C. 552a(k)(6) from the would reveal the identify of a confidential following subsections of 5 U.S.C. 552a(c)(3), source. NOTE: When claimed, this exemption (d), (e)(4)(G), (H), and (I), and (f). allows limited protection of investigative re- (ii) Authority: 5 U.S.C. 552a(k)(6). ports maintained in a system of records used (iii) Reasons: To protect the integrity, ob- in personnel or administrative actions. jectivity, and equity of the promotion test- (B) Investigatory material compiled solely ing system by keeping test questions and an- for the purpose of determining suitability, swers in confidence. Reserved. eligibility, or qualifications for federal civil- (10) System identifier and name: F071 AF ian employment, military service, federal OSI F, Investigative Applicant Processing contracts, or access to classified information Records. may be exempt pursuant to 5 U.S.C. (i) Exemption: Investigatory material com- 552a(k)(5), but only to the extent that such piled solely for the purpose of determining material would reveal the identity of a con- suitability, eligibility, or qualifications for fidential source. federal civilian employment, military serv- (C) Therefore, portions of this system of ice, federal contracts, or access to classified records may be exempt pursuant to 5 U.S.C. information may be exempt pursuant to 5 552a(k)(2) and (k)(5) from the following sub- U.S.C. 552a(k)(5), but only to the extent that sections of 5 U.S.C. 552a(c)(3), (d), (e)(4)(G), such material would reveal the identity of a (H), and (I), and (f). confidential source. Therefore, portions of (ii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5). this system of records may be exempt pursu- (iii) Reasons: To protect the identity of ant to 5 U.S.C. 552a(k)(5) from the following sources to which proper promises of con- subsections of 5 U.S.C. 552a(c)(3), (d), fidentiality have been made during inves- (e)(4)(G), (H), and (I), and (f). tigations. Without these promises, sources (ii) Authority: 5 U.S.C. 552a(k)(5). will often be unwilling to provide informa- (iii) Reasons: To protect those who gave in- tion essential in adjudicating access in a fair formation in confidence during Air Force Of- and impartial manner.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00073 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. D 32 CFR Ch. VII (7–1–05 Edition)

(13) System identifier and name: F071 AF (iii) Reasons: To protect the identity of OSI B, Security and Related Investigative those who give information in confidence for Records. personnel security and related investiga- (i) Exemption: Investigatory material com- tions. Fear of harassment could cause them piled solely for the purpose of determining to refuse to give this information in the suitability, eligibility, or qualifications for frank and open way needed to pinpoint areas federal civilian employment, military serv- in an investigation that should be expanded ice, federal contracts, or access to classified to resolve charges of questionable conduct. information may be exempt pursuant to 5 (16) System identifier and name: F036 AF U.S.C. 552a(k)(5), but only to the extent that PC P, Applications for Appointment and Ex- such material would reveal the identity of a tended Active Duty Files. confidential source. Therefore, portions of (i) Exemption: Investigatory material com- this system of records may be exempt pursu- piled solely for the purpose of determining ant to 5 U.S.C. 552a(k)(5) from the following suitability, eligibility, or qualifications for subsections of 5 U.S.C. 552a(c)(3), (d), federal civilian employment, military serv- (e)(4)(G), (H), and (I), and (f). ice, federal contracts, or access to classified (ii) Authority: 5 U.S.C. 552a(k)(5). information may be exempt pursuant to 5 (iii) Reasons: To protect the identity of U.S.C. 552a(k)(5), but only to the extent that those who give information in confidence for such material would reveal the identity of a personnel security and related investiga- confidential source. Therefore, portions of tions. Fear of harassment could cause this system of records may be exempt pursu- sources to refuse to give this information in ant to 5 U.S.C. 552a(k)(5) from the following the frank and open way needed to pinpoint subsection of 5 U.S.C. 552a(d). those areas in an investigation that should (ii) Authority: 5 U.S.C. 552a(k)(5). be expanded to resolve charges of question- (iii) Reasons: To protect the identity of able conduct. confidential sources who furnish information (14) System identifier and name: F031 497IG necessary to make determinations about the B, Special Security Case Files. qualifications, eligibility, and suitability of (i) Exemption: Investigatory material com- health care professionals who apply for Re- piled solely for the purpose of determining serve of the Air Force appointment or inter- suitability, eligibility, or qualifications for service transfer to the Air Force. federal civilian employment, military serv- (17) System identifier and name: F036 AF ice, federal contracts, or access to classified DPG, Military Equal Opportunity and Treat- information may be exempt pursuant to 5 ment. U.S.C. 552a(k)(5), but only to the extent that (i) Exemption: Investigative material com- such material would reveal the identity of a piled for law enforcement purposes, other confidential source. Therefore, portions of than material within the scope of subsection this system of records may be exempt pursu- 5 U.S.C. 552a(j)(2), may be exempt pursuant ant to 5 U.S.C. 552a(k)(5) from the following to 5 U.S.C. 552a(k)(2). However, if an indi- subsections of 5 U.S.C. 552a(c)(3), (d), vidual is denied any right, privilege, or ben- (e)(4)(G), (H), and (I), and (f). efit for which he would otherwise be entitled (ii) Authority: 5 U.S.C. 552a(k)(5). by Federal law or for which he would other- (iii) Reasons: To protect the identity of wise be eligible, as a result of the mainte- those who give information in confidence for nance of the information, the individual will personnel security and related investiga- be provided access to the information ex- tions. Fear of harassment could cause empt to the extent that disclosure would resources to refuse to give this information in veal the identity of a confidential source. the frank and open way needed to pinpoint NOTE: When claimed, this exemption allows those areas in an investigation that should limited protection of investigative reports be expanded to resolve charges of question- maintained in a system of records used in able conduct. personnel or administrative actions. There- (15) System identifier and name: F031 AF fore, portions of this system of records may SP N, Special Security Files. be exempt pursuant to 5 U.S.C. 522a(k)(2) (i) Exemption: Investigatory material com- from the following subsections of 5 U.S.C. piled solely for the purpose of determining 552a(d), (e)(4)(H), and (f). suitability, eligibility, or qualifications for (ii) Authority: 5 U.S.C. 552a(k)(2). federal civilian employment, military serv- (iii) Reasons: (A) From subsection (d) be- ice, federal contracts, or access to classified cause access to the records contained in this information may be exempt pursuant to 5 system would inform the subject of an inves- U.S.C. 552a(k)(5), but only to the extent that tigation of the existence of that investiga- such material would reveal the identity of a tion, provide the subject of the investigation confidential source. Therefore, portions of with information that might enable him to this system of records may be exempt pursu- avoid detection, and would present a serious ant to 5 U.S.C. 552a(k)(5) from the following impediment to law enforcement. In addition, subsections of 5 U.S.C. 552a(c)(3), (d), granting individuals access to information (e)(4)(G), (H), and (I), and (f). collected while an Equal Opportunity and (ii) Authority: 5 U.S.C. 552a(k)(5). Treatment clarification/investigation is in

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00074 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. D

progress conflicts with the just, thorough, other disposition of assets that would make and timely completion of the complaint, and them difficult or impossible to reach in order could possibly enable individuals to inter- to satisfy any Government claim growing fere, obstruct, or mislead those clarifying/in- out of the investigation or proceeding. vestigating the complaint. (C) From subsection (e)(1) because it is not (B) From subsection (e)(4)(H) because this always possible to detect the relevance or system of records is exempt from individual necessity of each piece of information in the access pursuant to subsection (k) of the Pri- early stages of an investigation. In some vacy Act of 1974. cases, it is only after the information is eval- (C) From subsection (f) because this sys- uated in light of other evidence that its rel- tem of records has been exempted from the evance and necessity will be clear. access provisions of subsection (d). (D) From subsections (e)(4)(G) and (H) be- (18) System identifier and name: F051 AF cause this system of records is compiled for JA I, Commander Directed Inquiries. investigative purposes and is exempt from (i) Exemption: Investigatory material com- the access provisions of subsections (d) and piled for law enforcement purposes, other (f). than material within the scope of subsection (E) From subsection (e)(4)(I) because to the 5 U.S.C. 552a(j)(2), may be exempt pursuant extent that this provision is construed to re- to 5 U.S.C. 552a(k)(2). However, if an indi- quire more detailed disclosure than the vidual is denied any right, privilege, or ben- broad, generic information currently pub- efit for which he would otherwise be entitled lished in the system notice, an exemption by Federal law or for which he would other- from this provision is necessary to protect wise be eligible, as a result of the mainte- the confidentiality of sources of information nance of the information, the individual will and to protect privacy and physical safety of be provided access to the information except witnesses and informants. to the extent that disclosure would reveal (19) System identifier and name: F031 DoD the identity of a confidential source. NOTE: A, Joint Personnel Adjudication System. When claimed, this exemption allows limited (i) Exemption: Investigatory material com- protection of investigative reports main- piled solely for the purpose of determining tained in a system of records used in per- suitability, eligibility, or qualifications for sonnel or administrative actions. Any por- federal civilian employment, military serv- tion of this system of records which falls ice, federal contracts, or access to classified within the provisions of 5 U.S.C. 552a(k)(2) information may be exempt pursuant to 5 may be exempt from the following sub- U.S.C. 552a(k)(5), but only to the extent that sections of 5 U.S.C. 552a(c)(3), (d), (e)(1), such material would reveal the identity of a (e)(4)(G), (H), and (I), and (f). confidential source. Therefore, portions of (ii) Authority: 5 U.S.C. 552a(k)(2). this system of records may be exempt pursu- (iii) Reasons: (A) From subsection (c)(3) be- ant to 5 U.S.C. 552a(k)(5) from the following cause to grant access to the accounting for subsections of 5 U.S.C. 552a(c)(3), (d), and each disclosure as required by the Privacy (e)(1). Act, including the date, nature, and purpose (ii) Authority: 5 U.S.C. 552a(k)(5). of each disclosure and the identity of the re- (iii) Reasons: (A) From subsection (c)(3) cipient, could alert the subject to the exist- and (d) when access to accounting disclo- ence of the investigation. This could seri- sures and access to or amendment of records ously compromise case preparation by pre- would cause the identity of a confidential maturely revealing its existence and nature; source to be revealed. Disclosure of the compromise or interfere with witnesses or source’s identity not only will result in the make witnesses reluctant to cooperate; and Department breaching the promise of con- lead to suppression, alteration, or destruc- fidentiality made to the source but it will tion of evidence. impair the Department’s future ability to (B) From subsections (d) and (f) because compile investigatory material for the pur- providing access to investigative records and pose of determining suitability, eligibility, the right to contest the contents of those or qualifications for Federal civilian employ- records and force changes to be made to the ment, Federal contracts, or access to classi- information contained therein would seri- fied information. Unless sources can be as- ously interfere with and thwart the orderly sured that a promise of confidentiality will and unbiased conduct of the investigation be honored, they will be less likely to pro- and impede case preparation. Providing ac- vide information considered essential to the cess rights normally afforded under the Pri- Department in making the required deter- vacy Act would provide the subject with val- minations. uable information that would allow inter- (B) From subsection (e)(1) because in the ference with or compromise of witnesses or collection of information for investigatory render witnesses reluctant to cooperate; lead purposes, it is not always possible to deter- to suppression, alteration, or destruction of mine the relevance and necessity of par- evidence; enable individuals to conceal their ticular information in the early stages of the wrongdoing or mislead the course of the in- investigation. In some cases, it is only after vestigation; and result in the secreting of or the information is evaluated in light of other

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00075 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. E 32 CFR Ch. VII (7–1–05 Edition)

information that its relevance and necessity emption for the original record still pertain becomes clear. Such information permits to the record which is now contained in this more informed decision-making by the De- system of records. In general, the exemp- partment when making required suitability, tions were claimed in order to protect prop- eligibility, and qualification determinations. erly classified information relating to na- (20) System identifier and name: F033 AF tional defense and foreign policy, to avoid A, Information Requests-Freedom of Infor- interference during the conduct of criminal, mation Act. civil, or administrative actions or investiga- (i) Exemption: During the processing of a tions, to ensure protective services provided Freedom of Information Act request, exempt the President and others are not com- materials from ‘other’ systems of records promised, to protect the identity of con- may in turn become part of the case record fidential sources incident to Federal employ- in this system. To the extent that copies of ment, military service, contract, and secu- exempt records from those other systems of rity clearance determinations, and to pre- records are entered into this system, the De- serve the confidentiality and integrity of partment of the Air Force hereby claims the Federal evaluation materials. The exemption same exemptions for the records from those rule for the original records will identify the ‘other’ systems that are entered into this specific reasons why the records are exempt system, as claimed for the original primary from specific provisions of 5 U.S.C. 552a. system of which they are a part. (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), [69 FR 954, Jan. 7, 2004, as amended at 69 FR (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and (k)(7). 12540, Mar. 17, 2004] (iii) Reasons: Records are only exempt from pertinent provisions of 5 U.S.C. 552a to APPENDIX E TO PART 806b—PRIVACY the extent such provisions have been identi- IMPACT ASSESSMENT fied and an exemption claimed for the original record, and the purposes underlying the Section A—Introduction and Overview exemption for the original record still per- The Privacy Act Assessment. The Air tain to the record which is now contained in Force recognizes the importance of pro- this system of records. In general, the ex- tecting the privacy of individuals, to ensure emptions were claimed in order to protect sufficient protections for the privacy of per- properly classified information relating to national defense and foreign policy, to avoid sonal information as we implement citizen- interference during the conduct of criminal, centered e-Government. Privacy issues must civil, or administrative actions or investiga- be addressed when systems are being devel- tions, to ensure protective services provided oped, and privacy protections must be inte- the President and others are not com- grated into the development life cycle of promised, to protect the identity of con- these automated systems. The vehicle for ad- fidential sources incident to Federal employ- dressing privacy issues in a system under de- ment, military service, contract, and secu- velopment is the Privacy Impact Assess- rity clearance determinations, and to pre- ment. The Privacy Impact Assessment proc- serve the confidentiality and integrity of ess also provides a means to assure compli- Federal evaluation materials. The exemption ance with applicable laws and regulations rule for the original records will identify the governing individual privacy. specific reasons why the records are exempt (a) Purpose. The purpose of this document from specific provisions of 5 U.S.C. 552a. is to: (21) System identifier and name: F033 AF (1) Establish the requirements for address- B, Privacy Act Request Files. ing privacy during the systems development (i) Exemption: During the processing of a process. Privacy Act request, exempt materials from (2) Describe the steps required to complete other systems of records may in turn become a Privacy Impact Assessment. part of the case record in this system. To the (3) Define the privacy issues you will ad- extent that copies of exempt records from dress in the Privacy Impact Assessment. those ‘other’ systems of records are entered (b) Background. The Air Force is respon- into this system, the Department of the Air sible for ensuring the privacy, confiden- Force hereby claims the same exemptions tiality, integrity, and availability of per- for the records from those ‘other’ systems sonal information. The Air Force recognizes that are entered into this system, as claimed that privacy protection is both a personal for the original primary system of which and fundamental right. Among the most they are a part. basic of individuals’ rights is an expectation (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), that the Air Force will protect the confiden- (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and (k)(7). tiality of personal, financial, and employ- (iii) Reason: Records are only exempt from ment information. Individuals also have the pertinent provisions of 5 U.S.C. 552a to the right to expect that the Air Force will col- extent such provisions have been identified lect, maintain, use, and disseminate identifi- and an exemption claimed for the original able personal information and data only as record, and the purposes underlying the ex- authorized by law and as necessary to carry

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00076 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. E

out agency responsibilities. Personal infor- sessment incorporates privacy into the de- mation is protected by the following: velopment life cycle so that all system de- (1) Title 5, U.S.C. 552a, The Privacy Act of velopment initiatives can appropriately con- 1974, as amended, which affords individuals sider privacy issues from the earliest stages the right to privacy in records maintained of design. and used by Federal agencies. NOTE: 5 U.S.C. (a) What is a Privacy Impact Assessment? 552a includes Public Law 100–503, The Com- The Privacy Impact Assessment is a process puter Matching and Privacy Act of 1988.13 used to evaluate privacy in information sys- (2) Public Law 100–235, The Computer Secu- tems. The process is designed to guide sys- rity Act of 1987,14 which establishes min- tem owners and developers in assessing pri- imum security practices for Federal com- vacy through the early stages of develop- puter systems. ment. The process consists of privacy train- (3) OMB Circular A–130, Management of ing, gathering data from a project on privacy Federal Information Resources,15 which pro- issues, and identifying and resolving the pri- vides instructions to Federal agencies on vacy risks. The Privacy Impact Assessment how to comply with the fair information process is described in detail in Section C, practices and security requirements for oper- Completing a Privacy Impact Assessment. ating automated information systems. (b) When is a Privacy Impact Assessment (4) Public Law 107–347, Section 208, E-Gov Done? The Privacy Impact Assessment is ini- Act of 2002, which aims to ensure privacy in tiated in the early stages of the development the conduct of federal information activities. of a system and completed as part of the re- (5) Title 5, U.S.C. 552, The Freedom of In- quired system life cycle reviews. Privacy formation Act, as amended, which provides must be considered when requirements are for the disclosure of information maintained being analyzed and decisions are being made by Federal agencies to the public while al- about data usage and system design. This ap- lowing limited protections for privacy. plies to all of the development methodolo- (6) DoD Directive 5400.11, Department of gies and system life cycles used in the Air Defense Privacy Program,16 December 13, Force. 1999. (c) Who completes the Privacy Impact As- (7) DoD 5400.11–R, Department of Defense sessment? Both the system owner and sys- Privacy Program,17 August 1983. tem developers must work together to com- (8) Air Force Instruction 33–332, Air Force plete the Privacy Impact Assessment. Sys- Privacy Act Program. tem owners must address what data is to be (c) The Air Force Privacy Office is in the used, how the data is to be used, and who Office of the Air Force Chief Information Of- will use the data. The system developers ficer, Directorate of Plans and Policy, and is must address whether the implementation of responsible for overseeing Air Force imple- the owner’s requirements presents any mentation of the Privacy Act. threats to privacy. (d) What systems have to complete a Pri- Section B—Privacy and Systems Development vacy Impact Assessment? Accomplish Pri- vacy Impact Assessments when: System Privacy. Rapid advancements in (1) Developing or procuring information computer technology make it possible to technology that collects, maintains, or dis- store and retrieve vast amounts of data of all seminates information in identifiable form kinds quickly and efficiently. These ad- from or about members of the public. vancements have raised concerns about the (2) Initiating a new collection of informa- impact of large computerized information tion, using information technology, that col- systems on the privacy of data subjects. Pub- lects, maintains, or disseminates informa- lic concerns about highly integrated infor- tion in identifiable form for 10 or more per- mation systems operated by the government sons excluding agencies, instrumentalities, make it imperative to commit to a positive or employees of the Federal Government. and aggressive approach to protecting indi- (3) Systems as described above that are un- vidual privacy. Air Force Chief Information dergoing major modifications. Officer is requiring the use of this Privacy (e) The Air Force or Major Command Pri- Impact Assessment in order to ensure that vacy Act Officer reserves the right to request the systems the Air Force develops protect that a Privacy Impact Assessment be com- individuals’ privacy. The Privacy Impact As- pleted on any system that may have privacy risks. 13 http://www.defenselink.mil/privacy/ Section C—Completing a Privacy Impact 1975OMBlPAGuide/jun1989.pdf. Assessment 14 http://csrc.nist.gov/secplcy/csal87.txt. 15 http://www.whitehouse.gov/omb/circulars/ The Privacy Impact Assessment. This sec- a130/a130trans4.html. tion describes the steps required to complete 16 http://www.dtic.mil/whs/directives/corres/ a Privacy Impact Assessment. These steps html/540011.htm. are summarized in Table A4.1, Outline of 17 http://www.dtic.mil/whs/directives/corres/ Steps for Completing a Privacy Impact As- html/540011r.htm. sessment.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00077 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. E 32 CFR Ch. VII (7–1–05 Edition)

Training. Training on the Privacy Impact opment of the Privacy Impact Assessment Assessment will be available, on request, document, the Major Command Privacy Act from the Major Command Privacy Act Offi- Officer will be available to answer questions cer. The training consists of describing the related to the Privacy Impact Assessment Privacy Impact Assessment process and pro- process and other concerns that may arise vides detail about the privacy issues and pri- with respect to privacy. vacy questions to be answered to complete Review of the Privacy Impact Assessment the Privacy Impact Assessment. Major Com- Document. Submit the completed Privacy mand Privacy Act Officers may use Appendix Impact Assessment document to the Major E, Sections A, B, D, and E for this purpose. Command Privacy Act Office for review. The The intended audience is the personnel re- purpose of the review is to identify privacy sponsible for writing the Privacy Impact As- risks in the system. sessment document. Approval of the Privacy Impact Assess- The Privacy Impact Assessment Docu- ment. The system life cycle review process ment. Preparing the Privacy Impact Assess- (Command, Control, Communications, Com- ment document requires the system owner puters, and Intelligence Support Plan) will and developer to answer the privacy ques- be used to validate the incorporation of the tions in Section E. A brief explanation design requirements to resolve the privacy should be written for each question. Issues risks. Major Command and Headquarters Air that do not apply to a system should be Force Functional CIOs will issue final ap- noted as ‘‘Not Applicable.’’ During the devel- proval of the Privacy Impact Assessment.

TABLE A4.1.—OUTLINE OF STEPS FOR COMPLETING A PRIVACY IMPACT ASSESSMENT

Step Who Procedure

1 ...... System Owner, and Developer ...... Request and complete Privacy Impact Assess- ment Training. 2 ...... System Owner, and Developer...... Answer the questions in Section E, Privacy Questions. For assistance contact your Major Command Privacy Act Officer. 3 ...... System Owner, and Developer ...... Submit the Privacy Impact Assessment document to the Major Command Privacy Act Officer. 4 ...... Major Command Privacy Act Officer ...... Review the Privacy Impact Assessment document to identify privacy risks from the information provided. The Major Command Privacy Act Officer will get clarification from the owner and developer as needed. 5 ...... System Owner and Developer, Major Command The System Owner, Developer and the Major Privacy Act Officer. Command Privacy Act Officer should reach agreement on design requirements to resolve all identified risks. 6 ...... System Owner, Developer, and Major Command Participate in the required system life cycle re- Privacy Act Officer. views to ensure satisfactory resolution of identified privacy risks to obtain formal approval from the Major Command or Headquarters Air Force Functional CIO. 7 ...... Major Command or Headquarters Air Force Issue final approval of Privacy Impact Assess- Functional CIO. ment, and send a copy to Air Force Chief Infor- mation Officer/P. 8 ...... Air Force Chief Information Officer/P ...... When feasible, publish Privacy Impact Assess- ment on Freedom of Information Act Web page (http://www.foia.af.mil).

Section D—Privacy Issues in Information agency required to be accomplished by stat- Systems ute or by executive order of the President; Collect information to the greatest extent Privacy Act of 1974, 5 U.S.C. 552a as Amended practicable directly from the subject indi- Title 5, U.S.C., 552a, The Privacy Act of vidual when the information may result in 1974, as amended, requires Federal Agencies adverse determinations about an individual’s to protect personally identifiable informa- rights, benefits, and privileges under Federal tion. It states specifically: programs; Each agency that maintains a system of Maintain all records used by the agency in records shall: making any determination about any indi- Maintain in its records only such informa- vidual with such accuracy, relevance, timeli- tion about an individual as is relevant and ness, and completeness as is reasonably nec- necessary to accomplish a purpose of the essary to assure fairness to the individual in the determination;

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00078 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 806b, App. E

Establish appropriate administrative, Given the availability of vast amounts of technical and physical safeguards to ensure stored information and the expanded capa- the security and confidentiality of records bilities of information systems to process and to protect against any anticipated the information, it is foreseeable that there threats or hazards to their security or integ- will be increased requests to share that in- rity which could result in substantial harm, formation. With the potential expanded uses embarrassment, inconvenience, or unfairness of data in automated systems it is important to any individual on whom information is to remember that information can only be maintained. used for the purpose for which it was collected unless other uses are specifically au- Definitions thorized or mandated by law. If the data is Accuracy—within sufficient tolerance for to be used for other purposes, then the public error to assure the quality of the record in must be provided notice of those other uses. terms of its use in making a determination. These procedures do not in themselves create Completeness—all elements necessary for any legal rights, but are intended to express making a determination are present before the full and sincere commitment of the Air such determination is made. Force to protect individual privacy rights Determination—any decision affecting an and which provide redress for violations of individual which, in whole or in part, is those rights. based on information contained in the record and which is made by any person or agency. DATA IN THE SYSTEM Necessary—a threshold of need for an ele- The sources of the information in the sys- ment of information greater than mere rel- tem are an important privacy consideration evance and utility. if the data is gathered from other than Air Record—any item, collection or grouping Force records. Information collected from of information about an individual and iden- non-Air Force sources should be verified, to tifiable to that individual that is maintained the extent practicable, for accuracy, that the by an agency. information is current, and complete. This is Relevance—limitation to only those ele- especially important if the information will ments of information that clearly bear on be used to make determinations about indi- the determination(s) for which the records viduals. are intended. Routine Use—with respect to the disclo- Access to the Data sure of a record, the use of such record outside DoD for a purpose that is compatible Who has access to the data in a system with the purpose for which it was collected. must be defined and documented. Users of System of Records—a group of any records the data can be individuals, other systems, under the control of any agency from which and other agencies. Individuals who have ac- information is retrieved by the name of the cess to the data can be system users, system individual or by some identifying number, administrators, system owners, managers, symbol, or other identifying particular as- and developers. When individuals are granted signed to the individual. access to a system, their access should be Timeliness—sufficiently current to ensure limited, where possible, to only that data that any determination based on the record needed to perform their assigned duties. If will be accurate and fair. individuals are granted access to all of the data in a system, procedures need to be in Information and Privacy place to deter and detect browsing and unau- To fulfill the commitment of the Air Force thorized access. Other systems are any pro- to protect personal information, several grams or projects that interface with the issues must be addressed with respect to pri- system and have access to the data. Other vacy. agencies can be International, Federal, state, The use of information must be controlled. or local entities that have access to Air Information may be used only for a nec- Force data. essary and lawful purpose. Attributes of the Data Individuals must be informed in writing of the principal purpose and routine uses of the When requirements for the data to be used information being collected from them. in the system are being determined, those re- Information collected for a particular pur- quirements must include the privacy at- pose should not be used for another purpose tributes of the data. The privacy attributes without the data subject’s consent unless are derived from the legal requirements im- such other uses are specifically authorized or posed by The Privacy Act of 1974. First, the mandated by law. data must be relevant and necessary to ac- Any information used must be sufficiently complish the purpose of the system. Second, accurate, relevant, timely and complete to the data must be complete, accurate, and assure fair treatment of the individual. timely. It is important to ensure the data

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00079 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 806b, App. E 32 CFR Ch. VII (7–1–05 Edition)

has these privacy attributes in order to as- 6. Will other agencies have access to the sure fairness to the individual in making de- data in the system? cisions based on the data. a. Will other agencies share data or have access to data in this system (International, Maintenance of Administrative Controls Federal, State, Local, Other)? Automation of systems can lead to the b. How will the data be used by the agency? consolidation of processes, data, and the con- c. Who is responsible for assuring proper trols in place to protect the data. When ad- use of the data? ministrative controls are consolidated, they d. How will the system ensure that agen- should be evaluated so that all necessary cies only get the information they are enti- controls remain in place to the degree nec- tled to under applicable laws? essary to continue to control access to and Attributes of the Data use of the data. Document record retention and disposal procedures and coordinate them 1. Is the use of the data both relevant and with the Major Command Records Manager. necessary Data to the purpose for which the system is being designed? Section E—Privacy Questions 2. Will the system create new data about an individual? Data in the System a. Will the system derive new data or cre- 1. Generally describe the information to be ate previously unavailable data about an in- used in System the system. dividual through aggregation from the infor- 2. What are the sources of the information mation collected? in the system? b. Will the new data be placed in the indi- a. What Air Force files and databases are vidual’s record? used? c. Can the system make determinations b. What Federal Agencies are providing about the record subject that would not be data for use in the system? possible without the new data? d. How will the new data be verified for rel- c. What State and local agencies are pro- evance and accuracy? viding data for use in the system? 3. Is data being consolidated? d. What other third party sources will data a. If data is being consolidated, what con- be collected from? trols are in place to protect the data from e. What information will be collected from unauthorized access or use? the employee? b. If processes are being consolidated, are 3. Is data accurate and complete? the proper controls remaining in place to a. How will data collected from sources protect the data and prevent unauthorized other than Air Force records and the subject access? Explain. be verified for accuracy? 4. How will the data be retrieved? Is it re- b. How will data be checked for complete- trieved by a personal identifier? If yes, ex- ness? plain. c. Is the data current? How do you know? 4. Are the data elements described in detail Maintenance of Administrative Controls and documented? If yes, what is the name of (1) a. Explain how the system and its use the document? will ensure Administrative equitable treat- Access to the Data ment of record subjects. b. If the system is operated at more than 1. Who will have access to the data in the one location, how will consistent use of the system Data (Users, Managers, System Ad- system and data be maintained? ministrators, Developers, Other)? c. Explain any possibility of disparate 2. How is access to the data by a user de- treatment of individuals or groups. termined? Are criteria, procedures, controls, (2) a. Coordinate proposed maintenance and responsibilities regarding access docu- and disposition of the records with the Major mented? Command Records Manager. 3. Will users have access to all data on the b. While the data is retained in the system, system or will the user’s access be re- what are the requirements for determining if stricted? Explain. the data is still sufficiently accurate, rel- 4. What controls are in place to prevent the evant, timely, and complete to ensure fair- misuse (e.g., browsing) of data by those hav- ness in making determinations? ing access? (3) a. Is the system using technologies in 5. Does the system share data with another ways that the Air Force has not previously system? employed? a. Do other systems share data or have ac- b. How does the use of this technology af- cess to data in this system? If yes, explain. fect personal privacy? b. Who will be responsible for protecting (4) a. Will this system provide the capa- the privacy rights of the employees affected bility to identify, locate, and monitor indi- by the interface? viduals? If yes, explain.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00080 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 807.3

b. Will this system provide the capability the chief, base information manage- to identify, locate, and monitor groups of ment, for processing. people? If yes, explain. (c) Units will process requests under c. What controls will be used to prevent unauthorized monitoring? the Foreign Military Sales Program (5) a. Under which Systems of Record no- (FMS) as specified in AFR 4–71, chapter tice does the system operate? Provide num- 11. ber and name. (d) Units will send requests from for- b. If the system is being modified, will the eign governments, their representa- system of record require amendment or revi- tives, or international organizations to sion? Explain. the MAJCOM foreign disclosure policy office and to HQ USAF/CVAII, Wash- PART 807—SALE TO THE PUBLIC ington DC 20330–5000. Also send information copies of such requests to the Sec. base public affairs office. Commands 807.1 General requirements. will supplement this requirement to in- 807.2 Charges for publications and forms. 807.3 Requests for classified material, For clude policies pertaining to those items Official Use Only material, accountable for which they have authority to re- forms, storage safeguard forms, Limited lease. (L) distribution items, and items with re- (e) Units will return a request for strictive distribution caveats. non-Air Force items to the requester 807.4 Availability and nonavailability of for submission to appropriate agency. stock. 807.5 Processing requests. 807.6 Depositing payments. § 807.2 Charges for publications and forms. AUTHORITY: 10 U.S.C. 8013. (a) The Air Force applies charges to SOURCE: 55 FR 36631, Sept. 6, 1990, unless all requests unless specifically ex- otherwise noted. cluded. (b) The Air Force applies charges ac- § 807.1 General requirements. cording to part 813, Schedule of Fees (a) Unaltered Air Force publications for Copying, Certifying, and Searching and forms will be made available to the Records and Other Documentary Mate- public with or without charge, subject rial. Additional guidance is in part 812, to the requirements of this part. Base User Charges, including specific exclu- Chiefs of Information Management will sion from charges as listed in § 812.5. As set up procedures to meet these needs indicated, the list of exclusions is not and will make available Master Publi- all inclusive and recommendations for cations Libraries for public use accord- additional exclusions are sent to the ing to AFR 4–61. They will also advise office of primary responsibility for part requesters that these libraries are 812 of this chapter. available, since in many cases this will (c) When a contractor requires publi- satisfy their needs and reduce work- cations and forms to perform a con- loads in processing sales requests. If tract, the Air Force furnishes them the item is on sale by the Super- without charge, if the government con- intendent of Documents, GPO, refer tracting officer approves these require- the request to that outlet. Refer gen- ments. eral public requests for Air Force administrative publications and forms to § 807.3 Requests for classified mate- the National Technical Information rial, For Official Use Only material, Service (NTIS), Defense Publication accountable forms, storage safe- Section, US Department of Commerce, guard forms, Limited (L) distribu- 4285 Port Royal Road, Springfield, VA tion items, and items with restric- 22161–0001. tive distribution caveats. (b) The Air Force does not consider (a) Classified material. The unit re- these unaltered publications and forms ceiving the requests should tell the reas records, within the meaning of the quester that the Air Force cannot au- Freedom of Information Act (FOIA), as thorize the material for release be- outlined in 5 U.S.C. 552 and imple- cause it is currently and properly clas- mented by part 806 of this chapter. sified in the interest of national secu- Refer requests that invoke the FOIA to rity as authority by Executive Order,

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00081 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 807.4 32 CFR Ch. VII (7–1–05 Edition)

and must be protected from unauthor- § 807.5 Processing requests. ized disclosure. Payment is required before shipping (b) For Official Use Only (FOUO) mate- the requested material. Payment must rial. The office of primary responsi- be by check or money order. bility for the material will review (a) Upon receipt of the request, deter- these requests to determine the mate- mine the cost involved and request the rial’s releasability. material. (c) Accountable forms. The unit receiv- (b) Upon receipt of the item, advise ing the request will return it to the re- the requester to resubmit the required quester stating that the Air Force payment and send the material after stringently controls these forms and payment is received. cannot release them to unauthorized (c) If the material cannot be ob- personnel since their misuse could tained, advise the requester of the rea- jeopardize Department of Defense secu- son. rity or could result in fraudulent finan- § 807.6 Depositing payments. cial gain or claims against the govern- Obtain instructions from the local ment. Accounting and Finance Office regard- (d) Storage safeguard forms. The unit ing how checks or money orders must receiving these requests returns them be prepared and required procedures for to the requesters stating that the Air depositing them. Force specially controls these forms and that they are not releasable out- PART 809a—INSTALLATION ENTRY side the Department of Defense since POLICY, CIVIL DISTURBANCE they could be put to unauthorized or INTERVENTION AND DISASTER fraudulent use. (e) Limited (L) distribution items are ASSISTANCE not releasable outside the Department Sec. of Defense without special review ac- 809a.0 Purpose. cording to AFR 700–6. Units receiving these requests should refer them to the Subpart A—Installation Entry Policy SCS manager shown in the index or on 809a.1 Random installation entry point the cover of the publications. Advise checks. the requesters of the referral. 809a.2 Military responsibility and author- (f) Items with restrictive distribution ca- ity. veats. Some publications have restric- 809a.3 Unauthorized entry. 809a.4 Use of Government facilities. tive distribution caveats on the cover. 809a.5 Barment procedures. Follow the instructions stated and advise the requesters of the referral. Subpart B—Civil Disturbance Intervention and Disaster Assistance § 807.4 Availability and nonavailability of stock. 809a.6 Authority. 809a.7 Definitions. (a) Limit quantities furnished so that 809a.8 Installation policies and laws. stock levels required for operational 809a.9 Conditions for use of Air Force re- Air Force support are not jeopardized. sources. 809a.10 Military commanders’ responsibil- (b) If the item is not available from ities. publishing distribution office (PDO) 809a.11 Procedures outside the United stock, obtain it from the Air Force States. Publishing Distribution Center. If the AUTHORITY: 10 U.S.C. 332 and 333. item is under revision, advise the requester that it is being revised and SOURCE: 67 FR 13718, Mar. 26, 2002, unless otherwise noted. that no stock is available. (c) If stocks are not available and the § 809a.0 Purpose. item is being reprinted, advise the re- This part prescribes the commanders’ quester that stocks are expected to be authority for enforcing order within or available in 90 calendar days and to re- near Air Force installations under submit at that time. their jurisdiction and controlling entry

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00082 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 809a.6

to those installations. It provides guid- ditions governing access to their in- ance for use of military personnel in stallation. controlling civil disturbances and in supporting disaster relief operations. § 809a.3 Unauthorized entry. This part applies to installations in the Under Section 21 of the Internal Se- United States, its territories and pos- curity Act of 1950 (50 U.S.C. 797), any sessions, and will be used to the max- directive issued by the commander of a imum extent possible in the overseas military installation or facility, which commands. Instructions issued by the includes the parameters for authorized appropriate overseas commander, sta- entry to or exit from a military instal- tus of forces agreements, and other lation, is legally enforceable against international agreements provide more all persons whether or not those per- definitive guidance for the overseas sons are subject to the Uniformed Code commands. Nothing in this part should of Military Justice (UCMJ). Military be construed as authorizing or requir- personnel who reenter an installation ing security forces units to collect and after having been properly ordered not maintain information concerning per- to do so may be apprehended. Civilian sons or organizations having no affili- violators may be detained and either ation with the Air Force other than a escorted off the installation or turned list of persons barred from the installa- over to proper civilian authorities. Ci- tion. vilian violators may be prosecuted under 18 U.S.C. 1382. Subpart A—Installation Entry Policy § 809a.4 Use of Government facilities. Commanders are prohibited from au- § 809a.1 Random installation entry thorizing demonstrations for partisan point checks. political purposes. Demonstrations on any Air Force installation for other The installation commander deter- than political purposes may only occur mines when, where, and how to imple- with the prior approval of the installa- ment random checks of vehicles or pe- tion commander. Demonstrations that destrians. The commander conducts could result in interference with, or random checks to protect the security prevention of, the orderly accomplish- of the command or to protect government of the mission of an installation ment property. or that present a clear danger to loy- § 809a.2 Military responsibility and au- alty, discipline or morale of members thority. of the Armed Forces will not be approved. (a) Air Force installation commanders are responsible for protecting § 809a.5 Barment procedures. personnel and property under their ju- Under the authority of 50 U.S.C. 797, risdiction and for maintaining order on installation commanders may deny ac- installations, to ensure the uninter- cess to the installation through the use rupted and successful accomplishment of a barment order. Barment orders of the Air Force mission. should be in writing but may also be (b) Each commander is authorized to oral. Security forces maintain a list of grant or deny access to their installa- personnel barred from the installation. tions, and to exclude or remove persons whose presence is unauthorized. In excluding or removing persons from the Subpart B—Civil Disturbance Inter- installation, the installation com- vention and Disaster Assist- mander must not act in an arbitrary or ance capricious manner. Their action must be reasonable in relation to their re- § 809a.6 Authority. sponsibility to protect and to preserve The authority to intervene during order on the installation and to safe- civil disturbances and to provide dis- guard persons and property thereon. As aster assistance is bound by directives far as practicable, they should pre- issued by competent authorities. scribe by regulation the rules and con- States must request federal military

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00083 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 809a.7 32 CFR Ch. VII (7–1–05 Edition)

intervention or aid directly from the ters only when such assistance is re- President of the United States by the quested or directed. Commanders will state’s legislature or executive. Instal- not undertake such assistance without lation commanders must immediately authority, unless the overruling de- report these requests in accordance mands of humanity compel immediate with AFI 10–802, Military Support to action to protect life and property and Civil Authorities (Available from Na- to restore order. tional Technical Information Service, (b) The military service having avail- 5285 Port Royal Road, Springfield, VA able resources nearest the affected area 22161.). is responsible for providing initial assistance to civil authorities in emer- § 809a.7 Definitions. gencies. Subsequent operations are to The following definitions apply to be according to the mutual agreement this part: between the senior service commanders (a) Emergencies. These are conditions concerned. which affect public welfare and occur (c) The protection of life and prop- as a result of enemy attack, insurrec- erty and the maintenance of law and tion, civil disturbances, earthquake, order within the territorial jurisdiction fire, flood, or other public disasters of any State is the primary responsi- which endanger life and property or bility of State and local authorities. It disrupt the usual process of govern- is well-established U.S. Government ment. The term ‘‘emergency’’ includes policy that intervention with military any or all of the conditions explained forces takes place only after State and in this section. local authorities have used their own (b) Civil defense emergency. This is a forces and are unable to control the disaster situation resulting from devas- situation, or when they do not take ap- tation created by an enemy attack and propriate action. requiring emergency operations during and following attack. It may also be § 809a.9 Conditions for use of Air proclaimed by appropriate authority in Force resources. anticipation of an attack. (c) Civil disturbances. These are group This part is not intended to extend acts of violence or disorder prejudicial Air Force responsibilities in emer- to public law and order including those gencies to generate additional re- which follow a major disaster. They in- sources (manpower, materiel, facilities, clude riots, acts of violence, insurrec- etc.) requirements, or encourage par- tions, unlawful obstructions or assem- ticipation in such operations at the ex- blages, or other disorders. pense of the Air Force primary mis- (d) Major disaster. Any flood, fire, sion. It is a guide for the employment hurricane, or other catastrophe which, of Air Force resources when: in the determination of the President, (a) A disaster or disturbance occurs is or threatens to be of sufficient sever- in areas in which the U.S. Air Force is ity and magnitude to warrant disaster the executive agent of the United assistance by the Federal Government States. to supplement the efforts and available (b) A disaster or disturbance occurs resources of the State and local gov- in areas that are remote from an Army ernments in alleviating the damage, installation but near an Air Force in- hardship, or suffering caused thereby. stallation, thereby necessitating Air Force assumption of responsibility § 809a.8 Installation policies and laws. pending arrival of Army personnel. This subpart contains policies on the (c) The overriding demand of condi- use of Air Force military personnel in tions resulting from a natural disaster civil disturbances and disasters. The compels immediate action to protect more important laws concerning mili- life and property and to restore order. tary aid to civil authorities are also summarized. § 809a.10 Military commanders’ re- (a) The Air Force gives military as- sponsibilities. sistance to civil authorities in civil de- (a) Civilians in the affected area will fense or civil disturbances and disas- be informed of the rules of conduct and

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00084 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 809a.11

other restrictive measures to be en- should be made for the identification forced by the military. These will be and voluntary use of individual em- announced by local proclamation or ployees to the extent that the needs for order, and will be given the widest pub- their services are anticipated. licity by all available media. (b) Persons not normally subject to § 809a.11 Procedures outside the military law, who are taken into cus- United States. tody by military forces incident to It is Air Force policy to make every civil disturbances, will be turned over reasonable effort to avoid any con- to the civil authorities as soon as pos- frontation between United States mili- sible. tary forces and host nation demonstra- (c) Military forces will ordinarily exercise police powers previously inoper- tors or other dissidents posing a threat ative in an affected area; restore and to Air Force resources. Intervention by maintain order; maintain essential United States military personnel out- transportation and communication; side the United States is governed by and provide necessary relief measures. international law, bilateral and other (d) U.S. Air Force civilian employees international agreements to which the may be used, in any assignments in United States is a party, and host-na- which they are capable and willing to tion laws. Local plans to counter such serve. In planning for on-base contin- situations must include provisions to gencies of fires, floods, hurricanes, and request and obtain host nation civil or other natural disasters, arrangements military support as quickly as possible.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00085 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER B—SALES AND SERVICES

PART 811—RELEASE, DISSEMINA- release of classified and unclassified TION, AND SALE OF VISUAL IN- materials to foreign governments and FORMATION MATERIALS international organizations or their representatives.

Sec. § 811.3 Official requests for visual in- 811.1 Exceptions. formation productions or materials. 811.2 Release of visual information materials. (a) Send official Air Force requests 811.3 Official requests for visual informa- for productions or materials from the tion productions or materials. DoD Central Records Centers by letter 811.4 Selling visual information materials. or message. Include: 811.5 Customers exempt from fees. (1) Descriptions of the images needed, 811.6 Visual information product/material including media format, dates, etc. loans. 811.7 Collecting and controlling fees. (2) Visual information record identi- 811.8 Forms prescribed and availability of fication number (VIRIN), production, publications. or Research, development, test, and evaluation (RDT&E) identification AUTHORITY: 10 U.S.C. 8013. numbers, if known. SOURCE: 65 FR 64619, Oct. 30, 2000, unless (3) Intended use and purpose of the otherwise noted. material. (4) The date needed and a statement § 811.1 Exceptions. of why products are needed on a spe- The regulations in this part do not cific date. apply to: (b) Send inquiries about motion pic- (a) Visual information (VI) materials ture or television materials to the De- made for the Air Force Office of Spe- fense Visual Information Center cial Investigations for use in an inves- (DVIC), 1363 Z Street, Building 2730, tigation or a counterintelligence re- March ARB, CA 92518–2703. port. (See Air Force Instruction (AFI) (c) Send Air Force customer inquiries 90–301, The Inspector General Com- about still photographic materials to plaints, which describes who may use 11 CS/SCUA, Bolling AFB, Washington, these materials.) DC 20332–0403 (the Air Force (b) VI materials made during Air accessioning point). Force investigations of aircraft or mis- (d) Send non-Air Force customers’ in- sile mishaps according to AFI 91–204, quiries about still photographic mate- Safety Investigations and Reports. (See rials to the DVIC. AFI 90–301.) § 811.4 Selling visual information ma- § 811.2 Release of visual information terials. materials. (a) Air Force VI activities cannot sell (a) Only the Secretary of the Air materials. Force for Public Affairs (SAF/PA) (b) HQ AFCIC/ITSM may approve the clears and releases Air Force materials loan of copies of original materials for for use outside Department of Defense federal government use. (DoD), according to AFI 35–205, Air (c) Send requests to buy: Force Security and Policy Review Pro- (1) Completed, cleared, productions, gram. to the National Archives and Records (b) The Secretary of the Air Force for Administration, National Audiovisual Legislative Liaison (SAF/LL) arranges Center, Information Office, 8700 Edge- the release of VI material through worth Drive, Capitol Heights, MD SAF/PA when a member of Congress 20722–3701. asks for them for official use. (2) Nonproduction VI motion media (c) The International Affairs Division to the DVIC. The center may sell other (HQ USAF/CVAII) or, in some cases, Air Force VI motion picture and tele- the major command (MAJCOM) For- vision materials, such as historical and eign Disclosure Office, must authorize stock footage. When it sells VI motion

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00086 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 811.8

media, the DVIC assesses charges, un- be inappropriate. AFI 16–101, Inter- less § 811.5 exempts the requesting ac- national Affairs and Security Assist- tivity. ance Management, tells how a foreign (3) VI still media to the DoD Still government may obtain Air Force VI Media Records Center (SMRC), Attn: materials. SSRC, Washington, DC 20374–1681. (i) Legitimate news organizations When SMRC sells VI still media, the working on news productions, docu- SMRC assesses charges, unless § 811.5 mentaries, or print products that in- exempts the requesting activity. form the public on Air Force activities.

§ 811.5 Customers exempt from fees. § 811.6 Visual information product/ma- Title III of the 1968 Intergovern- terial loans. mental Cooperation Act (42 U.S.C. 4201, (a) You may request unclassified and 4231, and 4233) exempts some customers classified copies of current Air Force from paying for products and loans. productions and loans of DoD and other This applies if the supplier has suffi- Federal productions from JVISDA, cient funds and if the exemption does ATTN: ASQV-JVIA-T-AS, Bldg. 3, Bay not impair its mission. The requesting 3, 11 Hap Arnold Blvd., Tobyhanna, PA agency must certify that the materials 18466–5102. are not commercially available. When (1) For unclassified products, use requests for VI material do not meet your organization’s letterhead, identify exemption criteria, the requesting subject title, PIN, format, and quan- agency pays the fees. Exempted cus- tity. tomers include: (2) For classified products, use your (a) DoD and other government agen- organization’s letterhead, identify sub- cies asking for materials for official ac- ject title, personal identification num- tivities (see DoD Instruction 4000.19, ber (PIN), format, and quantity. Also, Interservice, and Intergovernmental indicate that either your organization Support, August 9, 1995, and DoD Direc- commander or security officer, and tive 5040.2, Visual Information (VI), De- MAJCOM VI manager approve the cember 7, 1987. need. (b) Members of Congress asking for (b) You may request other VI mate- VI materials for official activities. rials, such as, still images and motion (c) VI records center materials or media stock footage, from DVIC/OM- services furnished according to law or PA, 1363 Z Street, Building 2730, March Executive Order. ARB, CA 92518–2703. (d) Federal, state, territorial, county, municipal governments, or their agen- § 811.7 Collecting and controlling fees. cies, for activities contributing to an (a) The DoD records centers usually Air Force or DoD objective. collect fees in advance. Exceptions are (e) Nonprofit organizations for public sales where you cannot determine ac- health, education, or welfare purposes. tual cost until work is completed (for (f) Armed Forces members with a example, television and motion picture casualty status, their next of kin, or services with per minute or per footage authorized representative, if VI mate- charges). rial requested relates to the member (b) Customers pay fees, per AFR 177– and does not compromise classified in- 108, Paying and Collecting Trans- formation or an accident investigation actions at Base Level, with cash, treas- board’s work. ury check, certified check, cashier’s (g) The general public, to help the check, bank draft, or postal money Armed Forces recruiting program or order. enhance public understanding of the Armed Forces, when SAF/PA deter- § 811.8 Forms prescribed and avail- mines that VI materials or services ability of publications. promote the Air Force’s best interest. (a) AF Form 833, Visual Information (h) Incidental or occasional requests Request, AF Form 1340, Visual Infor- for VI records center materials or serv- mation Support Center Workload Re- ices, including requests from residents port, DD Form 1995, Visual Information of foreign countries, when fees would (VI) Production Request and Report,

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00087 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 813 32 CFR Ch. VII (7–1–05 Edition)

DD Form 2054–1, Visual Information (b) Visual information forces with (VI) Annual Report, and DD Form 2537, combat documentation capabilities Visual Information Caption Sheet are from other commands: HQs ACC, prescribed by this part. AETC, AFRES, and AFSPACECOM. (b) Air Force publications and forms (c) Communications squadron base referenced in this part are available visual information centers (BVISCs). from NTIS, 5285 Port Royal Road, (d) Air Digital Recorder (ADR) im- Springfield, VA 22161 or online at http:// ages from airborne imagery systems, www.afpubs.hq.af.mil. DoD publications such as heads up displays, radar scopes, are available at http:// and images from electro-optical sen- www.defenselink.mil/pubs. sors carried aboard aircraft and weapons systems. PART 813—VISUAL INFORMATION (e) Photography of Air Force Re- DOCUMENTATION PROGRAM search, Development, Test & Evalua- tion (RDT&E) activities, including high speed still and motion media opti- Sec. 813.1 Purpose of the visual information doc- cal instrumentation. umentation (VIDOC) program. 813.2 Sources of VIDOC. § 813.3 Responsibilities. 813.3 Responsibilities. (a) HQ AFCIC/ITSM: 813.4 Combat camera operations. (1) Sets Air Force VIDOC policy. 813.5 Shipping or transmitting visual infor- (2) Oversees United States Air Force mation documentation images. (USAF) COMCAM programs and com- 813.6 Planning and requesting combat docu- bat readiness. mentation. 813.7 Readiness reporting. (3) Makes sure Air Force participates in joint actions by coordinating with AUTHORITY: 10 U.S.C. 8013. the Office of the Secretary of Defense SOURCE: 65 FR 64621, Oct. 30, 2000, unless staff, Joint Chiefs of Staff (JCS), exec- otherwise noted. utive departments, and other branches of the United States Government. § 813.1 Purpose of the visual informa- (4) Approves use of Air Force tion documentation (VIDOC) pro- COMCAM forces in non-Air Force ac- gram. tivities. Using various visual and audio (b) Air components: media, the Air Force VIDOC program (1) Manage air component COMCAM records important Air Force oper- and visual information support within ations, historical events, and activities their areas of responsibility. Docu- for use as decision making and commu- ments significant events and oper- nicative tools. VIDOC of Air Force ations for theater and national-level combat operations is called COMCAM use. documentation. Air Force publications (2) Sets requirements for COMCAM are available at NTIS, 5285 Port Royal and VI support. Includes requirements Road, Springfield, VA 22161 or online at in operations plans (OPLAN) force http://www.afpubs.hq.af.mil. DoD publi- lists, concept plans (CONPLAN), oper- cations are available at http:// ations orders (OPORD), and similar www.defenselink.mil/pubs. documents. See Air Force Manual (AFMAN) 10–401, Operation Plan and § 813.2 Sources of VIDOC. Concept Plan Development and Imple- Primary sources of VIDOC materials mentation. include: (3) Coordinate with MAJCOM VI (a) HQ AMC active and reserve com- managers to plan and source VIDOC bat camera (COMCAM) forces, both forces for war, contingencies, and exer- ground and aerial, whose primary goal cises. is still and motion media documenta- (4) Provide input (VI and COMCAM tion of Air Force and air component requirements) to HQ AMC/SCMV, 203 combat and combat support operations, West Losey Street, Room 3180, Scott and related peacetime activities such AFB, IL 62225–5223, as required to de- as humanitarian actions, exercises, velop the annual VI Exercise Support readiness tests, and operations. Plan. Include requirements to exercise

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00088 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 813.4

VI forces to refine operational proce- events, Air Force and joint exercises, dures and meet defined objectives. and weapons tests. (c) HQ AMC: (3) Make sure COMCAM and BVISC (1) Provides primary Air Force ADR forces meet their wartime tasking and theater support to the air component identify and resolve deficiencies. Refer commanders. significant deficiencies and problems (2) Maintains a deployable theater and proposed resolution to HQ AFCIC/ support Unified Transportation Com- ITSM. mand (UTC) to manage ADR require- (4) Allow documentation of signifi- ments above the aviation wing level. cant Air Force activities and events, This includes the gathering, editing, regardless of their sensitivity or classi- copying, and distribution of ADR images from combat aviation squadrons fication. Protect materials as the sup- for operational analysis, bomb damage ported command directs. Safeguard assessment, collateral intelligence, classified images or handle them ac- training, historical, public affairs, and cording to Department of Defense other needs. (DoD) Directive 5200.1, DoD Informa- (3) Sets combat training standards tion Security Program, June 7, 1982, and develops programs for all Air Force with Changes 1 and 2, and AFI 31–401, COMCAM personnel (includes both for- Information Security Program Man- mal classroom and field readiness agement. The authority in charge of training). the event or operation approves docu- (4) Coordinates and meets COMCAM mentation distribution. needs in war, operations, and concept (5) Update UTC availability in plans. MAJCOM information systems. (5) Provides the Air Force’s primary (6) Assist Air Force Operations COMCAM capability and assists air Group, in identifying the command’s component and joint commands with capability to support COMCAM and VI deliberate and crisis action planning requirements. for USAF’s COMCAM assets. (7) Provide inputs to HQ AMC/SCMV (6) Provides component and theater for the annual VI Exercise Support commands COMCAM planning assist- Plan for JCS exercises. ance and expertise for contingencies, humanitarian actions, exercises, and (8) Make sure units that have combat operations. deployable VI teams have Status of Re- (7) Acts as manpower and equipment sources and Training System (SORTS) force packaging (MEFPAK) manager reportable designed operational capa- for COMCAM UTCs. bility (DOC) statements that accu- (8) Funds HQ AMC COMCAM per- rately reflect their mission and sonnel and equipment for contingency taskings. or wartime deployments. (The re- (9) Develop and oversee measure- quester funds temporary duty and sup- ments, such as operational readiness ply costs for planned events, such as inspection criteria, to evaluate VI non-JCS exercises and competitions.) force readiness at DOC-tasked units. (9) Develops and monitors the annual Air Force-wide VI Exercise Support § 813.4 Combat camera operations. Plan for the Air Staff, with assistance (a) Air Force COMCAM forces docu- from air components and supporting ment Air Force and air component ac- MAJCOMs. (Use criteria contained in tivities. § 813.4(e)(1) and provide equitable deployment opportunity for tasked com- (b) The supported unified command mands’ VI resources.) or joint task force commander, (d) MAJCOM VI managers: through the air component commander (1) Plan and set policy for docu- (when assigned), controls Air Force menting activities of operational, his- COMCAM forces in a joint environ- torical, public affairs, or other signifi- ment. If an air component is assigned, cance within their commands. the air component normally manages (2) Train and equip VIDOC forces to documentation of its operations. Air document war, contingencies, major Force COMCAM and visual information

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 813.5 32 CFR Ch. VII (7–1–05 Edition)

support for joint operations will be pro- (c) Identification of VIDOC materials. portionate to USAF combat force par- Clearly identify all VIDOC and ticipation. In airlift operations, HQ COMCAM material with slates, cap- AMC may be the supported command. tions, and cover stories. (c) During contingencies, exercises, and other operations, the Air Force § 813.6 Planning and requesting com- provides its share of Unified Command bat documentation. headquarters COMCAM and visual in- (a) Planned combat documentation. Air formation support forces for still pho- components identify documentation tographic, motion media, graphics, and needs as early as possible in OPLANs, other VI services. CONPLANs, and OPORDs and send cop- (d) COMCAM and VI forces take part ies of these plans to HQ AMC/SCMV, in Air Force and joint exercises to test 203 West Losey Street, Room 3180, procedures and over-all readiness. Scott AFB, IL 62225–5223. Include the COMCAM and VI forces also provide VI contact for planning and support. products to command, operations, pub- (b) Activity documentation. MAJCOMs lic affairs, historical, and other signifi- may request that HQ AMC document cant customers. their activities. Send information cop- (e) Sourcing COMCAM forces. See ies of requests to HQ AFCIC/ITSM, 1250 AFMAN 10–401 for specific procedures. Air Force Pentagon, Washington, DC (1) When VI support teams are re- 20330–1250, and HQ AMC/SCMV. When a quired, the lead wing’s VI UTC deploys supporting component command oper- as primary, whenever possible. If lead ationally controls HQ AMC COMCAM wing VI support is not available, the units, other organizations that need providing command sources the re- support must coordinate requests with quirement from other active or reserve the supported command. component forces, or coordinates with (c) Unplanned combat documentation. other MAJCOMs for assistance. Send short notice requests to the sup- (2) Air Force VI personnel who assist ported operational commander as soon supported commands in determining as possible, with information copies to COMCAM and VI requirements and HQ AFCIC/ITSM and HQ AMC/SCMO. sourcing consider the total USAF VI Identify end product requirements, community as a resource. Planners media formats, and deadlines. consider employing USAF deployable VI support teams, augmentation com- (d) Humanitarian, disaster relief, and bat documentation teams from contingencies. Theater commanders nor- AFSPACECOM, AETC, and ACC, as mally task the supporting component well as active and reserve COMCAM through the Joint Operation Planning teams. and Execution System, that in turn, requests support from HQ AMC. HQ § 813.5 Shipping or transmitting visual USAF can directly task HQ AMC to information documentation images. document humanitarian, disaster re- (a) COMCAM images. Send COMCAM lief, or contingency activities if it does images to the DoD Joint Combat Cam- not receive other tasking(s). In these era Center, Room 5A518, Pentagon, cases, coordinate with the supported Washington, DC 20330–3000, by the fast- unified command. est means possible, following the approval procedures that on-scene and § 813.7 Readiness reporting. theater commanders set. All Air Force units assigned a DOC (b) Other non-COMCAM images. After statement report readiness status use, send significant non-COMCAM im- through the SORTS process. See AFI ages to the appropriate DoD media 10–201, Status of Resources and Train- records center through the Air Force ing System, for specific information record center accessioning point. and reporting criteria.

SUBCHAPTER C—PUBLIC RELATIONS [RESERVED]

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER D—CLAIMS AND LITIGATION

PART 841—LICENSING GOVERN- 101–4, which implements Pub. L. 96–517. MENT-OWNED INVENTIONS IN It applies to all requests for a license THE CUSTODY OF THE DEPART- under an Air Force invention. MENT OF THE AIR FORCE § 841.1 Air Force policy. Subpart A—General Information Federally owned inventions in the custody of the Department of the Air Sec. Force normally will best serve the pub- 841.0 Purpose. lic interest when they are developed to 841.1 Air Force policy. 841.2 Execution of licenses. the point of practical application and 841.3 Delegation of authority. made available to the public in the 841.4 Definitions. shortest possible time. Nonexclusive, 841.5 Royalties. partially exclusive, or exclusive licenses for the practice of these inven- Subpart B—Restrictions and Conditions for tions may be granted to applicants who Licensing and Types of Licenses agree to develop and/or market the in- 841.6 Restrictions and conditions. ventions. All Air Force inventions nor- 841.7 Nonexclusive licenses. mally will be made available for the 841.8 Exclusive and partially exclusive li- granting of licenses to responsible ap- censes. plicants. 841.9 Additional licenses. 841.10 Foreign licenses. § 841.2 Execution of licenses. Subpart C—Licensing Procedures Nonexclusive, partially exclusive, or exclusive licenses will be executed on 841.11 Publication requirements. behalf of the Department of the Air 841.12 Request for a license. 841.13 Contents of a license application. Force by the Secretary or by anyone to 841.14 Published notices. whom this authority is delegated. 841.15 Determination to grant or deny exclusive or partially exclusive licenses. § 841.3 Delegation of authority. 841.16 Modification and termination. The administration of this part is 841.17 Appeals. delegated to The Judge Advocate Gen- Subpart D—Transfer of Custody of Govern- eral, who may redelegate the adminis- ment Inventions and Confidentiality of tration of this part to the Chief, Pat- Information ents Division, Office of The Judge Ad- vocate General. All communications 841.18 Transfer procedure. received in any Air Force activity re- 841.19 Confidentiality of plans and reports. questing information regarding the li- AUTHORITY: 10 U.S.C. 8012. censing of a Government invention will SOURCE: 50 FR 20563, May 17, 1985, unless be acknowledged and sent without fur- otherwise noted. ther action directly to HQ USAF/JACP, Washington DC 20324. Subpart A—General Information § 841.4 Definitions. § 841.0 Purpose. (a) Air Force invention means an in- This regulation prescribes the poli- vention, plant, or design which is cov- cies, administrative requirements, pro- ered by a patent or patent application cedures, terms, and conditions for li- in the United States, or a patent, pat- censing of rights in federally owned ent application, plant variety protec- patents and patent applications vested tion, or other form of protection in a in the United States of America in the foreign country, title to which has custody of the Department of the Air been assigned to or otherwise vested in Force. It is consistent with General the United States Government and in Services Administration Licensing of the custody of the Department of the Federally Owned Inventions, 41 CFR Air Force.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00091 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 841.5 32 CFR Ch. VII (7–1–05 Edition)

(b) Small business firm means a small (b) Conditions. Licenses shall contain business concern as defined in section 2 such terms and conditions as the Air of Pub. L. 85–536 (15 U.S.C. 632) and im- Force determines are appropriate for plementing regulations of the Adminis- the protection of the interests of the trator of the Small Business Adminis- Federal Government and the public and tration. are not in conflict with law or this (c) Practical Application means to part. The following terms and condi- manufacture in the case of a composi- tions apply to any license: tion or product, to practice in the case (1) The duration of the license shall of a process or method, or to operate in be for a period specified in the license the case of a machine or system; and in agreement, unless sooner terminated each case, under such conditions as to establish that the invention is being according to provisions therein. utilized and that its benefits are to the (2) The license may be granted for all extent permitted by law or Govern- or less than all fields of use of the in- ment regulations available to the pub- vention or in specified geographical lic on reasonable terms. areas, or both. (d) United States means the United (3) The license may extend to subsidi- States of America, its territories and aries of the licensee or other parties if possessions, the District of Columbia, provided for in the license but shall be and the Commonwealth of Puerto Rico. nonassignable without approval of the Air Force, except to the successor of § 841.5 Royalties. that part of the licensee’s business to (a) Royalties may or may not be which the invention pertains. charged under nonexclusive licenses (4) The license may provide the li- granted to US citizens and US corpora- censee the right to grant sublicenses tions on Government inventions; how- under the license, subject to the ap- ever, the Department of the Air Force proval of the Air Force. Each sub- may require other considerations when license shall make reference to the li- a royalty is not charged. cense, including the rights retained by (b) Normally, an exclusive or par- the Government, and a copy of each tially exclusive license on an Air Force sublicense shall be furnished to the Air invention will contain a royalty provi- Force. sion and/or other consideration flowing (5) The license shall require the li- to the Government. censee to carry out the plan for development or marketing of the invention, Subpart B—Restrictions and Con- or both, to bring the invention to prac- ditions for Licensing and tical application within a period speci- Types of Licenses fied in the license, and to continue to make the benefits of the invention rea- § 841.6 Restrictions and conditions. sonably accessible to the public. The following restrictions and condi- (6) The license shall require the li- tions apply to all licenses granted censee to report, at least annually, on under this part: the utilization or efforts at obtaining (a) Restrictions: (1) A license may be utilization that are made by the li- granted only if the applicant has sup- censee, with particular reference to the plied the Air Force with a satisfactory plan submitted. plan for development or marketing of the invention, or both, and with infor- (7) Licenses may be royalty-free or mation about the applicant’s capa- for royalties or other consideration. bility to fulfill the plan. (8) When the licensee agrees that any (2) A license granting rights to use or products embodying the invention or sell under an Air Force invention in produced through use of the invention the United States shall normally be will be manufactured substantially in granted only to a licensee who agrees the United States, the license shall re- that any product embodying the inven- cite such agreement. tion or produced through the use of the (9) The license shall provide for the invention will be manufactured sub- right of the Air Force to terminate the stantially in the United States. license, in whole or in part, if:

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00092 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 841.8

(i) The Air Force determines that the license agreement, the Air Force may licensee is not executing the plan sub- restrict the license to the fields of use mitted with its requests for a license or geographic areas, or both, in which and the licensee cannot otherwise dem- the licensee has brought the invention onstrate to the satisfaction of the Air to practical application and continues Force that it has taken or can be ex- to make the benefits of the invention pected to take within a reasonable reasonably accessible to the public. time effective steps to achieve prac- However, such restriction shall be tical application of the invention; made only in order to grant an exclu- (ii) The Air Force determines that sive or partially exclusive license ac- such action is necessary to meet recording to this part. quirements for public use specified by Federal regulations issued after the § 841.8 Exclusive and partially exclu- date of the license and such require- sive licenses. ments are not reasonably satisfied by Each Government invention may be the licensee; made available for the granting of an (iii) The licensee has willfully made a exclusive or partially exclusive license false statement of or willfully omitted subject to the following restrictions a material fact in the license applica- and conditions: tion or in any report required by the li- (a) Restrictions. Exclusive or partially cense agreement; or exclusive licenses may be granted on (iv) The licensee commits a substan- federally owned inventions as follows: tial breach of a covenant or agreement (1) Three months after notice of the contained in the license. invention’s availability has been an- (10) The license may be modified or nounced in the FEDERAL REGISTER; or terminated consistent with this part upon mutual agreement of the Air (2) Without such notice where the Air Force and the licensee. Force determines that expeditious (11) Nothing relating to the grant of granting of such a license will best a license, nor the grant itself, shall be serve the interest of the Federal Gov- construed to confer upon any person, ernment and the public; and any immunity from or defense under (3) In either situation specified in the antitrust laws or from a charge of paragraph (a) (1) or (2) of this section patent misuse, and the acquisition and only if: use of rights pursuant to this subpart (i) Notice of a prospective license, shall not be immunized from the oper- identifying the invention and the pro- ation of state or Federal law by reason spective licensee, has been published in of the source of the grant. the FEDERAL REGISTER, providing op- (12) The license shall contain a provi- portunity for filing written objections sion that the government makes no within a 60-day period; representation or warranty as to the (ii) After expiration of the 60-day pe- validity of any licensed patent or pat- riod and consideration of any written ent application, or of the scope of any objections received during the period, of the claims contained therein, or that the Air Force makes the determina- the exercise of the license will not re- tions required by § 841.15 favorably to sult in the infringement of any other the applicant; and patent and that the Government as- (iii) The Air Force has given first sumes no liability whatsoever resulting preference to any small business firms from the exercise of the license. submitting plans that are determined by the agency to be within the capa- § 841.7 Nonexclusive licenses. bilities of the firms and as equally Each Air Force invention normally likely, if executed, to bring the inven- will be made available for the granting tion to practical application as any of nonexclusive licenses, subject to the plans submitted by applicants that are provisions of any other license, includ- not small business firms. ing those in § 841.8, and subject to the (b) Conditions. In addition to the pro- following condition: the nonexclusive visions of § 841.6, the following terms license may also provide that, after and conditions apply to domestic ex- termination of a period specified in the clusive and partially exclusive licenses:

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00093 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 841.9 32 CFR Ch. VII (7–1–05 Edition)

(1) The license shall be subject to the in foreign commerce will be enhanced; irrevocable royalty-free right of the and Government of the United States to (3) The Air Force has not determined practice and have practiced the inven- that the grant of such license will tend tion on behalf of the United States and substantially to lessen competition or on behalf of any foreign government or result in undue concentration in any international organization pursuant to section of the United States in any line any existing or future treaty or agree- of commerce to which the technology ment with the United States. to be licensed relates, or to create or (2) The license shall reserve to the maintain other situations inconsistent Air Force the right to require the li- with antitrust laws. censee to grant sublicenses to respon- (b) In addition to the provisions of sible applicants, on reasonable terms, § 841.6, the following terms and condi- when necessary to fulfill health or safe- tions apply to foreign exclusive and ty needs. partially exclusive licenses: (3) The license shall be subject to any (1) The license shall be subject to the licenses in force at the time of the irrevocable, royalty-free right of the grant of the exclusive or partially ex- United States Government to practice clusive license. and have practiced the invention on be- (4) The license may grant the li- half of any foreign government or censee the right of enforcement of the international organization pursuant to licensed patent pursuant to the provi- any existing or future treaty or agree- sions of 35 U.S.C. 29, as determined ap- ment with the United States. propriate in the public interest. (2) The license shall be subject to any licenses in force at the time of the § 841.9 Additional licenses. grant of the exclusive license. Nothing in this part will preclude the (3) The license may grant the li- Air Force from granting licenses for censee the right to take any suitable Air Force inventions which are the re- and necessary action to protect the li- sult of an authorized exchange of censed property on behalf of the United rights in the settlement of patent dis- States Government. putes. The following exemplify circumstances wherein such licenses may Subpart C—Licensing Procedures be granted: (a) In consideration of the settlement § 841.11 Publication requirements. of an interference; The Department of the Air Force will (b) In consideration of a release of a cause to be published in the FEDERAL claim of infringement; or REGISTER, and at least one other publi- (c) In exchange for or as part of the cation that the Air Force deems would consideration for a license under ad- best serve the public interest, a list of versely held patents. Government inventions in the custody of the Department of the Air Force § 841.10 Foreign licenses. available for licensing under the condi- (a) Exclusive or partially exclusive tions specified in subpart B. licenses may be granted on an Air Force invention covered by a foreign § 841.12 Request for a license. patent, patent application, or other Requests for a license under an Air form of protection, provided that: Force invention should be addressed to (1) Notice of a prospective license the Chief, Patents Division, HQ USAF/ identifying the invention and prospec- JACP, Washington DC 20324. tive licensee has been published in the FEDERAL REGISTER, providing oppor- § 841.13 Contents of a license applica- tunity for filing written objections tion. within a 60-day period and following An application for a license will in- consideration of such objections; clude: (2) The Air Force has considered (a) Identification of the invention for whether the interests of the Federal which the license is desired including Government or United States industry the patent application serial number or

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 841.15

patent number, title, and date, if mination to grant the license to appli- known; cant. (b) Identification of the type of license for which the application is sub- § 841.14 Published notices. mitted; A notice that the prospective exclu- (c) Name and address of the person, sive or partially exclusive licensee has company, or organization applying for been selected will be published by the the license and the citizenship or place Department of the Air Force in the of incorporation of the applicant; FEDERAL REGISTER and a copy of the (d) Name, address, and telephone notice will be sent to the Attorney number of the representative of the ap- General. The notice will include: plicant to whom correspondence should (a) Identification of the invention; be sent; (b) Identification of the selected li- (e) Nature and type of applicant’s censee; and business, identifying products or serv- (c) A statement that the license will ices which the applicant has success- be granted unless any written objec- fully commercialized, and approximate tion is received within 60 days. number of applicant’s employees; (f) Source of information concerning § 841.15 Determination to grant or the availability of a license on the in- deny exclusive or partially exclu- vention; sive licenses. (g) A statement indicating whether (a) After the notice is published in the applicant is a small business firm the FEDERAL REGISTER that a prospec- as defined in § 841.4 of this subpart; tive exclusive or partially exclusive li- (h) A detailed description of the ap- censee has been selected and the 60 plicant’s plan for development or mar- days for filing written objections has keting of the invention, or both, which expired, a decision will be made wheth- should include: er to grant or deny the license consid- (1) A statement of the time, nature, ering all arguments and evidence of and amount of anticipated investment record. A memorandum of the decision of capital and other resources which will be prepared and shall include: applicant believes will be required to (1) An identification of the invention, bring the invention to practical appli- type of license desired, and name and cation; address of the party applying for the li- (2) A statement as to applicant’s ca- cense; pability and intention to fulfill the (2) The name and address of all third plan, including information regarding parties who objected to the granting of manufacturing, marketing, financial, the license, if any; and technical resources; (3) A brief statement of the reasons (3) A statement of the fields of use for the objections, if any; for which applicant intends to practice (4) A discussion of the relative merits the invention; and of the license application vs. the objec- (4) A statement of the geographic tions filed by third parties, if any; areas in which the applicant intends to (5) Determinations, and reasons sup- manufacture any products embodying porting the determinations, whether: the invention and geographic areas (i) The interests of the Federal Gov- where applicant intends to use or sell ernment and the public will be served the invention, or both; by the proposed license, in view of the (i) Identification of licenses pre- applicant’s intentions, plans, and abil- viously granted to applicant under fed- ity to bring the invention to practical erally owned inventions; application or otherwise promote the (j) A statement containing the appli- invention’s utilization by the public; cant’s best knowledge of the extent to (ii) The desired practical application which the invention is being practiced has not been achieved or is not likely by private industry or Government, or expeditiously to be achieved under any both, or is otherwise available com- nonexclusive license which has been mercially; and granted on the invention; (k) Any other information which ap- (iii) Exclusive or partially exclusive plicant believes will support a deter- licensing is a reasonable and necessary

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00095 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 841.16 32 CFR Ch. VII (7–1–05 Edition)

incentive to call forth the investment sion or determination concerning the of risk capital and expenditures to grant, denial, interpretation, modifica- bring the invention to practical appli- tion, or termination of a license. The cation or otherwise promote the inven- appeal must be in writing and sub- tion’s utilization by the public; mitted within 60 days from the date (iv) The proposed terms and scope of the decision or determination was exclusivity are not greater than rea- mailed to the party. sonably necessary to provide the incentive for bringing the invention to practical application or otherwise promote Subpart D—Transfer of Custody of the invention’s utilization by the pub- Government Inventions and lic; Confidentiality of Information (v) The grant of such license will tend substantially to lessen competi- § 841.18 Transfer procedure. tion or result in undue concentration Under certain circumstances it may in any section of the country in any be in the best interest of the Air Force line of commerce to which the tech- to enter into an agreement to transfer nology to be licensed relates, or to cre- its custody of any invention to another ate or maintain other situations Government agency for purposes of ad- inconsistant with the antitrust laws; ministration including the granting of and licenses pursuant to this part. Such (vi) The interest of the United States transfers will be made on a case-by- Government or industry in foreign case basis. commerce will be enhanced, if the license request is under a foreign patent, § 841.19 Confidentiality of plans and patent application, or other form of reports. protection. (6) The signature of the individuals Title 35 U.S.C. 209 provides that any making the determinations. plan submitted pursuant to § 841.13 (b) A record of the determinations to above and any report required by § 841.6 grant or deny an exclusive or a par- may be treated by the Air Force as tially exclusive license shall be main- commercial and financial information tained by the Patents Division. obtained from a person and priviledged and confidential and not subject to dis- § 841.16 Modification and termination. closure under 5 U.S.C. 552. Before modifying or terminating a license, other than by mutual agree- PART 842—ADMINISTRATIVE ment, the Air Force shall furnish the CLAIMS licensee and any sublicensee of record a written notice of intention to modify Sec. or terminate the license, and the li- 842.0 Scope. censee and any sublicensee shall be allowed 30 days after such notice to rem- Subpart A—General Information edy any breach of the license or show cause why the license should not be 842.1 Scope of this subpart. modified or terminated. 842.2 Definitions. 842.3 Claims authorities. § 841.17 Appeals. 842.4 Where to file a claim. A party whose application for a li- 842.5 Claims forms. cense has been denied, a licensee whose 842.6 Signature on the claim form. license has been modified or termi- 842.7 Who may file a claim. nated, in whole or in part, or a party 842.8 Insured claimants. who timely filed a written objection in 842.9 Splitting a claim. response to the notice required in Subpart B—Functions and Responsibilities § 841.8 and § 841.10 and who can demonstrate to the satisfaction of the Air 842.10 Scope of this subpart. Force that such party may be damaged 842.11 Air Force claims organization. by the agency action, may appeal to 842.12 HQ USAF claims responsibility. The Judge Advocate General, any deci- 842.13 Staff Judge Advocates’ responsibility.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00096 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 842

842.14 Claims and assistant claims officers. 842.60 Statute of limitations. 842.61 Who may file a claim. Subpart C—Claims Under Article 139, Uni- 842.62 Who are proper claimants. form Code of Military Justice (UCMJ) 842.63 Who are not proper claimants. (10 U.S.C. 939) 842.64 Payment criteria. 842.65 Claims not payable. 842.15 Scope of this subpart. 842.66 Applicable law. 842.16 Definitions. 842.67 Reconsideration of final denials. 842.17 Claims payable. 842.68 Right of subrogation, indemnity, and 842.18 Claims not payable. contribution. 842.19 Limiting provisions. 842.20 Filing a claim. Subpart H—International Agreement Subpart D—Personnel Claims (31 U.S.C. Claims (10 U.S.C. 2734a and 2734b) 3701, 3721) 842.69 Scope of this subpart. 842.70 Definitions. 842.21 Scope of this subpart. 842.71 Delegations of authority. 842.22 Definitions. 842.23 Delegations of authority. 842.72 Filing a claim. 842.24 Filing a claim. 842.25 Partial payments. Subpart I—Use of Government Property 842.26 Statute of limitations. Claims (10 U.S.C. 2737) 842.27 Who may file a claim. 842.28 Who are proper claimants. 842.73 Scope of this subpart. 842.29 Who are not proper claimants. 842.74 Definitions. 842.30 General provisions. 842.75 Delegations of authority. 842.31 Claims payable. 842.76 Filing a claim. 842.32 Claims not payable. 842.77 Statute of limitations. 842.33 Reconsideration of a claim. 842.78 Claims payable. 842.34 Right of subrogation, indemnity, and 842.79 Claims not payable. contribution. 842.80 Reconsideration of final denial. 842.35 Depreciation and maximum allow- 842.81 Settlement agreement. ances. Subpart J—Admiralty Claims (10 U.S.C. Subpart E—Carrier Recovery Claims 9801–9804, 9806; 46 U.S.C. 740) 842.36 Scope of this subpart. 842.82 Scope of this subpart. 842.37 Definitions. 842.83 Definitions. 842.38 Delegations of authority. 842.84 Delegations of authority. 842.39 Statute of limitations. 842.85 Reconsidering claims against the United States. Subpart F—Military Claims Act (10 U.S.C. 2733) Subpart K—Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b), 2402, 842.40 Scope of this subpart. 842.41 Definitions. 2671, 2672, 2674–2680) 842.42 Delegations of authority. 842.86 Scope of this subpart. 842.43 Filing a claim. 842.87 Definitions. 842.44 Advance payments. 842.88 Delegations of authority. 842.45 Statute of limitations. 842.89 Statute of limitations. 842.46 Who may file a claim. 842.90 Reconsideration of final denials. 842.47 Who are proper claimants. 842.91 Settlement agreements. 842.48 Who are not proper claimants. 842.49 Claims payable. 842.50 Claims not payable. Subpart L—Property Damage Tort Claims in 842.51 Applicable law. Favor of the United States (31 U.S.C. 842.52 Appeal of final denials. 3701, 3711–3719) 842.53 Right of subrogation, indemnity, and contribution. 842.92 Scope of this subpart. 842.54 Attorney fees. 842.93 Delegations of authority. 842.94 Assertable claims. Subpart G—Foreign Claims (10 U.S.C. 2734) 842.95 Non-assertable claims. 842.96 Asserting the claim. 842.55 Scope of this subpart. 842.97 Referring a claim to the US Attorney 842.56 Definitions. or the Department of Justice. 842.57 Delegations of authority. 842.98 Statute of limitations. 842.58 Filing a claim. 842.99 Compromise, termination, and sus- 842.59 Advance payments. pension of collection.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00097 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.0 32 CFR Ch. VII (7–1–05 Edition)

Subpart M—Claims Under the National Subpart Q—Advance Payments (10 U.S.C. Guard Claims Act (32 U.S.C. 715) 2736) 842.100 Scope of this subpart. 842.144 Scope of this subpart. 842.101 Definitions. 842.145 Delegation of authority. 842.102 Delegations of authority. 842.146 Who may request. 842.103 Filing a claim. 842.147 When authorized. 842.104 Advance payments. 842.148 When not authorized. 842.105 Statute of limitations. 842.149 Separate advance payment claims. 842.106 Who may file a claim. 842.150 Liability for repayment. 842.107 Who are proper claimants. AUTHORITY: Sec. 8013, 100 Stat. 1053, as 842.108 Who are not proper claimants. amended; 10 U.S.C. 8013, except as otherwise 842.109 Claims payable. noted. 842.110 Claims not payable. SOURCE: 55 FR 2809, Jan. 29, 1990, unless 842.111 Applicable law. otherwise noted. 842.112 Appeal of final denials. NOTE: Air Force Regulations are available 842.113 Government’s right of subrogation, through the National Technical Information indemnity, and contribution. Service (NTIS), U.S. Department of Com- 842.114 Attorney fees. merce, 5285 Port Royal Road, Springfield, VA 22161. Subpart N—Hospital Recovery Claims (42 This part is derived from Air Force Regula- U.S.C. 2651–2653) tion 112–1, Claims and Tort Litigation.

842.115 Scope of this subpart. § 842.0 Scope. 842.116 Definitions. 842.117 Delegations of authority. This part establishes standard poli- 842.118 Assertable claims. cies and procedures for administra- 842.119 Nonassertable claims. tively processing claims resulting from 842.120 Asserting the claim. Air Force activities and for which the 842.121 Referring a claim to the US Attor- Air Force has assigned responsibility; ney. tells how to present, process, and settle 842.122 Statute of limitations. claims. 842.123 Recovery rates in government facilities. 842.124 Waiver and compromise of United Subpart A—General Information States interest. 842.125 Reconsideration of a waiver for § 842.1 Scope of this subpart. undue hardship. This subpart explains terms used in this part. It states basic Air Force Subpart O—Nonappropriated Fund Claims claims policy and identifies proper 842.126 Scope of this subpart. claimants. 842.127 Definitions. 842.128 Delegations of authority. § 842.2 Definitions. 842.129 Settlement of claims against NAFIs. (a) Authorized agent. Any person or 842.130 Payment of claims against NAFIs. corporation, including a legal rep- 842.131 Tort and tort type claims. resentative, empowered to act on a 842.132 Claims by NAFI employees. claimant’s behalf. 842.133 Claims by customers, members, participants, or authorized users. (b) Civilian personnel. Civilian em- 842.134 Claims in favor of NAFIs. ployees of the Air Force who are paid 842.135 Advance payments. from appropriated or nonappropriated 842.136 Claim payments and deposits. funds. They include prisoners of war, interned enemy aliens performing paid Subpart P—Civil Air Patrol Claims (5 U.S.C. labor, and volunteer workers except for 8101(1)(B), 8102(a), 8116(c), 8141; 10 claims under the Military Personnel U.S.C. 9441, 9442; 36 U.S.C. 201–208) and Civilian Employees’ Claims Act. (c) Claim. Any signed written demand 842.137 Scope of this subpart. 842.138 Definitions. made on or by the Air Force for the 842.139 Delegations of authority. payment of a sum certain. It does not 842.140 Proper claimants. include any obligations incurred in the 842.141 Improper claimants. regular procurement of services, sup- 842.142 Claims payable. plies, equipment, or real estate. An 842.143 Claims not payable. oral demand made under Article 139,

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00098 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.5

Uniform Code of Military Justice (n) Subrogation. The act of assuming (UCMJ) is sufficient. the legal rights of another after paying (d) Claimant. An individual, partner- a claim or debt, for example, an insur- ship, association, corporation, country, ance company (subrogee) paying its in- state, territory, or its political subdivi- sured’s (subrogor’s) claim, thereby as- sions, and the District of Columbia. suming the insured’s right of recovery. The US Government or any of its in- (o) HQ USAFE. Headquarters, United strumentalities may be a claimant in States Air Forces in Europe, Ramstein admiralty, tort, carrier recovery and Air Base, Germany, APO NY 09012–5001. hospital recovery claims in favor of the [55 FR 2809, Jan. 29, 1990, as amended at 56 United States. FR 1574, Jan. 16, 1991] (e) Geographic area of claims responsibility. The base Staff Judge Advocate’s § 842.3 Claims authorities. (SJA’s) jurisdiction for claims. CONUS (a) Appellate authority. The individual jurisdictional areas are designated by authorized to review the final decision HQ USAF/JACC on maps distributed to of a settlement authority upon appeal the field. HQ PACAF, HQ USAFE, and or reconsideration. HQ 9AF SJAs designate these areas (b) Settlement authority. The indi- within their jurisdictions. DOD assigns vidual or foreign claims commission areas of single service responsibility to authorized to settle a claim upon its each military department. initial presentation. (f) HQ USAF/JACC. Claims and Tort Litigation Staff, Office of The Judge § 842.4 Where to file a claim. Advocate General, Headquarters, File a claim at the base legal office United States Air Force, Building 5683, of the unit or installation at or nearest Bolling AFB, DC 20332–6128. to where the accident or incident oc- (g) HQ 9AF. Headquarters Ninth Air curred. If the accident or incident oc- Force, Shaw AFB, SC 29152–5002. curred in a foreign country where no (h) Owner. A holder of a legal title or Air Force unit is located, file the claim an equitable interest in certain prop- with the Defense Attache (DATT) or erty. Specific examples include: Military Assistance Advisory Group (1) For real property. The mortgagor, (MAAG) personnel authorized to re- and the mortgagee if that individual ceive claims (DIAM 100–1 and AFR 400– can maintain a cause of action in the 45). In a foreign country where a claim- local courts involving a tort to that ant is unable to obtain adequate assist- specific property. ance in filing a claim, the claimant (2) For personal property. A bailee, les- may contact the nearest Air Force see, mortgagee and a conditional vend- SJA. The SJA then advises HQ USAF/ ee. A mortgagor, conditional vendor, or JACC thorugh claims channels of ac- someone else other than the owner, tion taken and states why the DATT or who has the title for purposes of secu- MAAG was unable to adequately assist rity are not owners. the claimant. (i) HQ PACAF. Headquarters, Pacific Air Forces, Hickam AFB, HI 96853–5001. § 842.5 Claims forms. (j) Personal injury. The term ‘‘per- Any signed written demand on the sonal injury’’ includes both bodily in- Air Force for a sum certain is suffi- jury and death. cient to file a claim. The claimant (k) Property damage. Damage to, loss should use these forms when filing a of, or destruction of real or personal claim: property. (a) Claim processed under the Military (l) Settle. To consider and pay, or Personnel and Civilian Employees’ Claims deny a claim in full or in part. Act. Use AF Form 180, Claim For Loss (m) Single Base General Court-Martial of or Damage To Personal Property In- Jurisdiction (GCM). For claims pur- cident To Service, or DD Forms 1842, poses, a base legal office serving the Claim for Personal Property Against commander who exercises GCM author- the United States, and 1844, Schedule ity over that base, or that base and of Property and Claim Analysis Chart, other bases. to file the claim.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00099 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.6 32 CFR Ch. VII (7–1–05 Edition)

(b) Claim processed under international § 842.7 Who may file a claim. agreements. Use any form specified by (a) Property damage. The owner or the host country. owners of the property or their author- (c) Any other type claim. Use SF 95, ized agent may file a claim for prop- Claim for Damage, Injury, or Death. erty damage. (b) Personal injury or death. (1) The in- § 842.6 Signature on the claim form. jured person or authorized agent may The claimant or authorized agent file a claim for personal injury. signs the claim form in ink using the (2) The duly appointed guardian of a first name, middle initial, and last minor child or any other person legally name. entitled to do so under applicable local (a) Claim filed by an individual. (1) A law may file a claim for a minor’s per- married woman signs her name, for ex- sonal injury. ample, Mary A. Doe, rather than Mrs. (3) The executor or administrator of John Doe. the decedent’s estate or any other per- (2) An authorized agent signing for a son legally entitled to do so under ap- claimant shows, after the signature, plicable local law may file a claim the title or capacity and attaches evi- based on an individual’s death. dence of authority to present a claim (c) Subrogation. The subrogor (in- on behalf of the claimant as agent, ex- sured) and the subrogee (insurer) may ecutor, administrator, parent, guard- file a claim jointly or individually. Pay ian, or other representative; for exam- a fully subrogated claim only to the ple, John Doe by Richard Roe, Attor- subrogee. A joint claim must be as- ney in Fact. A copy of a current and serted in the names of and signed by the real parties in interest. Make pay- valid power of attorney, court order, or ment by sending a joint check to the other legal document is sufficient evi- subrogee, made payable to the subroger dence of the agent’s authority. and subrogee. If separate claims are (b) Claim with joint interest. Where a filed, make payment by check issued to joint ownership or interest in real each claimant to the extent of each un- property exists, all joint owners must disputed interest. sign the claim form. This includes a husband and wife signing a claim if the § 842.8 Insured claimants. claim is for property damage. However, Insured claimants must make a de- only the military member or civilian tailed disclosure of their insurance employee signs the claim form for a coverage by stating: claim under the Military Personnel and (a) Their name and address. Civilian Employees’ Claims Act. (b) Kind, amount, and dates of cov- (c) Claim filed by a corporation. (1) A erage of insurance. corporate officer signing the form must (c) Insurance policy number. show title or capacity and affix the (d) Whether a claim was presented to corporate seal (if any) to the claim the insurer and, if so, in what amount. form. (e) Whether the insurer paid or is ex- (2) If the person signing the claim is pected to pay the claim. other than the corporate officer they (f) The amount of any payment made must: or promised. (i) Attach to the claim form a certification by a proper corporate officer § 842.9 Splitting a claim. that the individual is an agent of the (a) A claim includes all damages ac- corporation duly authorized to file and cruing to a claimant by reason of an settle the claim; accident or incident. For example, (ii) Affix to the claim form the cor- when the same claimant has a claim porate seal (if any) to the certification. for property damage and personal in- (d) Claim filed by a partnership. A jury arising out of the same incident, partner must sign the form showing his each claim represents only a part of a or her title as partner and list the full single claim or cause of action. Even if name of the partnership. local law permits filing a separate

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00100 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.12

claim for property damage and for per- process maneuver and disaster claims. sonal injury, do not settle or pay a sep- Once appointed, judge advocates must arate or split claim without the ad- process claims through claims chan- vance approval of HQ USAF/JACC. nels. (b) Filing for an advance payment, and subsequently filing a claim, does [55 FR 2809, Jan. 29, 1990, as amended at 56 not constitute splitting a claim. FR 1574, Jan. 16, 1991] (c) Process the claim of a subrogor § 842.12 HQ USAF claims responsi- (insured) and subrogee (insurer) for bility. damages arising out of the same incident as a single claim where permitted. (a) TJAG, through the Claims and Tort If either claim or the combined claim Litigation Staff (HQ USAF/JACC): (1) Es- exceeds, or is expected to exceed, set- tablishes claims and tort litigation tlement limits, send it to the next policies and supervises and assists all higher settlement authority. Do not Air Force claims activities. split subrogated claims to avoid settle- (2) Trains claims officers and para- ment limits. legals. (3) Settles certain claims. Subpart B—Functions and NOTE: The authority specifically delegated Responsibilities to the Deputy Judge Advocate General to settle certain claims in no way limits the § 842.10 Scope of this subpart. Deputy’s authority to perform the duties of TJAG when so acting pursuant to 10 U.S.C. It sets out the claims organization 8072. within the US Air Force and describes (4) Monitors tort litigation for and the functions and responsibilities of against the United States arising out the various claims offices. of Air Force activities. § 842.11 Air Force claims organization. (b) HQ USAF/JACC. (1) Supervises and Air Force claims channels are: inspects claims and tort litigation ac- (a) Continental United States tivities through assistance visits, spe- (CONUS), Azores, Panama and Iceland: cial audits, and Claims Administrative (1) Headquarters US Air Force (HQ Management Program (CAMP) reviews. USAF). (2) Implements claims and tort liti- (2) SJAs of bases, single base GCM gation policies, issues instructions, and authorities, stations and fixed installa- provides guidance and assistance to tions, and commanders responsible for subordinate claims offices. investigation and settlement of claims. (3) Recommends settlement action on (b) Pacific Air Forces (PACAF) and claims and tort litigation to TJAG, the US Air Forces, Europe (USAFE): Secretary of the Air Force, and the (1) HQ USAF. United States Attorney General. (2) SJAs of PACAF and USAFE. (4) Maintains liaison with the De- (3) SJAs of organizations exercising partment of Defense (DOD), Depart- GCM authority. ment of Justice (DOJ), and other gov- (4) SJAs of bases, stations and fixed ernment agencies on claims and tort installations, and commanders respon- litigation. sible for investigating and settling (5) Settles certain claims. claims. (6) Certifies or reports claims to the (c) US Central Command General Accounting Office (GAO). (CENTCOM): (1) HQ USAF. (7) Prepares budget estimates for Air (2) SJA of Headquarters Ninth Air Force claims activities. Force (HQ 9AF). (8) Monitors the collection, alloca- (3) SJAs of bases, stations, and fixed tion, and expenditure of Air Force installations, and commanders respon- claims funds. sible for investigation and settlement (9) Keeps permanent records on all of claims. claims and tort litigation for which (d) Maneuver and disaster claims. Air TJAG is responsible. Force Judge Advocates designated by (10) Conducts and supervises claims The Judge Advocate General (TJAG) to training activities.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00101 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.13 32 CFR Ch. VII (7–1–05 Edition)

§ 842.13 Staff Judge Advocates’ respon- § 842.14 Claims and assistant claims of- sibility. ficers. (a) Major Command (MAJCOM). (1) All (a) Functions and responsibilities: (1) MAJCOM SJAs, whether or not exer- The claims officer, under the imme- cising claims settlement authority are diate supervision of the SJA, the com- responsible for the general supervision mander, or other appointing authority, of claims activities within their com- is responsible for all claims activity of mands, including: the command, organization, or unit. (i) Conduct of periodic claims audits. This includes investigating and reporting accidents, incidents, and claims. (ii) Support of claims teams. Mem- (2) The assistant claims officer per- bers may be detailed from personnel forms claims duties under the super- assigned to the command to respond to vision of the claims officer and in the natural disasters or serious incidents. absence of the claims officer. If resources are not available from (b) Appointment of claims and assistant within the command, HQ USAF/JACC claims officers: (1) The Commander of should be contacted for assistance. each Air Force base, station, fixed in- (iii) Apportion claims funds allocated stallation, or separate unit appoints a by HQ USAF. claims officer in writing. (2) The PACAF, USAFE, and HQ 9AF (2) The SJA appoints assistant claims SJA: officers in writing. (i) Settles claims. (c) Qualifications of claims officers: (ii) At a minimum, through assist- Claims officers are commissioned offi- ance visits and audits, supervises cers, designated as judge advocates of claims activities of those subordinate the Air Force, or civilian attorneys units and organizations assigned to employed by the United States in au- them for claims purposes. thorized attorney positions at the of- (iii) Appoints members to foreign fice of the SJA. claims commissions. (d) Qualifications of assistant claims officers: The assistant claims officer may (iv) Monitors international claims. be an attorney, a senior noncommis- (v) Establishes and designates geo- sioned officer (E–7 through E–9), or a graphic areas of claims responsibility Department of the Air Force civilian within the command, except for DOD employee (GS–7 or above). designated single-service areas of responsibility. Subpart C—Claims Under Article (b) GCM: (1) The GCM SJA, whether 139, Uniform Code of Military or not he or she exercises claims settlement authority, is responsible for the Justice (UCMJ) (10 U.S.C. general supervision of claims activities 939) within the subordinate units. § 842.15 Scope of this subpart. (2) The GCM SJA exercising settlement authority: It sets out the Air Force procedures for processing Article 139, UCMJ (i) Settles certain claims. claims. (ii) Supervises directly the claims activities of their subordinate units. This § 842.16 Definitions. includes at least assistance visits and (a) Appointing commander. The com- audits for all but single base GCMs. mander exercising special court-mar- (c) Base SJAs: (1) Settle certain tial jurisdiction over the offender is claims. the appointing commander. (2) Have primary investigative re- (b) Board of officers. One to three sponsibility for incidents giving rise to commissioned officers appointed to in- claims that occur in their geographic vestigate a complaint of willful prop- area of responsibility. erty damage or wrongful taking by Air (3) Notify HQ USAF/JACC through Force personnel comprise a board of of- claims channels, if there is a question ficers. of which base can best investigate and (c) Property. Property is an item that process a particular claim. is owned or possessed by an individual

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00102 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.22

or business. Property includes a tan- (c) Payment of indirect, remote, or gible item such as clothing, household consequential damages is not author- furnishings, motor vehicles, real prop- ized. erty, and currency. The term does not include intangible property or items § 842.20 Filing a claim. having no independent monetary Claimant complains (orally or in worth. Items that should not be consid- writing) to the commander of a mili- ered as property for the purpose of this tary organization or unit of the alleged part include a stock, bond, check, offending member or members or to check book, credit card, telephone the commander of the nearest military service and cable television services. installation. However, the complainant (d) Willful damage. Damage or de- need not request a sum certain in writ- struction caused intentionally, knowing, before settlement is made. ingly, and purposely, without justifi- able excuse is willful damage. Subpart D—Personnel Claims (31 (e) Wrongful taking. Any unauthorized U.S.C. 3701, 3721) taking or withholding of property with intent to deprive the owner or person § 842.21 Scope of this subpart. in lawful possession either temporarily It explains how to settle and pay or permanently. claims under the Military Personnel and Civilian Employees’ Claims Act for § 842.17 Claims payable. incident to service loss and damage of Claims for property willfully dam- personal property. These claims are aged or wrongfully taken by Air Force paid according to this subpart even military personnel as a result of riot- when another subpart may also apply. ous, violent, or disorderly conduct. If a claim is payable under this part and § 842.22 Definitions. also under another part, it may be paid (a) Act of God. An act occasioned ex- under this part if authorized by HQ clusively by violence of nature, such as USAF/JACC. flood, earthquake, tornado, typhoon or hurricane, that is unanticipated and § 842.18 Claims not payable. over which no one has any control. Claims that are not payable are: (b) Military installation. A facility (a) Claims resulting from simple neg- used to serve a military purpose and ligence. used or controlled by the Air Force or (b) Claims for personal injury or any other Department of Defense death. (DOD) element. (c) Claims resulting from acts or (c) Other authorized places: (1) Any omissions of Air Force military per- place authorized, or apparently authorized by the government to receive, sonnel while acting within the scope of hold, or store personal property, such their duty. as offices, warehouses, baggage holding (d) Claims of subrogees. areas, hospitals. (e) Claims arising from private in- (2) Any area on a military installa- debtedness. tion designated for parking or storing (f) Claims for reimbursement for bad vehicles. checks. (3) A recreation area or any real estate the Air Force or any other DOD § 842.19 Limiting provisions. element uses or controls. (a) Submit a complaint within 90 (d) Personal property. Tangible prop- days of the date of the incident unless erty an individual owns, including but the appointing commander finds good not limited to household goods, unac- cause for the delay. Command deter- companied baggage, privately owned mination of the absence of good cause vehicles (POV), and mobile homes. is final. (e) Quarters: (1) Housing the govern- (b) Assessment of damages in excess ment assigns or otherwise provides in of $5,000 against an offender’s pay for a kind to the claimant, including sub- single incident requires HQ USAF/ standard housing and trailers, when JACC approval. the claimant pays the government a

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00103 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.23 32 CFR Ch. VII (7–1–05 Edition)

fixed rental while drawing basic allow- (iv) The Chief, Deputy Chief, and ance for quarters (BAQ). Branch Chiefs, Claims and Tort Litiga- (2) Privately owned mobile or manu- tion Staff. factured homes parked on base in (2) The SJAs of HQ USAFE, HQ spaces the government provides. PACAF, and 9 AF (for claims arising (3) Transient housing accommoda- out of HQ CENTCOM) have delegated tions, wherever located, such as, ho- authority to settle claims payable, and tels, motels, guest houses, transient to deny claims filed for $25,000 or less. dormitories, or other lodgings the gov- (3) The SJAs of single base GCMs and ernment furnishes or contracts for. the SJAs of GCMs within PACAF and (4) Housing accommodations outside USAFE have delegated authority to the United States which the claimant settle claims payable, and to deny occupies according to local policies and claims filed for $15,000 or less. procedures which were not assigned by (4) SJAs of each Air Force Base, sta- or otherwise provided for by the U.S. tion, and fixed installation have been Government. Quarters do not include delegated the authority to settle housing occupied by foreign indigenous claims payable, and deny claims filed employees. for $10,000 or less. (5) Garages, carports, driveways, and (b) Redelegation of authority. A settle- parking lots assigned to quarters the ment authority may redelegate the au- government provides for the occupants thority, in writing, to a subordinate of the quarters to use. judge advocate or civilian attorney. (6) Street parking: (c) Reconsideration authority. A settle- (i) At quarters. ment authority has the same authority (ii) In the immediate vicinity of specified in a above. However, with the quarters. exception of TJAG, a settlement au- (iii) Reserved parking assigned to thority may not deny a claim on recon- offbase housing accommodations over- sideration that it, or its delegate, had seas. previously denied. (7) The area immediately adjacent to (d) Authority to reduce, withdraw, and quarters when used for storage of items restore settlement authority. Any supe- not commonly stored in living areas, rior settlement authority may reduce, for example, boats, motorcycles, mo- withdraw, or restore delegated author- torbikes, bicycles, lawn mowers, gar- ity. den equipment, and outdoor furniture. [55 FR 2809, Jan. 29, 1990, as amended at 56 (f) Reconsideration. The original or a FR 1574, Jan. 16, 1991] higher settlement authority’s review of a prior settlement action. § 842.24 Filing a claim. (g) Small claim. A claim for $1,000 or (a) How and when to file a claim. A less. claim is filed when a federal military (h) Unusual Occurrence. Something agency receives from a claimant or not expected to happen in the normal duly authorized agent a properly com- course of events. pleted AF Form 180, DD Form 1842 or other written and signed demand for a § 842.23 Delegations of authority. specified sum of money. (a) Settlement authority: (1) These in- (b) Amending a claim. A claimant may dividuals have been delegated the au- amend a claim at any time prior to the thority to settle claims payable for expiration of the statute of limitations $25,000 or less if the claim arose before by submitting a signed amendment. 31 October 1988, or $40,000 or less if the The settlement authority adjudicates claim arose on or after 31 October 1988, and settles or forwards the amended and to deny claims in any amount: claim as appropriate. (i) The Judge Advocate General (c) Separate claims. The claimant files (TJAG). a separate claim for each incident (ii) The Deputy Judge Advocate Gen- which caused a loss. For transportation eral. claims, this means a separate claim for (iii) The Director of Civil Law. each shipment.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00104 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.29

§ 842.25 Partial payments. § 842.27 Who may file a claim. Upon request of a claimant, a settle- A claim may be filed by the: ment authority may make a partial (a) Property owner. payment in advance of final settlement (b) Authorized agent with a power of when a claimant experiences personal attorney. hardship due to extensive property (c) Property owner’s survivors, who damage or loss. Examples where partial may file in this order: payments are appropriate include fires (1) Spouse. and sunken transport ships. Partial (2) Children. payments are made in this manner: (3) Father or mother, or both. (a) If a claim for only part of the loss (4) Brothers or sisters, or both. is submitted and is readily provable, pay it up to the amount of the settle- § 842.28 Who are proper claimants. ment authority. (The claimant may Proper claimants are: later amend the claim for the remain- (a) Active duty Air Force military der of the loss.) If the total payable personnel. amount of the claim exceeds the pay- (b) Civilian employees of the Air ment limits of the settlement author- Force who are paid from appropriated ity, send it with recommendations funds. through claims channels to the proper (c) DOD school teachers and school settlement authority. administrative personnel who are pro- (b) When the total claim is submitted vided logistic and administrative sup- and the amount payable exceeds the port by an Air Force installation com- settlement authority, pay a partial mander. payment within the limits of settle- (d) Air Force Reserve (AFRES) and ment authority and send the claim, Air National Guard (ANG) personnel with recommendations, through claims when performing active duty, full-time channels to the proper settlement au- National Guard duty, or inactive duty thority. training, ANG technicians under 32 U.S.C. 709. § 842.26 Statute of limitations. (e) Retired or separated Air Force (a) The claimant must file the claim military personnel who suffer damage in writing within 2 years after it ac- or loss resulting from the last storage crues. It accrues when the claimant or movement of personal property, or discovered or reasonably should have for claims accruing before retirement discovered the full extent of the prop- or separation. erty damage or loss. For transpor- (f) AFROTC cadets while on active tation losses, the claim usually accrues duty for summer training. on the date of delivery. (g) United States Air Force Academy (b) To compute the statutory period, cadets. the incident date is excluded and the day the claim was filed is included. § 842.29 Who are not proper claimants. (c) Consider a claim filed after the The following individuals are not statute has run if both of the following proper claimants: are present: (a) Subrogees and assignees of proper (1) The United States is at war or in claimants, including insurance compa- an armed conflict when the claim ac- nies. crues, or the United States enters a (b) Conditional vendors and war or armed conflict after the claim lienholders. accrues. Congress or the President es- (c) Non-Air Force personnel, includ- tablishes the beginning and end of war ing American Red Cross personnel, or armed conflict. A claimant may not United Services Organization (USO) file a claim more than 2 years after the performers, employees of government war or armed conflict ends. contractors, and Civil Air Patrol (CAP) (2) Good cause is shown. A claimant members. may not file a claim more than 2 years (d) AFROTC cadets who are not on after the good cause ceases to exist. active duty for summer training.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00105 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.30 32 CFR Ch. VII (7–1–05 Edition)

(e) Active duty military personnel occurrences or power outages which and civilian employees of a military last for an extended period of time. The service other than the Air Force. claimant must be free of negligence. (f) DOD employees who are not as- (i) Claims for damage or loss caused signed to the Air Force. by other acts of god are not paid except (g) Army and Air Force Exchange in those instances where the geo- Service (AAFES) employees and other graphic area has been declared to be a employees whose salaries are paid from federal disaster area or HQ USAF/JACC nonappropriated funds (see subpart O). has determined that payment is appro- (h) Military personnel of foreign gov- priate because the severity of the act ernments. of god was truly extraordinary. (ii) In some areas, extreme weather, § 842.30 General provisions. such as severe lightning storms, hail, Payable claims must be for: or high winds, occur routinely. Damage (a) Personal property which is rea- claims from these storms are normally sonable or useful under the cir- not paid. Failure to take reasonable cumstances of military service. care in protecting property from such (b) Loss, damage, destruction, confis- known hazards may be negligence. cation, or forced abandonment which is These types of claims would include incident to service. pitted windshields, dents, chipped paint (c) Losses that are not collectable on vehicles, and lightning damage to from any other source, including insur- television sets, stereos, computer com- ance and carriers. ponents, video recorders, and other (d) Property that is owned by the electrical appliances. claimants, their immediate families, or (2) Outside the United States. Pay for borrowed for their use. personal property damage or loss, to (e) Losses occurring without the include food spoilage, which is caused claimants’ negligence. by fire, explosion, theft, vandalism, acts of god, unusual occurrences, or § 842.31 Claims payable. power outages which last for an ex- Claims may be paid for: tended period of time. The claimant (a) Transportation or storage loss: (1) must be free of negligence. The SJA Pay for property damage or loss inci- must make an affirmative determina- dent to: tion that the act of god or unusual oc- (i) Transportation under orders, currence was truly extraordinary. whether it was in the possession of the (c) Privately owned vehicles (POV). government, carrier, storage ware- Pay for damage to or loss of POVs house, or other government contractor. caused by government negligence This includes Do-It-Yourself (DITY) under subpart F or K. Pay under this moves. subpart for damage or loss incident to: (ii) Travel under orders, including (1) Theft of POVs or their contents, temporary duty (TDY). or vandalism to parked POVs: (iii) Travel on a space available basis (i) Anywhere on a military installa- on a military aircraft, vessel, or vehi- tion. cle. (ii) At offbase quarters overseas. (2) Pay for property essential to ev- (iii) At other authorized places. eryday use, if the claimant has re- (2) Government shipment: placed the items that he or she re- (i) To or from oversea areas incident ported as missing. Essential items may to PCS. be paid for even if someone locates the (ii) On a space available reimbursable property before the claimant files the basis. claim. (iii) As a replacement vehicle under (b) Losses at quarters and other author- the provisions of the Joint Travel Reg- ized places—(1) In the United States (in- ulations (JTR). cluding U.S. territories and possessions). (3) Authorized use for government Pay for personal property damage or duty other than PCS moves. The owner loss, to include food spoilage, which is must have specific advance permission caused by fire, explosion, theft, van- of the appropriate supervisor or offi- dalism, typhoon, hurricane, unusual cial. Adequate proof of the permission

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00106 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.32

and of nonavailability of official trans- (i) Confiscated property. Pay for losses portation must be provided prior to when: paying such claims. Claims arising (1) A foreign government unjustly while the claimant is deviating from confiscates property. the principal route or purpose of the (2) An unjust change or application of trip should not be paid, but claims oc- foreign law forces surrender or curring after the claimant returns to abandonmnet of property. the route or purpose should be paid. (j) Clothing and accessories worn on the Travel between quarters and place of person. Pay claims for damage to eye- duty, including parking, is not author- glasses, hearing aids, and dentures the ized use for government duty. government did not supply, when the (4) Paint spray, smokestack emis- damage results from actions beyond sion, and other similar operations by the normal risks associated with daily the Air Force on a military installa- living and working. Claimants assume tion caused by a contractor’s neg- the risk of normal wear and tear, and ligence. (Process the claim under sub- their negligence bars payment of the part F or K, if government negligence claim. causes such losses.) If a contractor’s (k) Money losses. Pay claims for loss operation caused the damage: of money when the losses are due to (i) Refer the claim first to the con- theft from quarters, other authorized tractor for settlement. places, or from the person, if the claim- (ii) Settle the claim under this sub- ant was required to be in the area and part if the contractor does not pay it could not avoid the theft by due care. or excessively delays payment, and as- As a general rule, $200.00 is reasonable sert a claim against the contractor. to have in quarters, and $100.00 is rea- (d) Damage to mobile or manufactured sonable to have on the person unless: homes and contents in shipment. Pay (1) The money was in a bona fide coin such claims if there is no evidence of collection. structural or mechanical failure for (2) The claimant can justify posses- which the manufacturer is responsible. sion of the money for a PCS move, ex- (e) Borrowed property. Pay for loss or tended TDY, vacation, extensive shop- damage to property claimants borrow ping trip, or similar circumstances. for their use. Either the borrower or The claimant must show a good reason lender, if proper claimants, may file a why the money had not been deposited claim. Do not pay for property bor- in a bank or converted into travelers rowed to accommodate the lender, i.e., checks or a money order. such as to avoid weight or baggage re- (3) Local commercial facilities are strictions in travel. not available or because US personnel (f) Marine or aircraft incident. Pay do not generally use such facilities. claims of crewmembers and passengers who are in duty or leave status at the § 842.32 Claims not payable. time of the incident. Payable items in- A claim is not payable if: clude jettisoned baggage, clothing (a) It is not incident to the claim- worn at the time of an incident, and ant’s service. reasonable amounts of money, jewelry, (b) The loss or damage is caused in and other personal items. whole or in part by the negligence or (g) Combat losses. Pay for personal wrongful act of the claimant, the property losses, whether or not the claimant’s spouse, agent, or employee. United States was involved, due to: (c) It is a subrogation or assigned (1) Enemy action. claim. (2) Action to prevent capture and (d) The loss is recovered or recover- confiscation. able from an insurer or other source. (3) Combat activities. When a loss is recovered or is recover- (h) Civil activity losses. Pay for losses able: resulting from a claimant’s acts to: (1) The amount payable by insurance (1) Quell a civil disturbance. should be deducted if an insurer denied (2) Assist during a public disaster. a claim because a claimant failed to re- (3) Save human life. port the loss or to file a timely claim (4) Save government property. under the policy. The claim should be

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00107 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.33 32 CFR Ch. VII (7–1–05 Edition)

paid if the settlement authority deter- when investigation shows the claimant mines the claimant had good cause for has intentionally falsified the value, not filing with the insurer, or condition, extent of damage, or repair (2) The amount which the Air Force cost of it. The claim file must show cannot recover from a carrier because clear intent to defraud. A mere mis- the claimant failed to give timely no- take is not a fraud. tice of loss or damage should be sub- (o) It is for charges for labor per- tracted from the settlement unless the formed by the owner or immediate claimant shows good cause for failure family member. to give notice. (p) It is for financial loss due to (e) It is intangible property including changed or cancelled orders. bank books, promissory notes, stock (q) It is for expenses of enroute repair certificates, bonds, baggage checks, in- of a mobile or manufactured home. surance policies, checks, money orders, (r) It is a loss of use of personal prop- travelers checks and credit cards. erty. (f) It is government property, includ- (s) It is an attorney or agent fee. ing issued clothing items carried on an (t) It is the cost of preparing a claim, individual issue supply account. other than estimate fees. (Clothing not carried on an individual (u) It is an inconvenience expense, issue supply account which is stolen or such as food, lodging, and transpor- clothing lost or damaged in transit tation costs due to delay in delivery of may be considered as a payable item household goods or travel to port to de- when claimed.) liver or pick up a vehicle. (g) It is enemy property. (v) It is a loss of, or damage to POV (h) It is a loss within the United driven during PCS. States at offbase quarters the govern- (w) It is a personal property insur- ment did not provide. ance premium. (i) It is damage to real property. (x) It is a claim for a thesis or other (j) It is an appraisal fee, unless the similar papers, except for the cost of settlement authority requires one to materials. adjudicate the claim. HQ USAF/JACC (y) It is damage to, or loss of a rental must authorize payment for an ap- vehicle which TDY or PCS orders au- praisal fee of more than $100. thorized. These claims may be payable (k) It is property acquired or shipped through Accounting and Finance as a for persons other than the claimant or travel expense. the claimant’s immediate family; how- (z) It is a cost to relocate a telephone ever, a claim for property acquired for or mobile or manufactured home due to bona fide gifts may be paid. a government ordered quarters move. (l) It is an article held for sale, re- The member submits such claims to sale, or used primarily in a private the commander directing the move for business. payment from other Operation and (m) It is an item acquired, possessed, Maintenance (O&M) funds. shipped, or stored in violation of any (aa) It is for damage to or loss of U.S. Armed Force directive or regula- property stored at the owner’s expense tion. This includes an automobile for unless the claimant’s duty made stor- which a member fails to comply with age necessary. base registration or insurance regula- (bb) It is for damage to clothing and tions. A claim must not be paid if one accessories caused by routine wrinkles. or more of these factors exist: (cc) It is hit-and-run damage to (1) The loss was the type the regula- POVs. tion or directive intended to prevent. (dd) It is for damage to clothing and (2) The violation was willful or in de- accessories caused by contact with of- fiance of authority, rather than minor fice furniture or getting in or out of a or technical in nature. government vehicle unless the damage (3) The violation either undermined was caused by an unknown defect. discipline or adversely affected command welfare. § 842.33 Reconsideration of a claim. (n) It is an item fraudulently A claimant may request reconsider- claimed. Deny payment for an item ation of an initial settlement or denial

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.37

of a claim. The claimant sends the re- mercial bills of lading with certain ex- quest in writing, to the settlement au- ceptions. thority within a reasonable time fol- (3) The GBL is all of the following: lowing the initial settlement or denial. (i) A receipt for goods tendered to a Sixty days is considered a reasonable carrier. time, but the settlement authority (ii) A contract. may waive the time limit for good (iii) A document authorizing collec- cause. tion of transportation bills the carrier (a) The original settlement authority presents. reviews the reconsideration request. (b) Carrier. Any moving company, The settlement authority sends the en- personal property forwarder, or freight tire claim file with recommendations forwarder holding a certificate or per- and supporting rationale to the next mit issued by a federal or state regu- higher settlement authority if all relief latory agency or approved by the De- the claimant requests is not granted. partment of Defense for international (b) The decision of the higher settle- shipments. ment authority is the final administra- (c) Military Traffic Management Com- tive action on the claim. mand (MTMC). The Department of De- § 842.34 Right of subrogation, indem- fense management agency for military nity, and contribution. traffic, land transportation, and common user ocean terminals. Among The Air Force becomes subrogated to other responsibilities, MTMC manages the rights of the claimant upon set- the DOD household goods moving and tling a claim. The Air Force has the storage program worldwide. The Army rights of contribution and indemnity has single service responsibility for permitted by the law of the situs or MTMC. under contract. The Air Force does not (d) Regional Storage Management Of- seek contribution or indemnity from fice (RSMO). The MTMC office respon- US military personnel or civilian em- sible for negotiating and administering ployees whose conduct in scope of em- all storage contracts within a geo- ployment gave rise to government li- graphical area. The contracting officer ability. of each RSMO makes involuntary col- § 842.35 Depreciation and maximum lections of nontemporary storage loss allowances. and damage claims. (e) Net weight. The weight of the The military services have jointly es- fully-loaded van or shipping crate tablished the ‘‘Allowance List-Depre- (gross weight), less the weight of the ciation Guide’’ to determine values for empty van or shipping crate (tare most items and to limit payment for weight). some categories of items. (f) Nontemporary storage (NTS). All authorized storage not in connection with Subpart E—Carrier Recovery a GBL. NTS usually exceeds 180 days Claims and normally includes packing and shipping of household goods to the § 842.36 Scope of this subpart. warehouse. This subpart explains how to assert (g) Storage in transit (SIT). Storage of and settle claims against carriers, a shipment by a carrier at origin, warehousemen, and contractors for loss enroute, or at destination. SIT is ini- and damage to personal property. tially limited to 90 days. The transportation officer may extend it to a max- § 842.37 Definitions. imum of 180 days. (a) Bill of lading. A contract for move- (h) Tender of service. A carrier’s offer ment and delivery of goods. to do business with the Department of (1) Carriers issue commercial bills of Defense, including the terms and condi- lading. tions of the agreement. The Personal (2) Transportation officers issue gov- Property Traffic Management Regula- ernment bills of lading (GBL). GBLs in- tion (PPTMR), DOD Regulation 4500.34, clude the terms and conditions of com- Appendix A, contains this agreement.

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00109 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.38 32 CFR Ch. VII (7–1–05 Edition)

§ 842.38 Delegations of authority. facts that caused the claimed loss. The (a) Settlement authority: (1) These in- requirement to file a claim within 9 dividuals have delegated authority to months under commercial bills of lad- settle, compromise, suspend, or termi- ing does not apply to GBLs. nate action on claims for $20,000 or less and to accept full payment on any Subpart F—Military Claims Act (10 claim: U.S.C. 2733) (i) The Judge Advocate General. (ii) The Deputy Judge Advocate Gen- § 842.40 Scope of this subpart. eral. This subpart explains how to settle (iii) The Director of Civil Law. claims made against the United States (iv) Chief, Deputy Chief, and Branch for property damage, personal injury, Chiefs, Claims and Tort Litigation or death caused by military personnel Staff. or civilian employees of the Air Force (v) The SJAs of HQ PACAF, HQ acting in the scope of their employ- USAFE, and HQ 9AF (for HQ ment or otherwise incident to the Air CENTCOM). Force’s noncombat activities. (2) These individuals have delegated authority to settle, compromise, sus- § 842.41 Definitions. pend, or terminate action on claims for $15,000 or less and to accept full pay- (a) Appeal. A request by the claimant ment on any claim: or claimant’s authorized agent to re- (i) SJAs of GCMs in PACAF and evaluate the final decision. A request USAFE. for reconsideration and an appeal are (ii) SJAs of single base GCMs. the same for the purposes of this sub- (3) SJAs of each Air Force base, sta- part. tion, or fixed installation have dele- (b) Final denial. A letter mailed from gated authority to settle, compromise, the settlement authority to the claim- suspend, or terminate action on claims ant or authorized agent advising the for $10,000 or less and to accept full claimant that the Air Force denies the payment on any claim. claim. (b) Redelegation of authority. An indi- (c) Noncombat activity. Activity, other vidual with settlement authority may than combat, war or armed conflict, redelegate this authority, in writing, that is particularly military in char- to a subordinate judge advocate or ci- acter and has little parallel in the civilian attorney. vilian community. (c) Authority to reduce, withdraw, or restore settlement authority. Any supe- § 842.42 Delegations of authority. rior settlement authority may reduce, (a) Settlement authority: (1) The Sec- withdraw, or restore settlement au- retary of the Air Force has delegated thority. authority to: § 842.39 Statute of limitations. (i) Settle claims for $100,000 or less. (a) International commercial air (ii) Settle claims for more than shipments. The government must file $100,000, paying the first $100,000 and re- suit within 2 years after the delivery porting the excess to the General Ac- date. The period for notifying these counting Office for payment. carriers of loss or damage is 3 days for (iii) Deny a claim in any amount. luggage, and 7 days for other goods. (2) The Judge Advocate General has Setoff is not possible in these cases. delegated authority to settle claims for Uncollectible claims are sent to HQ $100,000 or less and deny claims in any USAF/JACC within 6 months from the amount. date of delivery. (3) The following individuals have (b) All other CR claims. The govern- delegated authority to settle claims for ment must file suit within 6 years after $25,000 or less and deny claims in any the cause of action accrues. It accrues amount: when a responsible US official, service (i) The Deputy Judge Advocate Gen- member, or employee knew or reason- eral. ably should have known the material (ii) The Director of Civil Law.

100

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00110 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.45

(iii) The Chief, Deputy Chief and exercising due care, in the execution of Branch Chiefs, Claims and Tort Litiga- a statute or regulation. tion Staff. (7) Claims based upon the exercise or (4) The SJA of 9AF for CENTCOM, performance or the failure to exercise and the SJAs of PACAF and USAFE or perform a discretionary function or have delegated authority to settle duty on the part of a federal agency or claims payable or deny claims filed for an employee of the government. $25,000 or less. (8) Claims for damage to property of (5) SJAs of single base GCMs, and a state, commonwealth, territory, or GCMs in PACAF and USAFE, and each the District of Columbia caused by Air Force base, station, or fixed instal- ANG personnel engaged in training or lation have delegated authority to set- duty under 32 U.S.C. 316, 502, 503, 504, or tle claims payable, or deny claims filed 505 who are assigned to a unit main- for $15,000 or less. tained by that state, commonwealth, (b) Redelegation of authority. A settle- territory or the District of Columbia. ment authority may redelegate his or (9) Claims not payable because pay- her authority for claims not exceeding ment is not in the best interests of the $25,000, to a subordinate judge advocate United States, is contrary to public or civilian attorney in writing. policy, or is otherwise contrary to the (c) Appellate authority. Upon appeal, a basic intent of the MCA. settlement authority has the same au- (10) Claims presented by a national, thority specified above. However, no or a corporation controlled by a na- appellate authority below the Office of tional, of a country at war or engaged the Secretary of the Air Force may in armed conflict with the United deny an appeal of a claim it had pre- States, or any country allied with such viously denied. enemy country. (d) Authority to reduce, withdraw, and (11) Medical malpractice. restore settlement authority. Any supe- [55 FR 2809, Jan. 29, 1990, as amended at 56 rior settlement authority may reduce, FR 1574, Jan. 16, 1991] withdraw, or restore delegated authority. § 842.43 Filing a claim. (e) Settlement negotiations. A settle- (a) How and when filed. A claim is ment authority may settle a claim in filed when a federal military agency re- any sum within its delegated settle- ceives from a claimant or duly author- ment authority, regardless of the ized agent a properly completed Stand- amount claimed. Send uncompromised ard Form 95 or other signed and writ- claims in excess of the delegated au- ten demand for money damages in a thority to the level with settlement sum certain. A claim belonging to an- authority. Unsuccessful negotiations other agency is promptly transferred at one level do not bind higher author- to that agency. ity. (b) Amending a claim. A claimant may (f) Special exceptions. Do not settle amend a claim at any time prior to claims for the following without HQ final action. To amend a claim, the USAF/JACC approval: claimant or his or her authorized agent (1) Legal malpractice. must submit a written, signed demand. (2) On the job personal injury or death of an employee of a government § 842.44 Advance payments. contractor or subcontractor. Subpart Q sets forth procedures for (3) Assault, battery, false imprison- advance payments. ment, false arrest, abuse of process, or malicious prosecution committed by § 842.45 Statute of limitations. an investigative or law enforcement of- (a) A claim must be filed in writing ficer. within 2 years after it accrues. It ac- (4) On-base animal bite cases. crues when the claimant discovers or (5) Personal injury from asbestos or reasonably should have discovered the radon. existence of the act that resulted in (6) Claims based upon an act or omis- the claimed loss. The same rules gov- sion of an employee of the government, erning accrual pursuant to the Federal

101

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00111 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.46 32 CFR Ch. VII (7–1–05 Edition)

Tort Claims Act should be applied with NOTE: These personnel are not proper respect to the Military Claims Act. claimants for personal injury or death inci- (b) The statutory time period ex- dent to service. (c) Persons in foreign countries who cludes the day of the incident and in- are not inhabitants of the foreign coun- cludes the day the claim was filed. try. (c) Consider claims filed after the (d) States, state agencies, counties, statute has run when: or municipalities, or their political (1) The United States is at war or in subdivisions. an armed conflict when the claim ac- (e) Prisoners of war or interned crues, or enemy aliens. (2) The United States enters a war or NOTE: These individuals are proper claim- armed conflict after the claim accrues, ants for personal property damage but not and for personal injury. (3) Good cause is shown. A claim is (f) Property owners, their representa- barred by the statute of limitations if tives, and those with certain legal rela- it is filed more than 2 years after the tionships with the record owner, in- good cause ceases to exist or the war or cluding mortgagors, mortgagees, trust- armed conflict ends. Congress or the ees, bailees, lessees and conditional President establishes the beginning vendees. (g) Subrogees to the extent they have and end of war or armed conflict. paid for the claim in question.

§ 842.46 Who may file a claim. § 842.48 Who are not proper claimants. (a) Owners of the property or their (a) Governments of foreign nations, authorized agents may file claims for their agencies, political subdivisions, property damage. or municipalities. (b) Injured persons or their duly au- (b) Agencies and departments of the thorized agents may file claims for per- U.S. Government. sonal injury. (c) Nonappropriated fund instrumen- (c) Duly appointed guardians of talities. minor children or any other persons le- (d) Subrogees of § 842.48(a), (b), and (c) gally entitled to do so under applicable of this part. local law may file claims for minors’ (e) Inhabitants of foreign countries. personal injuries. (d) Executors or administrators of a § 842.49 Claims payable. decedent’s estate or another person le- (a) Claims arising from negligent or gally entitled to do so under applicable wrongful acts or omissions committed local law, may file claims based on: by United States military or civilian (1) An individual’s death. personnel while acting in the scope of (2) A cause of action surviving an in- their employment. dividual’s death. (b) Claims arising from noncombat (e) Insurers with subrogation rights activities of the United States, wheth- may file claims for losses paid in full er or not such injuries of damages by them. The parties may file claims arose out of the negligent or wrongful jointly or individually, to the extent of acts or omissions by United States each party’s interest, for losses par- military or civilian employees acting tially paid by insurers with subroga- within the scope of their employment. (c) Claims for damage to bailed prop- tion rights. erty under § 842.49(a) or (b) of this part, (f) Authorized agents signing claims where all of the following are present: show their title or legal capacity and (1) The United States armed forces present evidence of authority to assumed the duties of a bailee. present the claims. (2) The bailor did not assume the risk of loss by express agreement. § 842.47 Who are proper claimants. (3) Authorized United States armed (a) Citizens and inhabitants of the forces military or civilian personnel United States. acting in their official capacity prop- (b) U.S. military personnel and civil- erly accepted the property. ian employees. (d) Claims for loss or damage to:

102

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00112 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.50

(1) Insured or registered mail under duty on the part of a Federal agency or § 842.49(a), (b), or (c) while in the pos- an employee of the government, wheth- session of the United States armed er or not the discretion involved is forces military or civilian personnel. abused. Do not deny claims solely on (2) Minimum fee insured mail, but this exception without the prior ap- only if it has an insurance number or proval of HQ USAF/JACC. requirement for hand-to-hand receipt (c) Arises out of the loss, mis- while in the possession of the United carriage, or negligent transmission of States armed forces military or civil- letters or postal matter, except those ian personnel. (3) Any mail in the possession of the claims payable under § 842.49. US Postal Service or a Military Postal (d) Arises with respect to the assess- Service due to an unlawful or negligent ment or collection of any tax or cus- inspection, search, or seizure con- toms duty, or the detention of any ducted in an oversea military postal fa- goods or merchandise by any officer of cility, under orders of armed forces customs or excise, or any other law en- personnel. forcement officer. (e) Claims for property damage of US (e) Is cognizable under the Suits in military personnel under conditions Admiralty Act or under the Public Ves- listed in paragraphs (a) and (b) of this sels Act. section, where the damage occurred on (f) Arises out of an act or omission of a military installation and is not pay- any employee of the government in ad- able under the Military Personnel and ministering the provisions of the Trad- Civilian Employees’ Claims Act. ing With the Enemy Act. (f) Claims filed by DOD military or civilian health care providers or legal (g) Is for damages caused by the im- personnel for their personal liability by position or establishment of a quar- settlement or judgment, to include rea- antine by the United States. sonable costs of such litigation, for (h) Arises out of an assault or bat- their common law tortious acts com- tery, unless the assault or battery mitted within the scope of their em- arises out of the acts or omissions of ployment under circumstances de- investigative or law-enforcement offi- scribed in 10 U.S.C. 1089(f) and 10 U.S.C. cers of the US Government, or arises 1054(f). out of the performance of medical, den- [55 FR 2809, Jan. 29, 1990, as amended at 55 tal or related health care functions. FR 32076, Aug. 7, 1990] (i) Arises out of false imprisonment, false arrest, malicious prosecution or § 842.50 Claims not payable. abuse of process, unless such actions Exclusions listed in § 842.50 (a) were committed by an investigative or through (l) of this part, are based on law enforcement officer of the United the wording of 28 U.S.C. 2680. The re- States who is empowered by law to exe- mainder are based either on statute or cute searches, seize evidence, or make court decisions. The interpretation of arrests for violations of federal law. these exclusions is a Federal question (j) Arises out of libel, slander, mis- decided under Federal law. Where representation, or deceit. State law differs with Federal law, (k) Arises out of interference with Federal law prevails. A claim is not contract rights. payable under this subpart if it: (l) Arises from the fiscal operations (a) Is based on an act or omission of of the Department of the Treasury or an employee of the government, exer- from the regulation of the monetary cising due care, in the execution of a system. statute or regulation, whether or not such statute or regulation is valid. Do (m) Arises out of the combat activi- not deny claims solely on this excep- ties of the military or naval forces, or tion without the prior approval of HQ the Coast Guard, during time of war. USAF/JACC. (n) Arises from activities of the Ten- (b) Is based on the exercise or per- nessee Valley Authority. formance or the failure to exercise or (o) Arises from the activities of the perform a discretionary function or Panama Canal Company.

103

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00113 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.50 32 CFR Ch. VII (7–1–05 Edition)

(p) Arises from the activities of a out of the activities of any federal Federal land bank, a Federal interagency or employee of the government mediate credit bank, or a bank for coin carrying out the provisions of the operatives. Federal Disaster Relief Act of 1954. (q) Is for the personal injury or death (aa) Arises from activities that of a member of the Armed Forces of present a political question. the United States, including the Coast (bb) Results wholly from the neg- Guard, incurred incident to service. ligent, or wrongful act of the claimant (r) Is for the personal injury or death or agent. of a government employee for whom (cc) Is for reimbursement for med- benefits are provided by the FECA. (s) Is for the personal injury or death ical, hospital, or burial expenses fur- of an employee, including non- nished at the expense of the United appropriated fund employees, for whom States. benefits are provided by the Longshore (dd) Arises from contractual trans- and Harbor Workers’ Compensation actions, express or implied, including Act (LHWCA). rental agreements, sales agreements, (t) Is for the personal injury or death leases and easements, which are pay- of any government contractor em- able or enforceable under such con- ployee for whom benefits are provided tracts or arise out of irregular procure- under any worker’s compensation law, ment and implied contract. or under any contract or agreement (ee) Arises from private, as distin- providing employee benefits through guished from government, trans- insurance, local law, or custom when actions. the United States pays them either di- (ff) Is based solely on compassionate rectly or as part of the consideration grounds. under the contract. Only HQ USAF/ (gg) Is for rent, damage, or other ex- JACC may settle these claims. penses or payments involving the reg- (u) Is for taking of property as by ular acquisition, use, possession, or dis- technical trespass or overflight of air- position of real property of interests craft and of a type contemplated by the Fifth Amendment to the US Constitu- therein by and for the Air Force. tion, or otherwise constitutes a taking. (hh) Is not in the best interests of the (v) Is for damage from or by flood or United States, is contrary to public flood waters at any place. policy, or is otherwise contrary to the (w) Is for damage to property or for basic intent of the MCA; for example, any death or personal injury occurring claims by inhabitants of unfriendly for- directly or indirectly as a result of the eign countries or by or based on injury exercise or performance of, or failure or death of individuals considered to be to exercise or perform, any function or unfriendly to the United States. Claims duty by any Federal agency or em- considered not payable under this para- ployee of the government to carry out graph are forwarded, with rec- the provisions of the Federal Civil De- ommendations for disposition, through fense Act of 1950 during the existence claims channels to HQ USAF/JACC. of a civil defense emergency. (ii) Is presented by a national, or a (x) Is for patent or copyright incorporation controlled by a national, of fringement. a country at war or engaged in armed (y) Is for damage to property of a conflict with the United States, or any state, commonwealth, territory, or the country allied with such enemy coun- District of Columbia caused by ANG try unless the appropriate settlement personnel engaged in training or duty authority determines that the claim- under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit maintained ant is, and at the time of the incident by that state, commonwealth, terri- was, friendly to the United States. A tory, or the District of Columbia unless prisoner of war or an interned enemy the express approval for payment is re- alien is not excluded as to a claim for ceived from HQ USAF/JACC. damage, loss, or destruction of per- (z) Is for damage to property or for sonal property in the custody of the any death or personal injury arising Government otherwise payable. Claims

104

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00114 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.51

considered not payable under this para- cers or employees of the United States graph are forwarded with recommenda- acting within the scope of their em- tions for disposition, through claims ployment, liability or the United channels, to HQ USAF/JACC. States is determined according to gen- (jj) Is for personal injury or death of eral principles of tort law common to military or civilian personnel of a for- the majority of American jurisdictions, eign country, if their personal injury as evidenced by Federal case law and or death was suffered incident to their standard legal publications, except as service. to the principle of absolute liability. (kk) Is for damage to or loss of bailed (ii) The law of the foreign country property when the bailor specifically governing the legal effect of contribu- assumes such risk. tory or comparative negligence by the (ll) Is for property damage, personal claimant will be applied in determining injury, or death occurring in a foreign the relative merits of the claim. In the country to an inhabitant of that coun- unusual situation where foreign law try. governing contributory or comparative (mm) Is for the loss of a rental fee for negligence does not exist, use tradi- personal property. tional rules of contributory negligence. (nn) Arises out of matters which are Foreign rules and regulations gov- in litigation against the United States. erning the operation of motor vehicles (oo) Is payable under any one of the (rules of the road) are applied to the following statutes and implementing extent those rules are not specifically regulations: superseded or preempted by United (1) Federal Tort Claims Act. States military traffic regulations. (2) Foreign Claims Act. (3) When adjudicating claims based (3) International Agreements Claims upon negligence, the principle of abso- Act. lute liability is not applicable, even (4) Air Force Admiralty Claims Act though otherwise prescribed by appli- and the Admiralty Extension Act. cable local law. (5) National Guard Claims Act. (4) The meaning and construction of (6) Military Personnel and Civilian the MCA is a Federal question to be de- Employees’ Claims Act. termined by Federal law. (b) General information: (1) The meas- § 842.51 Applicable law. ure of daages in claims arising in the This paragraph provides the existing United States or its possessions is de- law governing liability, measurement termined according to the law of the of liability and the effects of settle- place where the act or omission oc- ment upon awards. curred. The measure of damages in (a) Extent of liability. Where the claim claims arising overseas is determined arises is important in determining the according to general principles of extent of liability. American tort law. (1) When a claim arises in the United (2) Apportion damages against the States, the law of the place where the United States in the same manner as act or omission occurred governs li- they are apportioned in suites against ability. The settlement authority con- private persons if local law applies siders the local law on such issues as comparative negligence. dangerous instrumentalities, assump- (3) Do not deduct proceeds from pri- tion of risk, res ipsa loquitur, last clear vate insurance policies except to the chance, discovered peril, and compara- extent allowed by local law. However, tive and contributory negligence. Abso- proceeds are deducted if the policy was lute liability is never imposed. paid for by the United States. (2) Claims in foreign countries. (i) In (4) Deduct compensation and benefits claims arising in a foreign country, from the Department of Veterans Af- where the claim is for personal injury, fairs, or monetary value received from death, or damage to or loss of real or any U.S. Government associated source personal property caused by an act or from the damages which may be award- omission alleged to be negligent, ed. Deduct sick and annual leave pay- wrongful, or otherwise involving fault ments if local law allows. of military personnel or civilian offi- (5) Do not approve:

105

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00115 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.52 32 CFR Ch. VII (7–1–05 Edition)

(i) Punitive damages. part of the award exceeding $1,000,000 (ii) Cost of medical or hospital serv- may be determined by the Secretary of ices furnished at U.S. expense. the Air Force. For the purposes of this (iii) Cost of burial expenses paid by paragraph, an award is deemed to be the United States. the cost to the United States of any (c) Settlement by insurer or joint tort- trust or structured settlement, and not feasor. When settlement is made by an its future value. insurer or joint tort-feasor and an additional award is warranted, an award Subpart G—Foreign Claims (10 may be made if both of the following U.S.C. 2734) are present: (1) The United States is not protected § 842.55 Scope of this subpart. by the release executed by the claim- This subpart tells how to settle and ant. pay claims against the United States (2) The total amount received from presented by inhabitants of foreign such source is first deducted. countries for property damage, per- § 842.52 Appeal of final denials. sonal injury, or death caused by military and civilian members of the US (a) A claimant may appeal the final Armed Forces in foreign countries. denial of the claim. The claimant sends the request, in writing, to the settle- § 842.56 Definitions. ment authority within a reasonable (a) Foreign country. A national state time following the final denial. Sixty other than the United States, including days is considered a reasonable time, any place under jurisdiction of the but the settlement authority may United States in a foreign country. waive the time limit for good cause. (b) Inhabitant of a foreign country. A (b) Upon receipt of the appeal, the person, corporation, or other business original settlement authority reviews association whose usual place of abode the appeal. is in a foreign country. The term ‘‘in- (c) Where the settlement authority habitant’’ has a broader meaning than does not reach a final agreement on an such terms as ‘‘citizen’’ or ‘‘national’’, appealed claim, he or she sends the en- but does not include persons who are tire claim file to the next higher set- merely temporarily present in a for- tlement authority, who is the appellate eign country. It does not require for- authority for that claim. eign citizenship or domicile. (d) The decision of the appellate au- (c) Appointing authority. An Air Force thority is the final administrative ac- official authorized to appoint members tion on the claim. to foreign claims commissions (FCC).

§ 842.53 Right of subrogation, indem- § 842.57 Delegations of authority. nity, and contribution. (a) Settlement authority: (1) The Sec- The Air Force becomes subrogated to retary of the Air Force has the author- the rights of the claimant upon set- ity to: tling a claim. The Air Force has the (i) Settle claims for payment of rights of contribution and indemnity $100,000 or less. permitted by the law of the situs, or (ii) Settle claims for more than under contract. Do not seek contribu- $100,000, pay the first $100,000, and re- tion or indemnity from US military port the excess to the General Ac- personnel or civilian employees whose counting Office for payment. conduct gave rise to government liabil- (iii) Deny claims in any amount. ity. (2) The Judge Advocate General has delegated authority to: § 842.54 Attorney fees. (i) Settle claims for payment of In the settlement of any claim pursu- $100,000 or less. ant to 10 U.S.C. 2733 and this subpart, (ii) Deny claims in any amount. attorney fees will not exceed 20 percent (3) The Deputy Judge Advocate Gen- of any award provided that when a eral, Director of Civil Law, and the claim involves payment of an award Chief, Deputy Chief and Branch Chiefs, over $1,000,000, attorney fees on that Claims and Tort Litigation Staff are

106

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00116 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.61

each a foreign claims commission and duce or withdraw the authority of a have delegated authority to: FCC to settle claims for $10,000 or less. (i) Settle claims for payment of (d) Settlement negotiations. A settle- $50,000 or less. ment authority may settle a claim in (ii) Deny a claim in any amount. any sum within its settlement author- (4) The SJAs of PACAF, USAFE, 9AF ity, regardless of the amount claimed. (for CENTCOM) and AFSPACECOM Send uncompromised claims in excess (for Greenland and Canada) are each a of the delegated authority through foreign claims commission and have claims channels to the level with set- delegated authority to approve claims tlement authority. Unsuccessful nego- for payment arising within their geo- tiations at one level do not bind higher graphic area of responsibility for authority. $50,000 or less, or deny claims of $50,000 (e) Special exceptions. Do not settle or less. claims for medical malpractice without HQ USAF/JACC approval. (5) The SJAs of Numbered Air Forces in PACAF and USAFE; the SJA of HQ [55 FR 2809, Jan. 29, 1990, as amended at 55 TUSLOG; the SJA of 12AF (for South FR 32076, Aug. 7, 1990; 56 FR 1574, Jan. 16, America); and the SJAs of Lajes AB, 1991] Azores, Patrick AFB, FL, and Howard § 842.58 Filing a claim. AFB, Panama are each a foreign claims commission and have delegated author- (a) How and when filed. A claim is ity to: filed when a federal agency receives (i) Recommend payment in any from a claimant or authorized agent a amount. properly completed SF 95 or other signed and written demand for money (ii) Settle claims for payment of damages in a sum certain. A claim be- $25,000 or less. longing to another agency is promptly (iii) Deny claims for $50,000 or less. transferred to the appropriate agency. (6) The SJAs of each Air Force base, (b) Amending a claim. A claimant may station and fixed installation in amend a claim at any time prior to PACAF, USAFE, and CENTCOM, are final action. An amendment must be in each a foreign claims commission and writing and signed by the claimant or have delegated authority to: authorized agent. (i) Recommend payment in any amount. § 842.59 Advance payments. (ii) Settle claims for payment of Subpart Q outlines procedures for ad- $10,000 or less. vance payments. (iii) Deny claims for $25,000 or less. (b) Authority to appoint FCCs. (1) The § 842.60 Statute of limitations. Chief, Claims and Tort Litigation (a) A claim must be filed in writing Staff, has the delegated authority to within 2 years after it accrues. It ac- appoint a judge advocate or civilian at- crues when the claimant discovers or torney as a FCC and to redelegate all reasonably should have discovered the or a part of his or her settlement au- existence of the act that resulted in thority to that FCC. the claimed loss or injury. (2) A settlement authority appointed (b) In computing the statutory time as a FCC in paragraph (a) of this sec- period, the day of the incident is ex- tion may appoint one or more subordi- cluded and the day the claim was filed nate judge advocates or civilian attor- is included. neys as FCCs, and may redelegate all (c) War or armed conflict does not or part of that settlement authority to toll the statute of limitations. those FCCs, in writing. Every FCC must have authority to settle claims § 842.61 Who may file a claim. for at least $10,000. (a) Owners of the property or their (c) Authority to reduce, withdraw, or authorized agents for property damage. restore settlement authority. Any supe- (b) Injured persons or other author- rior settlement authority may reduce, ized agents for personal injury. withdraw, or restore delegated author- (c) Executors or administrators of a ity, in writing, except no one may re- decedent’s estate, or any other person

107

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00117 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.62 32 CFR Ch. VII (7–1–05 Edition)

legally entitled to do so under applica- termines the claimant is friendly with ble local law, for an individual’s death. the United States. (d) Authorized agents (including the claimant’s attorney) must show their § 842.64 Payment criteria. title or legal capacity and present evi- The following criteria is considered dence of authority to present the before determining liability. claim. (a) The incident causing the damage § 842.62 Who are proper claimants. or injury must occur outside the United States. It must be caused by Claimants include inhabitants of a noncombatant activities of the US foreign country who are: Armed Forces or by civilian employees (a) Foreign nationals. or military members of the Armed (b) US nationals, unless they reside Forces. there primarily because they are: (1) Employed directly by the United (b) Negligence is not a prerequisite. States. (c) Scope of employment is consid- (2) Employed by a US civilian con- ered in the following situations. tractor to further performance of a (1) It is a prerequisite to US responsi- contract with the United States. bility if the employee causing the dam- (3) Sponsored by or accompanying age or injury is a local inhabitant, a someone employed as described in prisoner of war, or an interned enemy § 842.62(b) (1) or (2) of this part. alien. These persons are ‘‘employees’’ (c) US corporations with a place of within the meaning of the Foreign business in the country in which the Claims Act (FCA) only when in the claim arose. service of the United States. Ordi- (d) Foreign governments and their narily, a slight deviation as to time or political subdivisions, including a mu- place does not constitute a departure nicipal and prefectural government. from the scope of employment. The (e) Foreign companies and business purpose of the activity and whether it entities. furthers the general interest of the United States is considered. If the § 842.63 Who are not proper claimants. claim arose from the operation or use Persons who are not proper claim- of a US Armed Forces vehicle or other ants include: equipment by such a person, pay it pro- (a) Insurers and other subrogees. vided local law imposes liability on the (b) Dependents accompanying US owner of the vehicle or other equip- military and US national civilian em- ment in the circumstances involved. ployees. (2) It is immaterial when the claim (c) Foreign military personnel suf- arises from the acts or omissions of fering property damage, personal in- any US Armed Forces member or em- jury, or death from a joint military ployee not listed in § 842.64(c)(1) of this mission with the United States or from part. The Act imposes responsibility on conduct of a US military member or the United States when it places a US employee acting in the scope of em- citizen or non-US citizen employee in a ployment unless an international position to cause the injury or damage. agreement specifically provides for re- If the cause is a criminal act clearly covery. outside the scope of employment, ordi- (d) Civilian employees of the United narily pay the claim and consider dis- States, including local inhabitants, in- ciplinary action against the offender. jured in the scope of their employment. (e) National governments and their § 842.65 Claims not payable. political subdivisions engaging in war or armed conflict with the United A claim is not payable when it: States or its allies. (a) Has been paid or denied by a com- (f) A national or nationally con- petent tribunal under the North Atlan- trolled corporation of a country engag- tic Treaty Organization (NATO), Sta- ing in war or armed conflict with the tus of Forces Agreement (SOFA), or United States or its allies, unless the any similar SOFA or treaty. FCC or local military commander de- (b) Is purely contractual in nature.

108

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00118 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.66

(c) Is for attorney fees, punitive dam- while preparing for or going to, or re- ages, a judgment or interest on a judg- turning from a combat mission. ment, bail, or court costs. (n) Is based on negligence of a con- (d) Accrues from a private contrac- cessionaire or other independent con- tual relationship between US personnel tractor. and third parties about property leases, (o) Arises out of personal activities of public utilities, hiring of domestic dependents, guests, servants, or pets of servants, and debts of any description. members and employees of the US This claim is sent for action to the Armed Forces. (This includes situa- commander of the person concerned tions where local law imposes strict li- (see 32 CFR part 818). ability or where the head of a house- (e) Is based solely on compassionate hold is held vicariously liable for their grounds. negligence.) NOTE: A Solatium payment is paid from (p) Is the subject of litigation against O&M funds as an investigative expense. the United States or its employees. (f) Is a bastardy claim. This restriction does not apply to joint (g) Is for patent or copyright in- criminal/civil proceedings in a foreign fringement. court. Claims settlement may be au- (h) Is waived under an international thorized by HQ USAF/JACC in appro- agreement. priate cases on request. (i) Is for rent, damage, or other pay- (q) Is covered under US admiralty ments involving regular acquisition, laws, unless authorized by The Judge possession, and disposition of real prop- Advocate General or Chief, Claims and erty by or for the Air Force. Tort Litigation Staff. (j) Is filed by a Communist country (r) Is one for which a foreign govern- or its inhabitants, unless authorized by ment is responsible under SOFA, trea- HQ USAF/JACC. ty, or other agreement. However, HQ (k) Is for real property taken by a USAF/JACC may authorize payment of continuing trespass. a claim where the foreign government (l) Is for personal injury or death of a refuses to recognize its legal respon- person covered by: sibilities and the claimant has no other (1) The Federal Employees’ Com- means of compensation. pensation Act (5 U.S.C. 8101, et seq.). § 842.66 Applicable law. (2) The Longshore and Harbor Work- ers’ Compensation Act (33 U.S.C. 901, et This paragraph provides guidance to seq.). determine the applicable law for as- (3) A US contract or agreement pro- sessment of liability. viding employee benefits through in- (a) A claim is settled under the law surance, local law, or custom, where and standards in effect in the country the United States pays for them either where the incident occurred. In calcu- directly or as part of the consideration lating the amount of any lump sum under the contract. (See 42 U.S.C. 1651 award, the present value of any peri- and 42 U.S.C. 1701.) The Judge Advocate odic payment upon which the award is General or Chief, Claims and Tort Liti- based, is computed, unless the law of gation Staff, HQ USAF/JACC, may au- the place of occurrence prohibits it. thorize an award where local benefits (b) Contributory negligence com- are not adequate. Local benefits are de- mitted by the claimant, claimant’s ducted from any award. agent, or employee is not used as a bar (m) Results from an action by an to recovery unless local law or custom enemy, or directly or indirectly from requires it. If the comparative neg- an act of the armed forces of the ligence doctrine is used, the percentage United States in combat, except that a of negligence of each party is reflected claim may be allowed if it arises from in the apportionment of liability. The an accident or malfunction incident to amount of damage sustained by both the operation of an aircraft of the parties is apportioned according to armed forces of the United States, in- local law. cluding its airborne ordnance, indi- (c) The following principles of the rectly related to combat, and occurring collateral source doctrine are applied

109

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00119 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.67 32 CFR Ch. VII (7–1–05 Edition)

in settling a claim except where local under contract. Contribution or indem- law provides otherwise: nity should not be sought: (1) Any sums the claimant recovers (a) From US military personnel or ci- from collateral sources, including pro- vilian employees whose conduct gave ceeds of property insurance the claim- rise to government liability. ant paid for are not deducted from the (b) Where recovery action would be claim except when those sums are harmful to international relations. from: (i) The US Government. Subpart H—International Agree- (ii) A US military member or em- ment Claims (10 U.S.C. 2734a ployee. and 2734b) (iii) A Joint tort-feasor. (iv) An Insurer of § 842.66(c)(1)(i), (ii), § 842.69 Scope of this subpart. or (iii), above. This subpart governs Air Force ac- (2) Do not deduct insurance or any tions in investigating, processing, and other payments where the US military settling claims under international member or employee would have to agreements. make reimbursement. § 842.70 Definitions. § 842.67 Reconsideration of final deni- The following are general definitions. als. See the relevant international agree- This paragraph provides the proce- ment for the specific meaning of a dures used to reconsider a final denial. term to use with a specific claim. (a) An FCC may reopen, reverse, or (a) Civilian component. Civilian per- reconsider, in whole or in part, any sonnel accompanying a force of a con- claim it previously decided if the re- tracting party, who are employed by quest for reconsideration is received in that force. Indigenous employees, con- a reasonable time. Sixty days is consid- tractor employees, or members of the ered a reasonable time, but the FCC American Red Cross are not a part of may waive the time limit for good the civilian component unless specifi- cause. cally included in the agreement. (b) An FCC reconsiders the final ac- (b) Contracting party. A nation sign- tion on a claim when there is: ing the governing agreement. (c) Force. Personnel belonging to the (1) New and material evidence con- land, sea, or air armed services of one cerning the claim. contracting party when in the terri- (2) Obvious error in facts or calcula- tory of another contracting party in tion of the original settlement. connection with their official duties. (3) Fraud or collusion in the original (d) Legally responsible. A term of art submission of the claim. providing for settlement of claims (c) The FCC must state the reason for under cost sharing international agree- reconsideration in its opinion. A court ments consistent with the law of the decision is not in itself sufficient basis receiving State. Often these claims are for reconsidering a claim, but the facts caused by local inhabitant employees, that resulted in the judgment may not part of the civilian component, warrant reconsideration. The amount under a respondeat superior theory. of a court judgment is not binding on a (e) Receiving state. The country where FCC’s determination of damage, but the force or civilian component of an- the commission may consider the judg- other party is located. ment as evidence of the local law on (f) Sending state. The country sending the subject. the force or civilian component to the receiving State. § 842.68 Right of subrogation, indem- (g) Third parties. Those other than nity, and contribution. members of the force and civilian com- The Air Force becomes subrogated to ponent of the sending or receiving the rights of the claimant upon set- States. Dependents, tourists, and other tling a claim. The Air Force has the noninhabitants of a foreign country are rights of indemnity and contribution third parties unless the agreement spe- permitted by the law of the situs or cifically excludes them.

110

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00120 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.76

§ 842.71 Delegations of authority. a government vehicle or any other government property by Air Force mili- (a) Reimbursement authority. The following individuals have delegated au- tary and civilian personnel which are thority to reimburse or pay a pro rata not payable under any other statute. share of a claim or object to a claim in § 842.74 Definitions. any amount: (1) The Secretary of the Air Force. (a) Government installation. A United (2) The Judge Advocate General. States Government facility having (3) The Deputy Judge Advocate Gen- fixed boundaries and owned or con- eral. trolled by the government. (4) The Chief of Civil Law. (b) Vehicle. Every mechanical device (5) Chief, Deput Chief, and Branch used as a means of transportation on Chiefs, Claims and Tort Litigation land. Staff. § 842.75 Delegations of authority. (6) The SJAs and Deputy SJAs of PACAF, USAFE, 5th Air Force, Lajes (a) Settlement authority. The following Field, and 9th Air Force (for individuals have delegated authority to CENTCOM). settle claims for $1,000 or less and deny (b) Redelegation of authority. A settle- them in any amount. ment authority may redelegate his or (1) The Judge Advocate General. her authority to a subordinate judge (2) The Deputy Judge Advocate Gen- advocate or civilian attorney in writ- eral. ing. (3) Director of Civil Law. (c) Authority to reduce, withdraw, and (4) Chief, Deputy Chief and Branch restore settlement authority. Any supe- Chiefs, Claims and Tort Litigation rior settlement authority may reduce, staff. withdraw, or restore delegated author- (5) SJA of HQ 9AF for CENTCOM, and ity. SJAs of PACAF and USAFE. (6) SJAs of single base GCMs and § 842.72 Filing a claim. GCMs in PACAF and USAFE. (7) The SJA of each Air Force base, (a) Claims arising in a foreign country. station and fixed installation. (1) If a third party claimant tries to (8) Any other judge advocate des- file an international agreement claim ignated by The Judge Advocate Gen- with Air Force, direct that person to eral. the appropriate receiving State office. (b) Redelegation of authority. A settle- (2) If the Air Force receives a claim, ment authority may redelegate it to a send it to the US sending State office subordinate judge advocate or civilian for delivery to the receiving State. attorney in writing. (b) Claims arising in the United States. (c) Authority to reduce, withdraw, and The claimant files tort claims arising restore settlement authority. Any supe- from the act or omission of military or rior settlement authority may reduce, civilian personnel of another con- withdraw, or restore delegated author- tracting party at any US military in- ity. stallation. The installation receiving the claim either: § 842.76 Filing a claim. (1) Investigates it if the foreign per- (a) How and when filed. A claim has sonnel are assigned there. been filed when a federal agency re- (2) Sends it to the installation where ceives from a claimant or the claim- the foreign personnel are assigned. ant’s duly authorized agent written notification of an incident of property Subpart I—Use of Government damage, personal injury or death ac- Property Claims (10 U.S.C. 2737) companied by a demand for money damages in a sum certain. A claim in- § 842.73 Scope of this subpart. correctly presented to the Air Force This subpart explains how to settle will be promptly transferred to the ap- and pay claims against the United propriate Federal agency. States, for property damage, personal (b) Amending a claim. A claimant may injury, or death incident to the use of amend a claim at any time prior to

111

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00121 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.77 32 CFR Ch. VII (7–1–05 Edition)

final Air Force action. Amendments thority may, however, reconsider any will be submitted in writing and signed decision. There is no set format for a by the claimant or the claimant’s duly reconsideration but it should be sub- authorized agent. mitted in writing within 60 days of the original decision. § 842.77 Statute of limitations. (b) The settlement authority may ei- (a) A claim must be presented in ther grant all or any portion of the re- writing within 2 years after it accrues. quested relief without referral to any It accrues at the time the claimant dis- other office, or forward the entire file covers, or in the exercise of reasonable with the reasons for the action and rec- care should have discovered, the exist- ommendations to the next higher ence of the act causing property dam- claims settlement authority for inde- age, personal injury or death for which pendent review and final action. the claim is filed. (b) In computing time to determine § 842.81 Settlement agreement. whether the period of limitation has expired, exclude the incident date and Do not pay a claim unless the claim- include the date the claim was filed. ant accepts the amount offered in full satisfaction of the claim and signs a § 842.78 Claims payable. settlement agreement to that effect. When all of the following are present, payment of a claim in the amount of Subpart J—Admiralty Claims (10 $1,000 or less is authorized if it: U.S.C. 9801–9804, 9806; 46 (a) Is for property damage, personal U.S.C. 740) injury, or death. (Payment for a personal injury or death claim is limited § 842.82 Scope of this subpart. to costs of reasonable medical, hospital, and burial expenses actually in- It sets forth the procedure for admin- curred and not otherwise furnished or istrative settlement of admiralty and paid by the United States.) maritime claims in favor of and (b) Was caused by a military member against the United States. or civilian employee of the Air Force, whether acting within or outside the § 842.83 Definitions. scope of employment. (a) Admiralty contracts. A contract (c) Arose from the use of a govern- covering maritime services or a mari- ment vehicle at any place or other gov- time transaction such as vessel pro- ernment property on a government in- curement and space for commerical stallation, and ocean transportation of DOD cargo, (d) Is not payable under any other mail, and personnel is an admiralty provision of law except Article 139, contract. UCMJ. (b) General average. General average § 842.79 Claims not payable. is the admiralty rule that when someone’s property is thrown overbaord to A claim is not payable if it is: save a ship, the ship owner and all own- (a) Payable under any other provi- ers of the cargo must share the loss. sion of the law. (b) Caused wholly or partly by a neg- (c) Maritime torts. A maritime tort is ligent or wrongful act of the claimant, one committed in navigable waters or the claimant’s agent, or employee. on land or in the air where a substan- (c) A subrogated claim. tial element of the damage, personal (d) Recoverable from other sources injury, or death occurred in navigable such as an insurance policy, or recov- waters. The activity causing the ered from action under Article 139, tortious act must bear some significant UCMJ. relationship to traditional maritime activity. § 842.80 Reconsideration of final de- (d) Vessel. Every description of nial. watercraft used or usable as a means of (a) The statute does not provide for transportation on water is a vessel. (1 appeals. The original settlement au- U.S.C. 3)

112

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00122 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.88

§ 842.84 Delegations of authority. (1) The claimant submits new evidence in support of the claim. (a) The following officials have the (2) There were errors or irregularities authority to settle a claim against the in the submission or settlement of the Air Force in the amounts provided: claim. (1) The Secretary of the Air Force (b) There is no right of appeal to has the authority to: higher authority under this subpart. (i) Settle a claim for payment of more than $500,000 and to certify it to Congress for payment. Subpart K—Claims Under the Fed- (ii) Settle and pay a claim for $500,000 eral Tort Claims Act (28 U.S.C. or less. 1346(b), 2402, 2671, 2672, (iii) Deny a claim in any amount. 2674–2680) (2) The following individuals have delegated authority to settle claims for § 842.86 Scope of this subpart. $100,000 or less: This subpart governs claims against (i) The Judge Advocate General. the United States for property damage, (ii) The Deputy Judge Advocate Gen- personal injury, or death, from the neg- eral. ligent or wrongful act or omission of (iii) The Director of Civil Law. Air Force military or civilian per- (iv) The Chief and Deputy Chief, sonnel while acting within the scope of Claims and Tort Litigation staff. their employment. It also covers simi- (b) Delegation of settlement author- lar tort claims generated by Air Na- ity on claims in favor of the United tional Guard (ANG) members per- States. forming specified duty under 32 U.S.C. (1) The Secretary of the Air Force on or after 29 December 1981. has the authority to settle claims for damage to property under the jurisdic- § 842.87 Definitions. tion of the Air Force in an amount not (a) Compromise. An agreed settlement to exceed $500,000, and to settle claims based upon the facts, the law, and the for salvage services performed by the application of the law to the facts. Air Force in any amount. (b) Final denial. A letter the settle- (2) HQ USAF/JACC refers all claims ment authority mails to the claimant for damage to property under the juris- or authorized agent advising him or diction of the Air Force for more than her that the Air Force denies his or her $500,000 to the Department of Justice. claim. (3) The following individuals have (c) Reconsideration. A request by the delegated authority to settle claims for claimant or claimant’s authorized $100,000 or less and deny them in any agent to reevaluate a final decision. A amount: request for reconsideration and an ap- (i) The Judge Advocate General. peal are the same thing. (ii) The Deputy Judge Advocate Gen- (d) Negligence. A departure from the eral. conduct expected from a reasonably (iii) The Director of Civil Law. prudent person under similar cir- (iv) The Chief and Deputy Chief, cumstances. Claims and Tort Litigation Staff. (e) Proximate cause. The dominant or [55 FR 2809, Jan. 29, 1990, as amended at 55 primary cause involving a natural and FR 32077, Aug. 7, 1990; 56 FR 1574, Jan. 16, continuous sequence unbroken by an 1991] effective cause.

§ 842.85 Reconsidering claims against § 842.88 Delegations of authority. the United States. (a) Settlement authority. (1) Subject to This section provides the policy and the prior written, approval of the procedures to reconsider any maritime United States Attorney General or his claim made against the United States. designee, the following individuals (a) The settlement authority may re- have delegated authority to settle consider any claim previously dis- claims in excess of $25,000, to settle approved in whole or in part when ei- claims for $25,000 or less, and to deny a ther: claim in any amount:

113

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00123 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.89 32 CFR Ch. VII (7–1–05 Edition)

(i) The Judge Advocate General. an investigative or law enforcement of- (ii) The Deputy Judge Advocate Gen- ficer. eral. (4) Animal bites. (iii) The Director of Civil Law. (5) Personal injury from asbestos or (2) Subject to the prior written ap- radon. proval of the United States Attorney (6) Medical malpractice. General or his designee, the Chief, [55 FR 2809, Jan. 29, 1990, as amended at 56 Claims and Tort Litigation Staff has FR 1574, Jan. 16, 1991] delegated authority to settle claims in excess of $25,000 up to a limit of $50,000, § 842.89 Statute of limitations. to settle claims for $25,000 or less; and A claim must be presented in writing to deny a claim in any amount. within 2 years after it accrues. (3) The Deputy Chief and Branch (a) Federal, not state law, determines Chiefs, Claims and Tort Litigation the time of accrual. A claim normally Staff have delegated authority to set- accrues at the time of injury when es- tle claims for $25,000 or less and deny a sential operative facts are apparent. claim in any amount. However, in other instances, especially (4) The SJA of HQ 9AF for in complex medical malpractice cases, CENTCOM, and SJAs of PACAF and a claim accrues when the claimant dis- USAFE have delegated authority to covers or reasonably should have dis- settle claims payable, and deny claims covered the existence of the act that filed, for $25,000 or less. resulted in the claimed loss. (5) The following individuals have (b) In computing the statutory time delegated authority to settle claims period, the day of the incident is ex- payable, and deny claims filed, for cluded and the day the claim was filed $15,000 or less: is included. (i) SJAs of single base GCMs. (c) The Air Force has 6 months to (ii) SJAs of GCMs in PACAF and consider a properly filed claim, after USAFE. which the claimant may file suit. The (iii) SJAs of each Air Force base, sta- claimant’s right to sue ends 6 months tion, or fixed installation. from the date the final denial is (b) Redelegation of authority. A settle- mailed. ment authority may be redelegated, in (d) Properly asserted third party ac- writing, to a subordinate judge advo- tions, as permitted under the Federal cate or civilian attorney. Rules of Civil Procedure, may be (c) Authority to reduce, withdraw, and brought against the United States restore settlement authority. Any supe- without first filing a claim. In such in- rior settlement authority may reduce, stances those actions may start more withdraw, or restore delegated author- than 2 years after the claim has ac- ity. crued. (d) Settlement negotiations. A settle- [55 FR 2809, Jan. 29, 1990, as amended at 55 ment authority may settle a claim FR 32077, Aug. 7, 1990] filed in any amount for a sum within the delegated authority. Unsettled § 842.90 Reconsideration of final deni- claims in excess of the delegated au- als. thority will be sent to the next highest (a) A claimant may request a settle- level with settlement authority. Un- ment authority who denied a claim to successful negotiations at one level do reconsider that claim. If the settle- not bind higher authority. ment authority denies the request, the (e) Special exceptions. Do not settle claim file is sent to the next higher claims for the following without HQ claims settlement authority for action. USAF/JACC approval: (b) A request for reconsideration (1) Legal malpractice. must be filed in writing within 6 (2) On the job personal injury or months of the final denial and prior to death of an employee of a government initiation of a suit. A request for re- contractor or subcontractor. consideration starts a new 6-month pe- (3) Assault, battery, false imprison- riod for the Air Force to consider the ment, false arrest, abuse of process, or claim. The claimant may not sue dur- malicious prosecution committed by ing that period.

114

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00124 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.95

§ 842.91 Settlement agreements. (c) Authority to reduce, withdraw, or restore settlement authority. Any supe- The claimant must sign a settlement rior settlement authority may reduce, agreement and general release before withdraw, or restore delegated author- any payment is made. ity.

Subpart L—Property Damage Tort § 842.94 Assertable claims. Claims in Favor of the United A claim may be asserted in writing States (31 U.S.C. 3701, 3711– for loss of or damage to government 3719) property, against a tort-feasor when: (a) Damage results from negligence § 842.92 Scope of this subpart. and the claim is for: This subpart describes how to assert, (1) More than $100. administer, and collect claims for dam- (2) Less than $100 but collection costs age to or loss or destruction of govern- are small. ment property through negligence or (b) The claim is based on a contract wrongful act. It does not cover admi- and the contracting officer does not in- ralty, hospital recovery, or non- tend to assert a claim under the con- appropriated fund claims. tract. The contracting officer’s intention not to assert a claim should be re- § 842.93 Delegations of authority. corded in a memorandum for the record (a) Settlement authority. (1) The fol- and placed in the claim file. lowing individuals have delegated au- (c) The claim is for property damage thority to settle, compromise, suspend, arising from the same incident as a or terminate action on claims for hospital recovery claim. (The two $20,000 or less and to accept full pay- claims should be consolidated and ment on any claim: processed under subpart N). (i) The Judge Advocate General. (d) The Tort-feasor or his insurer pre- (ii) The Deputy Judge Advocate Gen- sents a claim against the government eral. arising from the same incident. (Both (iii) The Director of Civil Law. claims should be processed together.) (iv) Chief, Deputy Chief, and Branch (e) The claim is assertable as a coun- Chiefs, Claims and Tort Litigation terclaim under an international agree- Staff. ment. (The claim should be processed (2) The SJA of HQ 9AF (for under subpart H). CENTCOM), and the SJAs of PACAF (f) The claim is based on product li- and USAFE have delegated authority ability. HQ USAF/JACC approval must to settle, compromise, suspend, or ter- be obtained before asserting the claim. minate action on claims for $15,000 or less and to accept full payment on any § 842.95 Non-assertable claims. claim. A claim is not assertable under this (3) SJAs of GCMs located in PACAF subpart when it is for: and USAFE and single base GCMs lo- (a) Reimbursement for military or ci- cated in CONUS have delegated author- vilian employees for their negligence ity to settle, compromise, suspend, or claims paid by the United States. terminate action on claims for $15,000 (b) Loss or damage to government or less and to accept full payment on property: any claim. (1) Caused by a nonappropriated fund (4) SJAs of each Air Force base, sta- employee acting in the scope of em- tion or fixed installation have dele- ployment. gated authority to settle, compromise, (2) For which a person has account- suspend, or terminate action on claims ability and responsibility under the Re- for $10,000 or less and to accept full port of Survey system. payment on any claim. (c) Loss or damage to non- (b) Redelegation of authority. A settle- appropriated fund property assertable ment authority may redelegate it to a under other provisions. subordinate judge advocate or civilian (d) Loss or damage caused by an em- attorney, in writing. ployee of an instrumentality of the

115

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00125 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.96 32 CFR Ch. VII (7–1–05 Edition)

government in the absence of statutory should be obtained and included in the authority to reimburse. claim file). (e) Monies recovered against a for- (2) The Government is unable to col- eign government or any of its political lect a claim in full within a reasonable subdivisions. (HQ USAF/JACC may au- time even though the enforced collec- thorize this claim as an exception to tion proceedings are used for collec- the rule). tion. (3) The cost to collect does not jus- [55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990] tify enforced collection of the full amount. § 842.96 Asserting the claim. (4) The government may have difficulty proving its case in court for the The base SJA asserts the claim full amount claimed. against the tort-feasor by mailing, certified mail, return receipt requested, (b) Compromise is not allowable the original and one copy of a ‘‘Notice when there may be fraud, misrepresen- of Claim’’ that includes the following: tation, or violation of antitrust laws. The Department of Justice must au- (a) Reference to the statutory right thorize compromise of such claims. to collect. (c) Termination of collection is al- (b) A demand for payment or restora- lowable when: tion. (1) The government is unable to col- (c) A description of damage. lect the debt after exhausting all col- (d) The date and place of incident. lection methods. (e) The name, phone number, and of- (2) The government is unable to lo- fice address of claims personnel to con- cate the tort-feasor. tact. (3) The cost to collect will exceed re- § 842.97 Referring a claim to the US covery. Attorney or the Department of Jus- (4) The claim is legally without tice. merit. All claims must be authorized for re- (5) The evidence does not substan- ferral by HQ USAF/JACC prior to being tiate the claim. sent to either the US Attorney or the (d) Suspension of collection is allow- Department of Justice. All claims for able when: demands of more than $20,000.00 which (1) The government is unable to lo- are not collected in full by a settle- cate tort-feasor. ment authority will be referred (with (2) The tort-feasor is presently un- HQ USAF/JACC approval) to DOJ. able to pay but: (i) The statute of limitations is § 842.98 Statute of limitations. tolled or is running anew. (ii) Future collection may be pos- The government must file suit within sible. 3 years after the cause of action accrues. It accrues when a responsible US official knew or reasonably should have Subpart M—Claims Under the Na- known the material facts that resulted tional Guard Claims Act (32 in the claimed loss. U.S.C. 715)

§ 842.99 Compromise, termination, and § 842.100 Scope of this subpart. suspension of collection. This subpart explains how to settle This section establishes the guide- claims against the United States aris- lines for compromise, termination, or ing out of the noncombat activities of suspension of a claim. the Air National Guard (ANG), when (a) Compromise of a claim is allow- its members are acting within the able when: scope of their employment and per- (1) The tort-feasor is unable to pay forming duty under 32 U.S.C. Contact the full amount within a reasonable HQ USAF/JACC for guidance on any time. (A sworn statement showing the claim for property damage, injury or debtor’s assets and liabilities, income, death by the ANG which accrued prior expenses, and insurance coverage to 29 December 1981.

116

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00126 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.102

§ 842.101 Definitions. little parallel in the civilian community. (a) Appeal. An appeal is a request by the claimant or claimant’s authorized (h) ANG technicians. An ANG techni- agent to reevaluate the final decision cian is a Federal employee employed made on a claim. A request for recon- under 32 U.S.C. 709. Tort claims arising sideration is considered as an appeal. out of his or her activity are settled (b) Air National Guard (ANG). The fed- under the Federal Tort Claims Act erally recognized Air National Guard of (FTCA). each state, the District of Columbia, the Commonwealth of Puerto Rico, the § 842.102 Delegations of authority. Virgin Islands, and Guam. This paragraph outlines the levels of (c) ANG member. An ANG member is authority authorized to settle claims one who is performing duty under 32 brought under the National Guard U.S.C., section 316, 502, 503, 504, or 505 Claims Act (32 U.S.C. 715). for which the member is entitled to (a) Settlement authority. (1) The Sec- pay from the United States or for retary of the Air Force has authority which the member has waived pay from to: the United States. (i) Settle a claim for $100,000 or less. (d) ANG duty status—(1) Active federal (ii) Settle a claim for more than service. ANG members may serve on ac- $100,000, paying the first $100,000 and re- tive Federal duty under 10 U.S.C. to porting the excess to the General Ac- augment the active Air Force under counting Office for payment. certain circumstances or for certain types of duty or training (e.g., overseas (iii) Deny a claim in any amount. training exercises and ANG alert duty). (2) The Judge Advocate General has Duty under 10 U.S.C. does not fall delegated authority to settle a claim under this subpart. for $100,000 or less, and deny a claim in (2) Federally funded duty. ANG mem- any amount. bers perform specified federally funded (3) The following individuals have duty or training under 32 U.S.C. such delegated authority to settle a claim as weekend drills, annual training, for $25,000 or less, and deny a claim in field exercises, range firing, military any amount: schooling, full time unit support, or re- (i) The Deputy Judge Advocate Gen- cruiting duties. Duty under 32 U.S.C. eral. falls under this subpart for noncombat (ii) The Director of Civil Law. activities. (iii) The Chief, Deputy Chief, and (3) State duty. State duty is duty not Branch Chiefs, Claims and Tort Litiga- authorized by federal law but required tion Staff. by the governor of the state and paid (4) The SJA of 9AF for CENTCOM for from state funds. Such duty in- and the SJAs of USAFE and PACAF cludes civil emergencies (natural or have delegated authority to settle other disasters), civil disturbances (riots and strikes), and transportation claims payable or deny claims filed for requirements for official state func- $25,000 or less. tions, public health, or safety. State (5) SJAs of single base GCMs, GCMs duty does not fall under this subpart. in PACAF and USAFE and each Air (e) Compromise. A compromise is an Force base, station or fixed installa- agreed settlement based upon the facts, tion have delegated authority to settle the law, and the application of the law claims payable, and deny claims filed, to the facts. for $15,000 or less. (f) Final denial. A final denial is a let- (b) Redelegation of authority. A settle- ter from the settlement authority to ment authority may redelegate up to the claimant or authorized agent advis- $25,000 of settlement authority to a ing of the decision to deny the claim. subordinate judge advocate or civilian (g) Noncombat activity. Noncombat ac- attorney. This redelegation must be in tivity is an act, other than combat, writing and can be for all claims or war or armed conflict, which is par- limited to a single claim. ticularly military in character and has

117

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00127 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.103 32 CFR Ch. VII (7–1–05 Edition)

(c) Appellate authority. Upon appeal a (2) The names and organizations of settlement authority has the same au- ANG members involved, and the statu- thority to settle a claim as that speci- tory duty status of the ANG members fied above. However, no appellate au- at the time of the incident (include thority below the Office of the Sec- copies of orders, if applicable). retary of the Air Force may deny an (3) A scope of employment statement appeal of a claim it previously denied. from the supervisors of the ANG mem- (d) Authority to reduce, withdraw, and bers involved. restore settlement authority. Any supe- (4) The names of the claimants. rior settlement authority may reduce, (5) A brief description of any damage withdraw, or restore delegated settle- to private property, personal injuries, ment authority. or death. (e) Settlement negotiations. A settle- (c) Claims investigations. (1) Upon re- ment authority may settle a claim ceipt of a claim: filed in any amount for a sum within (i) It is investigated by claims office the delegated settlement authority re- personnel responsible for the geo- gardless of the amount claimed. Unset- graphic area where the incident caus- tled claims in excess of the delegated ing the claim occurred. settlement authority are sent to the (ii) The investigative report includes individual with higher settlement au- a scope of employment statement and a thority. Unsuccessful negotiations at copy of the orders authorizing the per- one level do not bind higher authority. formance of duty by the ANG member. (f) Special exceptions. No authority (2) The State Adjutants General des- below the level of HQ USAF/JACC may ignate an official or office as point of settle claims for: contact for Air Force claims personnel and furnish necessary personnel to as- (1) Legal malpractice. sist the Air Force investigation, sub- (2) On the job personal injury or ject to the availability of funds and death of an employee of a government personnel. contractor or subcontractor. (d) Amending a claim. A claimant may (3) Assault, battery, false imprison- amend a claim at any time prior to ment, false arrest, abuse of process, or final action. To amend a claim the malicious prosecution committed by claimant or his or her authorized agent an investigative or law enforcement of- must submit a written, signed demand. ficer. § 842.104 Advance payments. § 842.103 Filing a claim. Subpart Q of this part sets forth pro- This paragraph explains how to file a cedures for such payments. claim under the National Guard Claims Act. § 842.105 Statute of limitations. (a) How and when filed. A claim is A claim must be filed in writing filed when a federal military agency re- within 2 years after it accrues. ceives from a claimant or duly author- (a) Federal, not state law, determines ized agent a properly completed SF 95 the time of accrual. A claim accrues or other written and signed demand for when the claimant discovers or reason- money damages in a sum certain. ably should have discovered the exist- Claims belonging to another agency ence of the act that resulted in the are promptly transferred to the correct claimed loss. agency. (b) In computing the statutory time (b) Receipt of claims from State Na- period, the day of the incident is ex- tional Guard agencies. The Office of the cluded and the day the claim was filed State Adjutant General promptly sends is included. claims it receives to the appropriate (c) A claim filed after the statute has Air Force claims authority in whose run is considered if the United States geographic area the incident occurred. is at war or in an armed conflict when The report forwarded to the Air Force the claim accrues; or if the United includes: States enters a war or armed conflict (1) The date, place, and nature of the after the claim accrues, and good cause incident. is shown. No claimant may file a claim

118

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00128 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.109

more than 2 years after the good cause § 842.108 Who are not proper claim- ceases to exist or the war or armed ants. conflict ends. Congress or the Presi- The following individuals are not dent establishes the beginning and end proper claimants: of war or armed conflict. (a) ANG members performing duty under 32 U.S.C. when the personal in- § 842.106 Who may file a claim. jury or death claim arises incident to The following individuals may file a service. claim under this subpart. (b) Agencies and departments of the (a) Owners of the property or their U.S. Government including the District authorized agents may file a claim for of Columbia government. property damage. (c) Federal nonappropriated fund in- (b) Injured persons or their author- strumentalities. ized agents may file a claim for per- (d) Governments of foreign nations, sonal injury. their agencies, political subdivisions, (c) Executors or administrators of a and municipalities. decedent’s estate or any other person (e) The state territory, local govern- legally entitled to do so under applica- ment unit, or their agencies, whose ble local law may file a claim based on: ANG member caused the injury or (i) An individual’s death. property damage. (ii) A cause of action surviving an in- (f) Subrogees of all the above. dividual’s death. (d) Insurers with subrogation rights § 842.109 Claims payable. may file a claim for losses paid in full (a) Claims arising from noncombat by them. The parties may file a claim activities of ANG members performing jointly or individually, to the extent of duty under 32 U.S.C and acting within each party’s interest, for losses par- the scope of their employment, wheth- tially paid by insurers with subroga- er or not such injuries or damages tion rights. arose out of their negligent or wrongful (e) Authorized agents signing a claim acts or omissions. must show their title or legal capacity (b) Claims are payable if they are for and present evidence of such authority damage to bailed property under to file the claim. § 842.109(a) of this part where: (1) The ANG assumed the duties of a § 842.107 Who are proper claimants. bailee. Only certain individuals are proper (2) The bailor did not assume the risk claimants under this subpart. Proper of loss by express agreement. claimants include: (3) Authorized ANG members acting (a) Citizens and inhabitants of the in their official capacity properly ac- United States. cepted the property. (b) States or territories and their (c) Claims are payable if they are for agencies, unless it is the state of the loss or damage to: ANG member who caused the injury or (1) Insured or registered mail, under property damage. § 842.109 (a) or (b) of this part while in (c) Counties, municipalities, or units the possession of the ANG. of local government, unless they are in (2) Minimum fee insured mail but the state of the ANG member who only if it has an insurance number or caused the injury or property damage. requirement for hand-to-hand receipt (d) Persons in foreign countries who and was lost or damaged while in the are not inhabitants of a foreign coun- possession of the ANG. try. (3) Any mail in the possession of the (e) Property owners, their represent- United States Postal Service or a Mili- atives, and those with certain legal retary Postal Service due to an unlawful lationships with the record owner, in- or negligent inspection, search, or sei- cluding mortgagors, mortgagees, trust- zure in an oversea military postal fa- ees, bailees, lessees and conditional cility, which was ordered by ANG vendees. members. (f) Subrogees, to the extent they have (d) Claims filed by ANG military or paid the claim. civilian health care providers or legal

119

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00129 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.110 32 CFR Ch. VII (7–1–05 Edition)

personnel for their personal liability by (i) Claims for patent or copyright in- settlement or judgement, to include fringement. reasonable costs of such litigation, for (j) Claims for damage, use, or other their common law tortious acts com- expenses involving the regular acquisi- mitted on or after 29 Dec 1981 while tion, possession, and disposition of real performing title 32 duty within the property by or for the ANG. scope of their employment under the (k) Claims for the taking of private circumstances described in 10 U.S.C. real property by a continuing trespass 1089(f) and 10 U.S.C. 1054(f). or by a technical trespass such as over- flights of aircraft. [55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990] (l) Claims for loss of rental fee for personal property. § 842.110 Claims not payable. (m) Claims in litigation against the The following are not payable: United States. (a) Claims payable under any one of (n) Claims for a maritime occurrence the following statutes and imple- covered under U.S. admiralty laws. menting regulations: (o) Claims for: (1) The Federal Tort Claims Act (1) Any tax or customs duty. (FTCA). (2) The detention of any goods or (2) The Foreign Claims Act (FCA). merchandise by any officer of customs, (3) The International Agreements excise, or law enforcement officer. Claims Act. (p) Claims from an act or omission of (4) The Air Force Admiralty Claims any employee of the Government while Act and the Admiralty Extensions Act. administering the provisions of the (5) The Military Claims Act (MCA). Trading With the Enemy Act. (6) The Military Personnel and Civil- (q) Claims for damages caused by the ian Employees’ Claims Act. United States’ imposition or establish- (b) Claims from the combat activities ment of a quarantine. of the armed forces during war or (r) Claims for libel, slander, mis- armed conflict. representation, deceit or interference (c) Claims for personal injury or with contract rights. death of ANG members performing (s) Claims that result wholly from duty under 32 U.S.C. incident to their the negligent or wrongful act of the service. claimant or the claimant’s agent. (d) Claims for damage to or loss of (t) Claims for reimbursement of med- bailed property when the bailor specifi- ical, hospital, or burial expenses fur- cally assumed such risk. nished at the expense of the United (e) Claims for personal injury or States, any state, the District of Co- death of a person covered by: lumbia, or Puerto Rico. (1) The Federal Employees’ Com- (u) Claims for damage from floods or pensation Act. flood waters. (2) The Longshore and Harbor Work- (v) Claims for damages caused by the ers’ Compensation Act. fiscal operations of the Treasury or by (3) A United States contract or agree- regulation of the monetary system. ment providing employee benefits (w) Claims caused by the negligent or through insurance, local law, or cus- wrongful acts or omissions of ANG tom and the United States pays for members acting within the scope of such benefits either directly or as a their employment, while performing part of the consideration under the duty under 32 U.S.C., on or after 29 De- contract. cember 1981. (f) Claims for property damage, per- (x) Claims caused by the negligent or sonal injury or death occurring in a wrongful acts or omissions of ANG foreign country to an inhabitant of technicians employed under 32 U.S.C. that country. 709. (g) Claims caused by the negligent or wrongful acts or omissions of members § 842.111 Applicable law. of the District of Columbia ANG. (a) Extent of liability. The following (h) Claims arising from a private rules apply to determine the extent of rather than a government transaction. liability of a claim.

120

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00130 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.114

(1) Claims arising in the United States. (c) Settlement by insurer or joint tort- The law of the place where the act or feasor. When settlement is made by an omission occurs governs liability. The insurer or joint tort-feasor and an addi- local law on dangerous instrumental- tional award is warranted, an award is ities, assumption of risk, res ipsa made if: loquitur, last clear chance, discovered (1) The United States is not protected peril, and comparative and contribu- by the release executed by the claim- tory negligence are considered. Abso- ant. lute liability is never imposed. (2) The total amount received from (2) Claims arising in foreign countries. such source is first deducted. The general principles of tort law common to the majority of American juris- § 842.112 Appeal of final denials. dictions as evidenced by Federal case law and standard legal publications, This paragraph explains the steps to control liability, except that absolute take when a denial is appealed. liability is not imposed. However, the (a) A claimant may appeal the final law of the place where the act or omis- denial of the claim. The claimant sends sion occurs governs the effect of the the request, in writing, to the initial claimant’s comparative or contribu- settlement authority within a reason- tory negligence. Where applicable, able time following the final denial. rules of the road and similar locally Sixty days is considered a reasonable prescribed standards of care are fol- time, but the time limit may be waived lowed to determine fault. for good cause. NOTE: ANG personnel ordered to foreign (b) The initial settlement authority countries proceed under title 10, U.S.C.; con- reviews the appeal. sequently, the National Guard Claims Act would not apply. However, there may be (c) Where the settlement authority cases where ANG personnel are inadvert- does not reach a final agreement with ently in a foreign country while on title 32, the claimant on an appealed claim, the U.S.C. orders. entire claim file is sent to the next (b) Measure of damages. The following higher settlement authority, who is rules apply to the measurement of the appellate authority for that claim. damages. (d) The decision of the appellate au- (1) Normally, the law of the place thority is the final administrative ac- where the act or omission occurs is ap- tion on the claim. plied. In claims arising in foreign countries, the measure of damages is deter- § 842.113 Government’s right of sub- mined in accordance with general prin- rogation, indemnity, and contribu- ciples of American tort law. tion. (2) Damages in suits against private The Air Force becomes subrogated to persons are apportioned if local law ap- the rights of the claimant upon set- plies comparative negligence. tling a claim. The Air Force has the (3) Proceeds from private insurance rights of contribution and indemnity policies are not deducted except to the permitted by the law of the situs or extent the policy was paid by the Gov- under contract. Contribution or indem- ernment or is allowed by local law. nity is not sought from ANG members (4) Compensation and benefits from whose conduct gave rise to Govern- any U.S. Government associated source are deducted. However, sick and annual ment liability. leave payments are deducted only if al- § 842.114 Attorney fees. lowed by local law. (5) The following are not payable: In the settlement of any claim pursu- (i) Punitive damages. ant to 32 U.S.C. 715 and this subpart, (ii) Cost of medical or hospital serv- attorney fees will not exceed 20 percent ices furnished at U.S. expense. of any award. For the purposes of this (iii) Cost of burial expenses paid by paragraph, an award is deemed to be the United States, any territory or pos- the cost to the United States at the session, any state, or the District of time of purchase of a structured settle- Columbia. ment, and not its future value.

121

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00131 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.115 32 CFR Ch. VII (7–1–05 Edition)

Subpart N—Hospital Recovery (g) Waiver. The voluntary relinquish- Claims (42 U.S.C. 2651–2653) ment by the United States of the right to collect for medical care provided to § 842.115 Scope of this subpart. an injured party. This subpart explains how the United § 842.117 Delegations of authority. States asserts and settles claims for costs of medical care, against third (a) Settlement authority: (1) The fol- parties under the Federal Medical Care lowing individuals have delegated au- Recovery Act (FMCRA) and various thority to settle, compromise, or waive other laws. claims for $40,000 or less and to accept full payment on any claim: § 842.116 Definitions. (i) The Judge Advocate General. This paragraph defines terms which (ii) The Deputy Judge Advocate Gen- are used within this subpart. eral. (a) Base Staff Judge Advocate (SJA). (iii) The Director of Civil Law. The SJA of the base providing legal (iv) Chief, Deputy Chief, and Branch services to the Air Force medical facil- Chiefs, Claims and Tort Litigation ity which furnished initial medical Staff. care to the injured party is responsible (2) The SJA of HQ 9AF for for processing the hospital recovery CENTCOM, and SJAs of PACAF and claim. If an Air Force facility did not USAFE have delegated authority to furnish the initial medical care, the compromise or waive claims for $30,000 SJA of the Air Force base within the or less and to accept full payment on claims jurisdiction of the initial treat- any claim. ing facility is responsible for proc- (3) SJAs of single base GCMs, the essing the claim. SJAs of GMCs in PACAF and USAFE, (b) Compromise. A mutually binding and the SJAs of each Air Force base, agreement where payment is made and station, or fixed installation have dele- accepted in an amount less than the gated authority to compromise or full amount of the claim. waive claims for $15,000 or less and to (c) Injured party. The person who re- accept full payment on any claim. ceived medical care for injury or dis- (b) Authority to assert a claim. Each ease as a result of the incident on settlement authority has authority to which the claim is based. The injured assert a claim in any amount for the party may be represented by a guard- reasonable value of medical care. ian, personal representative, estate, or (c) Redelegation of authority. A settle- survivor. ment authority may redelegate to a (d) Medical care. Includes medical and subordinate judge advocate or civilian dental treatment, prostheses, and med- attorney, in writing, his or her author- ical appliances the US furnished or re- ity to assert, compromsie, or waive imbursed other sources for providing. claims. (e) Reasonable value of medical care. (d) Authority to reduce, withdraw, and Either: restore settlement authority. Any supe- (1) An amount determined by ref- rior settlement authority may reduce, erence to rates set by the Director of withdraw, or restore delegated author- the Office of Management and Budget ity. for the value of necessary medical care (e) Settlement negotiations. A settle- in US medical facilities. ment authority may settle a claim (2) The actual cost of necessary care filed for an amount within the dele- from other sources which was reim- gated settlement authority. Claims in bursed by the United States. excess of the delegated authority must (f) Third party. An individual, part- be approved by the next higher settle- nership, business, corporation (includ- ment authority. Unsuccessful negotia- ing insurance carriers), which is in- tions at one level do not bind higher debted to the United States for medical authority. care provided to an injured party. (In NOTE: Telephonic approvals, in the discre- some cases, a state or foreign govern- tion of the higher settlement authority, are ment can be the third party.) authorized.

122

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00132 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.120

(f) Special exceptions. Only the De- Air Force member receives prior to his partment of Justice (DOJ) may approve or her discharge and transfer to the VA claims involving: facility. (1) Compromise or waiver of a claim (3) Claims for care furnished a mer- for more than $40,000. chant seaman under 42 U.S.C. 249. A (2) Settlement previously referred to claim against the seaman’s employer DOJ. should not be filed. (3) Settlement where a third party (b) Claims should not be asserted files suit against the US or the injured without HQ USAF/JACC’s approval party arising out of the same incident. against: (1) Government contractors. In claims § 842.118 Assertable claims. in which the United States must reim- A claim should be asserted when the burse the contractor for a claim ac- Air Force has furnished or will furnish cording to the terms of the contract, medical care in military health care fa- an investigation into the claim is sent cilities or when the Air Force is re- to HQ USAF/JACC by the base SJA. sponsible for reimbursement to a pri- The file should contain recommenda- vate care provider and either of the fol- tions regarding assertion and include lowing conditions are met: citations to the specific contract (a) Third party liability in tort exists clauses involved. for causing an injury or disease. (2) Foreign governments. An investiga- (b) Local or foreign law permits the tion is made regarding any claim United States to recover or the United against foreign governments, their po- States is a third party beneficiary litical subdivisions, armed forces mem- under uninsured motorist coverage, bers, or civilian employees. The claims medical pay insurance coverage, work- files containing the investigation are er’s compensation, no-fault statutes, or sent to HQ USAF/JACC along with the other statutes. base SJA’s recommendations regarding A claim should only be asserted if the assertion. base SJA determines it merits asser- (3) US personnel. Claims are not as- tion. Claims for $150 or less need not be serted against members of the uni- asserted; they should be asserted only formed services; employees of the US, if the base SJA or designee determines its agencies or instrumentalities; or an the collection will not exceed the cost individual who is a dependent of a serv- to collect, the third party offers pay- ice member or employee at the time of ment and demands a release from the assertion unless liability insurance will United States before paying damages pay the claim. to the injured party, or the United (4) Manufacturers of products in prod- States asserts a property damage claim ucts liability cases. under subpart L arising out of the same incident. § 842.120 Asserting the claim. When asserting the claim, the base § 842.119 Nonassertable claims. SJA will: (a) The following are considered (a) Assert it against the third parties nonassertable claims and should not be whose liability is based in tort using an asserted: SF 96, Notice of Claim. Mail the origi- (1) Claims against any department, nal and one copy to each of the third agency, or instrumentality of the United parties and a copy to the third parties’ States. ‘‘Agency or instrumentality’’ in- insurers, if known. cludes any self-insured non- (b) Assert it against third parties or appropriated fund activity whether insurers whose liability is not based in revenue producing, welfare, or sundry. tort using a formal letter written on The term does not include private asso- Air Force stationery. The letter will ciations. include the facts and legal basis for li- (2) Claims for care furnished a veteran ability. Bases for liability could in- by the Department of Veterans Affairs clude local foreign law, US status as a (VA) for service connected disability. third party beneficiary under unin- However, claims may be asserted for sured or underinsured motorist cov- the reasonable value of medical care an erage, workers’ compensation laws, and

123

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00133 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.121 32 CFR Ch. VII (7–1–05 Edition)

no fault statutes. The specific provi- § 842.122 Statute of limitations. sion of the injured party’s insurance The United States or the injured contract should be cited where appro- party on behalf of the United States priate. must file suit within 3 years after an (c) Mail all copies of the SF 96, or action accrues. This is usually 3 years claim notice on Air Force letterhead: (1) By certified mail with return re- after the initial treatment is provided ceipt requested in all claims in which in a federal medical facility or after the amount claimed is $5,000.00 or more the initial payment is made by or in which there is a substantial like- CHAMPUS, whichever is first. lihood that the final amount claimed § 842.123 Recovery rates in govern- will be $5,000.00 or more. ment facilities. (2) By regular or certified mail with return receipt requested at the SJA’s The FEDERAL REGISTER contains the discretion in cases in which the final rates set by the Office of Management amount claimed is less than $5,000.00, and Budget, of which judges take judi- unless there is no response to the ini- cial notice. HQ USAF/JACC can pro- tial notice of claim within a reasonable vide certified copies of the FEDERAL period of time and a second notice of REGISTER upon request. Apply the rates claim is required to be mailed. All sec- in effect at the time of care to claims. ond notices of claim and copies will be mailed by certified mail, return receipt § 842.124 Waiver and compromise of requested. United States interest. (d) Notify the injured parties prompt- Waivers and compromises of govern- ly in writing that the United States ment claims can be made. This para- will attempt to recover from the third graph lists the basic guidance for each parties the reasonable value of medical action. (See § 842.117(e) for claims in- care furnished or to be furnished and volving waiver and compromise of that they: amounts in excess of settlement au- (1) Should seek advice from a legal thorities’ delegated amounts.) assistance officer or civilian counsel (a) Waiver for the convenience of the and furnish the civilian counsel’s name government can be made when the to the claims officer. tort-feasor: (2) Must cooperate in the prosecution (1) Cannot be located. of all actions of the United States (2) Is judgment proof. against third parties. (3) Has refused to pay and the case is (3) Must furnish a complete state- too weak for litigation. ment regarding the facts and cir- (b) Waiver can be made when collec- cumstances surrounding the incident tion causes undue hardhsip to the in- which caused the injury. jured party. Ordinarily, factors such as (4) Must not execute a release or set- the following should be considered: tle any claim which exists as a result (1) Permanent disability or disfigure- of the injury without prior notice to ment. the SJA. (2) Decreased earning power. (5) Should read the enclosed Privacy (3) Out of pocket losses. Act statement. (4) Financial status of injured party. § 842.121 Referring a claim to the US (5) Pension rights. Attorney. (6) Other government benefits to the Only HQ USAF/JACC authorizes re- injured party. ferral of a claim to the US Attorney. (7) An offer of settlement from a The base SJA ensures review of all third party which includes virtually all claims not later than 2 years after the the thirty party’s assets, although the date of the incident. These unsettled amount is considerably less than the claims are forwarded, with the base calculation of the injured party’s dam- SJA’s disposition recommendation, to ages. HQ USAF/JACC. (c) A compromise can be made upon NOTE: On a case-by-case basis, HQ USAF/ written request from the injured party JACC will authorize referral of a case to the or the injured party’s legal representa- US Attorney by telephone. tive when liability is questionable, the

124

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00134 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.128

injured party received excessive treat- and used to augment funds appro- ment, or the litigation risks dictate, priated by the Congress to provide a and either of the following occurs: comprehensive morale-building, wel- (1) The injured party accepts less fare, religious, educational, and rec- than the jury verdict expectancy. When reational program, designed to improve this occurs, the Air Force should con- the well-being of military and civilian sider settling its claim in a ratio simi- personnel and their dependents. lar to that which the total sttlement (d) Nonappropriated funds instrumen- bears to the jury verdict expectancy. tality. A nonappropriated fund instru- (2) The government’s claim is almost mentality is a Federal government in- as large as, or is larger than, the assets strumentality established to generate available for settlement. and administer nonappropriated funds for programs and services contributing § 842.125 Reconsideration of a waiver for undue hardship. to the mental and physical well-being of personnel. A settlement authority may reconsider its disapproval of a waiver or § 842.128 Delegations of authority. compromise, when either: (a) The injured party submits new (a) Settlement authority: (1) Each indi- evidence. vidual has the same delegated author- (b) Errors exist in claim submission ity to settle a claim for which NAFs or settlement. may be liable as that specified for a similar type claim in each subpart of Subpart O—Nonappropriated this part. The decision of the settle- Fund Claims ment authority is binding upon the NAFI. § 842.126 Scope of this subpart. (2) The Judge Advocate General, in This subpart describes how to settle addition, has delegated authority to claims for and against the United settle subparts F, G, and J type claims States for property damage, personal in any amount without referral to the injury, or death arising out of the oper- Secretary of the Air Force or the Gen- ation of Nonappropriated Fund Instru- eral Accounting Office. mentalities (NAFIs). (3) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litiga- § 842.127 Definitions. tion Staff, in addition, have delegated (a) Army and Air Force Exchange Serv- authority to settle subparts F, G, and J ice (AAFES). The Army and Air Force type claims for $100,000 or less without Exchange Service is a joint command referral to the Secretary of the Air of the Army and Air Force, under the Force or the General Accounting Of- jurisdiction of the Chiefs of Staff of the fice. Army and Air Force, which provides (b) Redelegation of authority. A settle- exchange and motion picture services ment authority may redelegate settle- to authorized patrons. ment authority to a subordinate judge (b) Morale, welfare, and recreation advocate or civilian attorney, in writ- (MWR) activities. Air Force MWR ac- ing. tivities are activities operated directly (c) Appellate authority. Upon appeal, a or by contract which provide programs settlement authority has the same au- to promote morale and well-being of thority specified in § 842.128(a). The the Air Force’s military and civilian Judge Advocate General is the final ap- personnel and their dependents. They pellate authority on subpart F type may be funded wholly with appro- claims without right of further appeal priated funds, primarily with non- to the Secretary of the Air Force. How- appropriated funds (NAF), or with a ever, no appellate authority below The combination of appropriated funds and Judge Advocate General may deny an NAFs. appeal of a claim it had previously de- (c) Nonappropriated funds. Non- nied. appropriated funds are funds generated (d) Authority to reduce, withdraw, and by Department of Defense military and restore settlement authority. Any supe- civilian personnel and their dependents rior settlement authority may reduce,

125

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.129 32 CFR Ch. VII (7–1–05 Edition)

withdraw, or restore delegated author- case, will a claim be paid in excess of ity. $250. (e) Settlement negotiations. A settlement authority may settle a claim § 842.130 Payment of claims against filed in any amount for a sum within NAFIs. its delegated authority. Send unsettled Substantiated claims against NAFIs claims in excess of the delegated au- must not be paid solely from appro- thority to the level with settlement priated funds. Claims are sent for pay- authority. Unsuccessful negotiations ment as set out in this subpart. Do not at one level do not bind higher author- delay paying a claimant because doubt ity. exists whether to use appropriated funds or NAFs. Pay the claim initially § 842.129 Settlement of claims against from appropriated funds and decide the NAFIs. correct funding source later. (a) This subpart does not establish legal theories for adjudication of § 842.131 Tort and tort type claims. claims. Refer to the appropriate sub- (a) Claims within the scope of this subpart to decide whether a claim is pay- part. Claims which are within the scope able (e.g., subpart D for personnel of this subpart are those arising out of claims; subpart K for tort claims), then the operation of an MWR activity and use the rules in this subpart to decide are caused by: the appropriate funds for payment of (1) Civilian employees paid by a NAFI any approved claim. acting in the scope of their employ- (b) Claims arising from property ment. damage to or loss from vehicles or loss (2) Military personnel or appro- of personal items stored in base MWR priated fund civilian employees per- facilities will be evaluated under the forming part-time duties for a NAFI normal rules applied by the appro- for which a NAFI is paying. priate subpart of this part, and paid (3) Negligent operation or condition using the rules in those subparts. Ex- of premises for which a NAFI is respon- amples include recreational vehicles sible. stored in authorized lots and used cars (4) Members or authorized users of parked in onbase sales lots. One excep- NAFI property. Such claims are sub- tion to this rule is the exclusion of per- ject to this subpart if the individual is sonal items stolen from onbase gym a member of an MWR membership as- lockers (discussed below). sociation or an authorized user of (1) If a NAF fee has been charged in NAFI property and the use is in accord connection with the use of the storage with applicable rules. location, a determination must be (b) Claims not within the scope of this made on the nature of the fee charged. subpart. Claims are not payable within If the fee does no more than reimburse the scope of this subpart if they arise NAF costs in administering or main- out of the operation of an MWR activ- taining the storage location, subpart O ity supported by a NAFI and are caused of this part applies in addition to other by: appropriate subparts. If the fee is set to (1) Military personnel or appro- generate a profit for the NAFI involved priated fund civilian employees per- or if it is collected in accordance with forming assigned Air Force duties, the terms of an agreement, express or even though they benefit a NAFI. implied, under which the NAFI rep- (2) Negligent operation or condition resents that it will provide some degree of premises for which a NAFI is not re- of security or safeguarding of the prop- sponsible. erty, the claim will be paid with NAF funds. § 842.132 Claims by NAFI employees. (2) Normally, theft of items from Claims made by NAFI employees gym lockers will be paid out of appro- should be settled within the guidelines priated funds providing there is affirm- of this paragraph. ative evidence of theft. Mysterious loss (a) Personal injury in performance of of property will not be paid and, in no duty and workers’ compensation claims.

126

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.136

Claims for injuries arising out of per- claims or complaints against conces- formance of duty and workers’ com- sionaires or their insurers are sent to pensation claims are not within the the appropriate contracting officers. scope of this subpart because the exclusive remedy is one of the following. § 842.134 Claims in favor of NAFIs. (1) Longshore and Harbor Workers’ (a) Tort claims. Use the procedures set Compensation Act. This Act applies to forth in subpart J or L, as appropriate. NAFI civilian employees in the United (b) Contract claims. See AFR 176–9 or States, its territories and possessions, AFR 147–14, as appropriate. and US citizen and resident NAFI civil- (c) Claims involving dishonored checks ian employees abroad. and debts to NAFIs. See AFR 176–2 and (2) Local benefits for foreign national 176–10 or AFR 147–14, as appropriate. employees abroad. (d) Third Party Workers’ Compensation (3) Military benefits because the in- Claims. NAF employees are provided jury is incident to service for offduty workers’ compensation benefits under military personnel. the Longshore and Harbor Workers’ (b) Property loss or damage incident to Compensation Act (LHWCA) (33 U.S.C. NAFI employment. Claims for loss or 901, et seq.) as extended by the Non- damage to property incident to NAFI appropriated Fund Instrumentalities employment are settled under subpart Act (5 U.S.C. 8171–8173). For injuries D. Where appropriate, liability is com- suffered by NAFI employees in the puted, and initial demand is made upon course and scope of their employment the carrier, warehouse, or insurer, di- where third parties are responsible for recting them to send further cor- the injuries, the employing NAFIs are respondence to the NAFI paying the entitled to recover from the respon- claim. sible third parties for the compensation and medical benefits paid to the § 842.133 Claims by customers, mem- injured employees (33 U.S.C. 933). Third bers, participants, or authorized party claims are pursued on behalf of users. employing NAFIs by the servicing staff (a) Customer complaints. Do not auto- judge advocate. A NAFI also has the matically adjudicate customer com- right of offset against an employee’s plaint claims until a determination is pay amounts recovered directly by the made that a valid claim exists. Com- employee from third parties as pro- plaints and personal property losses vided in the LHWCA. suffered by customers of MWR sales or service operations are normally not § 842.135 Advance payments. within the scope of this subpart. Cus- The procedures set out in subpart Q tomer complaints may not be claims at should be used for advance payments. all. They may be no more than expres- Do not delay paying a claimant be- sions of customer dissatisfactions. The cause doubt exists whether to use ap- activity manager is responsible for ad- propriated funds or NAFIs. Pay the judicating and satisfying or otherwise claim initially from appropriated claim disposing of a customer’s complaint ac- funds and decide the correct funding cording to applicable NAFI regula- source later. tions. Where possible, the activity manager resolves them by reimburse- § 842.136 Claim payments and depos- ment, repair, or replacement in kind. its. However, if a complaint involving a Unless otherwise specified in this claim cannot be satisfactorily settled subpart, claims for payment (in two under those procedures or includes a copies), collected funds for deposit, and demand for consequential damage international agreement bills for reim- (such as for personal injury or property bursement should be sent as follows: damage to other than the article pur- (a) AAFES: (1) Claims payable for chased or serviced), process it as a tort more than $2500: HQ AAFES, Comp- claim. troller, Insurance Branch, P.O. Box (b) Claims generated by concessionaires. 660202, Dallas, TX 75266–0202. Most concessionaires must have com- (2) Claims payable for $2500 or less: mercial insurance. Any unresolved AAFES Operations Center (OSC-AC),

127

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00137 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.137 32 CFR Ch. VII (7–1–05 Edition)

2727 LBJ Highway, Dallas TX 75266– of using Air Force resources, can use 0320. the services of the Civil Air Patrol to (b) Civilian base restaurants and civil- fulfill these type missions. When per- ian welfare NAFIs: (1) For more than forming an Air Force noncombat mis- $100: Army and Air Force Civilian Wel- sion, the Civil Air Patrol is deemed to fare Fund, Washington, DC 20310. be an instrumentality of the United (2) For $100 or less: The local NAFI States. In order for a mission to be a giving rise to the claim. noncombat mission of the Air Force (c) All other NAFIs: (1) For more than under this part, it must either: $50: HQ AFMPC/DPMSCI, Randolph (1) Have a special Air Force mission AFB TX 78150–6001. order assigned, and, the Air Force must (2) For $50 or less: The local NAFI exercise operational control over the giving rise to the claim. mission. (d) International agreement claims, all (2) Involve a peacetime mission the NAFIs. When a receiving state pays a Air Force is tasked to perform by high- claim under an international agree- er authority which requires the ex- ment, the NAFI involved, upon receipt penditure of Air Force resources to ac- of an extract copy of the itemized bill, complish, and the Air Force specifi- will forward payment of its pro rata cally approves the mission as a non- share to the sending State office. combat mission, and assigns the mission to the Civil Air Patrol to perform. [55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991] (c) CAP members. CAP members are private citizens who volunteer their time, services, and resources to accom- Subpart P—Civil Air Patrol Claims plish CAP objectives and purposes. The (5 U.S.C. 8101(1)(B), 8102(a), two primary categories of members 8116(c), 8141; 10 U.S.C. 9441, are: 9442; 36 U.S.C. 201–208) (1) Cadets. Youths, 13 years (or having satisfactorily completed the sixth § 842.137 Scope of this subpart. grade) through 17 years of age, who This subpart explains how to process meet such prerequisites as the CAP certain administrative claims: corporation may establish from time to (a) Against the United States for time. Cadet status may be retained property damage, personal injury, or until age 21. death, arising out of Air Force non- (2) Seniors. Adults, 18 years of age or combat missions performed by the older (there is no maximum age), who Civil Air Patrol (CAP), as well as cer- meet such prerequisites as the CAP tain other Air Force authorized mis- corporation may establish from time to sions performed by the CAP in support time, and who have not retained cadet of the Federal government. status. (b) In favor of the United States for (d) Liaison officers. Active duty Air damage to US Government property Force officers assigned to liaison duty caused by CAP members or third par- at the national, regional, and wing ties. (state) levels of CAP.

§ 842.138 Definitions. § 842.139 Delegations of authority. (a) Civil Air Patrol (CAP). A federally The appropriate subpart of this part chartered, non-profit corporation under which the claim is being consid- which was designated by Congress in ered prescribes the authority to settle 1948 as a volunteer civilian auxiliary of it. the Air Force. (b) Air Force noncombat mission. Al- § 842.140 Proper claimants. though not defined in any statute, an (a) Anyone suffering property dam- Air Force noncombat mission is any age, personal injury, or death arising mission for which the Air Force is from an Air Force noncombat mission tasked, by statute, regulation, or high- or other specified Air Force authorized er authority, which does not involve mission performed by CAP, who is also actual combat, combat operations or a proper claimant under the appro- combat training. The Air Force, in lieu priate subpart of this part.

128

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00138 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 842.147

(b) The United States, for claims Subpart Q—Advance Payments arising out of activities of CAP caused (10 U.S.C. 2736) by negligent acts or omissions of CAP members or third parties. § 842.144 Scope of this subpart. It tells how to make an advance pay- § 842.141 Improper claimants. ment before a claim is filed or finalized CAP members, 18 years of age or under the Military Claims, Foreign older, whose personal injury or death Claims and National Guard Claims claim is subject to the Federal Em- Acts. ployees’ Compensation Act, are im- § 842.145 Delegation of authority. proper claimants. FECA is their exclusive remedy. (a) The Secretary of the Air Force has authority to make an advance pay- § 842.142 Claims payable. ment of $100,000 or less. (b) The Judge Advocate General has A claim is payable if all of the fol- delegated authority to make an ad- lowing are present: vance payment of $100,000 or less. (a) It is for property damage, per- (c) The following individuals have sonal injury, or death. delegated authority to make an ad- (b) It is proximately caused by a CAP vance payment of $25,000 or less: member. (1) The Deputy Judge Advocate Gen- (c) It arises from an Air Force non- eral. combat mission performed by the CAP, (2) The Director of Civil Law. or arises from an authorized mission (3) The Chief, Deputy Chief, and performed by the CAP for which spe- Branch Chiefs, Claims and Tort Litiga- cific coverage under this subpart is tion Staff. granted by HQ USAF/JACC. (4) SJA of 9AF for CENTCOM, and the SJAs of PACAF and USAFE. (d) It is otherwise payable because it (d) This authority may be redele- meets the provisions of an appropriate gated either orally or in writing. Oral subpart of this part. redelegations should be confirmed in writing as soon as practical. § 842.143 Claims not payable. A claim is not payable if it: § 842.146 Who may request. (a) Is for use or depreciation of pri- A proper claimant or authorized vately owned property, operated by agent may request an advance pay- CAP or its members on an Air Force ment. noncombat mission, or other specified Air Force authorized mission. § 842.147 When authorized. (b) Is for personal services or ex- Make advance payments only where penses incurred by CAP or its members all of the following exist: while engaged in an Air Force noncom- (a) The potential claimant could file bat mission, or other specified Air a valid claim for property damage or Force authorized mission. personal injury under the Military Claims, Foreign Claims, or National (c) Arises out of a CAP incident based Guard Claims Acts. solely on government ownership of (b) The potential claimant has an im- property on loan to CAP. mediate need amounting to a hardship (d) Arises from a CAP activity not for food, shelter, medical or burial ex- performed as a noncombat mission of penses, or other necessities. In the case the Air Force or as a specified Air of a commercial enterprise, severe fi- Force authorized mission. These claims nancial loss or backruptcy will result if are sent to HQ CAP-USAF/JA for refer- the Air Force does not make an ad- ral to CAP’s private insurer, with a vance payment. copy of the transmittal letter to HQ (c) Other resources for such needs are USAF/JACC. not reasonably available. (d) The potential claim equals or exceeds the amount of the advance payment.

129

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00139 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 842.148 32 CFR Ch. VII (7–1–05 Edition)

(e) The recipient signs as advance NOTE: This part is derived from chapter 2 payment agreement. of Air Force Regulation 110–12, December 1, 1978. § 842.148 When not authorized. Part 806 of this chapter states the basic policies and instructions governing the dis- Do not make an advance payment if closure of records and tells members of the the claim is payable under the: public what they must do to inspect or ob- (a) Federal Tort Claims Act. tain copies of the material referenced herein. (b) International Agreement Claims § 845.1 Purpose. Act. (c) Military Personnel and Civilian This part establishes criteria and as- Employees’ Claims Act. (Separate reg- signs responsibility for the provision of ulations issued under the Act provide counsel, for the provision of bail, and for the payment of court costs and for partial payments.) other necessary and reasonable ex- § 842.149 Separate advance payment penses incident to representation in claims. civil and criminal proceedings, including appellate proceedings, before for- Every person suffering injury or eign courts and foreign administrative property loss may submit a separate agencies, which involve members of the request for an advance payment. For Armed Forces, civilian personnel and example, where the Air Force destroys dependents. Payment of fines is not au- a house containing a family of four, thorized hereunder. each family member may submit a separate request for and receive an ad- § 845.2 Statutory authority. vance payment of $100,000 or less. 10 U.S.C. 1037 provides authority for employment of counsel, and payment § 842.150 Liability for repayment. of counsel fees, court costs, bail, and The claimant is liable for repayment. other expenses incident to representa- Deduct the advance payment from any tion of persons subject to the Uniform award or judgment given to a claimant. Code of Military Justice before foreign Reimbursement from the claimant will tribunals. For personnel not subject to be sought if the claimant does not file the Uniform Code of Military Justice, a claim or lawsuit. funds for similar expenses may be made available in cases of exceptional PART 845—COUNSEL FEES AND interest to the service concerned, upon OTHER EXPENSES IN FOREIGN prior application through the Judge TRIBUNALS Advocate General of the service concerned, to the appropriate service secretary. Sec. 845.1 Purpose. § 845.3 Responsibility. 845.2 Statutory authority. 845.3 Responsibility. (a) Requests for provision of counsel, 845.4 Criteria for the provision of counsel provision of bail, or payment of ex- and payment of expenses in criminal penses will ordinarily be made by the cases. defendant or accused through appro- 845.5 Provision of bail in criminal cases. priate channels to the officer exer- 845.6 Criteria for the provision of counsel cising general court-martial jurisdic- and payment of expenses in civil cases. tion over him. This officer shall deter- 845.7 Procedures for hiring counsel and obli- mine whether the request meets the gating funds. criteria prescribed herein and, based 845.8 Payment of counsel fees and other ex- upon such determination, shall take penses. final action approving or disapproving 845.9 Appropriated funds chargeable. the request. Within their geographical 845.10 Reimbursement. areas of responsibility, major com- 845.11 Correspondence. mands in the interest of obtaining AUTHORITY: Sec. 8012, 70A Stat. 488, sec. prompt and effective legal service may 1037, 72 Stat. 1445; 10 U.S.C. 8012, 1037. appoint as approval authority, instead SOURCE: 44 FR 75633, Dec. 21, 1979, unless of the officer exercising general court- otherwise noted. martial jurisdiction, any subordinate

130

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 845.7

officer having responsibility in a par- confinement by foreign authorities be- ticular country for personnel subject to fore, during, or after trial may be fur- foreign criminal jurisdiction. nished in all criminal cases. Safeguards (b) Notwithstanding the criteria pre- should be imposed to assure that at the scribed below, an officer exercising ap- conclusion of the proceedings or on the proved authority may, in his discre- appearance of the defendant in court, tion, deny a request for the provision the bail or bond will be refunded to the of counsel, provision of bail or payment military authorities. Bail will be proof expenses, where the otherwise eligi- vided only to guarantee the presence of ble requestor is in an absent without the defendant and will not be provided leave or deserter status at the time of to guarantee the payment of fines or the request, or otherwise is not then civil damages. Local US military au- subject to United States military con- thorities are expected to provide bail, trol, and there is no reasonable basis in any case, only after other reasonable for the belief that the requestor will re- efforts have been made to secure return to United States military control lease of pretrial custody to the US. at the conclusion of the proceedings of service of an adjudged sentence, if any. § 845.6 Criteria for the provision of counsel and payment of expenses in § 845.4 Criteria for the provision of civil cases. counsel and payment of expenses in Requests for provision of counsel and criminal cases. payment of expenses in civil cases may Requests for the provision of counsel be granted in trial and appellate pro- and payment of expenses in criminal ceedings in either of the following civil cases may be approved in pretrial, cases: trial, appellate and posttrial pro- (a) Where the act complained of oc- ceedings in any one of the following curred in the performance of official criminal cases: duty; or (a) Where the act complained of oc- (b) Where the case is considered to curred in the performance of official have a significant impact upon the re- duty; or lations of US forces with the host (b) Where the sentence which is nor- country or is considered to involve any mally imposed includes confinement, other particular US interest. No funds whether or not such sentence is sus- shall be provided under this part in pended; or cases where the United States of Amer- (c) Where capital punishment might ica is in legal effect the defendant, be imposed; or without prior authorization of the (d) Where an appeal is made from any Judge Advocate General. proceeding in which there appears to have been a denial of the substantial § 845.7 Procedures for hiring counsel rights of the accused; or and obligating funds. (e) Where conviction of the offense (a) The selection of individual trial alleged could later form the basis for or appellate counsel will be made by administrative discharge proceedings the defendant. Such counsel shall rep- for misconduct as a result of civil court resent the individual defendant and not disposition; or the US Government. Selection shall be (f) Where the case, although not made from approved lists of attorneys within the criteria established in para- who are qualified, competent and expe- graphs (a), (b), (c), (d), or (e) of this sec- rienced in trial practice, and admitted tion, is considered to have significant for full practice, on their own account, impact upon the relations of US forces before the courts of the foreign country with the host country or is considered involved. Normally, these lists will be to involve any other particular US in- coordinated with the local court or bar terest. association, if any, and the appropriate US Diplomatic or Consular Mission and § 845.5 Provision of bail in criminal should include only those attorneys cases. who are known or reputed, to comply Funds for the posting of bail or bond with local attorney fee schedules or to secure the release of personnel from guides approved or suggested by local

131

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 845.8 32 CFR Ch. VII (7–1–05 Edition)

bar associations and should not exceed circumstances and will not exceed amounts paid under similar cir- local fee schedules, if any. If this docu- cumstances by nationals of the country ment does not include an agreed esti- where the trial is held. No fee may in- mate of counsel fees and other reason- clude any amount in payment for serv- able expenses, an estimate will be pro- ices other than those incident to rep- vided by the contracting officer. A resentation before judicial and admin- copy of the document, together with istrative agencies of the foreign coun- the estimate, will be furnished the ac- try in the particular case for which the counting component and will serve as contract is made, and in no event may the commitment document for the res- any contract include fees for represen- ervation of funds. tation in habeas corpus or related pro- (d) The provision of counsel and pay- ceedings before tribunals of the United States. When appropriate and reason- ment of expenses under this part is not able in the case, the payment of ex- subject to the provisions of the Defense penses, in addition to counsel fees, may Acquisition Regulation (subchapter A, include court costs, bail costs, charges chapter I of this title). However, the for obtaining copies of records, print- contract clauses set forth in part 5, ing and filing fees, interpreter fees, section VII, Defense Acquisition Regu- witness fees, and other necessary and lation, may be used as a guide in con- reasonable expenses. Expenses will not tracting. include the payment of fines or civil (e) Because of the desirability of damages, directly or indirectly. timely procedural action, it is sug- (b) Whenever possible, the officer re- gested that there be designated, from sponsible under § 845.3 (or his designee), among the judge advocates on the acting on behalf of the United States of staffs of officers responsible under America, shall enter into a written § 845.3, contracting officers with con- contract with the selected counsel. The tracting authority limited to agree- contract will cover counsel fees, and, ments described in this section. The ef- when appropriate, may cover other fect of this designation would be to costs arising in defense of the case only combine within one office the duties of in the court of first instance and will contracting officer and judge advocate. not include fees for representation on (f) Nothing in this part shall be con- appeal. If the case is appealed to higher strued as prohibiting the selection of tribunals, supplemental agreements shall be executed for each appeal. A qualified local counsel employed by the copy of the contractual agreement United States Government, if the serv- shall serve as the obligating document. iceman freely selects such counsel. (c) If, for example, because of unusual circumstances or local customs, § 845.8 Payment of counsel fees and other expenses. it is not practicable to enter into a written contract as in paragraph (b) of Payment of bills submitted by the se- this section, action will be taken to lected counsel and other costs shall be record the agreement reached between made in accordance with the general the officer responsible under § 845.3 (or provision of AFM 177–102 (Commercial his designee) and the selected counsel. Transactions at Base Level), relating This requirement may be met by a let- to payment of contractual obligations ter of commission or letter of under- and pertinent disbursing regulations. standing, executed between the officer All payments under these procedures responsible under § 845.3 (or his des- will be in local currency. Acceptance of ignee) and the selected counsel, or by a services procured under these proce- written request for legal services ex- dures shall be certified to by the officer pressly or impliedly accepted by the se- responsible under § 845.3 (or his des- lected counsel. Any such document ignee). Payments of bail may be made shall contain, if possible, an agreed es- when authorized by such officers. Such timate of counsel fees and reasonable authorization shall be in the form of a expenses and a statement that both fees and expenses will conform to those directing letter or message citing 10 paid by local nationals under similar U.S.C. 1037.

132

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 845.11

§ 845.9 Appropriated funds chargeable. him wherein he agrees to remit the Authorized expenses incurred inci- amount of such bail or permit the ap- dent to implementation of the policies plication of so much of his pay as may set forth in this part, including trans- be necessary to reimburse the Govern- portation and per diem expenses of ment in the event that he willfully trial observers, interpreters, and local causes forfeiture of bail. In the event of counsel employees, shall be paid from such forfeiture, bail provided under appropriated funds of the service to this part shall be recovered from the which the defendant belongs. Payments defendant in accordance with that shall be made from the appropriation agreement. The agreement should in- current at time of payment, unless ob- clude a statement that it does not prej- ligations for authorized costs have pre- udice the defendant’s right to appeal to viously been established. Refunds shall the Comptroller General of the United be processed as appropriation refund. States and the courts after such pay- Such funds are chargeable to the base ment or deduction has been made, if he for operation and maintenance pur- considers the amount erroneous. poses (O&M or R&D, as applicable). § 845.11 Correspondence. § 845.10 Reimbursement. Judge advocates who advise officers No reimbursement will ordinarily be responsible under § 845.3 are authorized required from individuals with respect to correspond directly with each other to payments made in their behalf under and with the Judge Advocate General this part. However, prior to the posting of the service concerned for advice of bail on behalf of a defendant, a with regard to payment of counsel fees signed agreement shall be secured from and other expenses.

SUBCHAPTER E—SECURITY [RESERVED]

133

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00143 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER F—AIRCRAFT

PART 855—CIVIL AIRCRAFT USE OF Subpart A—General Provisions UNITED STATES AIR FORCE AIR- FIELDS § 855.1 Policy. The Air Force establishes and uses Subpart A—General Provisions its airfields to support the scope and level of operations necessary to carry Sec. out missions worldwide. The Congress 855.1 Policy. funds airfields in response to Air Force 855.2 Responsibilities. 855.3 Applicability. requirements, but also specifies that civil aviation access is a national pri- Subpart B—Civil Aircraft Landing Permits ority to be accommodated when it does not jeopardize an installation’s mili- 855.4 Scope. tary utility. The Air Force engages in 855.5 Responsibilities and authorities. dialogue with the civil aviation com- 855.6 Aircraft exempt from the requirement munity and the Federal Aviation Ad- for a civil aircraft landing permit. 855.7 Conditions for use of Air Force air- ministration to ensure mutual under- fields. standing of long-term needs for the na- 855.8 Application procedures. tional air transportation system and 855.9 Permit renewal. programmed military force structure 855.10 Purpose of use. requirements. To implement the na- 855.11 Insurance requirements. tional policy and to respond to re- 855.12 Processing a permit application. quests for access, the Air Force must 855.13 Civil fly-ins. have policies that balance such re- 855.14 Unauthorized landings. quests with military needs. Civil air- 855.15 Detaining an aircraft. craft access to Air Force airfields on 855.16 Parking and storage. 855.17 Fees for landing, parking, and storage foreign territory requires host nation fees. approval. 855.18 Aviation fuel and oil purchases. (a) The Air Force will manage two 855.19 Supply and service charges. programs that are generally used to grant civil aircraft access to its air- Subpart C—Agreements for Civil Aircraft fields: civil aircraft landing permits Use of Air Force Airfields and joint-use agreements. Other ar- 855.20 Joint-use Agreements. rangements for access will be nego- 855.21 Procedures for sponsor. tiated as required for specific purposes. 855.22 Air Force procedures. (1) Normally, landing permits will be 855.23 Other agreements. issued only for civil aircraft operating TABLE 1—PURPOSE OF USE/VERIFICATION/AP- in support of official Government busi- PROVAL AUTHORITY/FEES ness. Other types of use may be author- TABLE 2—AIRCRAFT LIABILITY COVERAGE RE- ized if justified by exceptional cir- QUIREMENTS cumstances. Access will be granted on TABLE 3—LANDING FEES an equitable basis. TABLE 4—PARKING AND STORAGE FEES (2) The Air Force will consider only ATTACHMENT 1 TO PART 855—GLOSSARY OF proposals for joint use that do not com- REFERENCES, ABBREVIATIONS, ACRONYMS, AND TERMS promise operations, security, readi- ATTACHMENT 2 TO PART 855—WEATHER ALTER- ness, safety, environment, and quality NATE LIST of life. Further, only proposals sub- ATTACHMENT 3 TO PART 855—LANDING PERMIT mitted by authorized local Government APPLICATION INSTRUCTIONS representatives eligible to sponsor a ATTACHMENT 4 TO PART 855—SAMPLE JOINT- public airport will be given the com- USE AGREEMENT prehensive evaluation required to con- ATTACHMENT 5 TO PART 855—SAMPLE TEM- clude a joint-use agreement. PORARY AGREEMENT (3) Any aircraft operator with an AUTHORITY: 49 U.S.C. 44502 and 47103. inflight emergency may land at any SOURCE: 60 FR 37349, July 20, 1995, unless Air Force airfield without prior au- otherwise noted. thorization. An inflight emergency is

134

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00144 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.5

defined as a situation that makes con- mand-unique procedures permitted by tinued flight hazardous. and consistent with this part. (b) Air Force requirements will take precedence on Air Force airfields over § 855.3 Applicability. all civil aircraft operations, whether This part applies to all regular they were previously authorized or not. United States Air Force (USAF), Air (c) Civil aircraft use of Air Force air- National Guard (ANG), and United fields in the United States will be sub- States Air Force Reserve (USAFR) in- ject to Federal laws and regulations. stallations with airfields. This part Civil aircraft use of Air Force airfields also applies to civil aircraft use of Air in foreign countries will be subject to Force ramps at civil airports hosting US Federal laws and regulations that USAF, ANG, and USAFR units. have extraterritorial effect and to applicable international agreements with Subpart B—Civil Aircraft Landing the country in which the Air Force in- Permits stallation is located. § 855.4 Scope. § 855.2 Responsibilities. Air Force airfields are available for (a) As the program manager for joint use by civil aircraft so far as such use use, the Civil Aviation Branch, Bases does not interfere with military oper- and Units Division, Directorate of Op- ations or jeopardize the military util- erations (HQ USAF/XOOBC), ensures ity of the installation. Access will be that all impacts have been considered granted on an equitable basis. Air and addressed before forwarding a Force requirements take precedence joint-use proposal or agreement to the over authorized civil aircraft use. This Deputy Assistant Secretary for Instal- part carries the force of US law, and exceptions are not authorized without lations (SAF/MII), who holds decision prior approval from the Civil Aviation authority. All decisions are subject to Branch, Bases and Units Division, Di- the environmental impact analysis rectorate of Operations, (HQ USAF/ process as directed by the Environ- XOOBC), 1480 Air Force Pentagon, mental Planning Division, Directorate Washington DC 20330–1480. Proposed ex- of Environment (HQ USAF/CEVP), and ceptions or waivers are evaluated as to the Deputy Assistant Secretary for En- current and future impact on Air Force vironment, Safety, and Occupational policy and operations. Health (SAF/MIQ). The Air Force Real Estate Agency (AFREA/MI) handles § 855.5 Responsibilities and authori- the leases for Air Force-owned land or ties. facilities that may be included in an (a) The Air Force: agreement for joint use. (1) Determines whether civil aircraft (b) HQ USAF/XOOBC determines the use of Air Force airfields is compatible level of decision authority for landing with current and planned military ac- permits. It delegates decision author- tivities. ity for certain types of use to major (2) Normally authorizes civil aircraft commands and installation com- use of Air Force airfields only in sup- manders. port of official Government business. If (c) HQ USAF/XOOBC makes the deci- exceptional circumstances warrant, use sions on all requests for exceptions or for other purposes may be authorized. waivers to this part and related Air (3) Acts as clearing authority for Force instructions. The decision proc- civil aircraft use of Air Force airfields, ess includes consultation with other af- subject to the laws and regulations of fected functional area managers when the US, or to applicable international required. Potential impacts on current agreements (e.g., status of forces agree- and future Air Force policies and oper- ments) with the country in which the ations strongly influence such deci- Air Force installation is located. sions. (4) Reserves the right to suspend any (d) Major commands, direct reporting operation that is inconsistent with na- units, and field operating agencies may tional defense interests or deemed not issue supplements to establish com- in the best interests of the Air Force.

135

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00145 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 855.5 32 CFR Ch. VII (7–1–05 Edition)

(5) Will terminate authority to use (2) Ensure that pavement load-bear- an Air Force airfield if the: ing capacity will support the aircraft (i) User’s liability insurance is can- to be operated at the Air Force airfield. celed. (3) Ensure that aircraft to be oper- (ii) User lands for other than the ap- ated at Air Force airfields are equipped proved purpose of use or is otherwise in with an operating two-way radio capa- violation of this part or clearances and ble of communicating with the air traf- directives hereunder. fic control tower. (6) Will not authorize use of Air (4) Obtain final approval for landing Force airfields: from the installation commander or a (i) In competition with civil airports designated representative (normally by providing services or facilities that are already available in the private base operations) at least 24 hours prior sector. to arrival. NOTE: Use to conduct business with or for (5) Not assume that the landing the US Government is not considered as clearance granted by an air traffic con- competition with civil airports. trol tower facility is a substitute for (ii) Solely for the convenience of pas- either the approved civil aircraft land- sengers or aircraft operator. ing permit or approval from the instal- (iii) Solely for transient aircraft lation commander or a designated rep- servicing. resentative (normally base operations). (iv) By civil aircraft that do not meet (6) Obtain required diplomatic or US Department of Transportation op- overflight clearance before operating erating and airworthiness standards. in foreign airspace. (v) That selectively promotes, bene- (7) Pay applicable costs and fees. fits, or favors a specific commercial (8) File a flight plan before departing venture unless equitable consideration the Air Force airfield. is available to all potential users in like circumstances. (c) The installation commander or a (vi) For unsolicited proposals in pro- designated representative: curing Government business or con- (1) Exercises administrative and se- tracts. curity control over both the aircraft (vii) Solely for customs-handling pur- and passengers while on the installa- poses. tion. (viii) When the air traffic control (2) May require civil users to delay, tower and base operations are closed or reschedule, or reroute aircraft arrivals when a runway is restricted from use or departures to preclude interference by all aircraft. with military activities. NOTE: Requests for waiver of this provision (3) Cooperates with customs, immi- must address liability responsibility, emer- gration, health, and other public au- gency response, and security. thorities in connection with civil air- (7) Will not authorize civil aircraft craft arrival and departure. use of Air Force ramps located on civil (d) Decision Authority: The author- airfields. ity to grant civil aircraft use of Air NOTE: This section does not apply to use of aero club facilities located on Air Force land Force airfields is vested in: at civil airports, or civil aircraft chartered (1) Directorate of Operations, Bases by US military departments and authorized and Units Division, Civil Aviation use of terminal facilities and ground han- Branch (HQ USAF/XOOBC). HQ USAF/ dling services on the Air Force ramp. Only XOOBC may act on any request for the DD Form 2400, Civil Aircraft Certificate civil aircraft use of an Air Force air- of Insurance, and DD Form 2402, Civil Air- craft Hold Harmless Agreement, are required field. Decision authority for the fol- for use of Air Force ramps on civil airfields. lowing will not be delegated below HQ (b) Civil aircraft operators must: USAF: (1) Have an approved DD Form 2401, (i) Use of multiple Air Force airfields Civil Aircraft Landing Permit, before except as designated in paragraph (d)(2) operating at Air Force airfields, except of this section. for emergency use and as indicated in (ii) Those designated as 2 under Ap- paragraphs (d)(2) and (d)(2)(iii)(E) of proval Authority in Table 1 to this this section, and , and § 855.13(b)(1)(ii). part.

136

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00146 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.6

(iii) Any unusual or unique purpose prove permits that grant landing rights of use not specifically addressed in this at Air Force airfields worldwide in sup- part. port of AMC contracts. (2) Major Command, Field Operating (iii) US Defense Attache Office Agency, Direct Reporting Unit, or In- (USDAO). The USDAO, acting on be- stallation Commander. With the excep- half of HQ USAF/XOOBC, may grant a tion of those uses specifically dele- request for one-time landing rights at gated to another decision authority, an Air Force airfield provided: major commands (MAJCOMs), field op- (A) The request is for official Govern- erating agencies (FOAs), direct report- ment business of either the US or the ing units (DRUs) and installation com- country to which the USDAO is accred- manders or designated representatives ited. have the authority to approve or dis- (B) The Air Force airfield is located approve civil aircraft landing permit within the country to which the applications (DD Forms 2400, Civil Air- USDAO is accredited. craft Certificate of Insurance; 2401; (C) Approval will not violate any Civil Aircraft Landing Permit, and agreement with the host country. 2402, Civil Aircraft Hold Harmless (D) The installation commander con- Agreement) at airfields for which they curs. hold oversight responsibilities. Addi- (E) The USDAO has a properly com- tionally, for expeditious handling of pleted DD Form 2402 on file and has short notice requests, they may grant verified that the insurance coverage requests for one-time, official Govern- meets the requirements of Table 2 to ment business flights that are in the this part, before the aircraft operates best interest of the US Government into the Air Force airfield. and do not violate other provisions of this part. As a minimum, for one-time § 855.6 Aircraft exempt from the re- flights authorized under this section, quirement for a civil aircraft land- the aircraft owner or operator must ing permit. provide the decision authority with in- (a) Any aircraft owned by: surance verification and a completed (1) Any other US Government agen- DD Form 2402 before the aircraft oper- cy. ates into the Air Force airfield. Air (2) US Air Force aero clubs estab- Force authority to approve civil air- lished as prescribed in AFI 34–117, Air craft use of Air Force airfields on for- Force Aero Club Program, and AFMAN eign soil may be limited. Commanders 3–132, Air Force Aero Club Operations 1. outside the US must be familiar with NOTE: This includes aircraft owned by indi- base rights agreements or other inter- viduals but leased by an Air Force aero club. national agreements that may render (3) Aero clubs of other US military inapplicable, in part or in whole, provi- services. sions of this part. Decision authority is NOTE: This includes aircraft owned by indi- delegated for specific purposes of use viduals but leased by Army or Navy aero and or locations as follows: clubs. (i) Commander, 611th Air Operations (4) A US State, County, Municipality, Group (AOG). The Commander, 611th or other political subdivision, when op- AOG or a designated representative erating to support official business at may approve commercial charters, on a any level of Government. case-by-case basis, at all Air Force air- (b) Any civil aircraft under: fields in Alaska, except Eielson and El- (1) Lease or contractual agreement mendorf AFBs, if the purpose of the for exclusive US Government use on a charter is to transport goods and or long-term basis and operated on offi- materials, such as an electric gener- cial business by or for a US Govern- ator or construction materials for a ment agency; for example, the Federal community center, for the benefit of remote communities that do not have 1 Copies of the publications are available, adequate civil airports. at cost, from the National Technical Infor- (ii) Commander, Air Mobility Com- mation Service, U.S. Department of Com- mand (AMC). The Commander, AMC or merce, 5285 Port Royal Road, Springfield, VA a designated representative may ap- 22161.

137

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00147 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 855.7 32 CFR Ch. VII (7–1–05 Edition)

Aviation Administration (FAA), De- lation directly related to the purpose partment of the Interior, or Depart- for which use is granted. All users are ment of Energy. expected to submit their application NOTE: The Government must hold liability (DD Forms 2400, 2401, and 2402) at least responsibility for all damages or injury asso- 30 days before intended use and, except ciated with operation of the aircraft. for use as a weather alternate, CRAF (2) Lease or contractual agreement to alternate, or emergency landing site, the Air Force for Air Force Civil Air must contact the appropriate installa- Patrol (CAP) liaison purposes and oper- tion commander or a designated rep- ated by an Air Force CAP liaison offi- resentative for final landing approval cer on official Air Force business. at least 24 hours before arrival. Failure (3) CAP control for a specific mission to comply with either time limit may directed by the Air Force. result in denied landing rights. (4) Coast Guard control for a specific mission directed by the Coast Guard. § 855.8 Application procedures. NOTE: For identification purposes, the air- To allow time for processing, the ap- craft will be marked with a sticker near the plication (DD Forms 2400, 2401, and port side door identifying it as a Coast Guard 2402) and a self-addressed, stamped en- Auxiliary aircraft. The pilot will always be in uniform and normally have a copy of a velope should be submitted at least 30 Coast Guard Auxiliary Patrol Order. If the days before the date of the first in- aircraft is operating under ‘‘verbal orders of tended landing. The verification re- the commander,’’ the pilot can provide the quired for each purpose of use must be telephone number of the cognizant Coast included with the application. The Guard commander. name of the user must be the same on (5) Contractual agreement to any US, all forms. Original, hand scribed signa- State, or local Government agency in tures, not facsimile elements, are re- support of operations involving safety quired on all forms. Landing Permit of life or property as a result of a dis- Application Instructions are at attach- aster. ment 3 to this part. The user is respon- (6) Government furnished property or sible for reviewing this part and accu- bailment contract for use by a con- rately completing the forms before tractor, provided the Federal, State, or submitting them to the approving au- local Government has retained liabil- thority. ity responsibilities. (7) Civil aircraft transporting criti- § 855.9 Permit renewal. cally ill or injured individuals or trans- When a landing permit expires, DD plant organs to or from an Air Force Forms 2401 and 2400 must be resub- installation. mitted for continued use of Air Force (8) Historic aircraft being delivered airfields. for Air Force museum exhibits under NOTE: Corporations must resubmit the DD the provisions of AFI 84–103, Museum Form 2402 every five years. System.2 § 855.10 Purpose of use. § 855.7 Conditions for use of Air Force The purposes of use normally associ- airfields. ated with civil aircraft operations at The Air Force authorizes use of its Air Force airfields are listed in Table 1. airfields for a specific purpose by a Requests for use for purposes other named individual or company. The au- than those listed will be considered and thorization cannot be transferred to a may be approved if warranted by second or third party and does not ex- unique circumstances. A separate DD tend to use for other purposes. An ap- Form 2401 is required for each purpose proved landing permit does not obli- of use. (Users can have multiple DD gate the Air Force to provide supplies, Forms 2401 that are covered by a single equipment, or facilities other than the DD Form 2400 and DD Form 2402.) landing, taxiing, and parking areas. The aircraft crew and passengers are § 855.11 Insurance requirements. only authorized activities at the instal- Applicants must provide proof of third-party liability insurance on a DD 2 See footnote 1 to § 855.6. Form 2400, with the amounts stated in

138

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00148 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.12

US dollars. The policy number, effec- fore the effective date of the cancella- tive date, and expiration date are re- tion or reduction. The policy must quired. The statement ‘‘until canceled’’ state that any cancellation or reduc- may be used in lieu of a specific expiration will not be effective until at least tion date. The geographic coverage 30 days after such notice is sent. must include the area where the Air Force airfield of proposed use is lo- § 855.12 Processing a permit applica- cated. If several aircraft or aircraft tion. types are included under the same pol- Upon receipt of an application (DD icy, a statement such as ‘‘all aircraft Forms 2400, 2401, and 2402) for use of an owned,’’ ‘‘all aircraft owned and or op- Air Force airfield, the decision author- erated,’’ ‘‘all non-owned aircraft,’’ or ity: ‘‘all aircraft operated,’’ may be used in (a) Determines the availability of the lieu of aircraft registration numbers. airfield and its capability to accommo- To meet the insurance requirements, date the purpose of use requested. either split limit coverage for bodily (b) Determines the validity of the re- injury (individuals outside the air- quest and ensures all entries on DD craft), property damage, and pas- Forms 2400, 2401, and 2402 are in con- sengers, or a single limit coverage is formance with this part. required. The coverage will be at the (c) Approves DD Form 2401 (with con- expense of the user with an insurance ditions or limitations noted) by com- company acceptable to the Air Force. pleting all items in Section II—For Use Coverage must be current during the by Approving Authority as follows: period the Air Force airfield will be (1) Period of Use (Block 7): The used. The liability required is com- ‘‘From’’ date will be either the first puted on the basis of aircraft maximum day of approved use or the first day of gross takeoff weight (MGTOW) and pas- insurance coverage. The ‘‘From’’ date senger or cargo configuration. Min- cannot precede the first day of insur- imum coverage will not be less than ance coverage shown on the DD Form the amount indicated in Table 2 to this 2400. The ‘‘Thru’’ date is determined by part. the insurance expiration date and or (a) Any insurance presented as a sin- the purpose of use. For example, the gle limit of liability or a combination period of use for participants in an Air of primary and excess coverage will be Force open house will be determined by an amount equal to or greater than the both insurance coverage and open each accident minimums indicated in house dates. The permit would be Table 2 to this part for bodily injury issued only for the duration of the open (individuals outside the aircraft), prop- house but must not precede or exceed erty damage, and passengers. the dates of insurance coverage. Many (b) The policy will specifically pro- insurance policies terminate at noon vide that: on the expiration date. Therefore, if (1) The insurer waives any right of the insurance expiration is used to de- subrogation it may have against the termine the permit expiration date, the US by reason of any payment made landing permit will expire one day be- under the policy for injury, death, or fore the insurance expiration date property damage that might arise, out shown on the DD Form 2400. If the in- of or in connection with the insured’s surance expiration date either exceeds use of any Air Force airfield. 2 years or is indefinite (for example, (2) The insurance afforded by the pol- ‘‘until canceled’’), the landing permit icy applies to the liability assumed by will expire 2 years from the issue date the insured under DD Form 2402. or first day of coverage. (3) If the insurer or the insured can- (2) Frequency of Use (Block 8) is nor- cels or reduces the amount of insur- mally ‘‘as required’’ but may be more ance afforded under the listed policy specific, such as ‘‘one time.’’ before the expiration date indicated on (3) Identification Number (Block 9): DD Form 2400, the insurer will send Installation commanders or a des- written notice of policy cancellation or ignated representative assign a permit coverage reduction to the Air Force ap- number comprised of the last three let- proving authority at least 30 days be- ters of the installation’s International

139

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00149 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 855.13 32 CFR Ch. VII (7–1–05 Edition)

Civil Aviation Organization identifier NOTE: HQ USAF/XOOBC will provide a code, the last two digits of the calendar computer report of current landing permits year, a number sequentially assigned, to the MAJCOMs, FOAs, DRUs, and installa- and the letter suffix that indicates the tions. purpose of use (Table 1); for example, § 855.13 Civil fly-ins. ADW 95–01C. MAJCOMs, FOAs, DRUs, and USDAOs use a three position orga- (a) Civil aircraft operators may be in- nization abbreviation; such as AMC 95– vited to a specified Air Force airfield 02K. for: (4) DD Form 2400 (Dated and Filed) (1) A base open house to perform or (Block 11a): This block should contain provide a static display. the date from block 1 (Date Issued) on (2) A flying safety seminar. the DD Form 2400 and the identifica- (b) Civil fly-in procedures: tion of the unit or base where the form (1) The installation commander or a was approved; i.e., 30 March 1995, HQ designated representative: USAF/XOOBC. (i) Requests approval from the (5) DD Form 2402 (Dated and Filed) MAJCOM, FOA, or DRU with an infor- (Block 11b): This block should contain mation copy to HQ USAF/XOOBC/ the date from block 4 (Date Signed) on XOOO and SAF/PAC. the DD Form 2402 and the identifica- (ii) Ensures that DD Form 2402 is tion of the unit or base where the form completed by each user. was approved; i.e., 30 March 1995, HQ NOTE: DD Forms 2400 and 2401 are not re- USAF/XOOBC. quired for fly-in participants if flying activ- (6) SA-ALC/SFR, 1014 Andrews Road, ity consists of a single landing and takeoff with no spectators other than flightline or Building 1621, Kelly AFB TX 78241–5603 other personnel required to support the air- publishes the list of companies author- craft operations. ized to purchase Air Force fuel on cred- (2) The MAJCOM, FOA, or DRU en- it. Block 12 should be marked ‘‘yes’’ sures HQ USAF/XOOBC/XOOO and SAF/ only if the permit holder’s name ap- PAC are advised of the approval or dis- pears on the SA-ALC list. approval for the fly-in. (7) Landing Fees, Block 13, should be (3) Aerial performance by civil air- marked as indicated in Table 1 to this craft at an Air Force open house re- part. quires MAJCOM or FOA approval and (8) Permit Amendments: New entries an approved landing permit as specified or revisions to an approved DD Form in AFI 35–201, Community Relations 3. 2401 may be made only by or with the Regardless of the aircraft’s historic consent of the approving authority. military significance, DD Forms 2400, (d) Provides the applicant with writ- 2401, and 2402 must be submitted and ten disapproval if: approved before the performance. The (1) Use will interfere with operations, permit can be approved at MAJCOM, security, or safety. FOA, DRU, or installation level. Use (2) Adequate civil facilities are collo- will be authorized only for the period cated. of the event. Fly-in procedures do not (3) Purpose of use is not official Gov- apply to aircraft transporting pas- ernment business and adequate civil fa- sengers (revenue or non-revenue) for cilities are available in the proximity the purpose of attending the open of the requested Air Force airfield. house or demonstration flights associ- (4) Use will constitute competition ated with marketing a product. with civil airports or air carriers. (5) Applicant has not fully complied § 855.14 Unauthorized landings. with this part. (a) Unauthorized landing procedures. (e) Distributes the approved DD The installation commander or a des- Form 2401 before the first intended ignated representative will identify an landing, when possible, as follows: unauthorized landing as either an (1) Retains original. emergency landing, an inadvertent (2) Returns two copies to the user. landing, or an intentional landing. An (3) Provides a copy to HQ USAF/ XOOBC. 3 See footnote 1 to § 855.6.

140

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00150 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.14

unauthorized landing may be des- minimize damage to the aircraft or ignated as inadvertent or intentional wreckage; however, military or other whether or not the operator has knowl- operational factors may be overriding. edge of the provisions of this part, and (2) An operator making an emergency whether or not the operator filed a landing: flight plan identifying the installation (i) Is not charged a landing fee. as a destination. Aircraft must depart (ii) Pays all costs for labor, material, the installation as soon as practical. parts, use of equipment and tools, and On all unauthorized landings, the in- so forth, to include, but not limited to: stallation commander or a designated (A) Spreading foam on the runway. representative: (B) Damage to runway, lighting, and (1) Informs the operator of Subpart B navigation aids. procedures and the requirement for no- (C) Rescue, crash, and fire control tifying the Federal Aviation Adminis- services. tration (FAA) as specified in section 6 (D) Movement and storage of air- of the FAA Airman’s Information Man- craft. ual. (E) Performance of minor mainte- (2) Notifies the Federal Aviation nance. Flight Standards District Office (F) Fuel or oil (AFM 67–1, vol 1, part (FSDO) by telephone or telefax, fol- three, chapter 1, Air Force Stock Fund lowed by written notification using and DPSC Assigned Item Procedures 4). FAA Form 8020–9, 8020–11, or 8020–17, as (c) Inadvertent unauthorized landings. appropriate. A copy of the written no- (1) The installation commander or a tification must be provided to HQ designated representative may deter- USAF/XOOBC. mine a landing to be inadvertent if the (3) Ensures the operator completes a aircraft operator: DD Form 2402, and collects applicable (i) Landed due to flight disorienta- charges. (In some instances, it may be tion. necessary to arrange to bill the user (ii) Mistook the Air Force airfield for for the appropriate charges.) DD Form a civil airport. 2402 need not be completed for commercial carriers if it is known that the (2) Normal landing fees must be form is already on file at HQ USAF/ charged and an unauthorized landing XOOBC. fee may be assessed to compensate the (4) In a foreign country, notifies the Government for the added time, effort, local US Defense Attache Office and risk involved in the inadvertent (USDAO) by telephone or telefax and, landing. Only the unauthorized landing where applicable, the appropriate fee may be waived by the installation USDAO in the country of aircraft reg- commander or a designated representa- istry, followed by written notification tive if, after interviewing the pilot-in- with an information copy to HQ USAF/ command and appropriate Government XOOBC and the civil aviation author- personnel, it is determined that flying ity of the country or countries con- safety was not significantly impaired. cerned. The pilot-in-command may appeal the (b) Emergency landings. Any aircraft imposition of an unauthorized landing operator who experiences an inflight fee for an inadvertent landing to the emergency may land at any Air Force MAJCOM, FOA, or DRU whose decision airfield without prior authorization will be final. A subsequent inadvertent (approved DD Form 2401 and 24 hours landing will be processed as an inten- prior notice). An inflight emergency is tional unauthorized landing. defined as a situation that makes con- (d) Intentional unauthorized landings. tinued flight hazardous. (1) The installation commander may (1) The Air Force will use any meth- categorize an unauthorized landing as od or means to clear an aircraft or intentional when there is unequivocal wreckage from the runway to preclude evidence that the pilot deliberately: interference with essential military op- (i) Landed without an approved DD erations after coordinating with the Form 2401 on board the aircraft. FSDO and National Transportation Safety Board. Removal efforts will 4 See footnote 1 to § 855.6.

141

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00151 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 855.15 32 CFR Ch. VII (7–1–05 Edition)

(ii) Landed for a purpose not ap- (c) The pilot and passengers will not proved on the DD Form 2401. be detained longer than is necessary (iii) Operated an aircraft not of a for identification, although they may model or registration number on the be permitted to remain in a lounge or approved DD Form 2401. other waiting area on the base at their (iv) Did not request or obtain the re- request for such period as the installa- quired final approval from the installation commander may determine (nor- tion commander or a designated rep- mally not to exceed close of business resentative at least 24 hours before air- hours at the home office of the entity craft arrival. owning the aircraft, if the operator (v) Did not obtain landing clearance does not own the aircraft). No person, from the air traffic control tower. solely due to an intentional unauthor- (vi) Landed with an expired DD Form ized landing, will be detained involun- 2401. tarily after identification is complete (vii) Obtained landing authorization without coordination from the appro- through fraudulent methods, or priate US Attorney, the MAJCOM, (viii) Landed after having been de- FOA, or DRU, and HQ USAF/XOOBC. nied a request to land from any Air § 855.16 Parking and storage. Force authority, including the control tower. The time that an aircraft spends on (2) Normal landing fees and an unau- an installation is at the discretion of thorized landing fee must be charged. the installation commander or a des- Intentional unauthorized landings in- ignated representative but should be crease reporting, processing, and staff- linked to the purpose of use authorized. ing costs; therefore, the unauthorized Parking and storage may be permitted landing fee for paragraph (d)(1)(i) on a nonexclusive, temporary, or inter- through (d)(1)(vi) of this section will be mittent basis, when compatible with increased by 100 percent. The unau- military requirements. At those loca- thorized landing fee will be increased tions where there are Air Force aero 200 percent for paragraph (d)(1)(vii) and clubs, parking and storage privileges (d)(1)(viii) of this section. may be permitted in the area designated for aero club use without re- (3) Intentional unauthorized landings gard for the purpose of use authorized, may be prosecuted as a criminal tres- if consistent with aero club policies. pass, especially if a debarment letter Any such permission may be revoked has been issued. Repeated intentional upon notice, based on military needs unauthorized landings prejudice the and the installation commander’s dis- user’s FAA operating authority and cretion. jeopardize future use of Air Force airfields. § 855.17 Fees for landing, parking, and storage. § 855.15 Detaining an aircraft. (a) Landing, parking, and storage (a) An installation commander in the fees (Tables 3 and 4 to this part) are de- United States, its territories, or its termined by aircraft maximum gross possessions may choose to detain an takeoff weight (MGTOW). All fees are aircraft for an intentional unauthor- normally due and collectable at the ized landing until: time of use of the Air Force airfield. (1) The unauthorized landing has DD Form 1131, Cash Collection Vouch- been reported to the FAA, HQ USAF/ er, is used to deposit the fees with the XOOBC, and the appropriate US Attor- base accounting and finance officer. In ney. some instances, it may be necessary to (2) All applicable charges have been bill the user for charges incurred. paid. (b) Landing fees are not charged (b) If the installation commander when the aircraft is operating in sup- wishes to release the aircraft before port of official Government business or the investigation is completed, he or for any purpose, the cost of which is she must obtain bond, promissory note, subject to reimbursement by the US or other security for payment of the Government. Parking and Storage Fees highest charge that may be assessed. (Table 4 to this part) are charged if an

142

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00152 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.22

aircraft must remain beyond the period conclude a joint use agreement. All re- necessary to conduct official Govern- viewing levels will consider and evalu- ment business and for all non-official ate such requests on an individual Government business operations. basis. (b) Generally, the Air Force is willing § 855.18 Aviation fuel and oil pur- to consider joint use at an airfield if it chases. does not have pilot training, nuclear When a user qualifies under the pro- storage, or a primary mission that revisions of AFM 67–1, vol. 1, part three, quires a high level of security. Civil op- chapter 1, Air Force Stock Fund and erations must begin within 5 years of DPSC Assigned Item Procedures, 5 pur- the effective date of an agreement. chase of Air Force fuel and oil may be Operational considerations will be made on a cash or credit basis. An ap- based on the premise that military air- plication for credit authority can be craft will receive priority handling (ex- filed by submitting an Authorized cept in emergencies), if traffic must be Credit Letter to SA-ALC/SFRL, 1014 adjusted or resequenced. The Air Force Andrews Road, Building 1621, Kelly normally will not consider personnel AFB TX 78241–5603. increases solely to support civil operations but, if accommodated, all costs § 855.19 Supply and service charges. must be fully reimbursed by the joint- Supplies and services furnished to a use sponsor. The Air Force will not user will be charged for as prescribed in provide personnel to install, operate, AFM 67–1, volume 1, part one, chapter maintain, alter, or relocate navigation 10, section N, Basic Air Force Supply equipment or aircraft arresting sys- Procedures, and AFR 177–102, para- tems for the sole use of civil aviation. graph 28.24, Commercial Transactions Changes in equipment or systems to at Base Level.6 A personal check with support the civil operations must be appropriate identification, cashier’s funded by the joint-use sponsor. The check, money order, or cash are accept- Air Force must approve siting, design, able means of payment. Charges for and construction of the civil facilities. handling foreign military sales cargo are prescribed in AFR 170–3, Financial § 855.21 Procedures for sponsor. Management and Accounting for Secu- To initiate consideration for joint rity Assistance and International Pro- use of an Air Force airfield, a formal grams.7 proposal must be submitted to the installation commander by a local Gov- Subpart C—Agreements for Civil ernment agency eligible to sponsor a Aircraft Use of Air Force Airfields public airport. The proposal must include: § 855.20 Joint-use agreements. (a) Type of operation. An agreement between the Air Force (b) Type and number of aircraft to be and a local Government agency is re- located on or operating at the airfield. quired before a community can estab- (c) An estimate of the number of an- lish a public airport on an Air Force nual operations for the first 5 years. airfield. (a) Joint use of an Air Force airfield § 855.22 Air Force procedures. will be considered only if there will be no cost to the Air Force and no com- (a) Upon receipt of a joint-use pro- promise of mission capability, secu- posal, the installation commander, rity, readiness, safety, or quality of without precommitment or comment, life. Further, only proposals submitted will send the documents to the Air by authorized representatives of local Force Representative (AFREP) at the Government agencies eligible to spon- Federal Aviation Administration sor a public airport will be given the (FAA) Regional Office within the geo- comprehensive evaluation required to graphical area where the installation is located. AFI 13–201, Air Force Airspace Management,8 lists the AFREPs and 5 See footnote 1 to § 855.6. 6 See footnote 1 to § 855.6. 7 See footnote 1 to § 855.6. 8 See footnote 1 to § 855.6.

143

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00153 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 855.22 32 CFR Ch. VII (7–1–05 Edition)

their addresses. The installation com- property that is not presently needed, but mander must provide an information not excess, available by lease under 10 U.S.C copy of the proposal to HQ USAF/ 2667. An application for lease of Air Force real property must be processed through the XOOBC, 1480 Air Force Pentagon, chain of command to the Air Force Real Es- Washington DC 20330–1480. tate Agency, 172 Luke Avenue, Suite 104, (b) The AFREP provides comments Building 5683, Bolling AFB DC 20332–5113, as to the installation commander on air- prescribed in AFI 32–9003, Granting Tem- space, air traffic control, and other re- porary Use of Air Force Real Property 9. All lated areas, and informs local FAA per- real property outleases require payment of sonnel of the proposal for joint use. fair market consideration and normally are (c) The installation, the numbered processed through the Corps of Engineers. The General Services Administration must Air Force, and the major command be contacted regarding availability of excess (MAJCOM) will then evaluate the pro- or surplus Federal real property and an ap- posal. The MAJCOM will send the com- plication submitted through FAA for an air- ments and recommendations from all port use public benefit transfer under 49 reviewing officials to HQ USAF/ U.S.C. § 47151–47153. XOOBC. (10) Sponsor’s resources to pay a pro- (d) Factors considered in evaluating portionate share of costs for runway joint use include, but are not limited operation and maintenance and other to: jointly used facilities or otherwise pro- (1) Impact on current and provide compensation that is of direct grammed military activities at the in- benefit to the Government. stallation. (e) When the Air Force determines (2) Compatibility of proposed civil that joint use may be compatible with aviation operations with present and its defense mission, the environmental planned military operations. impact analysis process must be com- (3) Compatibility of communications pleted before a final decision can be systems. made. The Air Force will act as lead (4) Instrument capability of crew and agency for the preparation of the envi- aircraft. ronmental analysis (32 CFR part 989, (5) Runway and taxiway configura- Environmental Impact Analysis Proc- tion. (Installations with single run- ess). The local Government agency rep- ways normally will not be considered resentatives, working in coordination for joint use.) with Air Force personnel at the instal- (6) Security. The possibility for sabo- lation and other concerned local or tage, terrorism, and vandalism in- Federal officials, must identify the creases with joint use; therefore, joint proposed action, develop conceptual al- use will not be considered: ternatives, and provide planning, socio- (i) If military and civil aircraft would economic, and environmental informa- be collocated in hangars or on ramps. tion as specified by the appropriate (ii) If access to the civil aviation fa- MAJCOM and HQ USAF/CEVP. The in- cilities would require routine transit formation must be complete and accu- through the base. rate in order to serve as a basis for the (7) Fire, crash, and rescue require- preparation of the Air Force environ- ments. mental documents. All costs associated (8) Availability of public airports to with the environmental studies re- accommodate the current and future quired to complete the environmental air transportation needs of the commu- impact analysis process must be paid nity through construction or expan- by the joint use sponsor. Information sion. on environmental analysis require- (9) Availability of land for civil air- ments is available from HQ USAF/ port complex. CEVP, 1260 Air Force Pentagon, Wash- NOTE: The majority of land required for a ington DC 20330–1260. terminal and other support facilities must be (f) HQ USAF/XOOBC can begin nego- located outside the installation perimeter or tiating a joint-use agreement after the at a site that will allow maximum separa- environmental impact analysis process tion of military and civil activities. If the community does not already own the needed is completed. The agreement must be land, it must be acquired at no expense to the Air Force. The Air Force may make real 9 See footnote 1 to § 855.6.

144

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00154 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.23

concluded on behalf of the Air Force by must be used to amend existing joint- SAF/MII as the approval authority for use agreements. use of Air Force real property for periods exceeding 5 years. The joint-use § 855.23 Other agreements. agreement will state the extent to (a) Temporary use of Air Force run- which the provisions of subpart B of ways occasionally is needed for ex- this part, Civil Aircraft Landing Per- tended periods when a local civil air- mits, apply to civil aircraft operations. port is unavailable or to accommodate (1) Joint-use agreements are tailored special events or projects. Such use re- to accommodate the needs of the com- quires agreement between the Air munity and minimize the impact on Force and the local airport authority the defense mission. Although each or other equivalent responsible entity. agreement is unique, attachment 4 to (b) The local proponent and Air Force personnel should draft and submit an this part provides basic terms that are agreement to the MAJCOM Director frequently included in such agree- for Operations, or equivalent level, for ments. review and comment. The agreement (2) Agreements for joint use at Air must address all responsibilities for Force airfields on foreign soil are sub- handling aircraft, cargo, and pas- ject to the requirements of AFI 51–701, sengers, and hold the Air Force harm- Negotiating, Concluding, Reporting, less of all liabilities. The agreement and Maintaining International Agree- will not exceed 3 years. Although each ments 10. agreement will be unique, attachment (g) HQ USAF/XOOBC and SAF/MII 5 of this part provides one example. approval is required to amend existing The draft agreement, with all com- joint use agreements. The evaluation ments and recommendations, must be and decision processes followed in consent to HQ USAF/XOOBC for final ap- cluding an initial joint-use proposal proval.

TABLE 1—PURPOSE OF USE/VERIFICATION/APPROVAL AUTHORITY/FEES

Approval * Purpose of use Verification authority Fees

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

10 See footnote 1 to § 855.6. 145

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00155 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 § 855.23 32 CFR Ch. VII (7–1–05 Edition)

Approval * Purpose of use Verification authority Fees

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

146

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00156 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.23

Approval * Purpose of use Verification authority Fees

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

147

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00157 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 § 855.23 32 CFR Ch. VII (7–1–05 Edition)

Approval * Purpose of use Verification authority Fees

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

148

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00158 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 855.23

Approval * Purpose of use Verification authority Fees

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

TABLE 2—AIRCRAFT LIABILITY COVERAGE REQUIREMENTS

Aircraft maximum gross takeoff weight Property (MGTOW) Coverage for Bodily injury damage Passenger

12,500 Pounds and Under ...... Each Person ...... $100,000 ...... $100,000. Each Accident ..... 300,000 100,000 100,000 multiplied by the number of passenger seats. More than 12,500 Pounds ...... Each Person ...... 100,000 ...... 100,000.

149

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00159 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 855, Att. 1 32 CFR Ch. VII (7–1–05 Edition)

Aircraft maximum gross takeoff weight Property (MGTOW) Coverage for Bodily injury damage Passenger

Each Accident ..... 1,000,000 1,000,000 100,000 multiplied by 75% multiplied by the number of passenger seats.

TABLE 3—LANDING FEES

United States, Aircraft Maximum Gross Unauthor- Minimum Terri- Over- Takeoff Weight Normal fee ized fee Intentional fee fee tories, seas (MGTOW) and Pos- sessions

$1.50 per 1,000 lbs ...... $20.00 X MGTOW or fraction thereof. $1.70 per 1,000 lbs ...... 25.00 X MGTOW or fraction thereof. Up to and including ...... $100.00 ...... X X 12,500 lbs. 12,501 to 40,000 lbs ...... 300.00 ...... X X Over 40,000 lbs ...... 600.00 ...... X X ...... Increase unauthorized ...... X X fee by 100% or 200%.

TABLE 4—PARKING AND STORAGE FEES

Minimum Fee per aircraft for each 24-hour period or less fee Charge begins Ramp Hangar

$1.00 per 100,000 lbs MGTOW or fraction thereof ...... $20.00 6 hours after landing ...... X $2.00 per 100,000 lbs MGTOW or fraction thereof ...... 20.00 Immediately ...... X

ATTACHMENT 1 TO PART 855—GLOSSARY AFMAN 3–132, Air Force Aero Club Oper- OF REFERENCES, ABBREVIATIONS, ations ACRONYMS, AND TERMS AFR 170–3, Financial Management and Ac- counting for Security Assistance and Section A—References International Programs AFR 177–102, Commercial Transactions at AFPD 10–10, Civil Aircraft Use of United Base Level States Air Force Airfields FAR, Part 121, Certification and Operation: AFI 10–1001, Civil Aircraft Landing Permits Domestic, Flag, and Supplemental Air AFI 13–201, Air Force Airspace Management Carriers and Commercial Operations of AFI 32–7061(32 CFR part 989), Environmental Large Aircraft Impact Analysis Process FAR, Part 135, Air Taxi Operators and Com- AFI 32–9003, Granting Temporary Use of Air mercial Operators of Small Aircraft Force Real Property FAR, Part 139, Certification and Operations: AFI 34–117, Air Force Aero Club Program Land Airports Serving Certain Air Car- AFI 35–201, Community Relations riers AFI 51–701, Negotiating, Concluding, Report- ing, and Maintaining International Section B—Abbreviations and Acronyms Agreements Abbreviations and AFI 84–103, Museum System acronyms Definitions AFI 90–401, Air Force Relations with Con- gress AFI Air Force Instruction. AFI 99–101, Development Test and Evalua- AFJI Air Force Joint Instruction. AFM Air Force Manual. tion AFMAN Air Force Manual. AFJI 24–211, Defense Traffic Management AFPD Air Force Policy Directive. Regulation AFR Air Force Regulation. AFM AFREP Air Force Representative. 67–1, vol 1, part 1, Basic Air Force Supply AMC Air Mobility Command. Procedures AOG Air Operations Group. CAM Commercial Air Movement. AFM 67–1, vol 1, part 3, Air Force Stock CAP Civil Air Patrol. Fund and DPSC Assigned Item Proce- CRAF Civil Reserve Air Fleet. dures DPSC Defense Personnel Support Center.

150

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00160 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 855, Att. 1

Abbreviations and of third-party liability insurance carried by acronyms Definitions the user and assures the United States Gov- ernment of advance notice if changes in cov- DRU Direct Reporting Unit. erage occur. FAA Federal Aviation Administration. FAR Federal Aviation Regulation. DD Form 2401, Civil Aircraft Landing Permit. FMS Foreign Military Sales. A license which, when validated by an Air FOA Field Operating Agency. Force approving authority, authorizes the FSDO Flight Standards District Office. civil aircraft owner or operator to use Air HQ AMC/DOKA Headquarters Air Mobility Command, Force airfields. Contract Airlift, Directorate of Oper- DD Form 2402, Civil Aircraft Hold Harmless ations and Transportation. HQ USAF/CEVP Headquarters United States Air Force, Agreement. An agreement, completed by the Environmental Planning Division, Di- user, which releases the United States Gov- rectorate of Environment. ernment from all liabilities incurred in con- HQ USAF/XOOBC Headquarters United States Air Force, nection with civil aircraft use of Air Force Civil Aviation, Bases and Units Divi- airfields. sion, Directorate of Operations. Government Aircraft. Aircraft owned, oper- HQ USAF/XOOO Headquarters United States Air Force, Operations Group, Directorate of Op- ated, or controlled for exclusive, long-term erations. use by any department or agency of either MAJCOM Major Command. the United States or a foreign Government; MATA Military Air Transportation Agreement. and aircraft owned by any United States MGTOW Maximum Gross Takeoff Weight. State, County, Municipality or other polit- MTMC Military Traffic Management Command. ical subdivision; or any aircraft for which a SAF/LL Secretary of the Air Force, Office of Government has the liability responsibility. Legislative Liaison. SAF/MII Secretary of the Air Force, Deputy As- In the context of this instruction, it includes sistant Secretary of the Air Force (In- foreign registered aircraft, which are nor- stallations). mally commercially operated, that have SAF/PAC Secretary of the Air Force, Office of been wholly chartered for use by foreign Public Affairs, Directorate for Com- Government heads of State for official State munity Relations. visits. US United States. Government Furnished or Bailed Aircraft. US USDAO United States Defense Attache Office. Government-owned aircraft provided to a Government contractor for use in conjunc- Section C—Terms tion with a specific contractual requirement. Aircraft. Any contrivance now known or Installation Commander. The individual hereafter invented, used, or designated for with ultimate responsibility for operating navigation of or flight in navigable airspace the airfield and for base operations (nor- as defined in the Federal Aviation Act. mally a wing or group commander), as deter- Airfield. An area prepared for the accom- mined by the MAJCOM. modation (including any buildings, installa- Joint-Use Agreement. An agreement between tions, and equipment), landing, and take-off the Air Force and a local Government agen- of aircraft. cy that establishes a public airport on an Air Authorized Credit Letter. A letter of agree- Force airfield. ment that qualified operators must file with Loaned Aircraft. US Government-owned air- the Air Force to purchase Air Force aviation craft made available for use by another US fuel and oil on a credit basis under the provi- Government agency. This does not include sions of AFM 67–1, vol 1, part three, chapter aircraft leased or loaned to non-Govern- 1, Air Force Stock Fund and DPSC Assigned mental entities. Such aircraft will be consid- Item Procedures. ered as civil aircraft for purposes of this in- Civil Aircraft. Any United States or foreign- struction. registered aircraft owned by non-Govern- Military Aircraft. Aircraft used exclusively mental entities, and foreign Government- in the military services of the US or a for- owned aircraft that are operated for com- eign Government and bearing appropriate mercial purposes. military and national markings or carrying Civil Aviation. All civil aircraft of any na- appropriate identification. tional registry, including: Official Government Business. Activities Commercial Aviation. Civil aircraft that that support or serve the needs of US Fed- transport passengers or cargo for hire. eral agencies located at or in the immediate General Aviation. Civil aircraft that do not vicinity of an Air Force installation, includ- transport passengers or cargo for hire. ing nonappropriated fund entities. For elect- Civil Reserve Air Fleet (CRAF). US reg- ed or appointed Federal, State, and local of- istered aircraft, certificated under FAR Part ficeholders, official business is activity per- 121, obligated by contract to provide aircraft formed in fulfilling duties as a public offi- and crews to the Department of Defense dur- cial. ing contingencies or war. Other Agreement. An agreement between DD Form 2400, Civil Aircraft Certificate of In- the Air Force and a local Government agen- surance. A certificate that shows the amount cy for temporary use of an Air Force runway

151

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00161 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 855, Att. 2 32 CFR Ch. VII (7–1–05 Edition)

when a local civil airport is unavailable, or proved by the Office of Management and to accommodate a special event or project. Budget under control number 0701–0050) Scheduled Air Carrier. An air carrier that A3.1.1. Block 1, Date Issued. The date the holds a scheduled air carrier certificate and DD Form 2400 is completed by the signatory. provides scheduled service year round be- A3.1.2. Block 2a and 2b, Insurer Name, Ad- tween two or more points. dress. The name and address of the insurance Unauthorized Landing. A landing at an Air company. Force airfield by a civil aircraft without A3.1.3. Block 3a and 3b. Insured Name, Ad- prior authority (approved DD Form 2401 and dress. The name and address of the aircraft 24 hours prior notice). owner and or operator. (The name of the user User. The person, corporation, or other re- must be the same on all the forms.) sponsible entity operating civil aircraft at A3.1.4. Block 4a, Policy Number(s). The Air Force airfields. policy number must be provided. Binder numbers or other assigned numbers will not ATTACHMENT 2 TO PART 855—WEATHER be accepted in lieu of the policy number. ALTERNATE LIST A3.1.5. Block 4b, Effective Date. The first day of current insurance coverage. ALTUS AFB OK A3.1.6. Block 4c, Expiration Date. The last ANDERSEN AFB GUAM day of current insurance coverage. The DD CANNON AFB NM Form 2400 is valid until one day before the DOBBINS AFB GA insurance expiration date. A DD Form 2400 DYESS AFB TX with the statement ‘‘until canceled,’’ in lieu EARECKSON AFS AK * of a specific expiration date, is valid for two EGLIN AFB FL years from the issue date. EIELSON AFB AK A3.1.7. Block 5, Aircraft Liability Cov- ELLSWORTH AFB SD erage. The amount of split limit coverage. ELMENDORF AFB AK All boxes in block 5 must be completed to FAIRCHILD AFB WA specify the coverage for: each person (top GRAND FORKS AFB ND line, left to right) outside the aircraft (bod- HILL AFB UT ily injury) and each passenger; and the total HOWARD AFB PA coverage per accident (second line, left to KADENA AB OKINAWA right) for: persons outside the aircraft (bod- KELLY AFB TX ily injury), property damage, and passengers. KUNSAN AB KOREA IF BLOCK 5 IS USED, BLOCK 6 SHOULD LANGLEY AFB VA NOT BE USED. All coverages must be stated LAUGHLIN AFB TX in US dollars. ALL SEATS THAT CAN BE MALMSTROM AFB MT USED FOR PASSENGERS MUST BE IN- McCHORD AFB WA SURED. See Table 2 for required minimum McCONNELL AFB KS coverage. MINOT AFB ND A3.1.8. Block 6, Single Limit. The max- MT HOME AFB ID imum amount of coverage per accident. IF NELLIS AFB NV BLOCK 6 IS USED, BLOCK 5 SHOULD NOT OFFUTT AFB NE BE USED. The minimum coverage required OSAN AB KOREA for a combined single limit is determined by PLANT 42, PALMDALE CA adding the minimums specified in the ‘‘each TRAVIS AFB CA accident’’ line of Table 2. All coverages must TYNDALL AFB FL be stated in US dollars. ALL SEATS THAT YOKOTA AB JAPAN CAN BE USED FOR PASSENGERS MUST BE INSURED. ATTACHMENT 3 TO PART 855—LANDING A3.1.9. Block 7, Excess Liability. The PERMIT APPLICATION INSTRUCTIONS amount of coverage which exceeds primary coverage. All coverages must be stated in US A3.1. DD Form 2400, Civil Aircraft Certifi- dollars. cate of Insurance: The insurance company or A3.1.10. Block 8, Provisions of Amendments its authorized agent must complete and sign or Endorsements of Listed Policy(ies). Any the DD Form 2400. Corrections to the form modification of this block by the insurer or made using a different typewriter, pen, or insured invalidates the DD Form 2400. whiteout must be initialed by the signatory. A3.1.11. Block 9a, Typed Name of Insurer’s THE FORM CANNOT BE COMPLETED BY Authorized Representative. Individual must THE AIRCRAFT OWNER OR OPERATOR. be an employee of the insurance company, an Upon expiration, the DD Form 2400 must be agent of the insurance company, or an em- resubmitted along with DD Form 2401 for ployee of an insurance broker. continued use of Air Force airfields. The DD A3.1.12. Block 9b, Signature. The form Form 2400 may be submitted to the decision must be signed in blue ink so that hand authority by either the user or insurer. (Ap- scribed, original signatures are easy to identify. Signature stamps or any type of fac- * Formerly Shemya AFB. simile signature cannot be accepted.

152

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00162 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 855, Att. 3

A3.1.13. Block 9c, Title. Self-explanatory. stamps or any type of facsimile signature A3.1.14. Block 9d, Telephone Number. Self- cannot be accepted. explanatory. A3.2.17. Block 6e. Self-explanatory. A3.1.15. THE REVERSE OF THE FORM A3.2.18. THE REVERSE OF THE FORM MAY BE USED IF ADDITIONAL SPACE IS MAY BE USED IF ADDITIONAL SPACE IS REQUIRED. REQUIRED. A3.2. DD Form 2401, Civil Aircraft Landing BLOCKS 7A THROUGH 14C ARE NOT Permit. A separate DD Form 2401 must be COMPLETED BY THE APPLICANT. submitted for each purpose of use (Table 1). (Approved by the Office of Management and A3.2.19. Blocks 7a and 7b. The expiration Budget under control number 0701–0050) date of a permit is determined by the insur- A3.2.1. Block 1a. The name of the owner or ance expiration date or the purpose of use. operator. (The name of the user must be the For example, the dates of an air show will same on all the forms.) determine the expiration date of a permit A3.2.2. Block 1b. This block should only be approved for participation in the air show. If completed if the applicant is a subsidiary, di- the insurance expiration is used to deter- vision, etc, of another company. mine the permit expiration date, the landing A3.2.3. Block 1c. Business or home address, permit will expire one day before the insur- whichever is applicable, of applicant. ance expiration date shown on the DD Form A3.2.4. Block 2. List the airfields where the 2400, or 2 years from the date the permit is aircraft will be operating. The statement issued when the insurance expiration date ei- ‘‘Any US Air Force Installation Worldwide’’ ther exceeds 2 years or is indefinite (for ex- is acceptable for users performing AMC and ample, ‘‘until canceled’’). White House Press Corps charters. ‘‘All Air A3.2.20. APPROVED PERMITS CANNOT Force airfields in the CONUS’’ is acceptable, BE CHANGED WITHOUT THE CONSENT OF if warranted by official Government busi- THE APPROVING AUTHORITY. ness, for all users. A3.2.21. DD FORMS 2400 AND 2401 MUST A3.2.5. Block 3. Self-explanatory. (Users BE RESUBMITTED TO RENEW A LANDING will not necessarily be denied landing rights PERMIT. (Corporations must resubmit the if pilots are not instrument rated and cur- DD Form 2402 every five years.) rent.) A3.3. DD Form 2402, Civil Aircraft Hold A3.2.6. Block 4. Provide a brief explanation Harmless Agreement. A form submitted and of purpose for use. The purposes normally as- accepted by an approving authority for an sociated with use of Air Force airfields are individual remains valid and need not be re- listed in Table 1. If use for other purposes is submitted to the same approving authority, requested, it may be approved if warranted unless canceled for cause. Forms submitted by unique circumstances. (The verification by companies, organizations, associations, specified for each purpose of use must be in- etc, must be resubmitted at least every five cluded with the application.) years. (Approved by the Office of Manage- A3.2.7. Block 5. EXCEPT AS NOTED FOR ment and Budget under control number 0701– BLOCK 5C, ALL ITEMS MUST BE COM- 0050) PLETED. A3.3.1. Block 2a(1). This block should con- A3.2.8. Block 5a and Block 5b. Self-explana- tain the user’s name if the applicant is a tory. company. If the hold harmless agreement is A3.2.9. Block 5c. If the DD Form 2400, Cer- intended to cover other entities of a parent tificate of Insurance, indicates coverage for company, their names must also be included ‘‘any aircraft of the listed model owned and in this block. or operated,’’ the same statement can be A3.3.2. Block 2a(2). This block should con- used in block 5c in lieu of specific registra- tain the user’s address if the applicant is a tion numbers. company. A3.2.10. Block 5d. The capacity provided must reflect only the number of crew re- A3.3.3. Block 2b(1). This block should con- quired to operate the aircraft. The remaining tain the name of the individual applying for seats are considered passenger seats. a landing permit or the name of a corporate A3.2.11. Block 5e. Self-explanatory. officer that is authorized to legally bind the A3.2.12. Block 5d. A two-way radio is re- corporation from litigation against the Air quired. Landing rights will not necessarily Force. be denied for lack of strobe lights, a trans- A3.3.4. Block 2b(2). This block should con- ponder, or IFR capabilities. tain the address of the individual applying A3.2.13. Block 6a. Self-explanatory. for a landing permit. A company address is A3.2.14. Block 6b. If the applicant is an in- only required if it is different from the ad- dividual, this block should not be completed. dress in block 2a(2). A3.2.15. Block 6c. This block should con- A3.3.5. Block 2b(3). The form must be tain a daytime telephone number. signed in blue ink so that hand scribed, A3.2.16. Block 6d. The form must be signed original signatures are easy to identify. Sig- in blue ink so that hand scribed, original signature stamps or any type of facsimile signa- natures are easy to identify. Signature ture cannot be accepted.

153

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00163 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 855, Att. 4 32 CFR Ch. VII (7–1–05 Edition)

A3.3.6. Block 2b(4). This block should only ditions set forth in this Agreement and those be completed when the applicant is a com- Federal Aviation Regulations (FAR) applica- pany, organization, association, etc. ble to civil aircraft operations. Civil aircraft A3.3.7. Block 3a(1). If the applicant is a operations are limited to 20,000 per calendar company, organization, association, etc, the year. An operation is a landing or a takeoff. form must be completed and signed by the Civil aircraft using the flying facilities of corporate secretary or a second corporate of- WAFB on official Government business as ficer (other than the officer executing DD provided in Air Force Instruction (AFI) 10– Form 2402) to certify the signature of the 1001, Civil Aircraft Landing Permits, are not first officer. As necessary, the US Air Force subject to this Agreement. also may require that the form be authenti- b. Aircraft using the flying facilities of cated by an appropriately designated third WAFB under the authority granted to Spon- official. sor by this Agreement shall be entitled to A3.3.8. Block 3a(2). The form must be use those for landings, takeoffs, and move- signed in blue ink so that hand scribed, ment of aircraft and will normally park only original signatures are easy to identify. Sig- in the area made available to Sponsor and nature stamps or any type of facsimile signa- designated by them for that purpose. ture cannot be accepted. c. Government aircraft taking off and land- A3.3.9. Block 3a(3). Self-explanatory. ing at WAFB will have priority over all civil A3.3.10. Block 4. Self-explanatory. aircraft at all times. d. All ground and air movements of civil ATTACHMENT 4 TO PART 855—SAMPLE aircraft using the flying facilities of WAFB JOINT-USE AGREEMENT under this Agreement, and movements of all other vehicles across Air Force taxiways, Joint-Use Agreement Between an Airport will be controlled by the WAFB Control Sponsor and the United States Air Force Tower. Civil aircraft activity will coincide with the WAFB Control Tower hours of oper- This Joint Use Agreement is made and en- ation. Any additional hours of the WAFB tered into this llll day of llll 19ll, Control Tower or other essential airfield by and between the Secretary of the Air management, or operational requirements Force, for and on behalf of the United States beyond those needed by the Air Force, shall of America (‘‘Air Force’’) and an airport be arranged and funded (or reimbursed) by sponsor (‘‘Sponsor’’) a public body eligible to Sponsor. These charges, if any, shall be in sponsor a public airport. addition to the annual charge in paragraph 2 WHEREAS, the Air Force owns and oper- and payable not less frequently than quar- ates the runways and associated flight facili- terly. ties (collectively ‘‘flying facilities’’) located e. No civil aircraft may use the flying fa- at Warbucks Air Force Base, USA cilities for training. (‘‘WAFB’’); and f. Air Force-owned airfield pavements WHEREAS, Sponsor desires to use the fly- made available for use under this Agreement ing facilities at WAFB to permit operations shall be for use on an ‘‘as is, where is’’ basis. by general aviation aircraft and commercial The Air Force will be responsible for snow air carriers (scheduled and nonscheduled) removal only as required for Government jointly with military aircraft; and mission accomplishment. WHEREAS, the Air Force considers that g. Dust or any other erosion or nuisance this Agreement will be in the public interest, that is created by, or arises out of, activities and is agreeable to joint use of the flying fa- or operations by civil aircraft authorized use cilities at WAFB; and of the flying facilities under this Agreement WHEREAS, this Agreement neither ad- will be corrected by Sponsor at no expense to dresses nor commits any Air Force real prop- the Air Force, using standard engineering erty or other facilities that may be required methods and procedures. for exclusive use by Sponsor to support ei- h. All phases of planning and construction ther present or future civil aviation oper- of new runways and primary taxiways on ations and activities in connection with Sponsor property must be coordinated with joint use; and the WAFB Base Civil Engineer. Those in- WHEREAS, the real property and other fa- tended to be jointly used by Air Force air- cilities needed to support civil aviation oper- craft will be designed to support the type of ations are either already available to or will military aircraft assigned to or commonly be diligently pursued by Sponsor; transient through WAFB. NOW, THEREFORE, it is agreed: i. Coordination with the WAFB Base Civil Engineer is required for planning and con- 1. Joint Use struction of new structures or exterior alter- a. The Air Force hereby authorizes Spon- ation of existing structures that are owned sor to permit aircraft equipped with two-way or leased by Sponsor. radios capable of communicating with the j. Sponsor shall comply with the proce- WAFB Control Tower to use the flying facili- dural and substantive requirements estab- ties at WAFB, subject to the terms and con- lished by the Air Force, and Federal, State,

154

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00164 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 855, Att. 4

interstate, and local laws, for the flying fa- ment at no cost to the Air Force. If Air cilities of WAFB and any runway and flight Force assistance is required to repair an air- facilities on Sponsor property with respect craft, Sponsor shall reimburse the Air Force to the control of air and water pollution; for all expenses of such services. Any re- noise; hazardous and solid waste manage- quired reimbursement shall be paid not less ment and disposal; and hazardous materials frequently than quarterly. These charges are management. in addition to the annual charge specified in k. Sponsor shall implement civil aircraft paragraph 2. noise mitigation plans and controls at no expense to and as directed by the Air Force, 4. Fire Protection and Crash Rescue pursuant to the requirements of the WAFB a. The Air Force maintains the level of fire Air Installation Compatible Use Zone fighting, crash, and rescue capability re- (AICUZ) study; the FAA Part 150 study; and quired to support the military mission at environmental impact statements and envi- WAFB. The Air Force agrees to respond to ronmental assessments, including supple- fire, crash, and rescue emergencies involving ments, applicable to aircraft operations at civil aircraft outside the hangars or other WAFB. structures within the limits of its existing l. Sponsor shall comply, at no expense to capabilities, equipment, and available per- the Air Force, with all applicable FAA secu- sonnel, only at the request of Sponsor, and rity measures and procedures as described in subject to subparagraphs b, c, and d below. the Airport Security Program for WAFB. Air Force fire fighting, crash, and rescue m. Sponsor shall not post any notices or equipment and personnel shall not be rou- erect any billboards or signs, nor authorize tinely located in the airfield movement area the posting of any notices or the erection of during nonemergency landings by civil air- any billboards or signs at the airfield of any craft. nature whatsoever, other than identification b. Sponsor shall be responsible for install- signs attached to buildings, without prior ing, operating, and maintaining, at no cost written approval from the WAFB Base Civil to the Air Force, the equipment and safety Engineer. devices required for all aspects of handling n. Sponsor shall neither transfer nor assign and support for aircraft on the ground as this Agreement without the prior written specified in the FARs and National Fire Pro- consent of the Air Force. tection Association procedures and stand- 2. Payment ards. c. Sponsor agrees to release, acquit, and a. For the purpose of reimbursing the Air forever discharge the Air Force, its officers, Force for Sponsor’s share of the cost of agents, and employees from all liability aris- maintaining and operating the flying facili- ing out of or connected with the use of or ties of WAFB as provided in this Agreement, failure to supply in individual cases, Air Sponsor shall pay, with respect to civil air- Force fire fighting and or crash and rescue craft authorized to use those facilities under equipment or personnel for fire control and this Agreement, the sum of (specify sum) an- crash and rescue activities pursuant to this nually. Payment shall be made quarterly, in Agreement. Sponsor further agrees to indem- equal installments. nify, defend, and hold harmless the Air b. All payments due pursuant to this Force, its officers, agents, and employees Agreement shall be payable to the order of against any and all claims, of whatever de- the Treasurer of the United States of Amer- scription, arising out of or connected with ica, and shall be made to the Accounting and such use of, or failure to supply Air Force Finance Officer, WAFB, within thirty (30) fire fighting and or crash and rescue equip- days after each quarter. Quarters are deemed ment or personnel. to end on December 31, March 31, June 30, d. Sponsor will reimburse the Air Force for and September 30. Payment shall be made expenses incurred by the Air Force for fire promptly when due, without any deduction fighting and or crash and rescue materials or setoff. Interest at the rate prescribed by expended in connection with providing such the Secretary of the Treasury of the United service to civil aircraft. The Air Force may, States shall be due and payable on any pay- at its option, with concurrence of the Na- ment required to be made under this Agree- tional Transportation Safety Board, remove ment that is not paid within ten (10) days crashed civil aircraft from Air Force-owned after the date on which such payment is due pavements or property and shall follow exist- and end on the day payment is received by ing Air Force directives and or instructions the Air Force. in recovering the cost of such removal. e. Failure to comply with the above condi- 3. Services tions upon reasonable notice to cure or ter- Sponsor shall be responsible for providing mination of this Agreement under the provi- services, maintenance, and emergency re- sions of paragraph 7 may result in termi- pairs for civil aircraft authorized to use the nation of fire protection and crash and res- flying facilities of WAFB under this Agree- cue response by the Air Force.

155

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00165 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 855, Att. 4 32 CFR Ch. VII (7–1–05 Edition)

f. The Air Force commitment to assist renegotiated or terminated under the provi- Sponsor with fire protection shall continue sions of paragraph 7, but in no event shall only so long as a fire fighting and crash and the Agreement survive the termination or rescue organization is authorized for mili- expiration of Sponsor’s right to use, by li- tary operations at WAFB. The Air Force cense, lease, or transfer of ownership, of the shall have no obligation to maintain or pro- land areas used in connection with joint use vide a fire fighting, and crash and rescue or- of the flying facilities of WAFB. ganization or fire fighting and crash and rescue equipment; or to provide any increase in 7. Renegotiation and Termination fire fighting and crash and rescue equipment a. If significant change in circumstances or or personnel; or to conduct training or in- conditions relevant to this Agreement spections for purposes of assisting Sponsor should occur, the Air Force and Sponsor may with fire protection. enter into negotiations to revise the provi- 5. Liability and Insurance sions of this Agreement, including financial and insurance provisions, upon sixty (60) a. Sponsor will assume all risk of loss and days written notice to the other party. Any or damage to property or injury to or death such revision or modification of this Agree- of persons by reason of civil aviation use of ment shall require the written mutual agree- the flying facilities of WAFB under this ment and signatures of both parties. Unless Agreement, including, but not limited to, such agreement is reached, the existing risks connected with the provision of serv- agreement shall continue in full force and ef- ices or goods by the Air Force to Sponsor or fect, subject to termination or suspension to any user under this Agreement. Sponsor under this section. further agrees to indemnify and hold harmless the Air Force against, and to defend at b. Notwithstanding any other provision of Sponsor expense, all claims for loss, damage, this Agreement, the Air Force may termi- injury, or death sustained by any individual nate this Agreement: (1) At any time by the or corporation or other entity and arising Secretary of the Air Force, giving ninety (90) out of the use of the flying facilities of days written notice to Sponsor, provided WAFB and or the provision of services or that the Secretary of the Air Force deter- goods by the Air Force to Sponsor or to any mines, in writing, that paramount military user, whether the claims be based in whole, necessity requires that joint use be termi- or in part, on the negligence or fault of the nated, or (2) at any time during any national Air Force or its contractors or any of their emergency, present or future, declared by officers, agents, and employees, or based on the President or the Congress of the United any concept of strict or absolute liability, or States, or (3) in the event that Sponsor otherwise. ceases operation of the civil activities at b. Sponsor will carry a policy of liability WAFB for a period of one (1) year, or (4) in and indemnity insurance satisfactory to the the event Sponsor violates any of the terms Air Force, naming the United States of and conditions of this Agreement and con- America as an additional insured party, to tinues and persists therein for thirty (30) protect the Government against any of the days after written notification to cure such aforesaid losses and or liability, in the sum violation. In addition to the above rights, of not less than (specify sum) bodily injury the Air Force may at any time suspend this and property damage combined for any one agreement if violations of its terms and con- accident. Sponsor shall provide the Air Force ditions by Sponsor create a significant dan- with a certificate of insurance evidencing ger to safety, public health, or the environ- such coverage. A new certificate must be ment at WAFB. provided on the occasion of policy renewal or c. The failure of either the Air Force or change in coverage. All policies shall provide Sponsor to insist, in any one or more in- that: (1) No cancellation, reduction in stances, upon the strict performance of any amount, or material change in coverage of the terms, conditions, or provisions of this thereof shall be effective until at least thirty Agreement shall not be construed as a waiv- (30) days after receipt of notice of such can- er or relinquishment of the right to the fu- cellation, reduction, or change by the instal- ture performance of any such terms, condi- lation commander at WAFB, (2) any losses tions, or provisions. No provision of this shall be payable notwithstanding any act or Agreement shall be deemed to have been failure to act or negligence of Sponsor or the waived by either party unless such waiver be Air Force or any other person, and (3) the in- in writing signed by such party. surer shall have no right of subrogation against the United States. 8. Notices a. No notice, order, direction, determina- 6. Term of Agreement tion, requirement, consent, or approval This Agreement shall become effective im- under this Agreement shall be of any effect mediately and shall remain in force and ef- unless it is in writing and addressed as pro- fect for a term of 25 years, unless otherwise vided herein.

156

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00166 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 855, Att. 5

b. Written communication to Sponsor shall Passenger and Luggage Handling be delivered or mailed to Sponsor addressed: The BIA terminal will be used for pas- The Sponsor, 9000 Airport Blvd, USA. senger loading and unloading. Security c. Written communication to the Air Force checks will be performed at the terminal be- shall be delivered or mailed to the Air Force fore loading passengers on buses. Luggage on addressed: Commander, WAFB, USA. arriving aircraft will be directly offloaded 9. Other Agreements not Affected onto vehicles and delivered to the BIA terminal. Each arriving and departing bus or This Agreement does not affect the WAFB- vehicle caravan will be accompanied by a Sponsor Fire Mutual Aid Agreement. credentialed representative of the airline or IN WITNESS WHEREOF, the respective BIA to ensure its integrity enroute. Buses or duly authorized representatives of the par- vehicles transporting passengers to board an ties hereto have executed this Agreement on aircraft will not depart WAFB until the pas- the date set forth below opposite their re- sengers are airborne. Unless an emergency spective signatures. exists, arriving passengers will not deplane UNITED STATES AIR FORCE until the buses are available for transpor- Date: llllllllllllllllllll tation to the BIA terminal. All checked luggage will be picked up at BIA and delivered By: lllllllllllllllllllll directly to the departing aircraft. Buses will Deputy Assistant Secretary of the Air Force proceed directly to the aircraft at WAFB (Installations) alert ramp. Luggage on arriving aircraft will Date: llllllllllllllllllll be directly offloaded onto a vehicle parked on the WAFB alert ramp. WAFB will be noti- By: lllllllllllllllllllll fied, in advance, if a local funeral home re- Sponsor Representative quires access for pickup or delivery of deceased persons. ATTACHMENT 5 TO PART 855—SAMPLE TEMPORARY AGREEMENT AIRCRAFT HANDLING AND GROUND SUPPORT EQUIPMENT Letter of Agreement for Temporary Civil Aircraft Operations at Warbucks AFB, USA Air Force-owned fuel will not be provided. The air carriers will provide their own This letter of agreement establishes poli- ground support equipment. Refueling equip- cies, responsibilities, and procedures for ment from BIA will be prepositioned at commercial air carrier operations at WAFB on the alert ramp. The Air Force Warbucks AFB, USA, (WAFB) for the period shall not be responsible for any damage or (date) through (date) Military require- loss to such equipment, and BIA expressly ments will take precedence over civil air- assumes all risks of any such loss or damage craft operations. Should a conflict arise be- and agrees to indemnify and hold the United tween air carrier and Air Force operational States harmless against any such damage or procedures, Air Force procedures will apply. loss. No routine aircraft maintenance will be accomplished at WAFB. Emergency repairs Authorized Users and or maintenance are only authorized to The following air carriers are authorized avoid extended parking and storage of civil use, provided they have a civil aircraft land- aircraft at WAFB. ing permit approved at HQ USAF/XOOBC for CUSTOMS AND SECURITY such use: Flyaway Airlines The installation commander will exercise Recreation Airlines administrative and security control over Economy Airlines both the aircraft and passengers on WAFB. Customs officials will be transported to and PacAir Transport from the base by air carrier representatives. Schedules The installation commander will cooperate with customer, health, and other public offi- The Bunker International Airport (BIA) cials to expedite arrival and departure of the manager or air carrier station managers will aircraft. Air carrier representatives will no- ensure that the WAFB Airfield Manager is tify the WAFB Airfield Manager, in advance, provided current airline schedules during the of armed security or law enforcement offi- approved period of use. Every effort will be cers arriving or departing on a flight. BIA of- made to avoid disruption of the air carriers’ ficials and air carrier representatives must schedules; however, it is understood that the provide the WAFB Airfield Manager a list of installation commander will suspend or employees, contractors, and vehicles requir- change flight plans when required to pre- ing flightline access. Temporary passes will clude interference with military activities or be issued to authorized individuals and vehi- operations. cles.

157

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00167 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 861 32 CFR Ch. VII (7–1–05 Edition)

FIRE, CRASH, AND RESCUE SERVICES PART 861—DEPARTMENT OF DE- BIA will provide technical information and FENSE COMMERCIAL AIR TRANS- training for WAFB Fire Department per- PORTATION QUALITY AND SAFE- sonnel prior to (date) . Fire, Crash, TY REVIEW PROGRAM and Rescue Services will be provided in an emergency, but fire trucks will not routinely Sec. park on the flightline for aircraft arrivals 861.1 References. and departures. BIA will reimburse WAFB 861.2 Purpose. for all such services. 861.3 Definitions. 861.4 DOD air transportation quality and LIABILITY AND INDEMNIFICATION safety requirements. The Air Force shall not be responsible for 861.5 DOD Commercial Airlift Review Board damages to property or injuries to persons procedures. which may arise from or be incident to the 861.6 DOD review of foreign air carriers. use of WAFB by BIA under this Agreement, 861.7 Disclosure of voluntarily provided or for damages to the property of BIA or in- safety-related information. juries to the person of BIA’s officers, agents, AUTHORITY: 10 U.S.C. 2640, 8013. servants, employees, or invitees. BIA agrees SOURCE: 67 FR 65698, Oct. 28, 2002, unless to assume all risks of loss or damage to prop- otherwise noted. erty and injury or death to persons by reason of or incident to the use of WAFB under this § 861.1 References. Agreement and expressly waives any and all claims against the United States for any The following references apply to such loss, damage, personal injury, or death this part: caused by or occurring as a consequence of (a) 10 U.S.C. 2640, Charter Air Trans- such use. BIA further agrees to indemnify, portation of Members of the Armed save, and hold the United States, its officers, Forces. agents, and employees harmless from and (b) Department of Defense Directive against all claims, demands, or actions, li- 4500.53, Department of Defense Commer- abilities, judgments, costs, and attorneys cial Air Transportation Quality and Safe- fees, arising out of, claimed on account of, or ty Review Program. in any manner predicated upon personal injury, death or property damage resulting § 861.2 Purpose. from, related to, caused by, or arising out of the use of WAFB under this Agreement. Department of Defense Directive 4500.53, Department of Defense Commer- FEES cial Air Transportation Quality and Safe- ty Review Program, charges the Com- Landing and parking fees will be charged in accordance with to AFI 10–1001, Civil Air- mander-in-Chief (CINC), United States craft Landing Permits. Charges will be made Transportation Command in accordance with the appropriate Air Force (USTRANSCOM), with ensuring the es- Instructions for any services or supplies re- tablishment of safety requirements and quired from WAFB. The WAFB Airfield Man- criteria for evaluating civil air carriers ager will be responsible for consolidating all and operators (hereinafter collectively charges which will be billed to BIA not later referred to as ‘‘air carriers’’) providing than (date) by the Accounting and Fi- air transportation and operational sup- nance Office. port services to the Department of De- IN WITNESS WHEREOF, the respective fense (DOD). It also charges the CINC duly authorized representatives of the par- with ensuring the establishment of a ties hereto have executed this Agreement on Commercial Airlift Review Board the date set forth below opposite their re- (CARB) and providing policy guidance spective signatures. and direction for its operation. This llllllllllllllllllllllll part establishes DOD quality and safe- BIA Representative (Name and Title) ty criteria for air carriers providing or DATE llllllllllllllllllll seeking to provide air transportation llllllllllllllllllllllll and, at the discretion of the CARB or WAFB Representative (Name and Title) higher authority, operational support DATE llllllllllllllllllll services to the DOD. This part also includes the operating procedures of the CARB. The CARB has the authority to suspend air carriers from DOD use or

158

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00168 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 861.3

take other actions when issues of air process by which air carriers seeking carrier quality and air safety arise. to provide passenger or cargo airlift services (hereinafter referred to as air § 861.3 Definitions. transportation services) to the DOD (a) Air carrier. Individuals or entities must be screened and evaluated by the that operate commercial fixed and ro- DOD Air Carrier Survey and Analysis tary wing aircraft in accordance with Office or other entity authorized by the the Federal Aviation Regulations (14 CARB, and approved for DOD use by CFR Chapter I) or equivalent regula- the CARB. Once initial approval is ob- tions issued by a country’s Civil Avia- tained, a DOD approved air carrier tion Authority (CAA) and which pro- must remain in an approved status to vide air transportation or operational be eligible for DOD business. Although support services. Commercial air car- not generally required, the CARB or riers under contract with, or operating higher authority may, on a case-by- on behalf of the DOD shall have a FAA case basis, require DOD approval of air or CAA certificate. carriers providing operational support (b) Air transportation services. The services to DOD. transport of DOD personnel or cargo by (f) DOD air carrier safety and quality fixed or rotary wing commercial air- review process. Includes four possible craft, where such services are acquired levels of review with increasing author- primarily for the transportation of ity. The responsibilities of each are de- DOD personnel and cargo, through do- scribed in more detail in the reference nation or any form of contract, tender, in § 861.1 (b). These levels consist of the: blanket ordering agreement, Govern- (1) DOD Air Carrier Survey and Anal- ment charge card, Government or com- ysis Office; mercial transportation request (TR), (2) DOD Commercial Airlift Review bill of lading, or similar instruments. Board (CARB); Air transportation services also include medical evacuation services, (3) Commander-in-Chief, U.S. Trans- paratrooper drops, and charter airlift portation Command, or and group travel arranged by the Mili- USCINCTRANS; and tary Service Academies, foreign mili- (4) Secretary of Defense. (NOTE: A tary sales, nonappropriated fund in- DOD-level body, the Commercial Air- strumentalities by other DOD and non- lift Review Authority, or CARA, pro- DOD activities for DOD personnel. All vides advice and recommendations to air carriers providing air transpor- the Secretary of Defense.) tation services to DOD must have a (g) Federal Aviation Administration FAA or CAA certificate. The policy (FAA) International Safety Assessment contained in this Directive shall not (IASA) program and categories. The FAA apply to individually procured, discre- IASA program assesses the ability of a tionary air travel, such as that associ- foreign country’s CAA to adhere to ated with military leave or pass. international standards established by (c) Civil Aviation Authority (CAA). The the United Nation’s technical agency CAA refers to the organization within for aviation, the International Civil a country that has the authority and Aviation Organization (ICAO). The responsibility to regulate civil avia- FAA has established ratings for the tion. The term CAA is used throughout status of countries as follows: this part since these requirements are (1) Category 1—Does comply with ICAO applicable to both U.S. and foreign car- standards. A country’s CAA has been riers doing business with DOD. The found to license and oversee air car- term CAA thus includes the U.S. Fed- riers in accordance with ICAO aviation eral Aviation Administration (FAA). safety standards. (d) Code sharing. Code sharing is a (2) Category 2—Does not comply with marketing arrangement in which an ICAO standards. A country’s CAA does air carrier places its designator code on not meet ICAO standards for aviation a flight operated by another air carrier oversight. Operations to the U.S. by a and sells tickets for that flight. carrier from a Category 2 country are (e) DOD approval. DOD approval in limited to those in effect at the time a the context of this part refers to the country is classified as Category 2 and

159

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00169 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 861.3 32 CFR Ch. VII (7–1–05 Edition)

are subjected to heightened FAA sur- measures target flights. Air carriers veillance. Expansion or changes in providing only operational support services to the U.S. are not permitted services do not require advance DOD while a country is in Category 2 status approval and are not subject to the ini- unless the carrier arranges to have new tial or periodic on-site survey require- services conducted by an air carrier ments under this part, unless directed from a Category 1 country. Category 2 by the CARB or higher authority. All countries that do not have operations air carriers providing operational sup- to the U.S. at the time of the FAA as- port services to DOD must have a FAA sessment are not permitted to com- or CAA certificate and are required to mence such operations unless it ar- maintain applicable FAA or CAA ranges to have its flights conducted by standards absent deviation authority an air carrier from a Category 1 coun- obtained pursuant to 14 CFR 119.55 or try. similar CAA rules. (3) Non-rated. A country’s CAA is la- (m) Performance assessments. Reviews beled ‘‘non-rated’’ if it has not been as- conducted by U.S. air carriers when sessed by the FAA. evaluating foreign air carriers with (h) GSA City Pair Program. A program which they have code share arrange- managed by the General Services Ad- ments, using performance-based fac- ministration in which U.S. air carriers tors. Such assessments include review- compete for annual contracts awarding ing a variety of air carrier data includ- U.S. Government business for specific ing history, safety, scope/size, financial domestic and international scheduled condition, equipment, flight operations service city pair routes. and airworthiness issues. (i) Group travel. Twenty-one or more (n) Performance evaluations. Reviews passengers on orders from the same or- conducted by DOD as directed in the ganization traveling on the same date references in § 861.1(a) and (b). These to the same destination to attend the evaluations include a review of air car- same function. rier flight operations, maintenance de- (j) Letter of Warning. A notice to a partments, safety programs and other DOD approved air carrier of a failure to air carrier areas as necessary. Perform- satisfy safety or airworthiness require- ance evaluations are not conducted on- ments which, if not remedied, may re- site, but rely on information collected sult in temporary nonuse or suspension primarily from the FAA and the Na- of the air carrier by the DOD. Issuance tional Transportation Safety Board of a Letter of Warning is not a pre- (NTSB). requisite to a suspension or other ac- (o) Preflight safety inspection. A visual tion by the CARB or higher DOD au- safety inspection of the interior and thority. exterior of an air carrier’s aircraft per- (k) On-site Capability Survey. The formed by DOD personnel in accord- most comprehensive evaluation per- ance with the references in § 861.1(a) formed by DOD’s Air Carrier Survey and (b). and Analysis Office. Successful comple- (p) Suspension. The exclusion of an tion of this evaluation is required of air carrier from providing services to most air carriers before they may be the DOD. The period of suspension will approved to provide air transportation normally: services to DOD. Once approved, air (1) Remain in effect until the air car- carriers are subject to periodic On-site rier furnishes satisfactory evidence Capability Surveys, as specified at En- that the conditions causing the suspen- closure 3 in the reference in § 861.1(b). sion have been remedied and has been (l) Operational support services. Mis- reinstated by the CARB, or; sions performed by air carriers that use (2) Be for a fixed period of time as de- fixed or rotary-winged aircraft to pro- termined at the discretion of the vide services other than air transpor- CARB. tation services as defined in paragraph (q) Temporary nonuse. The immediate (b) of this section. Examples include, exclusion of a DOD approved air carrier but are not limited to, range instru- from providing services to the DOD mentation and services, target-towing, pending a decision on suspension. Nor- sling loads, and electronic counter- mally, temporary nonuse will be for a

160

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00170 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 861.4

period of 30 days or less. However, by fully subject to applicable CAA regula- mutual agreement of the CARB and the tions (CARs) while performing business air carrier involved, a suspension hear- for the DOD, even when the aircraft in- ing or decision may be delayed and the volved is used exclusively for DOD mis- air carrier continued in a temporary sions. The inspection and oversight cri- nonuse status for an extended period of teria set forth in this part do not, as a time. general rule, apply to air carriers pro- (r) Voluntarily provided safety-related viding only operational support serv- information. Information which consists ices to DOD. However, in the event of nonfactual safety-related data, re- concerns relating to the safety of such ports, statements, and other informa- a carrier arise, the CARB or higher au- tion provided to DOD by an air carrier thority may, on a case-by-case basis, at any point in the evaluation process direct an appropriate level of oversight described in this Part. It does not in- under the authority of this part. clude factual safety-related informa- (b) Applicability. (1) The evaluation, tion, such as statistics, maintenance quality and safety criteria and require- reports, training records, flight plan- ments set forth in this part apply to ning information, and the like. air carriers providing or seeking to provide air transportation services to § 861.4 DOD air transportation quality DOD. and safety requirements. (2) Foreign air carriers performing (a) General. The DOD, as a customer portions of GSA City Pair routes of air transportation and operational awarded to U.S. air carriers under a support services, expects air carriers code-sharing arrangement, as well as used by DOD to employ programs and foreign air carriers providing individ- business practices that not only ensure ually-ticketed passenger service to good service but also enhance the safe- DOD personnel traveling on official ty, operational, and maintenance business, may be subject to limited standards established by applicable oversight and review pursuant to Civil Aviation Authority (CAA) regula- § 861.6. tions. Accordingly, and as required by (3) The inspection and oversight re- the references in § 861.1 (a) and (b), the quirements, as well as the quality and DOD has established a set of quality safety criteria of this part may, on a and safety criteria and requirements case-by-case basis and at the discretion that reflect the type programs and of the CARB or higher authority, be practices DOD seeks from air carriers applied to air carriers seeking to pro- providing services to DOD. Air carriers vide or providing operational support must meet and maintain these require- services as defined in § 861.3(l). ments in order to be eligible for DOD (4) The inspection and oversight re- business. Air carriers providing air quirements of this part do not apply to transportation services to DOD either aircraft engaged in medical transport directly by contract or agreement, or services if procured under emergency indirectly through the General Serv- conditions to save life, limb or eye- ices Administration (GSA) City Pair sight. Likewise, the inspection and Program or some other arrangement, oversight requirements of this part are must be approved by DOD prior to pro- not applicable when DOD is not in- viding such services and remain in an volved in the procurement of the med- approved status throughout the con- ical transportation services. For exam- tract, agreement, or arrangement per- ple, when specific medical treatment is formance period. This approval entails obtained on an individual basis by or successful completion of initial and re- for DOD personnel with medical trans- curring on-site surveys as well as peri- portation provided, as needed, at the odic performance evaluations in ac- direction of the non-DOD medical care cordance with the reference in giver. This includes situations where § 861.1(b). The quality and safety cri- DOD, through TRICARE or otherwise, teria and requirements set forth in this pays for such transportation as part of part complement rather than replace the costs of medical services provided. the CAA criteria applicable to air car- (c) Scope and nature of the evaluation riers. Air carriers normally remain program—(1) Evaluation requirement.

161

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00171 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 861.4 32 CFR Ch. VII (7–1–05 Edition)

The provision of air transportation size of an air carrier, along with the services under a contract or agreement type and scope of operations will be with or on behalf of DOD, requires the considered during the on-site survey. successful completion of an initial on- For example, while an air taxi operator site survey and approval by the CARB may not have a formal flight control under this part in order to be eligible function, such as a 24-hour dispatch or- for DOD business. In addition, U.S. air ganization, that same air taxi operator carriers awarded contracts under the is expected to demonstrate some type GSA City Pair Program, including of effective flight following capability. those that perform part of the contract On the other hand, a major air carrier under a code-sharing arrangement with is expected to have a formal flight con- the U.S. air carrier awarded the control or dispatch function. Both, how- tract, must successfully complete an ever, will be evaluated based on the ef- initial on-site survey and be approved fectiveness and quality of whatever by the CARB for DOD use under this flight following function they do main- part prior to beginning performance of tain. In the case of air carriers seeking the GSA contract. Once approved by to provide operational support services, DOD, air carriers providing air trans- the type, scope and frequency of eval- portation services are subject to recur- uation, if any, performed by DOD or ring on-site surveys and performance other entity will be as directed by the evaluations and assessments through- CARB or higher authority. out the duration of the relevant con- (d) Status of aircraft performing serv- tract or agreement. The frequency and ices for DOD. All air carriers providing scope of these surveys and performance air transportation or operational sup- reviews will be in accordance with En- port services to the DOD shall have closure 3 of the reference in § 861.1(b). FAA or CAA air carrier or commercial (2) Office of primary responsibility. operator certificates and shall remain Evaluations are performed by the DOD under FAA and/or CAA regulatory and Air Carrier Survey and Analysis Office safety oversight during performance of located at Scott Air Force Base, Illi- the DOD mission. Aircraft performing nois. The mailing address of this office services for or on behalf of DOD shall is HQ AMC/DOB, 402 Scott Drive Unit be on the air carrier’s operating certifi- 3A1, Scott AFB IL 62225–5302. The cate, and remain on that certificate website address is https://pub- while performing the DOD mission. The lic.scott.af.mil/hqamc/dob/index.htm. installation of any special equipment (3) Items considered in the evaluation needed to perform services for DOD process. The specifics of the applicable shall be FAA or CAA approved or an DOD contract or agreement (if any), appropriate FAA or CAA waiver ob- the applicable CAA regulations, and tained. the experienced judgment of DOD per- (e) Evaluation requirements. The air sonnel will be used to evaluate an air carrier requirements stated in this part carrier’s capability to perform services provide the criteria against which for DOD. The survey may also include, would-be DOD and GSA City Pair Pro- with the air carrier’s coordination, ob- gram air carrier contractors, as well as servation of cockpit crew performance, air carriers providing services on be- as well as ramp inspections of selected half of DOD, may be subjectively evalu- company aircraft. In the case of air ated by DOD. These requirements are carriers seeking to provide air trans- neither all-inclusive nor inflexible in portation services, after satisfactory nature. They are not replacements for completion of the initial survey and the certification criteria and other reg- approval by the CARB as a DOD air ulations established by the CAA. Rath- carrier, follow-up surveys will be con- er, these requirements complement ducted on a recurring basis and when CAA certification criteria and regula- otherwise required to validate adher- tions and describe the enhanced level ence to DOD quality and safety re- of service required by DOD. The rel- quirements. DOD personnel will also ative weight accorded these require- assess these quality and safety requirements in a given case, as well as the ments when conducting periodic air determination of whether an air carrier carrier performance evaluations. The meets or exceeds them, is a matter

162

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00172 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 861.4

within the sole discretion of the DOD (iii) ‘‘Equivalent to the services Air Carrier Survey and Analysis Office sought by DOD’’ means service offered and the CARB, subject to the statutory to qualify for DOD approval must be minimums provided in the reference in substantially equivalent to the type of § 861.1(a). service sought by DOD. The prior expe- (1) Quality and safety requirements— rience must be equivalent in difficulty prior experience. U.S. and foreign air and complexity with regard to the dis- carriers applying for DOD approval in tances flown, weather systems encoun- order to conduct air transportation tered, international and national pro- services for or on behalf of DOD under cedures, the same or similar aircraft, a contract or agreement with DOD, the schedule demands, aircrew experience, GSA City Pair Program, or by some number of passengers handled, fre- other arrangement are required to pos- quency of operations, and management sess 12 months of continuous service required. There is not a set formula for equivalent to the service sought by determining whether a particular type DOD. In applying this requirement, the of service qualifies. The performance of following guidance will be used by DOD cargo services is not considered to be authorities: ‘‘substantially equivalent’’ to the per- (i) ‘‘12 months’’ refers to the 12 cal- formance of passenger services, and endar months immediately preceding may not be used to meet the 12 contin- the request for DOD approval. uous months requirement for passenger (ii) ‘‘Continuous’’ service means the services. However, when a carrier al- carrier must have performed revenue- ready providing cargo services to DOD generating services of the nature for applies to carry passengers, the CARB which DOD approval is sought, as an may consider the carrier’s cargo per- FAA Part 121, 125, 127, or 135 (14 CFR formance and experience in assessing 121, 125, 127, or 135) air carrier (or for- whether a carrier is qualified to carry eign CAA equivalent if appropriate) on passengers on a specific type or cat- a recurring, substantially uninter- egory of aircraft, over certain routes or rupted basis. The services must have stage lengths, or under differing air occurred with such frequency and regu- traffic control, weather, or other condi- larity as to clearly demonstrate the tions. The following examples are illus- carrier’s ability to perform and support trative and not intended to reflect or sustained, safe, reliable, and regular predict CARB action in any given case: services of the type DOD is seeking. Example 1: Coyote Air has operated com- Weekly flight activity is normally con- mercial passenger commuter operations in sidered continuous, while sporadic or the U.S. for a number of years flying a vari- seasonal operations (if such operations ety of twin-engine turboprop aircraft. They are the only operations conducted by have also been a DOD-approved cargo car- the carrier) may not suffice to estab- rier, providing international cargo services lish a carrier’s ability to perform and using DC–10 freighter aircraft. Coyote Air support services in the sustained, safe, purchases a passenger version DC–10, and reliable, and regular manner required seeks DOD approval to provide international by DOD. The ability of a carrier to per- passenger service for DOD. The CARB may form services of the type sought by decide that although Coyote Air has provided passenger services for 12 continuous DOD may be called into question if months, those services are not substantially there have been lengthy periods of time equivalent to those being sought by DOD. during the qualifying period in which While the carrier may have considerable the carrier has not operated such serv- operational experience with the DC–10, its ices. Consequently, any cessation, or commuter passenger operations are not sub- nonperformance of the type of service stantially equivalent to the service now pro- for which approval is sought may, if it posed—international passenger services on exceeds 30 days in length during the large jet aircraft. qualifying period and depending on the Example 2: Acme Air has been a DOD-approved cargo carrier for several years, oper- underlying factual circumstances, ne- ating domestic and international missions cessitate ‘‘restarting’’ the 12-month with MD–11 freighter aircraft. At the same continuous service period needed to ob- time, Acme has been performing commercial tain DOD approval. international passenger services with B–757

163

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00173 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 861.4 32 CFR Ch. VII (7–1–05 Edition)

aircraft. Acme Air purchases a MD–11 pas- two years using DOD-approved criteria senger aircraft and applies to perform pas- and any findings resolved. Comprehen- senger services for DOD using the MD–11. As- sive disaster response plans and, where suming Acme has performed B–757 passenger applicable, family support plans, must service for 12 continuous months immediately preceding its application, the CARB be in place and exercised on a regular may consider these passenger services sub- basis. stantially equivalent to those proposed since (3) Quality and safety requirements— both involve the operation of large multi-en- operations—(i) Flight safety. Established gine aircraft in an international environ- policies that promote flight safety. ment. The CARB may also consider Acme’s These policies are infused among all operational history with its MD–11 freighter aircrew and operational personnel who aircraft in determining whether the carrier translate the policies into practice. is competent to provide MD–11 passenger service in the same environment. New or revised safety-related data are promptly disseminated to affected per- (iv) Once approved by DOD, an air sonnel who understand that deviation carrier’s failure to maintain contin- from any established safety policy is uous operations of the type for which unacceptable. An audit system that de- approval has been granted may, at the tects unsafe practices is in place and a discretion of the CARB, be grounds for feedback structure informs manage- nonuse or suspension under this part, ment of safety policy results including rendering the carrier ineligible for possible safety problems. Management DOD business during the nonuse or sus- ensures that corrective actions resolve pension period. Any cessation or non- every unsafe condition. performance of the type of service for (ii) Flight operations. Established which approval has been obtained may, flight operations policies and proce- if it exceeds 30 days in length and de- dures are up-to-date, reflect the cur- pending on the circumstances, provide rent scope of operations, and are clear- the basis for the CARB to take appro- ly defined to aviation department em- priate action. ployees. These adhered-to procedures (2) Quality and safety requirements—air are further supported by a flow of cur- carrier management. Management has rent, management-generated safety clearly defined safety as the number and operational communications. Man- one company priority, and safety is agers are in touch with mission re- never sacrificed to satisfy passenger quirements, supervise crew selection, concern, convenience, or cost. Policies, and ensure the risk associated with all procedures, and goals that enhance the flight operations is reduced to the low- CAA’s minimum operations and main- est acceptable level. Flight crews are tenance standards have been estab- free from undue management pressure lished and implemented. A cooperative and are comfortable with exercising response to CAA inspections, critiques, their professional judgment during or comments is demonstrated. Proper flight activities, even if such actions support infrastructure, including fa- do not support the flight schedule. Ef- cilities, equipment, parts, and qualified fective lines of communication permit personnel, is provided at the certificate feedback from line crews to operations holder’s primary facility and en route managers. Personnel records are main- stations. Personnel with aviation cre- tained and reflect such data as experi- dentials and experience fill key man- ence, qualifications, and medical sta- agement positions. An internal quality tus. audit program or other method capable (iii) Flight crew hiring. Established of identifying in-house deficiencies and procedures ensure that applicants are measuring the company’s compliance carefully screened, including a review with their stated policies and stand- of the individual’s health and suit- ards has been implemented. Audit re- ability to perform flight crew duties. sults are analyzed in order to deter- Consideration is given to the appli- mine the cause, not just the symptom, cant’s total aviation background, ap- of any deficiency. The result of sound propriate experience, and the individ- fiscal policy is evident throughout the ual’s potential to perform safely. Free- company. Foreign code-sharing air car- dom from alcohol abuse and illegal rier partners are audited at least every drugs is required. If new-hire cockpit

164

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00174 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 861.4

crewmembers do not meet industry with highly experienced first officers, standards for experience and qualifica- and new or low-time first officers are tion, then increased training and man- scheduled with experienced captains. agement attention to properly qualify Except for aircraft new to the com- these personnel are required. pany, captains and first officers as- (iv) Aircrew training. Training, includ- signed to DOD charter passenger mis- ing recurrent training, which develops sions possess at least 250 hours com- and refines skills designed to eliminate bined experience in the type aircraft mishaps and improve safety, is essen- being operated. The scheduling system tial to a quality operation. Crew co- involves an established flight duty ordination training that facilitates full time program for aircrews, including cockpit crews training and full crew flight attendants, carefully managed so interaction using standardized proce- as to ensure proper crew rest and con- dures and including the principles of siders quality-of-life factors. Attention Crew Resource Management (CRM) is is given to the stress on aircrews dur- required. Programs involving the use of ing strikes, mergers, or periods of simulators or other devices that can labor-management difficulties. provide realistic training scenarios are (vii) In-flight performance. Aircrews, desired. Captain and First Officer including flight attendants and flight training objectives cultivate similar medical personnel, are fit for flight du- levels of proficiency. Appropriate ties and trained to handle normal, ab- emergency procedures training (e.g., normal, and emergency situations. evacuation procedures) is provided to They demonstrate crew discipline and flight deck and flight attendant per- a knowledge of aviation rules; use com- sonnel as a total crew whenever pos- pany-developed standardized proce- sible; such training focuses on cockpit dures; adhere to checklists; and empha- and cabin crews functioning as a co- size safety, including security consider- ordinated team during emergencies. ations, throughout all preflight, in- Crew training—be it pilot, engineer, or flight, and postflight operations. Quali- flight attendant—is appropriate to the fied company personnel evaluate air- level of risk and circumstances antici- crews and analyze results; known per- pated for the trainee. Training pro- formance deficiencies are eliminated. grams have the flexibility to incor- Evaluations ensure aircrews dem- porate and resolve recurring problem onstrate aircraft proficiency in accord- areas associated with day-to-day flight ance with company established stand- operations. Aeromedical crews must ards. Flight crews are able to deter- also be trained in handling the specific mine an aircraft’s maintenance condi- needs of the categories of patients nor- tion prior to flight and use standard- mally accepted for transportation on ized methods to accurately report air- the equipment to be used. Trainers are craft deficiencies to the maintenance highly skilled in both subject matter activity. and training techniques. Training re- (viii) Operational control/support. Ef- ceived is documented, and that docu- fective mission control includes com- mentation is maintained in a current munications with aircrews and the ca- status. pability to respond to irregularities or (v) Captain upgrade training. A selec- difficulties. Clear written procedures tion and training process that con- for mission preparation and flight fol- siders proven experience, decision mak- lowing aircraft and aircrews are pro- ing, crew resource management, and vided. There is access to weather, response to unusual situations, includ- flight planning, and aircraft mainte- ing stress and pressure, is required. nance data. There are personnel avail- Also important is emphasis on captain able who are knowledgeable in aircraft responsibility and authority. performance and mission requirements (vi) Aircrew scheduling. A closely and that can correctly respond to monitored system that evaluates oper- emergency situations. There is close ational risks, experience levels of crew- interface between operations and main- members, and ensures the proper pair- tenance, ensuring a mutual awareness ing of aircrews on all flights is re- of aircraft operational and mainte- quired. New captains are scheduled nance status. Procedures to notify

165

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00175 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 861.4 32 CFR Ch. VII (7–1–05 Edition)

DOD in case of an accident or serious sonnel possess the knowledge and the incident have been established. Flight necessary aircraft-specific experience crews involved in such accidents or in- to accomplish the maintenance tasks. cidents report the situation to com- Noncertified and inexperienced per- pany personnel who, in turn, have pro- sonnel received proper supervision. cedures to evaluate the flight crew’s Freedom from alcohol abuse and illegal capability to continue the mission. drugs is required. Aircraft involved in accidents or inci- (ii) Quality assurance. A system that dents are inspected in accordance with continuously analyzes the performance Civil Aviation Regulations and a deter- and effectiveness of maintenance ac- mination made as to whether or not tivities and maintenance inspection the aircraft is safe for continued oper- programs is required. This system eval- ations. uates such functions as reliability re- (ix) DOD charter procedures. Detailed ports, audits, component tear-down re- procedures addressing military charter ports, inspection procedures and re- requirements are expected. The level of risk associated with DOD charter mis- sults, tool calibration program, real- sions does not exceed the risks inher- time aircraft maintenance actions, ent in the carrier’s non-DOD daily warranty programs, and other mainte- flight operations. Complete route plan- nance functions. The extent of this pro- ning and airport analyses are accom- gram is directly related to the air car- plished, and actual passenger and cargo rier’s size and scope of operation. The weights are used in computing aircraft cause of any recurring discrepancy or weight and balance. negative trend is researched and elimi- (4) Quality and safety requirements— nated. Action is taken to prevent re- maintenance. Maintenance supervisors currence of these discrepancies and ensure all personnel understand that in preventive actions are monitored to en- spite of scheduling pressure, peer pressure effectiveness. The results of pre- sure, supervisory pressure, or other ventive actions are provided to appro- factors, the airplane must be airworthy priate maintenance technicians. prior to flight. Passenger and employee (iii) Maintenance inspection activity. A safety is a paramount management process to ensure required aircraft in- concern. Quality, completeness, and inspections are completed and the results tegrity of work are trademarks of the properly documented is required. Also maintenance manager and mainte- required is a system to evaluate con- nance department. Nonconformance to tract vendors, suppliers, and their established maintenance practices is products. Inspection personnel are not tolerated. Management ensures identified, trained (initial and recur- that contracted maintenance, includ- rent), and provided guidance regarding ing repair and overhaul facilities, is inspector responsibility and authority. performed by maintenance organiza- The inspection activity is normally a tions acceptable to the CAA. separate entity within the mainte- (i) Maintenance personnel. Air carriers nance department. are expected to hire and train the number of employees required to safely (iv) Maintenance training. Training is maintain the company aircraft and conducted commensurate with the size support the scope of the maintenance and type of maintenance function operations both at home station (the being performed. Continuing education company’s primary facility) and at en and progressive experience are pro- route locations. These personnel ensure vided for all maintenance personnel. that all maintenance tasks, including Orientation, familiarization, on-the- required inspections and airworthiness job, and appropriate recurrent training directives, are performed; that mainte- for all full and part-time personnel are nance actions are properly docu- expected. The use of such training aids mented; and that the discrepancies as mockups, simulators, and computer- identified between inspections are cor- based training enhances maintenance rected. Mechanics are fit for duty, training efforts and is desired. Training properly certificated, the company documentation is required; it is cur- verifies certification, and these per- rent, complete, well maintained, and

166

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00176 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 861.4

correctly identifies any special author- spected and results documented. Proce- ization such as inspection and air- dures and instructions pertaining to worthiness release. Trainers are fully servicing, handling, and storing fuel qualified in the subject manner. and oil meet established safety stand- (v) Maintenance control. A method to ards. Procedures for monitoring and control maintenance activities and verifying vendor servicing practices track aircraft status is required. Quali- are included in this program. fied personnel monitor maintenance (x) Maintenance manuals. Company preplanning, ensure completion of policy manuals and manufacturer’s maintenance actions, and track de- maintenance manuals are current, ferred discrepancies. Deferred mainte- available, clear, complete, and adhered nance actions are identified to super- to by maintenance personnel. These visory personnel and corrected in ac- manuals provide maintenance per- cordance with the criteria provided by sonnel with standardized procedures the manufacturer or regulatory agen- for maintaining company aircraft. cy. Constant and effective communica- Management policies, lines of author- tions between maintenance and flight ity, and company maintenance proce- operations ensure an exchange of crit- dures are documented in company ical information. manuals and kept in a current status. (vi) Aircraft maintenance program. Air- (xi) Maintenance facilities. Well main- craft are properly certified and maintained, clean maintenance facilities, tained in a manner that ensures they adequate for the level of aircraft repair are airworthy and safe. The program authorized in the company’s CAA cer- includes the use of manufacturer’s and tificate are expected. Safety equipment CAA information, as well as company is available in hangars, shops, etc., and policies and procedures. Airworthiness is serviceable. Shipping, receiving, and directives are complied with in the pre- stores areas are likewise clean and or- scribed time frame, and service bul- derly. Parts are correctly packaged, letins are evaluated for applicable ac- tagged, segregated, and shelf life prop- tion. Approved reliability programs are erly monitored. proactive, providing management with (5) Quality and safety requirements—se- visibly on the effectiveness of the curity. Company personnel receive maintenance program; attention is training in security responsibilities given to initial component and older and practice applicable procedures dur- aircraft inspection intervals and to de- ing ground and in-flight operations. ferred maintenance actions. Special Compliance with provisions of the ap- tools and equipment are calibrated. propriate standard security program, (vii) Maintenance records. Mainte- established by the Transportation Se- nance actions are well documented and curity Administration or foreign equiv- provide a complete record of mainte- alent, is required for all DOD missions. nance accomplished and, for repetitive (6) Quality and safety requirements— actions, maintenance required. Such specific equipment requirements. Air car- records as aircraft log books and main- riers satisfy DOD equipment and other tenance documentation are legible, requirements as specified in DOD dated, clean, readily identifiable, and agreements. maintained in an orderly fashion. In- (7) Quality and safety requirements— spection compliance, airworthiness re- oversight of commuter or foreign air car- lease, and maintenance release records, riers in code-sharing agreements. Air car- etc., are completed and signed by ap- riers awarded a route under the Pas- proved personnel. senger Standing Route Order (PSRO) (viii) Aircraft appearance. Aircraft ex- program, the GSA City Pair Program, teriors, including all visible surfaces or other DOD program, that includes and components, are clean and well performance of a portion of the route maintained. Interiors are also clean by a commuter or foreign air carrier and orderly. Required safety equipment with which it has a code-sharing ar- and systems are available and operable. rangement, must have a formal proce- (ix) Fueling and servicing. Aircraft dure in place to periodically review and fuel is free from contamination, and assess the code-sharing air carrier’s company fuel facilities (farms) are in- safety, operations, and maintenance

167

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00177 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 861.5 32 CFR Ch. VII (7–1–05 Edition)

programs. The extent of such reviews (c) An air carrier’s sole remedy in the and assessments must be consistent case of a suspension decision by the with, and related to, the code-sharing CARB is the appellate process under air carrier’s safety history. These pro- this part. cedures must also provide for actual in- (d) Quality and safety issues relating spections of the foreign code-sharing to air carriers used, or proposing to be air carrier if the above reviews and as- used, by DOD, per reference (b) must be sessments indicate questionable safety referred to the CARB for appropriate practices. disposition. (8) Quality and safety requirements— (e) CARB responsibilities. As detailed aeromedical transport requirements. (i) in the reference in § 861.1(b), the CARB The degree of oversight is as deter- provides a multifunctional review of mined by the CARB or higher author- the efforts of the DOD Air Carrier Sur- ity. When an inspection is conducted, vey and Analysis Office and is the first DOD medical personnel may also par- level decision authority in DOD on ticipate to assess the ability to provide quality and safety issues relating to air the patient care and any specialty care carriers. Responsibilities include, but required by DOD. The CARB’s review are not limited to: the review and ap- will be limited solely to issues related proval or disapproval of air carriers to flight safety. seeking initial approval to provide air (ii) Portable Electronic Devices transportation service to DOD; the re- (PEDs) used in the provision of medical view and approval or disapproval of air services or treatment on board aircraft carriers in the program that do not are tested for non-interference with meet DOD quality and safety require- aircraft systems and the results documents; the review and approval or dis- mented to show compliance with 14 approval of air carriers in the program CFR 91.21 or other applicable CAA reg- seeking to provide a class of service different from that which they are cur- ulations. If there are no CAA regula- rently approved; taking action to sus- tions, actual use/inflight testing of the pend, reinstate, or place into tem- same or similar model PED prior to use porary nonuse or extended temporary with DOD patients is the minimum re- nonuse, DOD approved carriers; taking quirement. action, on an as needed basis, to re- § 861.5 DOD Commercial Airlift Re- view, suspend, reinstate, or place into view Board procedures. temporary nonuse or extended temporary nonuse, an air carrier providing (a) This section establishes proce- operational support services to DOD; dures to be used by the DOD when, in and, referring with recommendations, accordance with references in§ 861.1(a) issues requiring resolution or other ac- and (b): tion by higher authority. (1) An air carrier is subject to review (f) CARB administrative procedures.— or other action by the DOD Commer- (1) Membership. The CARB will consist cial Airlift Review Board, or CARB; of four voting members appointed by (2) A warning, suspension, temporary USCINCTRANS from USTRANSCOM nonuse, or reinstatement action is con- and its component commands. These sidered or taken against a carrier by members and their alternates will be the CARB; or general officers or their civilian equiv- (3) An issue involving an air carrier alent, with experience in the oper- is referred by the CARB to higher au- ations, maintenance, transportation, thority for appropriate action. or air safety fields. A Chairman and al- (b) These procedures apply to air car- ternate will be designated. Nonvoting riers seeking to provide or already pro- CARB members will be appointed as viding air transportation services to necessary by USCINCTRANS. A non- DOD. It also applies to U.S. or foreign voting recorder will also be appointed. air carriers providing operational sup- (2) Decisions. Decisions of the CARB port services to DOD which, on a case- will be taken by a majority vote of the by-case basis and at the discretion of voting members present, with a min- the CARB or higher authority, require imum of three voting members (or some level of oversight by DOD. their alternates) required to constitute

168

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00178 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 861.5

a quorum. In the event of a tie, the present and may offer evidence. The Chair of the CARB will decide the hearings shall be as informal as prac- issue. ticable, consistent with administrative (3) Meetings of the CARB. The CARB due process. Formal rules of evidence may meet either in person or by some do not apply. electronic means. It will be convened (iii) The types of evidence which may by either USCINCTRANS or the Chair be considered includes, but is not lim- of the CARB. The meeting date, time, ited to: and site of the CARB will be deter- (A) Information and analysis pro- mined at the time of the decision to vided by the DOD Air Carrier Survey convene the CARB. Minutes of CARB and Analysis Office. meetings will be taken by the recorder, (B) Information submitted by the air summarized, and preserved with all carrier. other records relating to the CARB (C) Information relating to action meeting. The recorder will ensure the that may have been taken by the air air carrier and appropriate DOD and carrier to: federal agencies are notified of the (1) Correct the specific deficiencies CARB’s decision(s) and reasons there- that led the CARB to consider suspen- fore. In the event of a fatal accident, sion; and the CARB shall convene as soon as pos- (2) Preclude recurring similar defi- sible but not later than 72 hours after ciencies. notification by the Chair. (D) Other matters the CARB deems (g) CARB operating procedures—(1) relevant. Placing an air carrier into temporary non- (iv) The CARB’s decisions on the reuse. (i) In case of a fatal aircraft acci- ception or exclusion of evidence shall dent or for other good cause, two or be final. more voting members of the CARB (v) Air carriers shall have the burden may jointly make an immediate deter- of proving their suitability to safely mination whether to place the air car- perform DOD air transportation and/or rier involved into a temporary nonuse operational support services by clear status pending suspension proceedings. and convincing evidence. Prior notice to the air carrier is not re- (vi) After the conclusion of such quired. hearing, or if no hearing is requested (ii) The carrier shall be promptly no- and attended by the air carrier within tified of the temporary nonuse deter- the time specified by the CARB, the mination and the basis therefore. CARB shall consider the matter and (iii) Temporary nonuse status termi- make a final decision whether or not to nates automatically if suspension pro- suspend the air carrier or to impose ceedings are not commenced, as set out such lesser sanctions as appropriate. in paragraph (g)(2) of this section, The air carrier will be notified of the within 30 days of inception unless the CARB’s decision. CARB and air carrier mutually agree (3) Reinstatement. (i) The CARB may to extend the temporary nonuse status. consider reinstating a suspended car- (2) Suspension of an air carrier. (i) On rier on either CARB motion or carrier a recommendation of the DOD Air Car- motion, unless such carrier has become rier Survey and Analysis Office or any ineligible in the interim. individual voting member of the CARB, (ii) The carrier has the burden of the CARB shall consider whether or proving by clear and convincing evi- not to suspend a DOD approved air car- dence that reinstatement is warranted. rier. The air carrier must satisfy the CARB (ii) If the CARB determines that sus- that the deficiencies, which led to suspension may be appropriate, it shall pension, have been corrected and that notify the air carrier that suspension action has been implemented to pre- action is under consideration and of clude the recurrence of similar defi- the basis for such consideration. The ciencies. air carrier will be offered a hearing (iii) Air carrier evidence in support of within 15 days of the date of the notice, reinstatement will be provided in a or other such period as granted by the timely manner to the CARB for its re- CARB, at which the air carrier may be view. The CARB may independently

169

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00179 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 861.6 32 CFR Ch. VII (7–1–05 Edition)

corroborate the carrier-provided evi- CAA. The scope and frequency of the dence and may, at its option, convene a review of any given foreign air carrier hearing and request the participation under this part will be at the discretion of the air carrier. of the CARB or higher authority. (4) Appeal of CARB decisions. (i) An (a) Foreign air carriers seeking to pro- air carrier placed in suspension by the vide or providing air transportation serv- CARB may administratively appeal ices under a contract or Military Air this action to USCINCTRANS. An ap- Transportation Agreement with DOD, or peal, if any, must be filed in writing, pursuant to another arrangement entered with the DOD Air Carrier Survey and into by, or on behalf of, DOD. Foreign Analysis Office, and postmarked within air carriers seeking to provide or pro- 15 workdays of receipt of notice of the viding air transportation services CARB’s suspension decision. In the sole under a contract or Military Air Trans- discretion of USCINCTRANS, and for portation Agreement with DOD, must good cause shown, the suspension may meet all requirements of § 861.4, and be be stayed pending action on the appeal. approved by the CARB in accordance (ii) Air carriers shall not be entitled with § 861.5. This includes foreign air to a de novo hearing or personal pres- carriers seeking to provide, or pro- entation before the appellate author- viding, airlift services to DOD per- ity. sonnel pursuant to an arrangement en- (iii) The decision of the appellate au- tered into by another federal agency, thority is final and is not subject to state agency, foreign government, further administrative review or ap- international organization, or other peal. entity or person on behalf of, or for the (5) Referral of issues to higher authori- benefit of, DOD, regardless of whether ties. The approval or disapproval of an DOD pays for the airlift services pro- air carrier for use by DOD, the placing vided. For purposes of establishing the of approved carriers into temporary degree of oversight and review to be nonuse status, and the suspension and conducted under the DOD Commercial reinstatement of approved carriers, are Air Transportation Quality and Safety all decisions which must be made by Review Program, such foreign air car- the CARB. Other matters may be re- riers are considered the same as U.S. ferred by the CARB to USCINCTRANS carriers. In addition, they must have for appropriate action, with or without an operating certificate issued by the recommendations by the CARB. The appropriate CAA using regulations CARB will forward for decision, which are the substantial equivalent of through USCINCTRANS to the Under those found in the U.S. FARs, and must Secretary of Defense (Acquisition, maintain such certification throughout Technology and Logistics) the term of the contract or agreement. (USD(AT&L)), all air carrier use/non- The CAA responsible for exercising use recommendations involving foreign oversight of the foreign air carrier air carriers other than those providing must meet ICAO standards as deter- charter transportation or operational mined by ICAO, or the FAA under the support service to the Department of FAA’s International Aviation Safety Defense. Assessment Program. (b) Foreign air carriers providing pas- § 861.6 DOD review of foreign air car- senger services under the GSA City Pair riers. Program. Foreign air carriers per- Foreign air carriers providing or forming any portion of a route awarded seeking to provide services to DOD to a U.S. air carrier under the GSA shall be subject to review and, if appro- City Pair Program pursuant to a code- priate, approval by DOD. Application sharing agreement with that U.S. air of the criteria and requirements of this carrier, are generally not subject to part and the degree of oversight to be DOD survey and approval under §§ 861.4 exercised by DOD, if any, over a foreign and 861.5. However, DOD will periodi- air carrier depends upon the type of cally review the performance of such services performed and, in some in- foreign carriers. This review may con- stances, by the quality of oversight ex- sist of recurring performance evalua- ercised by the foreign air carrier’s tions, periodic examination of the U.S.

170

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00180 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 861.7

code-sharing carrier’s operational re- DOD, such air carriers will not be used views and assessments of the foreign unless, in accordance with the ref- carrier and, where appropriate and erence in § 861.1 (b), in the judgment of agreed to by the air carriers concerned the appropriate Combatant Com- and DOD, on-site surveys of the foreign mander, no acceptable alternative to air carrier. Such carriers must also using the carrier exists and the travel meet the 12 months prior experience re- is mission essential. quirement of § 861.4(e)(1). The CARB or (f) Foreign carriers providing oper- higher authority may prescribe addi- ational support services to DOD. Such tional review requirements. Should cir- carriers are subject to DOD oversight, cumstances warrant, use of these air on a case-by-case basis, to the extent carriers by DOD passengers on official directed by the CARB or higher author- business may be restricted or prohib- ity. ited as necessary to assure the highest levels of passenger safety. § 861.7 Disclosure of voluntarily pro- (c) Other foreign air carriers carrying vided safety-related information. individually ticketed DOD passengers on (a) General. In accordance with para- official business. Foreign air carriers graph (h) of the reference in § 861.1 (a), carrying individually ticketed DOD DOD may withhold from public disclo- passengers on official business are not sure safety-related information volun- subject to DOD survey and approval tarily provided to DOD by an air car- under §§ 861.4 and 861.5. However, the rier for the purposes of this Part if DOD Air Carrier Survey and Analysis DOD determines that— Division may periodically review the performance of such carriers. Reviews (1) The disclosure of the information may include voluntary on-site surveys would, in the future, inhibit an air car- as directed by the CARB or higher au- rier from voluntarily providing such thority. In the event questions relating information to DOD or another Federal to the safety and continued use of the agency for the purposes of this Part or carrier arise, the matter may be re- for other air safety purposes; and ferred to the CARB for appropriate ac- (2) The receipt of such information tion. generally enhances the fulfillment of (d) Foreign air carriers from countries responsibilities under this Part or in which the CAA is not in compliance other air safety responsibilities involv- with ICAO standards. Unless otherwise ing DOD or another Federal agency. authorized, use by DOD personnel on (b) Processing requests for disclosure of official business of foreign air carriers voluntarily provided safety-related infor- from countries in which the CAA is not mation. Requests for public disclosure in compliance with ICAO standards is will be administratively processed in prohibited except for the last leg into accordance with 32 CFR Part 806, Air and the first leg out of the U.S. on such Force Freedom of Information Act Pro- carriers. This includes foreign air car- gram. riers performing any portion of a route (c) Disclosure of voluntarily provided awarded to a U.S. air carrier under the safety-related information to other agen- GSA City Pair Program pursuant to a cies. The Department of Defense may, code-sharing agreement with that U.S. at its discretion, disclose voluntarily air carrier. provided safety-related information (e) On-site surveys. The scope of the submitted under this Part by an air on-site survey of a foreign air carrier carrier, to other agencies with safety will be at the discretion of the CARB. responsibilities. The DOD will provide In the event a foreign air carrier denies such information to another agency a request made under this part to con- only upon receipt of adequate assur- duct an on-site survey, the CARB will ances that it will protect the informa- consider all available information and tion from public disclosure, and that it make a use/nonuse recommendation to will not release such information un- DOD. If placed in nonuse status by less specifically authorized.

171

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00181 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER G—ORGANIZATION AND MISSION—GENERAL

PART 865—PERSONNEL REVIEW Subpart A—Air Force Board for BOARDS Correction of Military Records

Subpart A—Air Force Board for Correction SOURCE: 61 FR 16047, Apr. 11, 1996, unless of Military Records otherwise noted.

Sec. AUTHORITY: 10 U.S.C. 1034, 1552. 865.0 Purpose. § 865.0 Purpose. 865.1 Setup of the Board. 865.2 Board responsibilities. This subpart sets up procedures for 865.3 Application procedures. correction of military records to rem- 865.4 Board actions. edy error or injustice. It tells how to 865.5 Decision of the Secretary of the Air apply for correction of military records Force. and how the Air Force Board for Cor- 865.6 Reconsideration of applications. rection of Military Records (AFBCMR, 865.7 Action after final decision. or the Board) considers applications. It 865.8 Miscellaneous provisions. defines the Board’s authority to act on applications. It directs collecting and Subpart B—Air Force Discharge Review maintaining information subject to the Board Privacy Act of 1974 authorized by 10 865.100 Purpose. U.S.C. 1034 and 1552. System of Records 865.101 References. notice F035 SAFCB A, Military Records 865.102 Statutory authority. Processed by the Air Force Correction 865.103 Definition of terms. Board, applies. 865.104 Secretarial responsibilities. 865.105 Jurisdiction and authority. § 865.1 Setup of the Board. 865.106 Application for review. The AFBCMR operates within the Of- 865.107 DRB composition and meeting loca- fice of the Secretary of the Air Force tion. according to 10 U.S.C. 1552. The Board 865.108 Availability of records and docu- consists of civilians in the executive ments. part of the Department of the Air 865.109 Procedures for hearings. Force who are appointed and serve at 865.110 Decision process. the pleasure of the Secretary of the Air 865.111 Response to items submitted as Force. Three members constitute a issues by the applicant. quorum of the Board. 865.112 Decisional issues. 865.113 Recommendations by the Director of § 865.2 Board responsibilities. the Personnel Council and Secretarial Review Authority. (a) Considering applications. The 865.114 Decisional document. Board considers all individual applica- 865.115 Issuance of decisions following dis- tions properly brought before it. In ap- charge review. propriate cases, it directs correction of 865.116 Records of DRB proceeding. military records to remove an error or 865.117 Final disposition of the record of injustice, or recommends such correc- proceedings. tion. 865.118 Availability of Discharge Review (b) Recommending action. When an ap- Board documents for public inspection plicant alleges reprisal under the Mili- and copying. tary Whistleblowers Protection Act, 10 865.119 Privacy Act information. U.S.C. 1034, the Board may recommend 865.120 Discharge review standards. to the Secretary of the Air Force that 865.121 Complaints concerning decisional documents and index entries. disciplinary or administrative action 865.122 Summary of statistics for Discharge be taken against those responsible for Review Board. the reprisal. 865.123 Approval of exceptions to directive. (c) Deciding cases. The Board nor- 865.124 Procedures for regional hearings. mally decides cases on the evidence of 865.125 Report requirement. the record. It is not an investigative 865.126 Sample report format. body. However, the Board may, in its

172

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00182 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.3

discretion, hold a hearing or call for sections of the DD Form 149, including additional evidence or opinions in any at least: case. (1) The name under which the member served. § 865.3 Application procedures. (2) The member’s social security (a) Who may apply. (1) In most cases, number or Air Force service number. the applicant is a member or former (3) The applicant’s current mailing member of the Air Force, since the re- address. quest is personal to the applicant and (4) The specific records correction relates to his or her military records. being requested. (2) An applicant with a proper inter- (5) Proof of proper interest if request- est may request correction of another ing correction of another person’s person’s military records when that records. person is incapable of acting on his or (6) The applicant’s signature. her own behalf, is missing, or is de- (e) Applicants should mail the origi- ceased. Depending on the cir- nal signed DD Form 149 and any sup- cumstances, a child, spouse, parent or porting documents to the Air Force ad- other close relative, an heir, or a legal dress on the back of the form. representative (such as a guardian or (f) Meeting time limits. Ordinarily, ap- executor) of the member or former plicants must file an application with- member may be able to show a proper in three years after the error or injus- interest. Applicants will send proof of tice was discovered, or, with due dili- proper interest with the application gence, should have been discovered. An when requesting correction of another application filed later is untimely and person’s military records. may be denied by the Board on that (b) Getting forms. Applicants may get basis. (1) The Board may excuse untimely a DD Form 149, ‘‘Application for Cor- filing in the interest of justice. rection of Military Record Under the (2) If the application is filed late, ap- Provisions of Title 10, U.S.C., Section plicants should explain why it would be 1552,’’ and Air Force Pamphlet 36–2607, in the interest of justice for the Board ‘‘Applicants’ Guide to the Air Force to waive the time limits. Board for Correction of Military (g) Stay of other proceedings. Applying Records (AFBCMR),’’ from: to the AFBCMR does not stay other (1) Any Air Force Military Personnel proceedings. Flight (MPF) or publications distribu- (h) Counsel representation. Applicants tion office. may be represented by counsel, at their (2) Most veterans’ service organiza- own expense. tions. (1) The term ‘‘counsel’’ includes (3) The Air Force Review Boards Of- members in good standing of the bar of fice, SAF/MIBR, 550 C Street West, any state, accredited representatives of Suite 40, Randolph AFB TX 78150–4742. veterans’ organizations recognized (4) The AFBCMR, 1535 Command under 38 U.S.C. 3402, and other persons Drive, EE Wing 3rd Floor, Andrews determined by the Executive Director AFB MD 20331–7002. of the Board to be competent to rep- (c) Preparation. Before applying, ap- resent the interests of the applicant. plicants should: (2) See Department of Defense Direc- (1) Review Air Force Pamphlet 36– tive (DoDD) 7050.6, Whistleblower Pro- 2607. tection Act, 3 September 1992,1 for spe- (2) Discuss their concerns with MPF, cial provisions for counsel in cases finance office, or other appropriate of- processed under 10 U.S.C. 1034. ficials. Errors can often be corrected (i) Page limitations on briefs. Briefs in administratively without resort to the support of applications: Board. (1) May not exceed twenty-five dou- (3) Exhaust other available adminis- ble-spaced typewritten pages. trative remedies (otherwise the Board may return the request without consid- 1 Copies of the publication are available, at ering it). cost, from the National Technical Informa- (d) Submitting the application. Appli- tion Service, U.S. Department of Commerce, cants should complete all applicable 5285 Port Royal Road, Springfield, VA 22161.

173

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00183 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.4 32 CFR Ch. VII (7–1–05 Edition)

(2) Must be typed on one side of a have a right to a hearing before the page only with not more than twelve Board. characters per inch. (g) The Executive Director will no- (3) Must be assembled in a manner tify the applicant or counsel, if any, of that permits easy reproduction. the time and place of the hearing. (j) Responses to advisory opinions Written notice will be mailed thirty must not exceed ten double-spaced days in advance of the hearing unless typewritten pages and meet the other the notice period is waived by the ap- requirements for briefs. plicant. The applicant will respond not (k) These limitations do not apply to later than fifteen days before the hear- supporting documentary evidence. ing date, accepting or declining the (l) In complex cases and upon re- offer of a hearing and, if accepting, quest, the Executive Director of the provide information pertaining to Board may waive these limitations. counsel and witnesses. The Board will (m) Withdrawing applications. Appli- decide the case in executive session if cants may withdraw an application at the applicant declines the hearing or any time before the Board’s decision. fails to appear. Withdrawal does not stay the three- (h) When granted a hearing, the ap- year time limit. plicant may appear before the Board in person, represented by counsel, or in § 865.4 Board actions. person with counsel and may present (a) Board information sources. The ap- witnesses. It is the applicant’s respon- plicant has the burden of providing suf- sibility to notify witnesses, arrange for ficient evidence of probable material their attendance at the hearing, and error or injustice. However, the Board: pay any associated costs. (1) May get additional information (i) The panel chair conducts the hear- and advisory opinions on an applica- ing, maintains order, and ensures the tion from any Air Force organization applicant receives a full and fair oppor- or official. tunity to be heard. Formal rules of evi- (2) May require the applicant to fur- dence do not apply, but the panel ob- nish additional information necessary serves reasonable bounds of com- to decide the case. petency, relevancy, and materiality. Witnesses other than the applicant will (b) Applicants will normally be given not be present except when testifying. an opportunity to review and comment Witnesses will testify under oath or af- on advisory opinions and additional in- firmation. A recorder will record the formation obtained by the Board. proceedings verbatim. The chair will (c) Consideration by the Board. A panel normally limit hearings to two hours consisting of at least three board mem- but may allow more time if necessary bers considers each application. One to ensure a full and fair hearing. panel member serves as its chair. The panel’s actions and decisions con- (j) Additional provisions apply to cases processed under 10 U.S.C. 1034. stitute the actions and decisions of the 2 Board. See DoDD 7050.6. (d) The panel may decide the case in (k) The Board will not deny or rec- executive session or authorize a hear- ommend denial of an application on ing. When a hearing is authorized, the the sole ground that the issue already procedures in paragraph (f) of this sec- has been decided by the Secretary of tion apply. the Air Force or the President of the United States in another proceeding. (e) Board deliberations. Normally only members of the Board and Board staff (l) Board decisions. The panel’s major- will be present during deliberations. ity vote constitutes the action of the The panel chair may permit observers Board. The Board’s decision will be in for training purposes or otherwise in writing and will include determina- furtherance of the functions of the tions on the following issues: Board. (1) Whether the provisions of the (f) Board hearings. The Board in its Military Whistleblowers Protection sole discretion determines whether to grant a hearing. Applicants do not 2 See footnote 1.

174

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00184 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.5

Act apply to the application. This de- (9) Other information necessary to termination is needed only when the show a true and complete history of applicant invokes the protection of the the proceedings. Act, or when the question of its appli- (n) Minority reports. A dissenting cability is otherwise raised by the evi- panel member may prepare a minority dence. report which may address any aspect of (2) Whether the application was time- the case. ly filed and, if not, whether the appli- (o) Separate communications. The cant has demonstrated that it would be Board may send comments or rec- in the interest of justice to excuse the ommendations to the Secretary of the untimely filing. When the Board deter- Air Force as to administrative or dis- mines that an application is not time- ciplinary action against individuals ly, and does not excuse its untimeli- found to have committed acts of re- ness, the application will be denied on prisal prohibited by the Military Whis- that basis. tleblowers Protection Act and on other (3) Whether the applicant has ex- matters arising from an application hausted all available and effective ad- not directly related to the requested ministrative remedies. If the applicant correction of military records. Such has not, the application will be denied comments and recommendations will on that basis. be separately communicated and will (4) Whether the applicant has dem- not be included in the record of pro- onstrated the existence of a material ceedings or given to the applicant or error or injustice that can be remedied counsel. effectively through correction of the (p) Final action by the Board. The applicant’s military record and, if so, Board acts for the Secretary of the Air what corrections are needed to provide Force and its decision is final when it: full and effective relief. (1) Denies any application (except (5) In Military Whistleblowers Pro- under 10 U.S.C. 1034). tection Act cases only, whether to rec- (2) Grants any application in whole ommend to the Secretary of the Air or part when the relief was rec- Force that disciplinary or administra- ommended by the official preparing the tive action be taken against any Air advisory opinion, was unanimously Force official whom the Board finds to agreed to by the panel, and does not in- have committed an act of reprisal volve an appointment or promotion re- against the applicant. Any determina- quiring confirmation by the Senate. tion on this issue will not be made a (q) The Board sends the record of pro- part of the Board’s record of proceedings on all other applications to ceedings and will not be given to the the Secretary of the Air Force or his or applicant, but will be provided directly her designee for final decision. to the Secretary of the Air Force under § 865.5 Decision of the Secretary of the separate cover (§ 865.2(b)). Air Force. (m) Record of proceedings. The Board staff will prepare a record of pro- (a) The Secretary may direct such ac- ceedings following deliberations which tion as he or she deems appropriate on will include: each case, including returning the case (1) The name and vote of each Board to the Board for further consideration. member. Cases returned to the Board for further reconsideration will be accompanied by (2) The application. a brief statement of the reasons for (3) Briefs and written arguments. such action. If the Secretary does not (4) Documentary evidence. accept the Board’s recommendation, (5) A hearing transcript if a hearing the decision will be in writing and will was held. include a brief statement of the (6) Advisory opinions and the appli- grounds for denial. cant’s related comments. (b) Decisions in cases under the Mili- (7) The findings, conclusions, and rec- tary Whistleblowers Protection Act. ommendations of the Board. The Secretary will issue decisions on (8) Minority reports, if any. such cases within 180 days after receipt

175

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00185 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.6 32 CFR Ch. VII (7–1–05 Edition)

of the case and will, unless the full re- (d) Upon finding of ineffective coun- lief requested is granted, inform appli- seling, the Secretary will provide the cants of their right to request review of officer with an opportunity to partici- the decision by the Secretary of De- pate, at the officer’s option, in the VSI fense (SecDef). Applicants will also be or SSB programs or, if eligible, in an informed: early retirement program. (1) Of the name and address of the of- (e) In cases under §§ 865.5(b) and ficial to whom the request for review 865.5(c) which involve additional issues must be submitted. not cognizable under those sections, (2) That the request for review must the additional issues may be considered be submitted within ninety days after separately by the Board under §§ 865.3 receipt of the decision by the Secretary and 865.4. The special time limits in of the Air Force. §§ 865.5(b) and 865.5(c) do not apply to (3) That the request for review must the decision concerning these addi- be in writing and include the appli- tional issues. cant’s name, address, and telephone number; a copy of the application to § 865.6 Reconsideration of applica- the AFBCMR and the final decision of tions. the Secretary of the Air Force; and a The Board may reconsider an appli- statement of the specific reasons the cation if the applicant submits newly applicant is not satisfied with the deci- discovered relevant evidence that was sion of the Secretary of the Air Force. not available when the application was (4) That the request must be based on previously considered. The Executive the Board record; requests for review Director will screen each request for based on factual allegations or evi- reconsideration to determine whether dence not previously presented to the it contains new evidence. Board will not be considered under this section but may be the basis for recon- (a) If the request contains new evi- sideration by the Board under § 865.6. dence, the Executive Director will refer (c) Decisions in cases filed under Sec- it to a panel of the Board for a deci- tion 507, Public Law 103–160. The Sec- sion. The Board will decide the rel- retary will issue a decision within 60 evance and weight of any new evidence, days of receipt of the case of an officer whether it was reasonably available to who: the applicant when the application was (1) Was offered the opportunity to be previously considered, and whether it discharged or separated from active was submitted in a timely manner. The duty under the Voluntary Separation Board may deny reconsideration if the Incentive (VSI) or Special Separation request does not meet the criteria for Benefit (SSB) programs, reconsideration. Otherwise the Board (2) Elected not to accept such dis- will reconsider the application and de- charge or separation, cide the case either on timeliness or (3) Was thereafter discharged or sepa- merit as appropriate. rated from active duty, after Sep- (b) If the request does not contain tember 30, 1990, as a result of selection new evidence, the Executive Director by a board convened to select officers will return it to the applicant without for early separation (a ‘‘RIF board’’), referral to the Board. (4) Files an application with the Board within two years of the date of § 865.7 Action after final decision. separation or discharge, or one year (a) Action by the Executive Director. after March 1, 1996, whichever is later, The Executive Director will inform the alleging that the officer was not effec- applicant or counsel, if any, of the final tively counseled, before electing not to decision on the application. If any re- accept discharge or separation under quested relief was denied, the Execu- the VSI/SSB programs, concerning the tive Director will advise the applicant officer’s vulnerability to selection for of reconsideration procedures and, for involuntary discharge or separation cases processed under the Military (‘‘RIF’’), and Whistleblowers Protection Act, review (5) Requests expedited consideration by the SecDef. The Executive Director under this section. will send decisions requiring corrective

176

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00186 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.101

action to the Chief of Staff, U.S. Air applicant in connection with a correc- Force, for necessary action. tion of military records under 10 U.S.C. (b) Settlement of claims. The Air Force 1034 or 1552. is authorized, under 10 U.S.C. 1552, to pay claims for amounts due to appli- Subpart B—Air Force Discharge cants as a result of correction of mili- Review Board tary records. (c) The Executive Director will furnish the Defense Finance and Account- AUTHORITY: Sec. 8012, 70A Stat. 488; sec. ing Service (DFAS) with AFBCMR de- 1553, 72 Stat. 1267, 10 U.S.C. 8012, 1553. cisions potentially affecting monetary SOURCE: 48 FR 37384, Aug. 18, 1983, unless entitlement or benefits. DFAS will otherwise noted. treat such decisions as claims for payment by or on behalf of the applicant. § 865.100 Purpose. (d) DFAS settles claims on the basis This subpart establishes policies for of the corrected military record. Com- the review of discharges and dismissals putation of the amount due, if any, is a under 32 CFR part 70, ‘‘Discharge Re- function of DFAS. Applicants may be view Boards Procedures and Stand- required to furnish additional informa- ards,’’ 47 FR 37770, August 26, 1982. 1982, tion to DFAS to establish their status and explains the jurisdiction, author- as proper parties to the claim and to ity, and actions of the Air Force Dis- aid in deciding amounts due. charge Review Board. It applies to all (e) Public access to decisions. After de- Air Force activities. This subpart is af- letion of personal information, fected by the Privacy Act of 1974. The AFBCMR decisions will be made avail- system of records cited in this subpart able for review and copying at a public is authorized by 10 U.S.C. 1553 and 8012. reading room in the Washington, DC Each data gathering form or format metropolitan area. which is required by this subpart contains a Privacy Act Statement, either § 865.8 Miscellaneous provisions. incorporated in the body of the docu- (a) At the request of the Board, all ment or in a separate statement ac- Air Force activities and officials will companying each such document. furnish the Board with: (1) All available military records per- § 865.101 References. tinent to an application. (a) Title 10 U.S.C., section 1553. (2) An advisory opinion concerning (b) Title 38 U.S.C., sections 101 and an application. The advisory opinion 3103, as amended by Pub. L. 95–126, Oc- will include an analysis of the facts of tober 8, 1977. the case and of the applicant’s conten- tions, a statement of whether or not (c) DOD Directive 5000.19, ‘‘Policies the requested relief can be done admin- for the Management and Control of In- istratively, and a recommendation on formation Requirements,’’ March 12, the timeliness and merit of the re- 1976. quest. Regardless of the recommenda- (d) DOD Directive 5000.11, ‘‘Data Ele- tion, the advisory opinion will include ments and Data Codes Standardization instructions on specific corrective ac- Program,’’ December 7, 1964. tion to be taken if the Board grants the (e) DOD Directive 5000.12–M ‘‘DOD application. Manual for Standard Data Elements,’’ (b) Access to records. Applicants will December 1981. have access to all records considered by (f) DOD Directive 1332.14, ‘‘Enlisted the Board, except those classified or Administrative Separations,’’ January privileged. To the extent practicable, 28, 1982. applicants will be provided unclassified (g) DOD Directive 5400.7, ‘‘DOD Free- or nonprivileged summaries or extracts dom of Information Act Program,’’ of such records considered by the March 24, 1980; title 5 U.S.C., section Board. 552. (c) Payment of expenses. The Air Force (h) DOD Directive 5400.11, ‘‘Depart- has no authority to pay expenses of ment of Defense Privacy Program,’’ any kind incurred by or on behalf of an June 9, 1982; title 5 U.S.C., section 552a.

177

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00187 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.102 32 CFR Ch. VII (7–1–05 Edition)

(i) Title 10 U.S.C., chapter 47, Uni- motion. If the former member is de- form Code of Military Justice. ceased or incompetent, the term ‘‘ap- (j) Wood v. Secretary of Defense, Civ. plicant’’ includes the surviving spouse, No. 77–0684 (D.D.C.) (Order, December 3, next-of-kin, or legal representative 1981). who is acting on behalf of the former (k) Urban Law Institute of Antioch member. When the term ‘‘applicant’’ is College, Inc. v. Secretary of Defense, used in this subpart, it includes the ap- Civ. No. 76–0530, (D.D.C.) (Stipulation plicant’s counsel or representative, ex- of Dismissal, January 31, 1977) (Order cept that the counsel or representative and Settlement Agreement, July 30, may not submit an application for re- 1982). view, waive the applicant’s right to be (l) Air Force Regulation 35–41, Vol present at a hearing, or terminate a re- III, Separation Procedures for USAFR view without providing the DRB an ap- Members, dated October 30, 1975. propriate power of attorney or other (m) Air Force Regulation 36–2, Officer written consent of the former member. Personnel, Administrative Discharge (b) Complainant. A former member of Procedures, August 2, 1976. the Armed Forces (or the former mem- (n) Air Force Regulation 36–3, Officer ber’s counsel) who submits a complaint Personnel, Administrative Discharge in accordance with § 865.121 of this sub- Procedures, August 2, 1976. part with respect to the decisional doc- (o) Air Force Regulation 36–12, Offi- ument issued in the former member’s cer Personnel, Administrative Separa- own case; or a former member of the tion of Commissioned Officers and War- Armed Forces (or the former member’s rant Officers, July 15, 1977. counsel) who submits a complaint stat- (p) Air Force Regulation 39–10, Sepa- ration Upon Expiration of Term of ing that correction of the decisional Service, for Convenience of Govern- document will assist the former mem- ment, Minority, Dependency and Hard- ber in preparing for an administrative ship, January 3, 1977. or judicial proceeding in which the (q) Air Force Manual 39–12, Separa- former member’s own discharge will be tion for Unsuitability, Misconduct, at issue. Resignation, or Request for Discharge (c) Counsel or representative. An indi- for the Good of the Service and Proce- vidual or agency designated by the ap- dures for the Rehabilitation Program, plicant who agrees to represent the ap- September 1, 1966. plicant in a case before the DRB. It in- (r) Air National Guard Regulation 39– cludes, but is not limited to: a lawyer 10, Enlisted Personnel-Separation, De- who is a member of the bar of a federal cember 30, 1971. court or of the highest court of a state; an accredited representative des- § 865.102 Statutory authority. ignated by an organization recognized The Air Force Discharge Review by the Administrator of Veterans Af- Board (DRB) was established within fairs; a representative from a state the Department of the Air Force under agency concerned with veterans affairs; section 301 of the Serviceman’s Read- and representatives from private orga- justment Act of 1944, as amended (now nizations or local government agen- 10 U.S.C. 1553) and further amended by cies. Pub. L. 95–126 dated October 8, 1977. (d) Discharge. A general term used in this subpart that includes dismissal § 865.103 Definition of terms. and separation or release from active (a) Applicant. A former member of the or inactive military status, and actions Armed Forces who has been dismissed that accomplish a complete severance or discharged administratively in ac- of all military status. This term also cordance with Military Department includes the assignment of a reason for regulations or by sentence of a court- such discharge and characterization of martial (other than a general court- service. martial) and under statutory regu- (e) Discharge review. The process by latory provisions whose application is which the reason for separation, the accepted by the DRB concerned or procedures followed in accomplishing whose case is heard on the DRB’s own separation, and characterization of

178

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00188 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.106

service are evaluated. This includes de- those specified in § 865.113 of this sub- terminations made under the provi- part. sions of title 38 U.S.C. 3103(e)(2). (f) Discharge Review Board (DRB). An § 865.105 Jurisdiction and authority. administrative board constituted by The DRB has jurisdiction and author- the Secretary of the Air Force and ity in cases of former military per- vested with discretionary authority to sonnel who, at the time of their separa- review discharges and dismissals under tion from the Service, were members of the provisions of title 10 U.S.C. 1553. the US Army Aviation components (g) Regional Discharge Review Board. (Aviation Section, Signal Corps; Air A DRB that conducts discharge reviews Service; Air Corps; or Air Forces) prior in a location outside the National Cap- to September 17, 1947, or the US Air ital Region (NCR). Force. The DRB does not have jurisdic- (h) DRB President. The senior line of- tion and authority concerning per- ficer of any DRB convened for the pur- sonnel of other armed services who at pose of conducting discharge reviews. the time of their separation, were as- (i) Hearing. A review involving an ap- signed to duty with the Army Air pearance before the DRB by the appli- Forces or the US Air Force. cant or on the applicant’s behalf by a (a) The DRB’s review is based on the counsel or representative. former member’s available military (j) Record review. A review of the ap- records, issues submitted by the former plication, available service records, member, or his counsel and on any and additional documents (if any) sub- other evidence that is presented to the mitted by the applicant. DRB. The DRB determines whether the (k) National Capital Region (NCR). The type of discharge or dismissal the District of Columbia; Prince Georges former member received is equitable and Montgomery Counties in Mary- and proper; if not, the DRB instructs land; Arlington, Fairfax, Loudoun, and the USAF Manpower and Personnel Prince William Counties in Virginia; Center (AFMPC) to change the dis- and all cities and towns included with- charge reason or to issue a new char- in the outer boundaries of the fore- acter of discharge according to the going counties. DRB’s findings. (l) Director, Air Force Personnel Coun- (b) The DRB is not authorized to re- cil. The person designated by the Sec- voke any discharge, to reinstate any retary of the Air Force who is respon- person who has been separated from sible for the supervision of the Dis- the military service, or to recall any charge Review function. person to active duty. (c) The DRB, on its own motion, may § 865.104 Secretarial responsibilities. review a case that appears likely to re- The Secretary of the Air Force is result in a decision favorable to the sponsible for the overall operation of former military member, without the the Discharge Review program within member’s knowledge or presence. In the Department of the Air Force. The this case, if the decision is: following delegation of authority have (1) Favorable, the DRB directs been made: AFMPC to notify the former member (a) To the Office of the Assistant Sec- accordingly at the member’s last retary of the Air Force (Manpower, Re- known address. serve Affairs and Installations) to act (2) Unfavorable, the DRB returns the for the Secretary of the Air Force in case to the files without any record of all discharge review actions subject to formal action; the DRB then recon- review by the Secretary as specified in siders the case without prejudice in ac- § 865.113 of this subpart. cordance with normal procedures. (b) To the Director, Air Force Per- sonnel Council, for operation of all § 865.106 Application for review. phases of the discharge review function (a) General. Applications shall be sub- and authority to take action in the mitted to the Air Force DRB on DD name of the Secretary of the Air Force Form 293, Application for Review of in all discharge review actions except Discharge or Dismissal from the Armed

179

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00189 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.106 32 CFR Ch. VII (7–1–05 Edition)

Forces of the United States (OMB Ap- ambiguity is created by a difference be- proval No. 0704–0004) with such other tween an applicant’s issue and the re- statements, affidavits, or documenta- quested action, the DRB will respond tion as desired. It is to the applicant’s to the issue in the context of the ac- advantage to submit such documents tion requested in ‘‘Board Action Re- with the application or within 60 days quested.’’ In the case of a Personal Ap- thereafter in order to permit a thor- pearance hearing, the DRB will at- ough screening of the case. The DD tempt to resolve the ambiguity. Form 293 is available at most DOD in- (d) If the member is deceased or men- stallations and regional offices of the tally incompetent, the spouse, next-of- Veterans Administration, or by writing kin, or legal representative may, as to: DA Military Review Boards Agency, agent for the member, submit the ap- Attention: SFBA (Reading Room), plication for the review along with Room 1E520, The Pentagon, Wash- proof of the member’s death or mental ington, DC 20310. incompetency. (b) Timing. A motion or request for (e) Applicants forward their requests review must be made within 15 years for review to the USAF Manpower and after the date of discharge or dismissal. Personnel Center-mailing address: (c) Applicant’s responsibilities. An ap- AFMPC/MPCDOA1, Randolph AFB TX plicant may request a change in the 78150. AFMPC will obtain all available character of or reason for discharge (or military records of the former mem- both). bers from the National Personnel (1) Character of discharge. DD Form Records Center. 293 provides an applicant an oppor- (f) Withdrawal of application. An ap- tunity to request a specific change in plicant shall be permitted to withdraw character of discharge (for example, an application without prejudice at General Discharge to Honorable Dis- any time before the scheduled review. charge; Under Other Than Honorable (g) Submission of issues on DD Form Conditions Discharge to General or 293. Issues must be provided to the DRB Honorable Discharge). Only a person on DD Form 293 before the DRB closes separated on or after 1 October 1982 the review process for deliberation and while in an entry level status may re- should be submitted in accordance with quest a change from other than an hon- the guidelines of this subpart for sub- orable discharge to Entry Level Sepa- mission of issues. ration. A request for review from an (1) Issues must be clear and specific. An applicant who does not have an Honor- issue must be stated clearly and spe- able Discharge will be treated as a re- cifically in order to enable the DRB to quest for a change to an Honorable Dis- understand the nature of the issue and charge unless the applicant requests a its relationship to the applicant’s dis- specific change to another character of charge. discharge. (2) Separate listing of issues. Each (2) Reason for discharge. DD Form 293 issue submitted by an applicant should provides an applicant an opportunity be listed separately. Submission of a to request a specific change in the rea- separate statement for each issue pro- son for discharge. If an applicant does vides the best means of ensuring that not request a specific change in the the full import of the issue is conveyed reason for discharge, the DRB will pre- to the DRB. sume that the request for review does (3) Use of DD Form 293. DD Form 293 not involve a request for change in the provides applicants with a standard reason for discharge. Under its respon- format for submitting issues to the sibility to examine the propriety and DRB, and its use: equity of an applicant’s discharge, the (i) Provides a means for an applicant DRB will change the reason for dis- to set forth clearly and specifically charge if such a change is warranted. those matters that, in the opinion of (3) The applicant must ensure that the applicant, provide a basis for issues submitted to the DRB are con- changing the discharge; sistent with the request for change in (ii) Assists the DRB in focusing on discharge set forth in ‘‘Board Action those matters considered to be impor- Requested’’ of the DD Form 293. If an tant by an applicant;

180

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00190 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.106

(iii) Assists the DRB in distin- (h) Relationship of issues to character guishing between a matter submitted of or reason for discharge. If the applica- by an applicant in the expectation that tion applies to both character of and it will be treated as a decisional issue reason for discharge, the applicant is under § 865.112, and those matters sub- encouraged, but not required, to iden- mitted simply as background or sup- tify the issue as applying to the char- porting materials; acter of or reason for discharge (or (iv) Provides the applicant with both). Unless the issue is directed at greater rights in the event that the ap- the reason for discharge expressly or plicant later submits a complaint by necessary implication, the DRB will under § 865.121 of this subpart con- presume that it applies solely to the cerning the decisional document. character of discharge. (v) Reduces the potential for dis- (i) Relationship of issues to the stand- agreement as to the content of an ap- ards for discharge review. The DRB re- plicant’s issue. views discharges on the basis of issues (4) Incorporation by reference. If the of propriety and equity. The standards applicant makes an additional written used by the DRB are set forth in submission, such as a brief, in support § 865.120 of this subpart. The applicant of the application, the applicant may is encouraged to review those stand- incorporate by reference specific issues ards before submitting any issue upon set forth in the written submission in which the applicant believes a change accordance with the guidance on DD in discharge should be based. The appli- Form 293. The reference shall be spe- cant is also encouraged, but not re- cific enough for the DRB to identify quired, to identify an issue as per- clearly the matter being submitted as taining to the propriety or the equity an issue. At a minimum, it shall iden- of the discharge. This will assist the tify the page, paragraph, and sentence DRB in assessing the relationship of incorporated. Because it is to the appli- the issue to propriety or equity under cant’s benefit to bring such issues to § 865.112(d) of this subpart. the DRB’s attention as early as pos- (j) Citation of matter from decisions. sible in the review, applicants who sub- The primary function of the DRB in- mit a brief are strongly urged to set volves the exercise of discretion on a forth all issues as a separate item at case-by-case basis. Applicants are not the beginning of the brief. If it reason- required to cite prior decisions as the ably appears that the applicant inad- basis for a change in discharge. If the vertently has failed expressly to incor- applicant wishes to bring the DRB’s at- porate an issue which the applicant tention to a prior decision as back- clearly identifies as an issue to be ad- ground or illustrative material, the ci- dressed by the DRB, the DRB shall re- tation should be placed in a brief or spond to such an issue in accordance other supporting documents. If, how- with §§ 865.111 and 865.112 of this sub- ever, it is the applicant’s intention to part. submit an issue that sets forth specific (5) Effective date of the new DD Form principles and facts from a specific 293. With respect to applications re- cited decision, the following require- ceived before November 27, 1982, the ments apply with respect to applica- DRB shall consider issues clearly and tions received on or after November 27, specifically stated in accordance with 1982. the rules in effect at the time of sub- (1) The issue must be set forth or ex- mission. With respect to applications pressly incorporated in the ‘‘Appli- received on or after November 27, 1982, cant’s Issue’’ portion of DD Form 293. if the applicant submits an obsolete DD (2) If an applicant’s issue cites a prior Form 293, the application will be re- decision (of the DRB, another Board, turned with a copy of the revised DD an agency, or a court), the applicant Form 293 for reaccomplishment. The shall describe the specific principles DRB will only respond to the issues and facts that are contained in the submitted on the new form in accord- prior decision and explain the rel- ance with 32 CFR part 70, 47 FR 37770, evance of cited matter to the appli- August 26, 1982 and this subpart. cant’s case.

181

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00191 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.107 32 CFR Ch. VII (7–1–05 Edition)

(3) To insure timely consideration of decline to do so) will not be used principles cited from unpublished opin- against the applicant in the consider- ions (including decisions maintained ation of the case. by the Armed Forces Discharge Review (3) Additional Issues Identified Dur- Board/Correction Board Reading ing a Hearing. The following additional Room), the applicant must provide the procedure shall be used during a hear- DRB with copies of such decisions or of ing in order to promote the DRB’s un- the relevant portion of treatise, man- derstanding of an applicant’s presen- ual, or similar source in which the tation. If before closing the hearing for principles were discussed. At the appli- deliberation, the DRB believes that an cant’s request, such materials will be applicant has presented an issue not returned. listed on DD Form 293, the FRB may so (4) If the applicant fails to comply inform the applicant, and the applicant with the requirements above, the may submit the issue in writing or add decisional document shall note the de- additional written issues at that time. fect, and shall respond to the issue This does not preclude the DRB from without regard to the citation. developing its own decisional issues. (k) Identification by the DRB of issues (l) Notification of possible bar to bene- submitted by an applicant. The appli- fits. Written notification shall be made cant’s issues shall be identified in ac- to each applicant whose record indi- cordance with this section after a re- cates a reason for discharge that bars view of all materials and information receipt of benefits under 38 U.S.C. is made. 3103(a). This notification will advise (1) Issues on DD Form 293. The DRB the applicant that separate action by shall consider all items submitted as the Board for Correction of Military issues by an applicant on DD Form 293 Records or the Veterans Administra- (or incorporated therein) in accordance tion may confer eligibility for VA ben- with this part. With respect to applica- efits. Regarding the bar to benefits tions submitted before November 27, based upon the 180 days consecutive 1982, the DRB shall consider all issues unauthorized absence, the following ap- clearly and specifically stated in ac- plies: cordance with the rules in effect at the time of the submission. (1) Such absence must have been in- (2) Amendment of issues. The DRB cluded as part of the basis for the ap- shall not request or instruct an appli- plicant’s discharge under other than cant to amend or withdraw any matter honorable conditions. submitted by the applicant. Any (2) Such absence is computed without amendment or withdrawal of an issue regard to the applicant’s normal or ad- by an applicant shall be confirmed in justed expiration of term of service. writing by the applicant. This provision does not: § 865.107 DRB composition and meeting location. (i) Limit by DRB’s authority to question an applicant as to the meaning of (a) The DRB consists of five mem- such matter; bers, with the senior line officer acting (ii) Preclude the DRB from devel- as the presiding officer. The presiding oping decisional issues based upon such officer convenes, recesses and adjourns questions: the Board. (iii) Prevent the applicant from (b) In addition to holding hearings in amending or withdrawing such matter Washington, DC, the DRB, as a conven- any time before the DRB closes the re- ience to applicants, periodically con- view process for deliberation; or ducts hearings at selected locations (iv) Prevent the DRB from presenting throughout the Continental United an applicant with a list of proposed States. Reviews are conducted at loca- decisional issues and written informa- tions central to those areas with the tion concerning the right of the appli- greatest number of applicants. A con- cant to add to, amend, or withdraw the tinuing review and appraisal is con- applicant’s submission. The written inducted to ensure the selected hearing formation will state that the appli- locations are responsive to a majority cant’s decision to take such action (or of applicants. Administrative details

182

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00192 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.108

and responsibilities for Regional (c) If the official records relevant to Boards are outlined in § 865.124. the discharge review are not available at the agency having custody of the § 865.108 Availability of records and records, the applicant shall be so noti- documents. fied and requested to provide such in- (a) Before applying for discharge re- formation and documents as may be view, potential applicants or their des- desired in support of the request for ignated resentatives may, and are en- discharge review. A period of not less couraged to obtain copies of their mili- than 30 days shall be allowed for such tary personnel records by submitting a documents to be submitted. At the ex- General Services Administration piration of this period, the review may Standard Form 180, Request Pertaining be conducted with information avail- to Military Records, to the National able to the DRB. Personnel Records Center (NPRC) 9700 (d) The DRB may take steps to ob- Page Boulevard, St. Louis, Mo 63132; tain additional evidence that is rel- thus avoiding any lengthy delays in evant to the discharge under consider- the processing of the application (DD ation beyond that found in the official Form 293) and the scheduling of re- military records or submitted by the views. applicant, if a review of available evi- (1) Once the application for discharge dence suggests that it would be incom- review (DD Form 293) is submitted, an plete without the additional information, or when the applicant presents applicant’s military records are for- testimony or documents that require warded to the DRB where they cannot additional information to evaluate be reproduced. Submission of a request properly. Such information shall be for an applicant’s military records, in- made available to the applicant, upon cluding a request under the Freedom of request, with appropriate modifica- Information Act or Privacy Act after tions regarding classified material. the DD Form 293 has been submitted, (1) In any case heard on the request shall result automatically in the of an applicant, the DRB shall provide termporary suspension of processing of the applicant and counsel or represent- the application for discharge review ative, if any, at a reasonable time be- until the requested records are sent to fore initiating the decision process, a an appropriate location for copying, notice of the availability of all regula- are copied, and returned to the head- tions and documents to be considered quarters of the DRB. Processing of the in the discharge review, except for doc- application shall then be resumed at uments in the official personnel or whatever stage of the discharge review medical records and any documents process is practicable. submitted by the applicant. The DRB (2) Applicants and their designated shall also notify the applicant or coun- representatives also may examine their sel or representative (i) of the right to military personnel records at the site examine such documents or to be proof their scheduled review before the vided with copies of documents upon hearing. The DRB shall notify appli- request; (ii) of the date by which such cants and their designated representa- request must be received; and (iii) of tives of the dates the records are avail- the opportunity to respond within a able for examination in their standard reasonable period of time to be set be scheduling information. the DRB. (b) The DRB is not authorized to pro- (2) When necessary to acquaint the vide copies of documents that are applicant with the substance of a clas- under the cognizance of another gov- sified document, the classifying au- ernment department, office, or activ- thority, on the request of the DRB, ity. Applications for such information shall prepare a summary of or an ex- must be made by the applicant to the tract from the document, deleting all cognizant authority. The DRB shall ad- reference to source of information and vise the applicant of the mailing ad- other matters, the disclosure of which, dress of the government department, in the opinion of the classifying au- office, or activity to which the request thority, would be detrimental to the should be submitted. national security interest of the United

183

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00193 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.109 32 CFR Ch. VII (7–1–05 Edition)

States. Should preparation of such persons authorized by the presiding of- summary be deemed impracticable by ficer and/or expressly requested by the the classifying authority, information applicant, subject to reasonable limita- from the classified source shall not be tions based upon available space. considered by the DRB in its review of (g) Formal rules of evidence shall not the case. be applied in DRB proceedings. The (e) Current Air Force numbered pub- presiding officer shall rule on matters lications may be obtained from the of procedure and shall ensure that rea- Chief, Central Base Administration at sonable bounds of relevancy and mate- any major Air Force installation or by riality are maintained in the taking of writing: evidence and presentation of witnesses. HQ USAF/DASJL, Washington, DC 20330 Applicants and witnesses may present or evidence to the DRB panel either in person or by affidavit or through coun- DA Military Review Boards Agency, Atten- tion: SPBA (Reading Room), Room 1E520, sel. If an applicant or witness testifies Washington, DC 20310 under oath or affirmation, he or she is subject to questioning by Board mem- § 865.109 Procedures for hearings. bers. (a) The applicant is entitled, by law, (h) There is a presumption of regu- to appear in person at his or her re- larity in the conduct of governmental quest before the DRB in open session affairs. This presumption can be ap- and to be represented by counsel of his plied in any review unless there is sub- or her own selection. The applicant stantial credible evidence to rebut the also may present such witnesses as he presumption. or she may desire. (i) Failure to appear at a hearing or re- (b) There are two types of reviews. spond to scheduling notice. (1) Except as They are: otherwise authorized by the Secretary (1) Record Review. A review of the ap- of the Air Force, further opportunity plication, available service records, for a personal appearance hearing shall and additional documents (if any) sub- not be made available in the following mitted by the applicant. circumstances to an applicant who has (2) Hearing. A personal appearance requested a hearing. before the DRB by the applicant with (i) When the applicant and/or a des- or without counsel, or by the counsel ignated counsel or representative has only. been sent a letter containing the date (c) The Government does not com- and location of a proposed hearing and pensate or pay the expenses of the ap- fails to make a timely response; or plicant, applicant’s witnesses, or coun- (ii) When the applicant and/or a des- sel. ignated representative, after being no- (d) A summary of the available mili- tified by letter of the time and place of tary records of the applicant is pre- the hearing, fails to appear at the ap- pared for use by the DRB in the review pointed time, either in person or by process. A copy of the summary is representative, without having made a available to the applicant and/or his or prior, timely request for a postpone- her counsel, upon request. ment or withdrawal. (e) When an applicant has requested a (2) In such cases, the applicant shall personal appearance and/or representa- be deemed to have waived his/her right tion by counsel on the DD Form 293, to a hearing, and the DRB shall com- the DRB sends written notice of the plete its review of the discharge. Fur- hearing time and place to the applicant ther request for a hearing shall not be and designated counsel. Evidence of granted unless the applicant can dem- such notification will be placed in the onstrate that the failure to appear or applicant’s record. respond was due to circumstances be- (f) Personal appearance hearings yond the applicant’s control. shall be conducted with recognition of (j) Continuance and postponements. (1) the rights of the individual to privacy. A continuance of a discharge review Accordingly, presence at hearings of hearing may be authorized by the pre- individuals other than those whose siding officer of the Board concerned, presence is required will be limited to provided that such continuance is of a

184

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00194 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.110

reasonable duration and is essential to nal review will be based on a compari- achieving a full and fair hearing. son of such evidence with the evidence Where a proposal for continuance is in- considered in the previous discharge re- definite, the pending application shall view. If this comparison shows that the be returned to the applicant with the evidence submitted would have had a option to resubmit when the case is probable effect on matters concerning fully ready for review. the propriety or equity of the dis- (2) Postponements of scheduled re- charge, the request for reconsideration views normally shall not be permitted shall be granted. other than for demonstrated good and sufficient reason set forth by the appli- § 865.110 Decision process. cant in a timely manner, or for the (a) The DRB shall meet in plenary convenience of the government. session to review discharges and exer- (k) Reconsideration. A discharge re- cise its discretion on a case-by-case view shall not be subject to reconsider- basis in applying the standards set ation except: forth in this regulation. (1) Where the only previous consider- (b) The presiding officer is respon- ation of the case was on the motion of sible for the conduct of the discharge the DRB; review. The presiding officer shall con- (2) When the original discharge re- vene, recess, and adjourn the DRB as view did not involve a personal appear- appropriate, and shall maintain an at- ance hearing and a personal appearance mosphere of dignity and decorum at all is now desired, and the provisions of times. § 865.109(j) do not apply; (c) Each board member shall act (3) Where changes in discharge policy under oath or affirmation requiring are announced subsequent to an earlier careful, objective consideration of the review of an applicant’s discharge, and application. They shall consider all rel- the new policy is made expressly retro- evant material and competent informa- active; tion presented to them by the appli- (4) Where the DRB determines that cant. In addition, they shall consider policies and procedures under which all available military records, together the applicant was discharged differ in with such other records as may be in material respects from policies and the files and relevant to the issues be- procedures currently applicable on a fore the DRB. service-wide basis to discharges of the (d) The DRB shall identify and ad- type under consideration, provided dress issues after a review of the fol- that such changes in policies or proce- lowing material obtained and presented dures represent a substantial enhance- in accordance with this subpart and 32 ment of the rights afforded an appli- CFR part 70: available official military cant in such proceeding; records, documentary evidence sub- (5) Where an individual is to be rep- mitted by or on behalf of the applicant, resented by a counsel/representative, presentation of testimony by or on be- and was not so represented in any pre- half of the applicant, oral or written vious consideration of the case. arguments presented by or on behalf of (6) Where the case was not previously the applicant, and any other relevant considered under the uniform stand- evidence. ards published pursuant to Pub. L. 95– (e) Application of Standards: 126 and application is made for such (1) When the DRB determines that an consideration within 15 years after the applicant’s discharge was improper, the date of discharge; or DRB will determine which reason for (7) On the basis of presentation of discharge should have been assigned new, substantial, relevant evidence not based upon the facts and circumstances available to the applicant at the time properly before the discharge authority of the original review. The decision as in view of the regulations governing to whether evidence offered by an ap- reasons for discharge at the time the plicant in support of a request for re- applicant was discharged. consideration is in fact new, substan- (2) When the board determines that tial, relevant, and was not available to an applicant’s discharge was inequi- the applicant at the time of the origi- table, any change will be based on the

185

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00195 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.111 32 CFR Ch. VII (7–1–05 Edition)

evaluation of the applicant’s overall discharge requested, and the decision is record of service and relevant regula- based in whole or in part on the DRB’s tions. disagreement with the merits of an (f) Voting shall be conducted in issue submitted by the applicant. closed session, a majority of the five (e) If the applicant receives the full members’ votes constituting the DRB’s change in discharge requested (or a decision. more favorable change), that fact shall (g) Details of closed session delibera- be noted and the basis shall be ad- tions of a DRB are privileged informa- dressed as a decisional issue even if tion and shall not be divulged. that basis is not addressed as an issue (h) A formal minority opinion may be by the applicant. No further response is submitted in instances of disagreement required to other issues submitted by between members of a board. The opin- the applicant. ion must cite findings, conclusions and (f) If the applicant does not receive reasons which are the basis for the the full change in discharge requested opinion. The complete case with the with respect to either the character of majority and minority recommenda- or reason for discharge (or both), the tions will be submitted to the Director, DRB shall address the items submitted Air Force Personnel Council. by the applicant unless one of the fol- (i) The DRB may request advisory lowing responses is applicable: opinions from staff offices of the Air (1) Duplicate issues. The DRB may Force. These opinions are advisory in state that there is a full response to nature and are not binding on the DRB the issue submitted by the applicant in its decision making process. under a specified decisional issue. This respose may be used only when one § 865.111 Response to items submitted issue clearly duplicates another or the as issues by the applicant. issue clearly requires discussion in con- (a) If an issue submitted by an appli- junction with another issue. cant contains two or more clearly sepa- (2) Citations without principles and rate issues, the DRB should respond to facts. The DRB may state that any each issue under the guidance of this issue, which consists of a citation of a section as if it had been set forth sepa- previous decision without setting forth rately by the applicant. any principles and facts from the deci- (b) If an applicant uses a ‘‘building sion that the applicant states are rel- block’’ approach (that is, setting forth evant to the applicant’s case, does not a series of conclusions on issues that comply with the requirements of lead to a single conclusion purportedly § 865.106(g)(1) of this part. warranting a change in the applicant’s (3) Unclear issues. The DRB may state discharge), normally there should be a that it cannot respond to an item sub- separate response to each issue. mitted by the applicant as an issue be- (c) This section does not preclude the cause the meaning of the item is un- DRB from making a single response to clear. An issue is unclear if it cannot multiple issues when such action would be understood by a reasonable person enhance the clarity of the decisional familiar with the discharge review document, but such response must re- process after a review of the materials flect an adequate response to each sep- considered under § 865.110(d) of this sub- arate issue. part. (d) An item submitted as an issue by (4) Nonspecific issues. The DRB may an applicant in accordance with this state that it cannot respond to an item regulation shall be addressed as a submitted by the applicant as an issue decisional issue under § 865.112 of this because it is not specific. A submission subpart in the following circumstances: is considered not specific if a reason- (1) When the DRB decides that a able person familiar with the discharge change in discharge should be granted, review process after a review of the and the DRB bases its decision in materials considered under § 865.110(d), whole or in part on the applicant’s cannot determine the relationship be- issue; or tween the applicant’s submission and (2) When the DRB does not provide the particular circumstances of the the applicant with the full change in case. This response may be used only if

186

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00196 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.112

the submission is expressed in such (3) If the applicant’s issue contends general terms that no other response is that the DRB is required as a matter of applicable. For example, if the DRB law to follow a prior decision by set- disagrees with the applicant as to the ting forth an issue of propriety from relevance of matters set forth in the the prior decision and decribing its re- submission, the DRB normally will set lationship to the applicant’s case, the forth the nature of the disagreement issue shall be considered under the pro- under the guidance in § 865.112 of this priety standards and addressed under subpart with respect to decisional § 865.112(e) or § 865.112(f). issues, or it will reject the applicant’s (4) If the applicant’s issue sets forth position on the basis of § 865.111(f)(1) or principles of equity contained in a § 865.111(f)(2). If the applicant’s submis- prior DRB decision, describes the rela- sion is so general that none of those tionship to the applicant’s case, and provisions is applicable, then the DRB contends that the DRB is required as a may state that it cannot respond be- matter of law to follow the prior case, cause the item is not specific. the decisional document shall note that the DRB is not bound by its dis- § 865.112 Decisional issues. cretionary decisions in prior cases (a) The decisional document shall under the standards in § 865.120 of this discuss the issues that provide a basis subpart. However, the principles cited for the decision whether there should by the applicant, and the description of be a change in the character of or rea- the relationship of the principles to the son for discharge. In order to enhance applicant’s case, shall be considered clarity, the DRB should not address under the equity standards and ad- matters other than issues relied upon dressed under § 865.112(h) or § 865.112(i). in the decision or raised by the appli- (5) If the applicant’s issue cannot be cant. identified as a matter of propriety or (b) Partial Change. When the decision equity, the DRB shall address it as an changes a discharge but does not pro- issue of equity. vide the applicant with the full change (e) Change of discharge: Issues of pro- in discharge requested, the decisional priety. If a change in the discharge is document shall address both the issues warranted under the propriety stand- upon which change is granted and the ards the decisional document shall issues upon which the DRB denies the full change requested. state that conclusion and list the errors or expressly retroactive changes in (c) Relationship of Issue To Character policy that provide a basis for the con- of or Reason for Discharge. Generally, clusion. The decisional document shall the decisional document should specify whether a decisional issue applies to cite the facts in the record that dem- the character of or reason for discharge onstrate the relevance of the error or (or both), but it is not required to do change in policy to the applicant’s so. case. If the change in discharge does (d) Relationship of an Issue To Pro- not constitute the full change re- priety or Equity. (1) If an applicant iden- quested by the applicant, the reasons tifies an issue as pertaining to both for not granting the full change shall propriety and equity, the DRB will be addressed. consider it under both standards. (f) Denial of the full change requested: (2) If an applicant identifies an issue Issues of propriety. If the decision reas pertaining to the propriety of the jects the applicant’s position on an discharge (for example, by citing a pro- issue of propriety, or if it is otherwise priety standard or otherwise claiming decided on the basis of an issue of pro- that a change in discharge is required priety that the full change in discharge as a matter of law), the DRB shall con- requested by the applicant is not war- sider the issue solely as a matter of ranted, the decisional document shall propriety. Except as provided in note that conclusion. The decisional § 865.112(d)(4), the DRB is not required document shall list reasons for its con- to consider such an issue under the eq- clusion on each issue of propriety uity standards. under the following guidance:

187

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00197 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.112 32 CFR Ch. VII (7–1–05 Edition)

(1) If a reason is based in whole or in in the applicant’s issue (including prin- part upon a part, statute, constitu- ciples derived from cases cited by the tional provision, judicial determina- applicant). tion, or other source of law, the DRB (ii) The DRB may reject the appli- shall cite the pertinent source of law cant’s position by explaining why the and the facts in the record that dem- principles set forth in the applicant’s onstrate the relevance of the source of issue (including principles derived from law to the particular circumstances in cases cited by the applicant) are not the case. relevant to the applicant’s case. (2) If a reason is based in whole or in (iii) The DRB may reject an appli- part on a determination as to the oc- cant’s position by stating that the ap- currence or nonoccurrence of an event plicant’s issue of propriety is not a or circumstance, including a factor re- matter upon which the DRB grants a quired by applicable Air Force regula- change in discharge, and by providing tions to be considered for determination of the character of and reason for an explanation for this position. When the applicant’s discharge, the DRB the applicant indicates that the issue shall make a finding of fact for each is to be considered in conjunction with such event or circumstance. one or more other specified issues, the (i) For each such finding, the explanation will address all such speci- decisional document shall list the spe- fied issues. cific source of the information relied (iv) The DRB may reject the appli- upon. This may include the presump- cant’s position on the grounds that tion of regularity in appropriate cases. other specified factors in the case pre- If the information is listed in the serv- clude granting relief, regardless of ice record section of the decisional doc- whether the DRB agreed with the ap- ument, a citation is not required. plicant’s position. (ii) If a finding of fact is made after (v) If the applicant takes the position consideration of contradictory evi- that the discharge must be changed be- dence in the record (including informa- cause of an alleged error in a record as- tion cited by the applicant or other- sociated with the discharge, and the wise identified by members of the record has not been corrected by the DRB), the decisional document shall organization with primary responsi- set forth the conflicting evidence, and bility for corrective action, respond explain why the information relied that it will presume the validity of the upon was more persuasive than the in- record in the absence of such corrective formation that was rejected. If the pre- action. If the organization empowered sumption of regularity is cited as the to correct the record is within the De- basis for rejecting such information, partment of the Air Force, the DRB the decisional document shall explain should provide the applicant with a why the contradictory evidence was in- brief description of the procedures for sufficient to overcome the presumption. In an appropriate case, the expla- requesting correction of the record. If nation as to why the contradictory evi- the DRB on its own motion cites this dence was insufficient to overcome the issue as a decisional issue on the basis presumption of regularity may consist of equity, it shall address the issue as of a statement that the applicant failed such. to provide sufficient corroborating evi- (vi) When an applicant’s issue con- dence, or that the DRB did not find the tains a general allegation that a cer- applicant’s testimony to be sufficiently tain course of action violated his or her credible to overcome the presumption. constitutional rights, respond in appro- (3) If the DRB disagrees with the po- priate cases by noting that the action sition of the applicant on an issue of was consistent with statutory or regu- propriety, the following guidance ap- latory authority, and by citing the pre- plies in addition to the guidance in sumption of constitutionality that at- § 842.112(f) (1) and (2). taches to statutes and regulations. If, (i) The DRB may reject the appli- on the other hand, the applicant makes cant’s position by explaining why it a specific challenge to the constitu- disagrees with the principles set forth tionality of the action by challenging

188

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00198 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.112

the application of a statute or regulations to be considered for determination is a particular set of cir- tion of the character of and reason for cumstances, it is not sufficient to re- the applicant’s discharge, the DRB spond solely by citing the presumption shall make a finding of fact for each of constitutionality of the statute or such event or circumstance. regulation when the applicant is not (i) For each such finding, the challenging the constitutionality of decisional document shall list the spe- the statute or regulation. Instead, the cific source of the information relied response must address the specific cir- upon. This may include the presump- cumstances of the case. tion of regularity in appropriate cases. (g) Denial of the full change in dis- If the information is listed in the serv- charge requested when propriety is not at ice record section of the decisional doc- issue. If the applicant has not sub- ument, a citation is not required. mitted an issue of propriety and the (ii) If a finding of fact is made after DRB has not otherwise relied upon an consideration of contradictory evi- issue of propriety to change the dis- dence in the record (including informa- charge, the decisional document shall tion cited by the applicant or other- contain a statement to that effect. The wise identified by members of the DRB is not required to provide any fur- DRB), the decisional document shall ther discussion as to the propriety of set forth the conflicting evidence, and the discharge. explain why the information relied (h) Change of discharge: Issues of eq- upon was more persuasive than the in- uity. If the DRB concludes that a formation that was rejected. If the pre- change in the discharge is warranted sumption of regularity is cited as the under equity standards the decisional basis for rejecting such information, document shall list each issue of equity the decisional document shall explain upon which this conclusion is based. why the contradictory evidence was in- The DRB shall cite the facts in the sufficient to overcome the presump- record that demonstrate the relevance tion. In an appropriate case, the expla- of the issue to the applicant’s case. If nation as to why the contradictory evi- the change in discharge does not con- dence was insufficient to overcome the stitute the full change requested by the presumption of regularity may consist applicant, the reasons for not giving of a statement that the applicant failed the full change requested shall be dis- to provide sufficient corroborating evi- cussed. dence, or that the DRB did not find the (i) Denial of the full change requested: applicant’s testimony to be sufficiently Issues of equity. If the DRB rejects the credible to overcome the presumption. applicant’s position on an issue of eq- (3) If the DRB disagrees with the po- uity, or if the decision otherwise pro- sition of the applicant on an issue of vides less than the full change in dis- equity, the following guidance applies charge requested by the applicant, the in addition to the guidance in decisional document shall note that § 865.112(i) (1) and (2): conclusion. The DRB shall list reasons (i) The DRB may reject the appli- for its conclusions on each issue of eq- cant’s position by explaining why it uity in accordance with the following: disagrees with the principles set forth (1) If a reason is based in whole or in in the applicant’s issue (including prin- part upon a part, statute, constitu- ciples derived from cases cited by the tional provision, judicial determina- applicant). tion, or other source of law, the DRB (ii) The DRB may reject the appli- shall cite the pertinent source of law cant’s position by explaining why the and the facts in the record that dem- principles set forth in the applicant’s onstrate the relevance of the source of issue (including principles derived from law to the exercise of discretion on the cases cited by the applicant) are not issue of equity in the applicant’s case. relevant to the applicant’s case. (2) If a reason is based in whole or in (iii) The DRB may reject an appli- part on a determination as to the oc- cant’s position by explaining why the currence or nonoccurrence of an event applicant’s issue is not a matter upon or circumstance, including a factor re- which the DRB grants a change in dis- quired by applicable Air Force regula- charge as a matter of equity. When the

189

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00199 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.113 32 CFR Ch. VII (7–1–05 Edition)

applicant indicates that the issue is to lished by the Secretary of the Air be considered in conjunction with Force. other specified issues, the explanation (b) The following categories of will address all such issues. dicharge review requests are subject to (iv) The DRB may reject the appli- the review of the Secretary of the Air cant’s position on the grounds that Force or the Secretary’s designee. other specified factors in the case pre- (1) Cases in which a minority of the clude granting relief, regardless of DRB panel requests their submitted whether the DRB agreed with the ap- opinions be forwarded for consideration plicant’s position. (refer to § 865.110(h)). (v) If the applicant takes the position (2) Cases when required in order to that the discharge should be changed provide information to the Secretary as a matter of equity because of an al- on specific aspects of the discharge re- leged error in a record associated with view function which are of interest to the discharge, and the record has not the Secretary. been corrected by the organization (3) Any case which the Director, Air with primary responsibility for correc- Force Personnel Council believes is of tive action, the DRB may respond that significant interest to the Secretary. it will presume the validity of the (c) The Secretarial Reviewing Au- record in the absence of such corrective thority is the Secretary of the Air action. However, the DRB will consider Force or the official to whom he has whether it should exercise its equitable delegated this authority. The SRA may powers to change the discharge on the review the types of cases described basis of the alleged error. If it declines above before issuance of the final noti- to do so, the DRB shall explain why the fication of a decision. Those cases for- applicant’s position did not provide a warded for review by the SRA shall be sufficient basis for the change in the considered under the standards set discharge requested by the applicant. forth in § 865.121 and DOD Directive (4) When the DRB concludes that ag- 1332.28. gravating factors outweigh mitigating (d) There is no requirement that the factors, the DRB must set forth rea- Director of the Personnel Council sub- sons such as the seriousness of the of- mit a recommendation when a case is fense, specific circumstances sur- forwarded to the SRA. If a rec- rounding the offense, number of of- ommendation is submitted, however, it fenses, lack of mitigating cir- should be in accordance with the guide- cumstances, or similar factors. The lines described below. DRB is not required, however, to ex- (e) Format for Recommendation. If a plain why it relied on any such factors recommendation is provided, it shall unless the applicability or weight of contain the Director’s views whether such factors are expressly raised as an there should be a change in the char- issue by the applicant. acter of or reason for discharge (or (5) If the applicant has not submitted both). If the Director recommends such any issues and the DRB has not other- a change, the particular change to be wise relied upon an issue of equity for made shall be specified. The rec- a change in discharge, the decisional ommendation shall set forth the Direc- document shall contain a statement to tor’s position on decisional issues sub- that effect, and shall note that the mitted by the applicant in accordance major factors upon which the discharge with the following: was based are set forth in the service (1) Adoption of the DRB’s Decisional record portion of the decisional docu- document. The recommendation may ment. state that the Director has adopted the decisional document prepared by the § 865.113 Recommendations by the Di- majority. The Director shall ensure rector of the Personnel Council and that the decisional document meets Secretarial Review Authority. the requirements of this regulation. (a) The Director of the Personnel (2) Adoption of the Specific State- Council may forward cases for consid- ments From the Majority. If the Direc- eration by the Secretarial Reviewing tor adopts the views of the majority Authority (SRA) under rules estab- only in part, the recommendation shall

190

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00200 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.113

cite the specific matter adopted from the applicant and counsel or represent- the majority. If the Director modifies a ative, if any, but a further opportunity statement submitted by the majority, for rebuttal is not required unless the the recommendation shall set forth the correction produces a different result modification. or includes a substantial change in the (3) Response To Issues Not Included discussion by the DRB or Director of in Matter Adopted From the Majority. the issues raised by the majority or the The recommendation shall set forth applicant. the following if not adopted in whole or (i) The Addendum of the SRA. The de- in part from the majority: cision of the SRA shall be in writing (i) The issues on which the Director’s and shall be appended as an addendum recommendation is based. Each such to the decisional document. decisional issue shall be addressed by (1) The SRA’s Decision. The addendum the Director in accordance with shall set forth the SRA’s decision § 865.112 of this subpart. whether there will be a change in the (ii) The Director’s response to items character of or reason for discharge (or submitted as issues by the applicant both); if the SRA concludes that a under § 865.111 of this subpart. change is warranted, the particular (iii) Reasons for rejecting the conclu- change to be made shall be specified. If sions of the majority with respect to the SRA adopts the decision rec- decisional issues which, if resolved in ommended by the DRB or the Director, the applicant’s favor, would have re- the decisional document shall contain sulted in greater relief for the appli- a reference to the matter adopted. cant than that afforded by the Direc- (2) Discussion of Issues. In support of tor’s recommendation. Each issue shall the SRA’s decision, the addendum shall be addressed in accordance with set forth the SRA’s position on § 865.112 of this subpart. decisional issues, items submitted by (f) Copies of the proposed decisional an applicant and issues raised by the document on cases that have been for- DRB and the Director. The addendum warded to the SRA (except for cases reviewed on the DRB’s own motion with- will state that: out the participation of the applicant (i) The SRA has adopted the Direc- or the applicant’s counsel) shall be pro- tor’s recommendation. vided to the applicant and counsel or (ii) The SRA has adopted the pro- representative, if any. The document posed decisional document prepared by will include the Director’s rec- the DRB. ommendation to the SRA, if any. Clas- (iii) If the SRA adopts the views of sified information shall be summa- the DRB or the Director only in part, rized. the addendum shall cite the specific (g) The applicant shall be provided statements adopted. If the SRA modi- with a reasonable period of time, but fies a statement submitted by the DRB not less than 25 days, to submit a re- or the Director, the addendum shall set buttal to the SRA. An issue in rebuttal forth the modification. consists of a clear and specific state- (3) Response To Issues Not Included in ment by the applicant in support of or Master Adopted From the DRB or the Di- in opposition to the statements of the rector. The addendum shall set forth DRB or Director on decisional issues the following if not adopted in whole or and other clear and specific issues that in part from the DRB or the Director: were submitted by the applicant. The (i) A list of the issues on which the rebuttal shall be based solely on mat- SRA’s decision is based. Each such ters in the record when the DRB closed decisional issue shall be addressed by the case for deliberation or in the Di- the SRA. This includes reasons for re- rector’s recommendation. jecting the conclusion of the DRB or (h) Review of the Decisional document. the Director with respect to decisional If corrections in the decisional docu- issues which, if resolved in the appli- ment are required, the decisional docu- cant’s favor, would have resulted in ment shall be returned to the DRB for change to the discharge more favorable corrective action. The corrected to the applicant than that afforded by decisional document shall be sent to the SRA’s decision.

191

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00201 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.114 32 CFR Ch. VII (7–1–05 Edition)

(ii) The SRA’s response to items sub- (ii) Period of enlistment. mitted as issues by the applicant will (iii) Age at enlistment. be in accordance with § 865.111 of this (iv) Length of service. subpart. (v) Periods of unauthorized absence. (4) Response to Rebuttal. (i) If the SRA (vi) Conduct and efficiency ratings grants the full change in discharge re- (numerical or narrative). quested by the applicant (or a more fa- (vii) Highest rank achieved. vorable change), that fact shall be (viii) Awards and decorations. noted, the decisional document shall be (ix) Educational level. addressed accordingly, and no further (x) Aptitude test scores. response to the rebuttal is required. (xi) Incidents of punishment pursu- (ii) If the SRA does not grant the full ant to Article 15, Uniform Code of Mili- change in discharge requested by the tary Justice (including nature and date applicant (or a more favorable change), of offense or punishment). the addendum shall list each issue in (xii) Conviction by court-martial. rebuttal submitted by an applicant and (xiii) Prior military service and type shall set forth the response of the SRA of discharge received. under the following: (3) A list of the type of documents (A) If the SRA rejects an issue in resubmitted by or on behalf of the appli- buttal, the SRA may respond in ac- cant (including a written brief, letters cordance with the principles in § 865.112 of recommendation, affidavits con- of this subpart. cerning the circumstances of the dis- (B) If the matter adopted by the SRA charge, or other documentary evi- provides a basis for the SRA’s rejection dence), if any. of the rebuttal material, the SRA may (4) A statement whether the appli- note that fact and cite the specific cant testified, and a list of the type of matter adopted that responds to the witnesses, if any, who testified on be- issue in rebuttal. half of the applicant. (C) If the matter submitted by the (5) A notation whether the applica- applicant does not meet the require- tion pertained to the character of dis- ments for rebuttal material in para- charge, the reason for discharge, or graph (g) of this section, that fact shall both. be noted. (6) The DRB’s conclusions on the fol- (j) Index Entries. Appropriate index lowing: entries shall be prepared for the SRA’s (i) Whether the character of or the actions for matters that are not adopt- reason for discharge should be changed. ed from the DRB’s proposed decisional (ii) The specific changes to be made, document. if any. (7) A list of the items submitted as § 865.114 Decisional document. issues on DD Form 293 or expressly in- (a) A decisional document shall be corporated therein and such other prepared for each review conducted by items submitted as issues by the appli- the DRB. cant that are identified as inadvert- (b) At a minimum, the decisional ently omitted under § 865.106(g)(4). If decument shall contain: the issues are listed verbatim on DD (1) The date, character of, and reason Form 293, a copy of the relevant por- for discharge or dismissal certificate tion of the form may be attached. issued to the applicant upon separation Issues that have been withdrawn or from the military service, including modified with the consent of the appli- the specific regulatory authority under cant need not be listed. which the discharge or dismissal cer- (8) The response to items submitted tificate was issued. as issues by the applicant under the (2) The circumstances and character guidance in § 865.111. of the applicant’s service as extracted (9) A list of decisional issues and a from military records and information discussion of such issues under the provided by other government author- guidance of § 865.112. ity or the applicant, such as, but not (10) Minority views, if any, when au- limited to: thorized under the rules of the Sec- (i) Date of enlistment (YYMMDD). retary of the Air Force.

192

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00202 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.118

(11) The recommendation of the Di- counsel or representative in the same rector when required by § 865.113. manner as the notification of the re- (12) Any addendum of the SRA when view decision. required by § 865.113. (13) Advisory opinions, including § 865.116 Records of DRB proceeding. those containing factual information, (a) When the proceedings in any re- when such opinions have been relied view have been concluded, a record upon for final decision or have been ac- thereof will be prepared. Records may cepted as a basis for rejecting any of include written records, electro- the applicant’s issues. Such advisory magnetic records, or a combination opinions or relevant portions thereof thereof. that are not fully set forth in the dis- (b) At a minimum, the record will in- cussion of decisional issues or other- clude the following: wise in response to items submitted as (1) The application for review (DD issues by the application shall be incor- Form 293). porated by reference. A copy of the (2) A record of the testimony in ver- opinions incorporated by reference batim, summarized, or recorded form shall be appended to the decision and at the option of the DRB. included in the record of proceedings. (3) Documentary evidence or copies (14) A record of the DRB member’s thereof considered by the DRB other names and votes. than the military record. (15) Index entries for each decisional issue under appropriate categories list- (4) Brief/arguments submitted by or ed in the Subject/Category listing. on behalf of the applicant. (16) An authentication of the docu- (5) Advisory opinions considered by ment by an appropriate official. the DRB, if any. (6) The findings, conclusions, and rea- § 865.115 Issuance of decisions fol- sons developed by the DRB. lowing discharge review. (7) Notification of the DRB’s decision (a) The applicant and counsel or rep- to the cognizant custodian of the appli- resentative, if any, shall be provided cant’s records, or reference to the noti- with a copy of the decisional document fication document. and of any further action in review. (8) Minority reports, if any. The applicant (and counsel, if any) (9) A copy of the decisional docu- shall be notified of the availability of ment. the complaint process in accordance with § 865.121 of this subpart and of the § 865.117 Final disposition of the right to appeal to the Board for the record of proceedings. Correction of Military Records. Final The original record of proceedings notification of decisions shall be issued and all appendices thereto shall in all to the applicant with a copy to the cases be incorporated in the military counsel or representative, if any. record of the applicant and returned to (b) Notification to applicants with the custody of the National Personnel copies to counsel or representatives, Records Center (NPRC), St. Louis, Mis- shall normally be made through the souri. If a portion of the original record U.S. Postal Service. Such notification cannot be stored with the service shall consist of a notification of the de- record, the service record shall contain cision, together with a copy of the a notation as to the place where the decisional document. record is stored. (c) Notification of HQ AFMPC/ MPCDOAl shall be for the purpose of § 865.118 Availability of Discharge Re- appropriate action and inclusion of review Board documents for public view matter in the military records. inspection and copying. Such notification shall bear appro- (a) A copy of the decisional document priate certification of completeness prepared in accordance with § 865.114 of and accuracy. this subpart, shall be made available (d) Actions on review by Secretarial for public inspection and copying Reviewing Authority, when occurring, promptly after a notice of final deci- shall be provided to the applicant and sion is sent to the applicant.

193

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.119 32 CFR Ch. VII (7–1–05 Edition)

(b) To the extent required to prevent (2) The index shall be maintained at a clearly unwarranted invasion of per- selected permanent locations through- sonal privacy, identifying details of the out the United States. This ensures applicant and other persons will be de- reasonable availability to applicants at leted from documents made available least 30 days before a regional board re- for public inspection and copying. view. The index shall also be made Names, addresses, social security num- available at sites selected for regional bers, and military service numbers Boards for such periods as the DRB is must be deleted. Written justification present and in operation. An applicant shall be made for all other deletions who has requested a regional board re- and shall be available for public inspec- view shall be advised in the notice of tion. scheduled hearings. (c) The DRB shall ensure that there (3) The Armed Forces Discharge Re- is a means for relating a decisional view/Correction Board Reading Room document number to the name of the shall publish indexes quarterly for the applicant to permit retrieval of the ap- DRB. The DRB shall be responsible for plicant’s records when required in proc- timely submission to the Reading essing a complaint in accordance with Room of individual case information § 865.121 of this subpart. required for update of indexes. These (d) Any other privileged or classified indexes shall be available for public in- material contained in or appended to spection or purchase (or both) at the any documents required to be furnished Reading Room. This information will the applicant and counsel/representa- be provided to applicants in the notice tive or made available for public in- of acceptance of the application. spection and copying may be deleted (4) Correspondence relating to mat- therefrom only if a written statement ters under the cognizance of the Read- of the basis for the deletions is pro- ing Room (including request for pur- vided the applicant and counsel/rep- chase of indexes) shall be addressed to: resentative and made available for pub- DA Military Review Board Agency, Atten- lic inspection. It is not intended that tion: SFBA (Reading Room), Room 1E520, the statement be so detailed as to re- The Pentagon, Washington DC 20310 veal the nature of the withheld material. § 865.119 Privacy Act information. (e) DRB documents made available Information protected under the Pri- for public inspection and copying shall vacy Act is involved in discharge re- be located in the Armed Forces Dis- view functions. The provisions of 32 charge Review/Correction Boards Read- CFR part 286a will be observed ing Room. The documents shall be in- throughout the processing of a request dexed in usable and concise form so as for review of discharge or dismissal. to enable the public and those who represent applicants before the DRB to § 865.120 Discharge review standards. isolate from all these decisions that (a) Objective of review. The objective are indexed those cases that may be of a discharge review is to examine the similar to an applicant’s case and that propriety and equity of the applicant’s indicate the circumstances under and/ discharge and to effect changes, if nec- or reasons for which the DRB or the essary. The standards of review and the Secretary of the Air Force granted or underlying factors which aid in deter- denied relief. mining whether the standards are met (1) The reading file index shall in- shall be historically consistent with clude, in addition to any other items criteria for determining honorable determined by the DRB, the case num- service. No factors shall be established ber, the date, character of, reason for, which require automatic change or de- and authority for the discharge. It nial of a change in a discharge. Neither shall further include the decisions of the DRB nor the Secretary of the Air the DRB and reviewing authority, if Force shall be bound by any method- any, and the issues addressed in the ology of weighing of the factors in statement of findings, conclusions and reaching a determination. In each case, reasons. the DRB or Secretary of the Air Force

194

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00204 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.120

shall give full, fair, and impartial con- out any additional proceedings or addi- sideration to all applicable factors tional proceedings shall be conducted prior to reaching a decision. An appli- in accordance with the Court’s Order of cant may not receive a less favorable December 3, 1981, in Wood v. Secretary discharge than that issued at the time of Defense to determine whether proper of separation. This does not preclude grounds exist for the issuance of a less correction of clerical errors. than honorable discharge, taking into (b) Propriety. A discharge shall be account that: deemed to be proper unless in the (1) An Under Other Than Honorable course of discharge review, it is deter- (formerly Undesirable) Discharge for mined that: an inactive reservist can only be based (1) There exists an error of fact, law, upon civilian misconduct found to have procedures, or discretion associated affected directly the performance of with the discharge at the time of military duties; issuance; and that the rights of the ap- (2) A General Discharge for an inac- plicant were prejudiced thereby (such tive reservist can only be based upon error shall constitute prejudicial error, civilian misconduct found to have had if there is substantial doubt that the an adverse impact on the overall effec- discharge would have remained the tiveness of the military, including same if the error had not been made); military morale and efficiency. or (f) The following applies to appli- (2) A change in policy by the Air cants who received less than fully hon- Force made expressly retroactive to orable administrative discharges (be- the type of discharge under consider- tween June 21, 1971 and March 2, 1982) ation, requires a change in the dis- because evidence developed by or as a charge. direct result of complusory urinalysis (c) When a record associated with the testing was introduced in the discharge discharge at the time of issuance in- proceedings. Applicants who believe volves a matter in which the primary they are members of the above cat- responsibility for corrective action egory will so indicate this by writing rests with another organization (for ex- ‘‘CATEGORY W’’ in block 7 of their DD ample, another Board, agency, or Form 293. AFMPC/MPCDOA1 will expe- court), the DRB will recognize an error dite processing these applications to only to the extent that the error has the designated ‘‘CATEGORY W’’ re- been corrected by the organization viewer. For class members the des- with primary responsibility for cor- ignated reviewer shall either recharac- recting the record. terize the discharge to honorable with- (d) The primary function of the DRB out any additional proceedings or com- is to exercise its discretion on issues of plete a review to determine whether equity by reviewing the individual proper ground exists for the issuance of merits of each application on a case- a less than honorable discharge. If the by-case basis. Prior decisions in which applicant is determined not to be a the DRB exercised its discretion to class member, the application is re- change a discharge based on issues of turned to normal review procedure equity (including the factors cited in channels. If new administrative pro- such decisions or the weight given to ceedings are initiated, the former serv- factors in such decisions) do not blind ice member must be notified of: the DRB in its review of subsequent (1) The basis of separation other than cases because no two cases present the drug abuse or use or possession of drugs same issues of equity. based upon compelled urinalysis that (e) The following applies to appli- was specified in the commander’s re- cants who received less than fully hon- port and upon which the Air Force now orable administrative discharges be- seeks to base a less than honorable dis- cause of their civilian misconduct charge. while in an inactive reserve component (2) The full complement of procedural and who were discharged or had their protections that are required by cur- discharge reviewed on or after April 20, rent regulations. 1971: the DRB shall either recharac- (3) Name, address and telephone num- terize the discharge to honorable with- ber of an Area Defense Counsel with

195

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00205 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.120 32 CFR Ch. VII (7–1–05 Edition)

whom the former service member has a (G) Level of responsibility at which right to consult, and the applicant served. (4) The right to participate in the (H) Other acts of merit that may not new proceedings to be conducted at the have resulted in a formal recognition Air Force base nearest the former serv- through an award or commendation. ice member’s current address, or to (I) Length of service during the pe- elect to maintain his or her present riod which is the subject of the dis- character of discharge. charge review. (g) Equity. A discharge shall be (J) Prior military service and type of deemed to be equitable unless: discharge received or outstanding post- (1) In the course of a discharge review, it is determined that the policies service conduct to the extent that such and procedures under which the appli- matters provide a basis for a more cant was discharged differ in material thorough understanding of the per- respects from policies and procedures formance of the applicant during the currently applicable on a service-wide period of service which is the subject of basis to discharges of the type under the discharge review. consideration provided that: (K) Convictions by court-martial. (i) Current policies or procedures rep- (L) Record of non-judicial punish- resent a substantial enhancement of ment. the rights afforded an applicant in such (M) Convictions by civil authorities proceedings; and while a member of the Air Force, re- (ii) There is substantial doubt that flected in the discharge proceedings or the applicant would have received the otherwise noted in military records. same discharge if relevant current poli- (N) Record of periods of unauthorized cies and procedures had been available absence. to the applicant at the time of the dis- (O) Records relating to a discharge in charge proceedings under consider- lieu of court-martial. ation. (2) At the time of issuance, the dis- (ii) Capability to Serve, as evidenced charge was inconsistent with standards by factors such as: of discipline in the Air Force; or (A) Total Capabilities. This includes (3) In the course of a discharge re- an evaluation of matters such as age, view, it is determined that a change is educational level, and aptitude scores. warranted based upon consideration of Consideration may also be given to the applicant’s military record and whether the individual met normal other evidence presented to the DRB military standards of acceptability for viewed in conjunction with the factors military service and similar indicators listed in this section and the regula- of an individual’s ability to serve satis- tions under which the applicant was factorily, as well as ability to adjust to discharged, even though the discharge the military service. was determined to have been otherwise (B) Family/Personal Problems. This in- equitable and proper at the time of cludes matters in extenuation or miti- issuance. Areas of consideration in- gation of the reason for discharge that clude, but are not limited to: may have affected the applicant’s abil- (i) Quality of Service, as evidenced ity to serve satisfactorily. by factors such as: (C) Arbitrary or Capricious Actions. (A) Service History, including date of This includes actions by individuals in enlistment, period of enlistment, highest rank achieved, conduct or effi- authority which constitute a clear ciency ratings (numerical or nar- abuse of such authority and which, al- rative). though not amounting to prejudicial (B) Awards and decorations. error, may have contributed to the de- (C) Letters of commendation or rep- cision to discharge or to the character- rimand. ization of service. (D) Combat service. (D) Discrimination. This includes un- (E) Wounds received in action. authorized acts as documented by (F) Record of promotions and demo- records or other evidence. tions.

196

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00206 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 865.125

§ 865.121 Complaints concerning bers will be on a temporary tour of ac- decisional documents and index en- tive duty (TTAD) for the duration of tries. the hearings. Detailed information Former members of the Air Force or must be provided to the individuals se- their counsel or representative may lected to serve before each hearing submit complaints with respect to the date. The administrative staff in Wash- decisional document issued in the ington processes all cases for regional former member’s case. hearings, establishes hearing dates, (a) All complaints should be proc- and returns the records to the Man- essed in accordance with 32 CFR part 70 power and Personnel Center at Ran- and should be forwarded to: dolph AFB, Texas, when the case is finalized. Assistant Secretary of Defense, Manpower, Reserve Affairs and Logistics, The Pen- tagon, Washington, DC 20331 § 865.125 Report requirement. Semi-annual reports will be sub- (b) The Air Force Discharge Review mitted by the 20th day of April and Oc- Board will respond to all complaints in tober for the preceding 6-month report- accordance with 32 CFR part 70. ing period (1 October through 31 March § 865.122 Summary of statistics for Dis- and 1 April through 30 September). The charge Review Board. reporting period will be inclusive from The Air Force Discharge Review the first through the last days of each Board shall prepare and provide to the reporting period. The report will con- Deputy Assistant Secretary of Defense tain four parts: (Military Personnel and Force Manage- (a) Part 1—Regular Cases are all ment) DASD(MP&FM), Office of the those that are not included in part 2 ASD(MRA&L), a semiannual report of below. discharge review actions in accordance (b) Part 2—Other cases include the with § 865.125. following: (1) Reconsideration of President § 865.123 Approval of exceptions to di- Ford’s memorandum of 19 January rective. 1977. Only the Secretary of the Air Force (2) Special Discharge Review Pro- may authorize or approve a waiver of, gram cases. or exception to, any part of this sub- (3) Statutes of Limitation Cases— part. those heard under Pub. L. 95–126 by waiver of 10 U.S.C. 1553. § 865.124 Procedures for regional hear- (c) Part 3—Total—combine parts 1 ings. and 2. Composition of the board for these (d) Part 4—Cases outstanding include hearings consists of three members all those eligible cases in which a DD from Washington with augmentation Form 293 has been received but has not by two members from nearby local Air been heard by the Discharge Review Force resources. The nearest Air Force Board as the reporting date for this re- installation or Air Force Reserve Unit port. Reports will be prepared by the is tasked to provide two officers to Air Force Discharge Review Board and serve as members of the DRB. Active submitted to the Army Discharge Re- duty members will serve on the board view Board (executive agent for DRB as an additional duty. Reserve mem- matters).

197

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00207 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 865.126 32 CFR Ch. VII (7–1–05 Edition)

§ 865.126 Sample report format.

SUMMARY OF STATISTICS FOR AIR FORCE DISCHARGE REVIEW BOARD RCS: DD-M(SA) 1489 [FY lll ] [ llllllll ]

Record review Hearing Total Number ap- Number ap- Number ap- Applied proved Applied proved Applied proved

...... Part 1 Regular Cases. Part 2 Other. Part 3 Total. Part 4 Cases Outstanding. NOTE: Identify numbers separately for regional DRB hearings. Use of additional footnotes to clarify or amplify the statistic being reported is encouraged. SUBCHAPTER H [RESERVED]

198

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00208 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER I—MILITARY PERSONNEL

PART 881—DETERMINATION OF (d) Documentation may include: ACTIVE MILITARY SERVICE AND (1) Flight logbooks. DISCHARGE FOR CIVILIAN OR (2) Separation or discharge certificates. CONTRACTUAL GROUPS (3) Mission orders. (4) Identification cards. Sec. (5) Contracts. 881.1 Applying for discharge. 881.2 Screening the application. (6) Personnel action forms. 881.3 Individual Service Review Board. (7) Employment records. 881.4 Processing the application. (8) Education certificates and diplo- 881.5 If an application is approved. mas. 881.6 If an application is denied. (9) Pay vouchers. 881.7 Discharge upgrade. (10) Certificates of awards. 881.8 Disposition of documents. (11) Casualty information. 881.9 Form prescribed. (e) The Air Force will not under any APPENDIX A TO PART 881—GLOSSARY OF circumstances provide or pay for legal TERMS representation for you. AUTHORITY: 38 U.S.C. 106. § 881.2 Screening the applications. SOURCE: 64 FR 33400, June 23, 1999, unless otherwise noted. (a) HQ AFPC/DPPRS reviews your application and does one of the fol- § 881.1 Applying for discharge. lowing: (a) Who may apply. (1) Refers your application to another (1) You may apply for discharge if military department and sends you a you were a member of a recognized written notice or a copy of the referral group. A spouse, next of kin, or legal letter. representative may apply on behalf of a (2) Returns your application without deceased or mentally incompetent per- prejudice if the Secretary of the Air son. Proof of death or mental incom- Force has not determined whether petency must accompany such an ap- members of your group are certified for plication. discharge. You may resubmit the appli- (b) Where to apply. cation after the Secretary determines (1) Send your application for dis- that your group is certified. charge to the Directorate of Personnel (3) Refers applications made by a Program Management, Separations group (or individuals on behalf of a Branch, HQ AFPC/DPPRS, 550 C Street group) to the Secretary of the Air West, Suite 11, Randolph AFB, TX Force, Manpower, Reserve Affairs and 78150–4713. installations, Personnel Council (c) How to apply. (AFPC), The Pentagon, Washington, (1) Fill out DD Form 2168, Application DC 20330 for further review. This Part for Discharge of Member or Survivor of does not cover such applications. Member of Group Certified to Have Per- (4) Returns the application to you if formed Active Duty With the Armed it is complete. Forces of the U.S., or write a letter. (5) Refers all complete applications (2) Obtain DD Form 2168 from HQ to the Individual Service Review Board AFPC/DPRS, 550 C Street West, Suite for further consideration. 11, Randolph AFB, TX 78150–4713 or the National Personnel Records Center § 881.3 Individual Service Review (NPRC), 9700 Page Boulevard, St. Board. Louis, MO 63132. (a) The Commander, Headquarters (3) Make your application as com- Air Force Personnel Center (HQ AFPC/ plete as possible; the burden of proof is CC) establishes the Individual Service on you. Provide all available evidence Review Board as necessary. to document your membership in the (b) The Board consists of military group and what services you per- members in grade Lieutenant Colonel formed. or higher, and civilian members, grade

199

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00209 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 881.4 32 CFR Ch. VII (7–1–05 Edition)

GS–12 or higher, appointed by the HQ AFPC/DPPRSO, 550 C Street West, AFPC/CC. Three members constitute a Suite 20, Randolph AFB, TX 78150–4722, quorum. The senior member acts as then issues the appropriate discharge Board chairperson. A nonvoting mem- certificate and a DD Form 214 to the ber keeps a record of the Board’s ac- applicant. tions on an application. (e) To appeal the characterization of (c) The Directorate of Personnel Pro- a discharge, submit DD Form 149, Ap- gram Management, Separations plication for Correction of Military Record Branch, HQ AFPC/DPPRS, 550 C Street Under the Provisions of Title 10, U.S.C., West, Suite 11, Randolph AFB, TX Section 1552, to the Secretary of the Air 78150–4713, provides administrative sup- Force through the Air Force Review port to the Board. Boards Office (SAF/MIBR). (f) If the member dies or is declared § 881.4 Processing the application. missing during the period of equivalent (a) Individual Service Review Board active military duty, the Directorate meets in closed session to consider the of Casualty Matters (HQ AFPC/DPW) application, the evidence submitted, issues DD Form 1300, Report of Cas- and other relevant information. Appli- ualty, including military pay grade, to cants or their representatives do not the next of kin or a designated rep- have the right to appear before the resentative, according to DODI 1300.18, Board. Military Personnel Casualty Matters, (b) The Board: Policies and Procedures, and AFI 36–3002, (1) Evaluates the evidence. Casualty Services (formerly AFR 30–25). (2) Decides whether the applicant was a member of a recognized group during § 881.6 If an application is denied. dates of its qualification. (a) Once the Board has decided your (3) Decides whether to approve the case, HQ AFPC/DPPRS notifies you: application for discharge. (1) If the Board denied your applica- (4) Determines the period and char- tion for discharge because there is in- acter of the applicant’s service. sufficient evidence to show that you belonged to a qualifying group. § 881.5 If an application is approved. (2) If the Board determines that your (a) If the Board approves an applica- service cannot be characterized as tion for discharge and determines that ‘‘under honorable conditions.’’ it should be honorable, HQ AFPC/ (b) You have 60 days from the date of DPPRSO issues the applicant a DD this notice to submit additional evi- Form 256AF, Honorable Discharge, and dence or information to HQ AFPC/ a DD Form 214, Certificate of Release or DPPRS, 550 C Street West, Suite 11, Discharge from Active Duty under AFI Randolph AFB, TX 78150–4713. 36–3202, Separation Documents (formerly (c) If after 60 days you have sub- AFR 35–6). mitted new evidence, the Board reviews (b) Enter a military grade on the DD the case again. If the Board determines Form 214 only if the Administrator of that your application now merits ap- Veterans’ Affairs requests it. proval, it proceeds according to para- (c) Enter a pay grade on the DD graph (e). Form 214 only for individuals who were (d) If you do not submit additional killed or received service-related inju- evidence or if, after review, the Board ries or disease during the approved pe- determines that your application riod of service. For proof of grade cri- should be denied, it forwards the case teria, see DoD 1000.20, Determinations of to the AFPC for final decision. Active Military Service and Discharge Ci- (e) HQ AFPC/DPPRS notifies you of vilian or Contractual Personnel, section the final decision. E, paragraph 3g. (f) If your application is denied, the (d) If the Board approves an applica- Board returns it to you without tion for discharge but determines that prejudicing any later consideration. it should be ‘‘under honorable conditions’’ (general discharge), it forwards § 881.7 Discharge upgrade. the case to the Air Force Personnel If you are approved for a General Dis- Council (AFPC) for final decision. HQ charge, you may apply to the Air Force

200

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00210 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 884.0

Discharge Review Board for discharge PART 884—DELIVERY OF PER- upgrade under AFI 36–3201, Air Force SONNEL TO UNITED STATES CIVIL- Discharge Review Board (formerly AFR IAN AUTHORITIES FOR TRIAL 20–10) or to the Air Force Board for Correction of Military Records under Sec. AFI 36–2603, Air Force Board for Correc- 884.0 Purpose. tion of Military Records (formerly AFR 884.1 Authority. 31–3). SAF/MIBR provides copies of 884.2 Assigned responsibilities. these instructions and application 884.3 Placing member under restraint pend- forms to individuals who received a ing delivery. General Discharge. 884.4 Release on bail or recognizance. 884.5 Requests under the interstate agree- § 881.8 Disposition of documents. ment on Detainer’s Act. (a) File a copy of the application, 884.6 Requests by Federal authorities for supporting evidence, and DD Form 214 military personnel stationed within the United States and its possessions. in the Master Personnel Records 884.7 Requests by state and local authori- Groups maintained at the National ties when the requested member is lo- Personnel Records Center, St. Louis, cated in that state. MO 63132, for approved cases. Send cop- 884.8 Request for delivery by state authori- ies of DD Form 214 to: ties when the member is located in a dif- (1) The applicant. ferent state. (2) The Veterans’ Administration. 884.9 Requests for custody of members sta- (3) HQ AFPC/DPPRS, 550 C Street tioned outside the United States. 884.10 Returning members, employees, and West, Suite 11, Randolph AFB, TX family members from overseas. 78150–4713. 884.11 Procedures for return of an Air Force member to the United States. § 881.9 Form prescribed. 884.12 Delays in returning members to the The following form, DD Form 2168, United States. Application for Discharge of Member or 884.13 Denials of a request for return of a Survivor of Member of a Group Certified member to the United States. To Have Performed Active Duty With the 884.14 Compliance with court orders by civilian employees and family members. Armed Forces of the U.S., is required for 884.15 Procedures involving a request by processing the stated claims. Federal or state authorities for custody of an overseas civilian employee or a APPENDIX A TO PART 881—GLOSSARY OF command-sponsored family member. TERMS 884.16 Reporting requests for assistance and action. Active Military Service—See 38 U.S.C. 106. 884.17 Commander’s instruction letter to Civilian or Contractual Group—An organiza- member. tion whose members rendered service to the 884.18 Civilian authority’s acknowledgment U.S. Air Force or a predecessor organization of transfer of custody and agreement to during a period of armed conflict. In that ca- notify member’s commander. pacity the members were considered civilian employees with the Armed Forces or con- AUTHORITY: 10 U.S.C. 814; 10 U.S.C. 8013; tractors with the U.S. Government, pro- Sec. 721(a), Pub. L. 100–456, 102 Stat. 2001. viding direct support to the Armed Forces. An example of such a group is the Women’s SOURCE: 65 FR 64348, Oct. 27, 2000, unless Air Force Service Pilots, who were Federal otherwise noted. civilian employees attached to the U.S. Army Air Force during World War II. § 884.0 Purpose. Discharge—Complete severance from the This part establishes procedures for active military service. The discharge in- making Air Force members, civilian cludes a reason and characterization of serv- personnel, and family members avail- ice. able to U.S. civilian authorities for Recognized Group—A group whose service the Secretary of the Air Force has deter- trial or specified court appearances. It mined was ‘‘active duty for the purposes of implements 32 CFR part 146. This part all laws administered by the Department of does not confer any rights, benefits, Veterans’ Affairs,’’ such as VA benefits privileges, or form of due process pro- under 38 U.S.C. 106. cedure upon any individuals.

201

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00211 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 884.1 32 CFR Ch. VII (7–1–05 Edition)

§ 884.1 Authority. member to civilian authorities. See A general court martial convening AFPD 51–10, paragraph 5. To determine authority (GCMCA) may authorize de- whether probable cause exists and livery of a member of that command to whether a reasonable belief exists that Federal or state civil authorities. The restraint is necessary, the commander GCMCA may delegate this authority to should refer to the Manual for Courts- an installation or equivalent com- Martial (MCM), 1984, specifically, Rules mander. See AFPD 51–10, Making Mili- for Courts-Martial (RCM) 305(h)(2)(B), tary Personnel, Employees, and De- and the discussion following it. The re- pendents Available to Civilian authori- quirement for the formal review of re- ties,1 paragraphs 8 and 9 for sources of straint found in MCM 1984, RCM 305, authority. and AFI 51–201, Military Justice Guide,2 does not apply. § 884.2 Assigned responsibilities. (a) The Under Secretary of Defense § 884.4 Release on bail or recog- (USD), Personnel & Readiness (P&R), is nizance. the denial authority for all requests for (a) Before delivering an Air Force return of members to the United States member to a civilian authority, the for delivery to civilian authorities commander or designee directs the when the request falls under § 884.9(e). member in writing to report to a des- (b) The Air Force Judge Advocate ignated Air Force unit, activity, or re- General (TJAG) may approve requests cruiting office for further instructions that fall under § 884.9(e) or recommend in the event the civilian authority re- denial of such requests. TJAG or a designee may approve or deny: leases the member (see § 884.17). The (1) Requests for return of members to commander designates the member’s the United States for delivery to civil- unit, if the civilian authority is in the ian authorities when the request falls immediate vicinity of the member’s under § 884.9(f). base. The commander advises the des- (2) Requests for delays of up to 90 ignated Air Force unit, activity, or re- days completing action on requests for cruiting office of the situation. Once return of members to the United States the member has been released and has for delivery to civilian authorities. reported to the designated authority, it (c) The Air Force Legal Services immediately sends the member’s name, Agency’s Military Justice Division (HQ rank, Social Security number (SSN). AFLSA/JAJM), 172 Luke Avenue, Suite organization, and other pertinent in- 343, Bolling AFB, DC 20332–5113, proc- formation to the member’s com- esses requests for return of members to mander, who then provides further in- the United States for delivery to civil- structions. ian authorities and notifies requesting (b) The member’s commander noti- authorities of decisions on requests. fies the military personnel flight HQ AFLSA/JAJM completes action on (MPF) of the situation. In turn, the requests within 30 days after receipt of MPF provides an information copy to the request, unless a delay is granted; the Air Force Personnel Center (AFPC) they send all reports and notifications assignment office responsible for the to USD/P&R and to the DoD General member’s Air Force specialty code Counsel (DoD/GC), as required by this (AFSC), as listed in AFMAN 36–2105, part; and they handle all communica- Officer Classification,3 or AFMAN 36– tions with requesters. 2108, Airman Classification. 3 If contact § 884.3 Placing member under re- cannot be made with the member’s straint pending delivery. commander, the Air Force unit, activity, or recruiting office previously des- Continue restraint only as long as is reasonably necessary to deliver the ignated by the commander obtains instructions from HQ AFPC/DPMARS or DPMRPP2. 1 Air Force publications may be obtained through NTIS, 5285 Port Royal Road, Spring- field, VA 22161, if not available online at 2 See footnote in § 884.1. http://afpubs.hq.af.mil. 3 See footnote in § 884.1.

202

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00212 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 884.9

§ 884.5 Requests under the interstate quirements of the agreement are sub- agreement on Detainer’s Act. stantially met when the state author- When either the prisoner or state au- ity informs the accused’s commander thorities make a request under the De- of the accused’s prospective release for tainer’s Act, follow the procedures in return to military authorities and Title 18 U.S.C. App. Section 1, et seq. when the state furnishes the accused The Act applies only to a person who transportation back to his or her sta- has entered upon a term of imprison- tion, together with necessary funds to ment in a penal or correctional institu- cover incidental expenses en route. The tion and is, therefore inapplicable to accused’s commander provides copies members in pretrial confinement. of the statement or agreement of this section and in § 884.6(b) to the civilian § 884.6 Requests by Federal authorities authority to whom the member was de- for military personnel stationed livered and to the Air Force unit, ac- within the United States and its tivity, or recruiting office nearest to possessions. the place of trial designated in the (a) When Federal authorities request agreement as the point of contact in the delivery of service members, the the event of release on bail or on recog- Air Force will normally deliver service nizance (see § 884.4). The accused’s com- members when the request is accom- mander immediately notifies the civil- panied by a warrant issued pursuant to ian authority if the member has been the Federal Rules of Criminal Proce- discharged from the Air Force. dure, rule 4, or when a properly identified Federal officer represents that § 884.8 Request for delivery by state such a warrant has been issued. authorities when the member is located in a different state. (b) A U.S. marshal, deputy marshal, or other officer authorized by law will (a) This part applies to members who call for and take into custody persons are located in the United States. With desired by Federal authorities for trial. respect to the extradition process, Air The officer taking custody must exe- Force personnel have the same status cute a statement in substantially the as persons not in the Armed Forces. form set out in § 884.18. Accordingly, if a state other than the state in which the member is located § 884.7 Requests by state and local au- requests the delivery of a military thorities when the requested mem- member, in the absence of a waiver of ber is located in that state. extradition process by the member con- (a) The Air Force normally will turn cerned, that state must use its normal over to the civilian authorities of the extradition procedures to make ar- state, upon their request. Air Force rangements to take the individual into members charged with an offense custody in the state where he or she is against state or local law. Each request located. by such civilian authorities for the sur- (b) The Air Force will not transfer a render of a member of the Air Force military member from a base within should normally be accompanied by a one state to a base within another copy of an indictment, information, or state for the purpose of making the other document used in the state to member amenable to prosecution by ci- prefer charges, or a warrant that re- vilian authorities. flects the charges and is issued by a court of competent jurisdiction. § 884.9 Requests for custody of mem- (b) Before making delivery to civilian bers stationed outside the United authorities of a state, the commander States. having authority to deliver will obtain (a) Authority. This section imple- a written agreement, substantially in ments Pub. L. 100–456, section 721(a), the form of § 884.18, from a duly author- and DoD Directive 5525.9, December 27, ized officer of the state. 1988. (c) Where the state authority cannot (b) The Air Force expects members to agree to one or more of the conditions comply with orders issued by Federal set out in the form, the commander or state court of competent jurisdic- may authorize modification. The re- tion, unless noncompliance is legally

203

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00213 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 884.10 32 CFR Ch. VII (7–1–05 Edition)

justified. Air Force members who per- the facts and circumstances of the par- sist in noncompliance are subject to ticular case. adverse administrative action, includ- (g) Before taking action under this ing separation for cause under AFI 36– section, give the member the oppor- 3206, Administrative Discharge Proce- tunity to provide evidence of legal ef- dures, and AFI 36–3208, Administrative forts to resist the court order or proc- Separation of Airmen. ess sought to be enforced or otherwise (c) Air Force officials will ensure to show legitimate cause for non- that members do not use assignments compliance.4 or officially sponsored residence outside the United States to avoid compli- § 884.10 Returning members, employ- ance with valid orders of Federal or ees, and family members from over- state court of competent jurisdiction. seas. (d) Noncompliance with a court order The Air Force expects persons over- may be legally justified when the indi- seas wanted by Federal or state au- vidual can adequately demonstrate thorities to make themselves available that the conduct, which is the subject to those authorities for disposition. If of the complaint or request, was sanc- they do not, DoD Directive 5525.9, Com- tioned by supplemental court orders, pliance of DoD Members, Employees, equally valid court orders of other ju- and Family Members Outside the risdictions, good faith legal efforts to United States With Court Orders, 10 resist the request, or other reasons. HQ U.S.C. 814, and Pub. L. 100–456, section USAF/JAG, HQ AFLSA/JACA, and Air 721(a), authorize and require com- Force legal offices in the jurisdiction manders to respond promptly to re- concerned will provide legal support to quests from civilian authorities for as- servicing staff judge advocates who re- sistance in returning members, civilian quest assistance in reviewing these employees, and family members from issues. overseas. (e) When Federal, state, or local authorities request delivery of an Air § 884.11 Procedures for return of an Force member stationed outside the Air Force member to the United States. United States who is convicted of or charged with a felony or other serious (a) Include the following information offense or who is sought by such au- in a request for return of an Air Force thorities in connection with the unlaw- member to the United States for deliv- ful or contemptuous taking of a child ery to civilian authorities. from the jurisdiction of a court or from (1) Fully identify the member sought the lawful custody of another person, by providing the member’s name, the member’s commander will nor- grade, SSN, and unit of assignment, to mally expeditiously return the member the extent the information is known. to the United States for delivery to the (2) Specify the offense for which the requesting authorities. member is sought. If the member is (1) A serious offense is defined as one charged with a crime, specify the max- punishable by confinement for more imum punishment under the laws of than 1 year under the laws of the re- the requesting jurisdiction. Specify questing jurisdiction. whether the member is sought in con- (2) Delivery of the member is not re- nection with the unlawful or contemp- quired if the controversy can be re- tuous taking of a child from the juris- solved without returning the member diction of a court or the lawful custody to the United States or if the request of another. for delivery of the member is denied in (3) Include copies of all relevant re- accordance with this instruction. quests for assistance, indictments, in- (f) Ordinarily, do not return an Air formation, or other instruments used Force member stationed outside the to bring charges, all relevant court or- United States to the United States for ders or decrees, and all arrest war- delivery to civilian authorities if the rants, writs of attachment or capias offense is not specified in paragraph (e) (writs authorizing arrests), or other of this section. TJAG may direct return when deemed appropriate under 4 See footnote in § 884.1

204

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00214 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 884.13

process directing or authorizing the renew assignment, port of entry into the questing authorities to take the mem- United States and estimated time of ber into custody. Also, include reports arrival. Except during unusual cir- of investigation and other materials cumstances, HQ AFLSA/JAJM notifies concerning the background of the case requesting authorities at least 10 days if reasonably available. before the member’s return. (4) Indicate whether the requesting authorities will secure the member’s § 884.12 Delays in returning members lawful delivery or extradition from the to the United States. port of entry to the requesting jurisdic- (a) On a request to return a member tion, whether they will do so at their to the United States for delivery to ci- own expense, and whether they will no- vilian authorities. TJAG may grant a tify HQ AFLSA/JAJM of the member’s delay of not more than 90 days in com- release from custody and of the ulti- pleting action when one or more of the mate disposition of the matter. following are present: (5) Any U.S. attorney or assistant (1) Efforts are in progress to resolve U.S. attorney, governor or other duly the controversy to the satisfaction of authorized officer of a requesting state the requesting authorities without the or local jurisdiction, or the judge, mag- member’s return to the United States. istrate, or clerk of a court of com- (2) Additional time is required to per- petent jurisdiction must sign the remit the member to provide satisfactory quest. evidence of legal efforts to resist the (b) Civilian authorities making re- request or to show legitimate cause for quests for return of members to the noncompliance. United States for delivery to them (3) Additional time is required to per- should direct their request to HQ mit the commander to determine the AFLSA/JAJM. If another Air Force specific effect of the loss of the mem- agency or official receives the request, ber on command mission and readiness immediately send it to HQ AFLSA/ or to determine pertinent facts and cir- JAJM. cumstances relating to any inter- (c) Upon receipt of a request, HQ national agreement, foreign judicial AFLSA/JAJM promptly notifies the proceeding, DoD, Air Force, or other member’s commander, who consults military department investigation or with the servicing staff judge advocate. court-martial affecting the member. The commander provides a report of (4) Other unusual facts or cir- relevant facts and circumstances and cumstances warrant delay. recommended disposition of the re- (b) AFLSA/JAJM promptly reports quest through command channels to all delays in cases falling under AFPD HQ AFLSA/JAJM. If the commander 51–10,5 paragraph 3, through SAF/GC recommends denial of the request or a and SAF/MI or USD/P&R and to DoD/ delay in processing or approving it, the GC. commander provides the information (c) Delays in excess of 90 days are not specified in § 884.12(a)(1) through (a)(4) authorized in cases falling under AFPD or § 884.13(a)(1) through (a)(4). 51–10, paragraph 3, unless approved by (d) After proper authority has ap- USD/P&R. proved a request for return of a member to the United States for delivery to § 884.13 Denials of a request for return civilian authorities, HQ AFLSA/JAJM of a member to the United States. notifies AFPC of the decision to return the member to the United States. (a) A request for return of a member AFPC issues permanent change of sta- to the United States for delivery to ci- tion (PCS) orders, assigning the mem- vilian authorities may be denied when: ber to an installation as close to the (1) The member’s return would have requesting jurisdiction as possible, an adverse impact on operational read- considering the needs of the Air Force iness or mission requirements. for personnel in the member’s rank and (2) An international agreement pre- AFSC. cludes the member’s return. (e) HQ AFLSA/JAJM notifies requesting authorities of the member’s 5 See footnote in § 884.1.

205

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00215 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 884.14 32 CFR Ch. VII (7–1–05 Edition)

(3) The member is the subject of for- mand-sponsored family members resid- eign judicial proceedings, court-mar- ing outside the United States. tial, or a DoD, Air Force, or other mili- (b) This section applies only when tary department investigation. Air Force authorities receive a request (4) The member showed satisfactory for assistance from Federal, state, or evidence of legal efforts to resist the local authorities involving noncompli- request or other legitimate cause for ance with a court order and when non- noncompliance or when other unusual compliance is the subject of any of the facts or circumstances warrant a de- following: An arrest warrant; indict- nial. ment, information, or other document (b) Commanders promptly send to HQ used in the jurisdiction to prefer AFLSA/JAJM information supporting charges; or a contempt citation involv- a determination that denial may be ap- ing the unlawful or contemptuous re- propriate. In cases warranting denial, moval of a child from the jurisdiction TJAG promptly sends a recommenda- of the court or the lawful custody of a tion and supporting documentation, parent or third party. through SAF/GC and SAF/MI, to USD/ (c) To the maximum extent possible, P&R for decision. consistent with provisions of inter- (c) The fact that a recommendation national agreements and foreign court for denial is pending does not by itself orders, DoD and military department authorize noncompliance or a delay in investigations, and judicial pro- compliance with any provision of this ceedings, commanders comply with re- section, but TJAG may consider a quests for assistance. After exhausting pending request for denial in deter- all reasonable efforts to resolve the mining whether to grant a delay. matter without the employee or family member returning to the United § 884.14 Compliance with court orders by civilian employees and family States, the commander shall strongly members. encourage the individual to comply. The commander shall consider impos- (a) The Air Force expects civilian ing disciplinary action (including re- employees and family members to com- moval) against the employee or with- ply with orders issued by Federal or drawing command sponsorship of the state court of competent jurisdiction, family member, as appropriate, for unless noncompliance is legally justi- failure to comply. fied. Air Force civilian employees who persist in noncompliance are subject to § 884.16 Reporting requests for assist- adverse administrative action, includ- ance and action. ing separation for cause as provided in AFI 36–704, Discipline and Adverse Ac- The commander or designee promptly tions (PA).6 reports each request for assistance and (b) Air Force officials ensure that ci- intended action by message. Send re- vilian personnel and family members ports to HQ AFLSA/JAJM, which sub- do not use assignments or officially mits required reports, through chan- sponsored residence outside the United nels, to USD/P&R, HQ AFLSA/JAJM States to avoid compliance with valid conducts all communications with re- orders of Federal or state court of com- questers. petent jurisdiction. § 884.17 Commander’s instruction let- § 884.15 Procedures involving a re- ter to member. quest by Federal or state authori- Subject: Instructions in Case of Release on ties for custody of an overseas civil- Bail or Personal Recognizance ian employee or a command-spon- 1. You are being delivered to the custody of sored family member. civilian authorities, pursuant to the provi- (a) The procedures of this section sions of AFI 51–1001. This action does not apply to civilian employees, including constitute a discharge from the Air Force. In nonappropriated fund instrumentality the event that you are released from civilian (NAFI) employees, who are assigned custody on bail or on your own recognizance, report immediately in person or by tele- outside the United States, and to com- phone to the (Air Force unit, activity, or recruiting office) for further instructions. Ad- 6 See footnote in § 884.1 vise the commander of your name, rank,

206

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00216 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 887.1

SSN, organization, the circumstances of PART 887—ISSUING OF CERTIFI- your release from custody, and the contents of this letter. CATES IN LIEU OF LOST OR DE- 2. Certain restrictions may be placed upon STROYED CERTIFICATES OF SEPA- you by civilian authorities in connection RATION with your temporary release from custody. Be certain to include in your report what Sec. these limitations are. 887.0 Purpose. 3. AFI 51–1001, paragraph 4 provides that 887.1 Explanation of terms. the authority to whom you report will notify 887.2 Safeguarding certificates. your commander. If that is not possible, re- 887.3 Persons authorized CILs. quest the nearest Air Force base military 887.4 Requesting CILs. personnel flight to contact HQ AFPC/ 887.5 Issuing CILs. DPMARS or DPMRPP2 by the fastest means 887.6 Who must sign CILs. available. Provide your name, rank, SSN, or- 887.7 Persons separated under other than ganization, and the circumstances of your honorable conditions (undesirable or bad release; further instruction will then be conduct) or dishonorable discharge. given to you. 887.8 Where to apply for certificates. [Signature Element] 887.9 Furnishing photocopies of documents. AUTHORITY: 10 U.S.C. 1041. § 884.18 Civilian authority’s acknowledgment of transfer of custody and SOURCE: 53 FR 876, Jan. 14, 1988, unless oth- agreement to notify member’s com- erwise noted. mander. § 887.0 Purpose. 1. A warrant for the arrest of (name, rank, This part tells who may apply for a and SSN), hereinafter referred to as the ‘‘member,’’ and who is charged with (of- certificate in lieu of a lost or destroyed fenses) has been issued by (civilian author- certificate of separation. It explains ity) and in execution, thereof, I accept his or where and how to apply. It implements her custody. 10 U.S.C. 1041 and DOD Instruction 2. In consideration of the delivery of mem- 1332.13, December 23, 1968. This publica- ber at (location) to me for trial upon the tion applies to ANG and USAFR mem- above charge, pursuant to the authority bers. It authorizes collection of infor- vested in me as (position), I hereby agree to mation protected by the Privacy Act of the following: 1974. The authority to collect the infor- a. The commander (name, rank, unit, tele- mation is title 10, U.S.C. 8912 and Exec- phone), will be advised of the disposition of utive Order 9397. Each form used to col- the charges. lect personal information has an asso- b. The member will be immediately re- ciated Privacy Act Statement that will turned to the custody of the military upon be given to the individual before infor- completion of the trial, if acquitted; or upon mation is collected. System of records satisfying the sentence imposed, if con- notice F035 AF MP C, Military Per- victed; or upon other disposition of the case. sonnel Records System, applies. c. The member’s return will be to (location) or to such other place as may be des- § 887.1 Explanation of terms. ignated by the Department of the Air Force. 3. The member’s return will not be re- (a) Certificate in lieu (CIL). A certifi- quired if the member’s commander has indicate issued in lieu of a lost or de- cated that return is not appropriate. Instead stroyed certificate of service, dis- of actual delivery, transportation for the charge, or retirement. member may be arranged so long as it is (b) Service person. One who: without expense to the United States or to (1) Is currently serving as a member the member. of the Air Force; or 4. Pending disposition of the charges, the (2) Formerly served in the active member will remain in the custody of [name of agency and location], unless released on military service as a member of the Air bail or the member’s own recognizance, in Force and all military affiliation was which event [Air Force unit, activity, or re- terminated after September 25, 1947. cruiting office nearest place of trial] will be (c) Surviving spouse. A survivor who notified. was legally married to a member of the [Signature Element] service at the time of the member’s death.

207

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00217 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 887.2 32 CFR Ch. VII (7–1–05 Edition)

(d) Guardian. A person or group of September 26, 1947 determines if the persons legally placed in charge of the person was in the Army or Air Force at affairs of a service member adjudicated the time of discharge or release from mentally incompetent. active duty. Separations that took place on or before September 25, 1947 § 887.2 Safeguarding certificates. are considered Army separations. Certificates of separation are impor- Those that took place on or after Sep- tant personal documents. Processing tember 26, 1947 are considered Air applications for CILs is costly to the Force separations, unless the records Air Force. To keep requests for CILs at clearly show the person actually served a minimum: as a member of the Army during the (a) Personnel officers will tell mem- period of service for which the CIL is bers of the importance of safeguarding requested. Individuals indicated in the original certificates. § 887.3 may be issued CILs prepared on (b) Persons who issue CILs will type one of the following forms: or stamp across the lower margin (a) DD Form 303AF, Certificate in ‘‘THIS IS AN IMPORTANT RECORD— Lieu of Lost or Destroyed Discharge, is SAFEGUARD IT’’ (if it is not printed used to replace any lost or destroyed on the certificate). certificate of discharge from the Air NOTE: Do not show this legend on DD Form Force. 363AF, Certificate of Retirement. (b) DD Form 363AF, Certificate of Re- tirement, is used to replace any lost or § 887.3 Persons authorized CILs. destroyed certificate of retirement CILs may be issued only to: from the Air Force (issued only to serv- (a) A service member whose char- ice members). acter of service was honorable or under (c) AF Form 386, Certificate in Lieu honorable conditions. of Lost or Destroyed Discharge (AUS), (b) A surviving spouse. is used to replace any lost or destroyed (c) A guardian, when a duly certified certificate of discharge from the Army. or otherwise authenticated copy of the (d) AF Form 681, Certificate in Lieu court order of appointment is sent with of Lost or Destroyed Certificate of the application. Service (AUS), is used to replace any lost or destroyed certificate of service, § 887.4 Requesting CILs. or like form, issued on release from ex- (a) Standard Form 180 (SF 180), Re- tended active duty (EAD) in the Army. quest Pertaining to Military Records, (e) AF Form 682, Certificate in Lieu should be used by persons who had of Lost or Destroyed Certificate of service as shown in § 887.3(a). However, Service (USAF), is used to replace any a letter request, with sufficient identi- lost or destroyed certificate of service, fying data and proof that the original or like form, issued on release from certificate of separation was lost or de- EAD in the Air Force. stroyed, may be used. Members on active duty will forward their applica- § 887.6 Who must sign CILs. tions through their unit commander. (a) DD Form 363AF must be signed by (b) SF 180, or any similar form used a general officer or colonel. by agencies outside the Department of (b) All other CILs must be signed by Defense, will be used by persons shown a commissioned officer, NCO in grade in § 887.3(b), (c), and § 887.7. of master sergeant or above, or a civil- NOTE: Persons authorized CILs may be as- ian in grade GS–7 or above. sisted in their request by the Customer Serv- ice Unit (DPMAC) in the consolidated base § 887.7 Persons separated under other personnel office. than honorable conditions (undesirable or bad conduct) or dishonor- § 887.5 Issuing CILs. able discharge. The issuing authority makes sure Those persons whose character of that the proper CIL form is issued, par- service was under other than honorable ticularly if the service member has had conditions or dishonorable are not eli- service in both the Army and Air gible for CILs. However, an official Force. The assignment status as of photocopy of the report of separation

208

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00218 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 887.9

or certificate of discharge (DD Form the retirement order to SF 180 or let- 214, Certificate of Release or Discharge ter. From Active Duty, or equivalent form), (b) All other certificates: if available, may be sent on written re- (1) HQ AFMPC/DPMD00 for officers, quest of the member. and HQ AFMPC/DPMD0A2, for enlisted (a) On the DD Forms 214 issued before members, Randolph AFB TX 78150–6001 October 1, 1979, the following items will for: be masked out before a photocopy is (i) Members on EAD or on the tem- sent out: porary disability retired list (TDRL). (1) Specific authority for separation. (ii) General officers in retired pay (2) Narrative reason for separation. status. (3) Reenlistment eligibility code. (2) National Personnel Records Cen- (4) SPD or separation designation ter, Military Personnel Records—Air number (SDN). Force (NPRC/MPR-AF), 9700 Page Bou- (b) For DD Forms 214 issued after Oc- levard, St. Louis MO 63132, for officers tober 1, 1979, send one copy with the and enlisted members: Special Additional Information Sec- (i) Completely separated from the Air tion, and one copy without it. Force or Air National Guard. (c) If a report of separation is not (ii) In a retired pay status, except available, furnish a brief official state- general officers. ment of military service. Use the let- (iii) In the retired Reserve who can- terhead stationery of the issuing not become eligible for retired pay. records custodian. File copy of the (3) Headquarters, Air Reserve Per- statement in the master personnel sonnel Center, Reference Services record (MPerR). Branch (HQ ARPC/DSMR), Denver CO (d) If (obsolete form) DD Form 258AF, 80280–5000, for Air National Guard and Undesirable Discharge Certificate, has Air Force Reserve officers and enlisted been issued, it may be replaced with members not on EAD, including retired DD Form 794AF, Discharge Under Reserve who will be eligible for retired Other Than Honorable Conditions. pay at age 60. (e) A $4.25 fee may be charged for issuing a document under this section, § 887.9 Furnishing photocopies of doc- with the exception of paragraph (d) of uments. this section. This part does not prohibit authorities (see § 887.8) from supplying photo- § 887.8 Where to apply for certificates. copies of certificates of service, reports (a) For DD Form 363AF: Head- of separation, or similar documents. quarters, Air Force Military Personnel Agencies that provide copies of DD Center, Officer Actions Branch (HQ Form 214 (or their equivalent) will con- AFMPC/DPMD00), Randolph AFB TX spicuously affix an ‘‘official’’ seal or 78150–6001, for officers; and Head- stamp on them to indicate that these quarters, Air Force Military Personnel documents are copies made from offi- Center, Analysis and Certification Sec- cial United States Air Force military tion (HQ AFMPC/DPMD0A2), Randolph personnel records. AFB TX 78150–6001, for enlisted members. Applicants must attach a copy of PARTS 888–888g [RESERVED]

SUBCHAPTER J—CIVILIAN PERSONNEL [RESERVED]

209

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00219 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER K—MILITARY TRAINING AND SCHOOLS

PART 901—APPOINTMENT TO THE closure of records and tells members of the public what they must do to inspect or ob- UNITED STATES AIR FORCE tain copies of the material referenced herein. ACADEMY § 901.0 Purpose. Sec. This part tells civilian and enlisted 901.0 Purpose. personnel (including Air Force Reserve Subpart A—Appointment Policies and and National Guard) the methods of ap- Requirements plying and the requirements and procedures for appointing young men and 901.1 General policy. women to the United States Air Force 901.2 Appointments and nominations. Academy. 901.3 Categories of nominations for appoint- NOTE: This part is affected by the Privacy ment. Act of 1974. The systems of records pre- 901.4 Basic eligibility requirements. scribed in this part are authorized by 10 901.5 Academic examination requirements. U.S.C., chapter 903; and 10 U.S.C. 8012. Each 901.6 Candidate fitness test requirement. form that is subject to the provisions of part 806b.5 of this chapter, and is required by this Subpart B—Nomination Procedures and part, contains a Privacy Act Statement ei- Requirements ther incorporated in the body of the document or in a separate statement accom- 901.7 Precandidate evaluation. panying each such document. 901.8 Congressional and U.S. Possessions categories. 901.9 Vice-Presidential category. Subpart A—Appointment Policies 901.10 Presidential category. and Requirements 901.11 Children of deceased or disabled veterans and children of military or civilian § 901.1 General policy. personnel in a missing status category. 901.12 Honor military and honor Naval Appointments as U.S. Air Force schools—AFROTC and AFJROTC cat- Academy cadets are offered to those egory. candidates having the strongest poten- 901.13 Children of Medal of Honor recipients tial to become successful career offi- category. cers. Offers of appointment are made 901.14 Regular airmen category. according to the law and guidance pro- 901.15 Reserve airmen category. vided by HQ USAF to most effectively 901.16 Superintendent category. accomplish the Academy’s mission. All 901.17 Foreign students category. candidates are appointed as cadets 901.18 Appointment vacancy selection. 901.19 Qualified alternate selection. under the authority of the President; 901.20 Notice of nomination. however, an appointment is conditional 901.21 Notification of selection or nonselec- until the candidate is admitted. tion. 901.22 Notification of change of address or § 901.2 Appointments and nominations. station assignment. Appointments and nominations are 901.23 Filling Presidential and airmen based on statutory authority contained nominating categories. in 10 U.S.C., chapter 903. Specific au- 901.24 Supply of forms. 901.25 Obligation of cadet appointment. thorities may nominate eligible appli- 901.26 Cadet’s oath of allegiance. cants for appointment vacancies at the 901.27 Charging of appointees. Academy. Each applicant must obtain 901.28 OMB approval of information collec- a nomination to receive an appoint- tion requirements. ment. Applicants may apply for a nom- AUTHORITY: 10 U.S.C., Chapter 903, and 10 ination in each category in which they U.S.C. 8012, except as otherwise noted. are eligible. SOURCE: 51 FR 23221, June 26, 1986, unless § 901.3 Categories of nominations for otherwise noted. appointment. NOTE: This part is derived from Air Force Regulation 53–10, October 22, 1985. All appointees must have a nomina- Part 806 of this chapter states the basic tion in at least one of the following policies and instructions governing the dis- categories:

210

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00220 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 901.4

(a) Congressional and U.S. Posses- (2) Foreign cadets must present cer- sions categories include the following tified copies of certificates of arrival nominating authorities: and nationalization or citizenship to (1) U.S. Senators and Representa- USAFA/RRS before administration of tives. oath of appointment. (2) Delegates in Congress from the NOTE: Facsimiles, copies, photographs or District of Columbia, Guam, Virgin Is- otherwise of birth certificate or certificate lands, and American Samoa. of citizenship will not be accepted unless (3) Resident Commissioner of Puerto properly certified by the raised seal of the Rico. issuing authority. (4) Governor of Puerto Rico. (c) Domicile. If nominated by an au- (5) Administrator of the Panama thority designated in the Congressional Canal Commission. and U.S. Possessions categories, the (b) Vice-Presidential category. applicant must be domiciled within the (c) Presidential competitive cat- constituency of such authority. egory. (d) Exemplary standards. Applicants (d) Children of deceased or disabled must be of highest moral character, veterans and children of military or ci- personal conduct, and integrity. The vilian personnel in missing status com- Academy requires applicants to explain petitive category. or clarify any of the circumstances (e) Honor military and honor Naval below. For any military applicant or schools, Air Force Reserve Officers’ nominee whose official records indicate Training Corps (AFROTC), and Air questionable background, commanders Force Junior Reserve Officers’ Train- furnish the applicable information to ing Corps (AFJROTC) competitive cat- USAFA/RRS. egory. (1) Applicant is or has been a con- (f) Children of Medal of Honor recipi- scientious objector. In this case, an af- ents category. fidavit is required stating that such be- (g) Air Force enlisted regular com- liefs and principles have been aban- petitive category. doned so far as they pertain to willing- (h) Air Force enlisted reserve com- ness to bear arms and give full and un- petitive category. qualified military service to the United (i) Superintendent competitive cat- States. egory. (2) Any facts that indicate the appli- (j) Foreign students competitive cat- cant’s appointment may not be con- egory (40 foreign persons designated to sistent with the interests of national receive instruction under 10 U.S.C security. 9344). (3) Conviction by court-martial of other than a ‘‘minor offense’’ (MCM, § 901.4 Basic eligibility requirements. 1984, part V, paragraph 1e, page V–1) or Each applicant must meet the fol- conviction of a felony in a civilian lowing eligibility requirements: court. (a) Age. Applicants must be at least (4) Elimination from any officer 17, and not have passed their 22nd training program or any preparatory birthday on July 1 of the year of entry school of the Army, Navy, or Air Force into the Academy. Academies for military inaptitude, in- (b) Citizenship. Except for students difference, or undesirable traits of sponsored by foreign governments character. This includes any person under 10 U.S.C. 9344, applicants must be who resigned in lieu of impending citizens or nationals of the United charges or who was eliminated by offi- States. All incoming cadets must cial action. verify citizenship status before admis- (5) Habitual alcohol misuse or drug sion: abuse which exceeds the standards of (1) For American-born citizens, cer- AFR 30–2 is disqualifying. tified birth certificate presented to the (6) Any behavior, activity, or associa- Director of Admissions (USAFA/RRS), tion showing the applicant’s conduct is U.S. Air Force Academy, Colorado incompatible with exemplary stand- Springs CO 80840–5651 before adminis- ards of personal conduct, moral char- tration of oath of appointment. acter, and integrity.

211

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00221 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 901.5 32 CFR Ch. VII (7–1–05 Edition)

(e) Marital status. Applicant must be demonstrates an acceptable level of unmarried. (Any cadet who marries is physical fitness. disenrolled from the Academy.) (f) Dependents. Applicant must not Subpart B—Nomination have a legal obligation to support a Procedures and Requirements child, children, or any other person. NOTE: For the purpose of this regulation, § 901.7 Precandidate evaluation. children are defined as the natural children of a parent and adopted children whose adop- The Air Force Academy conducts a tion proceedings were initiated before their precandidate evaluation program as an 15th birthday. initial step in the admissions process (g) Medical requirements for admission. and as an aid to Members of Congress Before being admitted to the academy, in screening their applicants for nomi- candidates must take a medical exam- nation. ination and meet the medical stand- (a) Applicants normally are sent a ards outlined in AFRs 160–13 and 160–43. precandidate packet, including USAFA All candidates must meet the medical Form 149, Precandidate Questionnaire, standards specified by the Secretary of with a request for the applicant to pro- the Air Force. Waivers may be granted vide academic, athletic, leadership, and by the Air Force Academy Command medical information. Surgeon. As specified by HQ USAF, (b) The Academy evaluates the most of the candidates admitted to the precandidate information and provides Academy must meet the eligibility an analysis to appropriate congres- standards for flying training. sional offices. Such information gives the nominating authorities an indica- § 901.5 Academic examination require- tion of the applicant’s potential to ments. qualify for admission and the appli- Before being offered an appointment, cant’s self-reported medical status; it candidates must take either the Col- does not, however, reflect the appli- lege Board Admission Testing Program cant’s final admission status. It is in- (ATP) or the American College Testing tended only to aid in selecting the Program (ACT) test. best-qualified applicants for nomina- (a) ATP. A candidate who elects to tion. use the ATP tests must take the Scho- (c) Applicants whose evaluation indi- lastic Aptitude Tests (SAT). The can- cates they are fully qualified will be didate is encouraged but not required notified and advised to seek a nomina- to take achievement tests of English tion. Individuals whose evaluations re- Composition and Level 1 (Standard) flect areas needing improvement are Mathematics or Level II (Intensive) informed and encouraged to submit ad- Mathematics. (Level 1 recommended ditional test scores or information in for candidates without advanced high an effort to meet the qualifying levels. school mathematics.) (b) ACT. Candidates who elect to use § 901.8 Congressional and U.S. Posses- the ACT tests must take the complete sions categories. battery of tests: English, mathematics, Individuals who meet the basic eligi- social studies, and natural sciences. bility requirements of § 901.4 may apply for a nomination according to their § 901.6 Candidate fitness test require- domicile (permanent legal residence). ment. (a) U.S. Senators, U.S. Representa- Before being offered an appointment, tives, the District of Columbia Dele- candidates must take a Candidate Fit- gate to the House of Representatives, ness Test (CFT) which consists of exer- and the Resident Commissioner of cises designed to measure muscular Puerto Rico are each authorized a strength, coordination, and aerobic quota of five cadets attending the power. Waivers to the CFT requirement Academy at any one time. If a vacancy may be granted by the Air Force Acad- occurs in their quota, each may nomi- emy Director of Athletics if a can- nate ten candidates to fill each va- didate’s participation in high school cancy. athletics conflicts with test adminis- (b) Delegates in Congress from Guam tration dates and the candidate clearly and from the Virgin Islands are each

212

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00222 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 901.10

authorized a quota of two cadets at- States at large, and is authorized a tending the Academy at any one time. quota of five cadets attending the If a vacancy occurs in their quota, each Academy at any one time. For each va- may make ten nominations. Eligible cancy occurring in the quota, ten indi- residents may apply for a nomination viduals may be nominated to fill the directly to their Delegate. vacancy. Requests for a nomination are (c) The Governor of Puerto Rico, the submitted directly to the Vice Presi- Delegate from American Samoa, and dent no later than October 31. Any in- the Panama Canal Commission Admin- dividual who meets the basic eligibility istrator may each have one cadet at- requirements of § 901.4 may apply to tending the Academy and each may the Vice President for a nomination. nominate ten candidates to fill their The Vice President forwards nomina- vacancy. tions on DD Form 1870 for each Air (1) Applicants domiciled in and na- Force Academy nominee through HQ tives of Puerto Rico may apply to the USAF/DPPA, Washington, DC 20330– Governor of Puero Rico in addition to 5060, to USAFA/RRS, USAF Academy, the Resident Commissioner. Colorado Springs, CO 80840–5651. (2) Applicants domiciled in American Samoa may apply to their Delegate. § 901.10 Presidential category. (3) Children of civilian personnel of Appointments to fill vacancies from the U.S. Government residing in the this category are made from candidates Republic of Panama who are citizens of in order of merit. One hundred appoint- the United States may apply to the ments are authorized each year. Panama Canal Commission Adminis- (a) The child of a Regular or Reserve trator. member of the Armed Forces of the (d) Nominating authorities in these United States is eligible for nomina- categories normally submit their tion if: nominations by January 31 for the (1) The parent is on active duty and class entering the following summer. has completed 8 years of continuous ac- (1) These nominating authorities tive duty service (other than for train- may nominate only if a vacancy occurs ing) by July 1 of the year that the can- from their authorized quota of cadets didate would enter the U.S. Air Force attending the Academy. Vacancies nor- Academy; or mally occur from graduation or separa- (2) The parent was retired with pay tion of cadets from the Academy. Fail- or was granted retired or retainer pay ure of a member of a graduating class (children of reservists retired and re- to complete the Academy program ceiving pay pursuant to 10 U.S.C., with his class does not delay the ad- chapter 67, are ineligible); or mission of his or her successor. HQ (3) The parent died after retiring USAF/DPPA maintains the master with pay or died after being granted re- records of cadets nominated and ap- tired or retainer pay (children of such pointed, determines vacancies in each reservists who were retired and receiv- nominating authority’s quota, and ing pay pursuant to 10 U.S.C., chapter validates nominations submitted by 67, are ineligible); and each nominating authority. (4) The applicant does not meet the (2) These nominating authorities for- eligibility requirements for the Chil- ward their nominations on DD Form dren of Deceased or Disabled Veterans 1870, Nomination for Appointment to (CODDV) nomination category. (By the U.S. Military Academy, Naval law, a person eligible for appointment Academy, or Air Force Academy, for consideration under the DOCCV cat- each Air Force Academy nominee egory is not a candidate in the Presi- through HQ USAF/DPPA, Washington, dential category.) DC 20330–5060, to USAFA/RRS, USAF (b) An eligible individual applies to Academy, Colorado Springs, CO 80840– USAFA/RRS, U.S. Air Force Academy, 5651. Colorado Springs, CO 80840–5651. A suggested letter format is included in the § 901.9 Vice-Presidential category. precandidate packet. The nominating The Vice President of the United period opens on May 1 and closes Janu- States nominates from the United ary 31. Applicants do not write directly

213

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00223 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 901.11 32 CFR Ch. VII (7–1–05 Edition)

to the President of the United States, § 901.12 Honor military and honor since the applications are processed by Naval schools—AFROTC and the Air Force Academy. AFJROTC category. NOTE: For the purpose of this category, Appointments to fill vacancies from children are defined as the natural children this competitive category are made of a parent and adopted children whose adop- from candidates in order of merit. tion proceedings were initiated before their Twenty appointments are authorized 15th birthday. each year. (a) Honor military and honor Naval § 901.11 Children of deceased or dis- schools: abled veterans and children of mili- (1) Five honor graduates, or prospec- tary or civilian personnel in a miss- tive honor graduates, from each des- ing status category. ignated honor military and honor Appointments to fill vacancies from naval school may be nominated to fill this competitive category are made the vacancies allocated to this cat- from candidates in order of merit. Ap- egory. School authorities must certify pointments authorized in this category that each nominee is a prospective are limited to 65 cadets at the Acad- honor graduate or an honor graduate, emy at any one time. and meets the basic eligibility require- (a) The child of a deceased or dis- ments. abled member of the Armed Forces of (2) School authorities submit nomi- the United States is eligible for nominees directly to the Academy (USAFA/ nation if: RRS) using specific nomination forms. (1) The parent was killed in action or Such nominations are submitted no died of wounds or injuries received or later than January 31 of the entry year. Nominations are not limited to diseases contracted while in active honor graduates of the current year. service or of preexisting injury or dis- An individual eligible for nomination ease aggravated by active service; or in this category applies to the adminis- (2) The parent has a permanent serv- trative authority of the school in- ice-connected disability rated at not volved. less than 100 percent resulting from (b) AFROTC and AFJROTC: wounds or injuries received or diseases (1) Five students from each college or contracted while in active service, or university AFROTC detachment may of preexisting injury or disease aggra- be nominated to compete for the va- vated by active service. cancies allocated in this category. (b) The child of a parent who is in (i) Students must apply for nomina- ‘‘missing status’’ is eligible if the par- tion to the Professor of Aerospace ent is a member of the Armed Services Studies (PAS) who must certify that or a civilian employee in active gov- the applicants meet the basic eligi- ernment service who is officially car- bility requirements and have or will ried or determined to be absent in a have satisfactorily completed at least 1 status of missing; missing in action; in- year of scholastic work at the time the terned in a foreign country; captured, class for which they are applying en- beleaguered, or beseiged by a hostile ters the Academy. (ii) The PAS uses the forms provided force; or detained in a foreign country by the Academy to recommend for against the person’s will. nomination the five best-qualified ap- (c) To request a nomination in this plicants to the president of the edu- category, an individual submits an ap- cational institution in which the plication to USAFA/RRS between May AFROTC detachment is established. 1 and January 31. A suggested letter (iii) Nominations from the president format is included in the precandidate of the institution are submitted di- packet. rectly to the Academy (USAFA/RRS) NOTE: For the purpose of this category, by January 31 of the entry year. children are defined as the natural children (2) Five students from each high of a parent and adopted children whose adop- school AFJROTC detachment may be tion proceedings were initiated before the nominated to compete for the vacan- 15th birthday. cies allocated to this category.

214

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00224 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 901.15

(i) Students must apply for nomina- the United States Air Force Academy tion to the Aerospace Science Instruc- Under Quota Allotted to Enlisted Mem- tor, who must certify that the appli- bers of the Regular and Reserve Com- cants meet the basic eligibility re- ponents of the Air Force,’’ and submit quirements and have or will have suc- it to their organization commander cessfully completed the prescribed who: AFJROTC program by the end of the (1) Determines if the applicant meets school year. the basic eligibility requirements (ii) The Aerospace Science Instructor shown in § 901.4 of this part. If disquali- uses the nomination forms provided by fied, the application is returned and the Academy to recommend for nomi- the applicant is informed of the reason. nation the five best-qualified applicants to the principal of the high (2) Advises the Consolidated Base school in which the AFJROTC detach- Personnel Office (CBPO) to hold any re- ment is established. assignment action of the airman pend- (iii) Nominations from the principal ing selection for an appointment. The of the high school are submitted di- CBPO places the airman in assignment rectly to the Academy by January 31 of availability code (AAC) 05 and coordi- the entry year. nates on AF Form 1786. Applicants not selected are reassigned on Academy no- § 901.13 Children of Medal of Honor re- tification to the CBPO. Applicants to cipients category. technical school follow-on training (if (a) The child of any Medal of Honor there is any) or PCS to their end as- recipient who served in any branch of signment also are reassigned. The ini- the Armed Forces may apply for nomi- tial application package from the tech- nation. If applicants meet the eligi- nical training center CBPO to USAFA/ bility criteria and qualify on the en- RRS includes the following informa- trance examinations, they are admit- tion on all pipe-line students: name, ted to the Academy. Appointments SSN, AFSC, course graduation date, from this category are not limited. follow-on training, and end assign- (b) The applicant applies directly to ment. the Academy requesting a nomination (3) Completes an indorsement and in this category. The nominating pe- forwards AF Form 1786 through the riod opens on May 1 and closes January CBPO to USAFA/RRS, USAF Academy, 31. A suggested letter format is included in the precandidate packet. Colorado Springs CO 80840–5651. The commander’s indorsement must in- NOTE: For the purpose of this category, children are defined as the natural children clude a comprehensive statement of of a parent and adopted children whose adop- the applicant’s character, ability, and tion proceedings were initiated before their motivation to become a career officer. 15th birthday. Statements in the application regarding component, length of service, and § 901.14 Regular airmen category. date of birth must be verified from offi- Appointments to fill vacancies from cial records. this competitive category are made from candidates in order of merit. A § 901.15 Reserve airmen category. total of 85 appointments are authorized Appointments to fill vacancies from from this category each year. Applica- this competitive category are made tions must be submitted no later than January 31 of the entry year. from candidates in order of merit. A (a) Any enlisted member of the Reg- total of 85 appointments are authorized ular component of the Air Force may from this category each year. Applica- apply for nomination. Selectees must tions must be submitted no later than be in active duty enlisted status when January 31 of the entry year. appointed as cadets. (a) Any enlisted member of the Air (b) Regular category applicants must Force Reserve or the Air National arrange to have their high school tran- Guard of the United States (ANGUS) scripts submitted to USAFA/RRS. may apply for nomination. They must also complete AF Form (b) A Reserve commissioned officer 1786, ‘‘Application for Appointment to who satisfactorily completes 1 year of

215

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00225 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 901.16 32 CFR Ch. VII (7–1–05 Edition)

service in an active Reserve assignment of their own country. Coordina- ment by July 1 of the year in which ad- tion with the U.S. Embassy is nec- mission is sought may apply for vacan- essary to ensure all admission and ap- cies in this category. (Reserve commis- pointment requirements are met. HQ sioned officer on extended active duty USAF/DPPA effects necessary con- (EAD) may apply for vacancies in the sultation before nomination invita- Regular competitive category.) If se- tions are forwarded to each country. lected, such candidates must have com- (b) The application must contain missioned officer status terminated complete particulars about the appli- and be in the enlisted Air Force Re- cant’s background and must be sub- serve before appointment as Air Force mitted as early as possible. Nomina- Academy cadets. Cadets in this cat- tions from this category must be re- egory who are separated from the Air ceived by the Academy by December 31 Force Academy without prejudice and before their desired summer admission. under honorable conditions may apply Applicants in these categories must for reappointment as Reserve commis- meet the eligibility and admissions re- sioned officers. quirements established for all Acad- (c) Reserve category applicants must emy candidates, except the require- arrange to have their high school tran- ment to be a U.S. citizen, and they scripts submitted to USAFA/RRS, com- must be able to read, write, and speak plete AF Form 1786, and submit it to English proficiently. their organization commander. The organization commander processes the § 901.18 Appointment vacancy selec- application as outlined in § 901.14(b). A tion. Reserve applicant is not placed on active duty to be processed for nomina- To fill a vacancy in the Vice-Presi- tion or appointment to the Air Force dential quota or in the quota of a Academy. nominating authority in the congres- (d) Reserve airmen on EAD as a re- sional and U.S. Possessions categories, sult of an honor suspension from the selections for appointment offers are Air Force Academy Cadet Wing must made according to the following nomi- reapply for admission under the proce- nation methods. dures specified in § 901.14(b). Addition- (a) The principal numbered-alternate ally, the AF Form 1786 which they sub- method. The nominating authority indi- mit must be endorsed by their wing cates his or her personal preference by commander, as well as their squadron designating a principal nominee and commander, and must make specific listing nine numbered alternate nomi- recommendations about their potential nees in order of preference, and the ap- to conform to Cadet Honor Code stand- pointment is offered to the first fully ards. qualified nominee. (b) The principal competitive-alternate § 901.16 Superintendent category. method. The nominating authority des- Fifty eligible applicants who have ignates his or her principal nominee not secured a nomination to the Acad- and names up to nine other nominees emy from any other nominating au- who are evaluated by the Academy and thority may be nominated by the Su- ranked behind the principal nominee in perintendent. Highly qualified appli- order of merit. If the principal nominee cants are selected for nomination from is fully qualified, that individual is of- the nationwide precandidate program fered the appointment; otherwise, the by the Academy. Appointments from fully qualified nominee ranked the this category are made in order of highest by the Academy is offered the merit from the nationwide pool of appointment. qualified alternates to fill the class. (c) The competitive method. At the request of the nominating authority, the § 901.17 Foreign students category. Academy evaluates the records of all (a) The Academy is authorized to the nominees and ranks them in order provide instruction to as many as 40 of merit. The fully qualified nominee foreign persons at any one time. For- ranked the highest by the Academy is eign citizens must apply to the govern- offered the appointment.

216

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00226 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 901.22

§ 901.19 Qualified alternate selection. (USAFA/RR). Conditional offers of ap- Fully qualified candidates not offered pointment that have been accepted are appointments in their nominating cat- held by USAFA/RRS until the condi- egory are placed in a nationwide pool tional factor is resolved—medical sta- of qualified alternates. To bring the tus cleared, satisfactory preparatory Cadet Wing up to full strength, addi- school or college transcript received, tional appointments are selected from proof of citizenship provided, etc. HQ this pool in order of merit. The first 150 USAF/DPPA is notified of removal of additional appointments are of individ- conditional status from offer of ap- uals having nominations from Members pointment in order to notify nomi- of Congress. Thereafter, three of every nating sources as stated above. four additional appointments are of in- USAFA/RR completes admissions individuals having nominations from the processing by: Vice President, Members of Congress, (1) Forwarding an appointment kit Delegates to Congress (from the Dis- which includes detailed reporting in- trict of Columbia, Virgin Islands, and structions to each appointee. Guam), Governor of Puerto Rico, Resi- (2) Issuing invitation to travel or- dent Commissioner of Puerto Rico, or Administrator of Panama Canal Com- ders. mission. (3) Notifying the Directorate of Cadet Personnel (USAFA/DPYC) of Regular § 901.20 Notice of nomination. airmen appointees. Regular airmen in The Director of Admissions (USAFA/ technical school completes all phases RRS) acknowledges receipt of all appli- of training, if time permits, before re- cants’ nominations. If not previously porting to the Academy. On gradua- received, USAFA/RRS forwards a tion, the airmen remain at the tech- precandidate questionnaire for comple- nical school in casual status (unless tion. If the precandidate questionnaire otherwise directed by HQ AFMPC/ indicates the potential to qualify for MPCRAC1) until earliest reporting admission to the Academy or the Pre- date for the Academy. paratory School, USAFA/RRS sends (b) The Department of Defense Med- the individual a candidate kit which ical Examination Review Board includes: USAFA Form 146, AFA Can- (DODMERB) notifies applicants of didate Personal Data Record; USAFA their medical status. USAFA/RRS in- Form 147, AFA Candidate Activities forms HQ USAF/DPPA of changes in Record; and USAFA Form 148, AFA Re- medical status of candidates offered quest for Secondary School Transcript; AF Form 2030, Drug Abuse Certificate; conditional appointments. and complete processing instructions. (c) USAFA/RRS notifies each unsuccessful candidate by May 1. For active § 901.21 Notification of selection or duty Air Force personnel, the servicing nonselection. CBPO also is notified and cancels the (a) Notification of candidates se- airman’s Assignment Availability Code lected for appointment are furnished 05. by USAFA/RRS to HQ USAF/DPPA. HQ USAF/DPPA notifies Members of Con- § 901.22 Notification of change of ad- gress and the Vice President of offers dress or station assignment. of appointment. After HQ USAF/DPPA The applicant or nominee is person- notifies the nominating sources and ad- ally responsible for notifying USAFA/ vises USAFA/RRS that notification has RRS, USAF Academy, Colorado been completed, USAFA/RRS notifies Springs, CO 80840–5651, of every change each appointee (civilian, Regular or of address or station assignment. Noti- Reserve service member) by letter, en- fications from military personnel must closing an acceptance or declination include complete name, grade, SSN, statement form. On receipt of an acceptance statement for each uncondi- and new organization or unit to which tional offer of appointment, USAFA/ assigned. RRS forwards the completed candidate file to Cadet Examinations and Records

217

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00227 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 901.23 32 CFR Ch. VII (7–1–05 Edition)

§ 901.23 Filling Presidential and air- Secretary of the Air Force for the costs men nominating categories. of Academy education if the recipient, If any of the annual quotas of cadets voluntarily or because of misconduct, authorized in the Regular airman, Re- fails to complete the period of active serve airman, or Presidential nomina- duty incurred. tion categories are not filled, then can- § 901.26 Cadet’s oath of allegiance. didates from the other two categories may fill the vacancies on a best-quali- On admission, each appointee (except fied basis. foreign cadets) will be required to take the following oath of allegiance: § 901.24 Supply of forms. I (name), having been appointed an Air USAFA Forms 146, 147, 148 and 149 are Force cadet in the United States Air Force, stocked and issued by USAFA/RRS, do solemnly swear (or affirm) that I will sup- USAF Academy, Colorado Springs, CO port and defend the Constitution of the 80840–5651. DD Form 1870 is stocked and United States against all enemies, foreign issued by the Air Force Academy Ac- and domestic; that I will bear true faith and tivities Group, HQ USAF/DPPA, Wash- allegiance to the same; that I take this obligation freely, without any mental reserva- ington, DC 20330–5060. tion or purpose of evasion; and that I will well and faithfully discharge the duties of § 901.25 Obligation of cadet appoint- the office of which I am about to enter. So ment. Help Me God. (a) A cadet who enters the Air Force Academy directly from civilian status If an appointee refuses to take and sub- and takes an oath of allegiance as a scribe to the oath, the appointment is cadet normally assumes a military terminated. service obligation of not less than 6 years nor more than 8 years under 10 § 901.27 Charging of appointees. U.S.C. 651. Appointment of candidates is accord- (b) A cadet who enters the Air Force ing to § 901.18. Selecting of the charged Academy from the Regular or Reserve cadets from the nominees for each va- component of the Air Force and fails to cancy is accomplished as follows: complete the Academy course of in- (a) Principal nominee, numbered-alter- struction reverts to enlisted status to nate method. Principal, if meeting the complete any prior service obligation admission criteria, is appointed and under 10 U.S.C. 516. charged. Otherwise the 1st alternate, if (c) If they are minors, cadets are re- meeting the admission criteria, is ap- quired to sign an agreement with the pointed and charged or the next suc- parent’s or guardian’s consent that ceeding numbered alternate who meets they will fulfill the following obliga- the admission criteria is appointed and tions: charged. In instances where a can- (1) Complete the Academy course of didate received two principal nomina- instruction unless disenrolled from the tions from two Congressional sources, Academy by competent authority. the principal normally is charged to (2) Accept an appointment and on the Member of Congress submitting the graduation serve as a commissioned of- principal nomination first. ficer in a Regular component of one of (b) Principal nominee, competitive-alter- the armed services for 5 years. nate method. Principal, if meeting the (3) Serve as a commissioned officer in admission criteria, is appointed and the Reserve component until the 8th charged. All alternates are ranked ac- anniversary if authorized to resign cording to merit. If the principal does from the Regular component before the not meet admission criteria, the high- 8th anniversary of their graduation. est ranking alternate is appointed and (4) Be subject to the separation poli- charged. cies in AFR 53–3 and, perhaps, be re- (c) Competitive nominee method. The quired to serve on active duty in en- group of competitive nominees are listed status if disenrolled from the evaluated, ranked according to merit, Academy before graduation. and the highest-ranked nominee, if (5) Reimburse the U.S. Air Force meeting the admission criteria, is ap- under regulations prescribed by the pointed and charged.

218

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00228 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 903.2

(d) Multiple Congressional nominations. PART 903—AIR FORCE ACADEMY For candidates receiving numerous PREPARATORY SCHOOL nominations, normally the candidate is charged to the congressional source. If Sec. the candidate is nominated by several 903.1 Purpose. congressional sources, the candidate 903.2 Preparatory school. normally is charged to the slate of the 903.3 Yearly schedule. 903.4 School location. congressional member where the can- 903.5 Who is eligible. didate ranks the highest, unless the 903.6 When to apply. candidate is the principal nominee or a 903.7 Application procedures. numbered alternate. 903.8 Selection procedures. (e) Other sources of nomination. All 903.9 Notification of selection or nonselection. other candidates not nominated by 903.10 Disenrollment. congressional, Vice-Presidential, or 903.11 Reassignment of students who are U.S. Possessions who are appointed are disenrolled or not offered an appoint- charged to that nominating source ment to a service academy. (Presidential, AFJROTC, AFROTC, 903.12 Reassignment of regular and reserve CODDV, Medal of Honor, etc.). members of the Air Force and regular members of the Army, Navy, and Marine (f) Qualified alternates. To bring the Corps who accept an appointment to a Cadet Wing up to strength, the quali- service academy. fied alternate appointed according to 903.13 Reserve enlistment procedures. § 901.19 is charged to the Secretary of 903.14 Sample letter. the Air Force as a qualified alternate. 903.15 Statement. Those candidates having congressional, AUTHORITY: 10 U.S.C. 8012, except as other- Vice-Presidential, or U.S. Possessions wise noted. nominations appear as a qualified al- SOURCE: 44 FR 47929, Aug. 16, 1979, unless ternate for that nominating source. otherwise noted. (g) Multiple congressional and other NOTE: This part is derived from Air Force Regulation 53–14, May 22, 1979. sources of nominations. For appointees Part 806 of this chapter states the basic who have multiple nominations, policies and instructions governing the dis- USAFA/RRS determines the appoint- closure of records and tells members of the ment category to which they are as- public what they must do to inspect or ob- signed. Normally a cadet with both tain copies of the material referenced herein. congressional and non-congressional § 903.1 Purpose. nominations is assigned to a congressional authority. Designation of This part tells how to apply for the ‘‘charged’’ cadets (those filling a Vice- Air Force Academy Preparatory School Presidential, congressional, or U.S. Program. It also explains the procedures for selection, disenrollment, and Possessions quota) also is accomplished assignment. by USAFA/RRS according to § 901.18. NOTE: This part is affected by the Privacy USAFA/RRS notifies HQ USAF/DPPA Act of 1974. The systems of records pre- of these assignments which are audited scribed here are authorized by Headquarters and verified by HQ USAF/DPPA. The USAF (AFOMO 126) letter, April 11, 1969; and Vice Presidential and nominating au- 10 U.S.C. 8012. Each form that is subject to thorities in Congress and U.S. Posses- AFR 12–35, paragraph 30, and is required by sions are notified of their charged ap- this part has a Privacy Act Statement, either incorporated in the body of the docu- pointees and other nominees who win ment or in a separate statement accom- appointments by HQ USAF/DPPA. panying the document.

§ 901.28 OMB approval of information § 903.2 Preparatory school. collection requirements. The mission of the United States Air The information collection require- Force Academy Preparatory School ments in this part 901 have been ap- (USAFAPS) is to prepare and evaluate proved by the Office of Management selected personnel for entrance into and Budget under control numbers the Cadet Wing of the United States 0701–0026, 0701–0063, 0701–0064, 0701–0066 Air Force Academy. It provides indepth and 0701–0087. instruction in mathematics, English,

219

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00229 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 903.3 32 CFR Ch. VII (7–1–05 Edition)

and the basic sciences, to enable stu- (k) Have completed Basic Training, if dents to qualify for entering into the a Reserve airman entering after nor- Cadet Wing. mal July entry date.

§ 903.3 Yearly schedule. § 903.6 When to apply. Classes are conducted each year from (a) Regular and Reserve members of July to early May. A limited number of the Air Force must send a complete ap- Regular and Reserve airmen may be plication to the Air Force Academy Di- enrolled at appropriate times after the rector of Cadet Admissions not later July starting date. than May 1. (b) Regular members of the Army, § 903.4 School location. Navy, or Marine Corps who are nomi- The USAFAPS is located at the nated for an appointment to the Air United States Air Force Academy near Force Academy must establish their Colorado Springs, Colorado. eligibility for nomination by May 1.

§ 903.5 Who is eligible. § 903.7 Application procedures. (a) Regular and Reserve members of To be eligible, USAFAPS candidates the Air Force must send the following must: through their organization commander (a) Be at least 17 years old and not and servicing CBPO (active duty only) have passed their 21st birthday by July to the Air Force Academy Director of 1 of the year to be admitted. Cadet Admissions. (b) Be a citizen of the United States. (1) AF Form 1786, Application for Ap- (c) Be unmarried and have no depend- pointment to the United States Air ent children. Force Academy Under Quota Allotted (d) Be on extended active duty. Air to Enlisted Members of the Regular Force Reserve or Air National Guard and Reserve Components of the Air members may apply while not on ex- Force. tended active duty but must agree to a (2) A certified transcript from each call to active duty if selected to at- high school, civilian preparatory tend. Air National Guard members se- school, or college that the applicant at- lected to attend will be transferred to tended. the Air Force Reserve prior to being (b) Regular members of the Army, called to active duty. Navy or Marine Corps must request en- (e) Agree, if a Regular member of the rollment by sending a letter as shown Armed Forces, to extend his or her cur- in § 903.14 to the Air Force Academy Di- rent enlistment, if the obligated tour rector of Cadet Admissions through of duty or enlistment contract expires their organization commander. prior to the date of preparatory school (c) The organization commander is graduation. responsible for: (f) Be medically qualified for an ap- (1) Sending the following to the Air pointment to the Air Force Academy. Force Academy Director of Cadet Ad- (g) Achieve a satisfactory score on missions (for active duty Air Force per- the Scholastic Aptitude Test (SAT) of- sonnel, the commander will send the fered by the Educational Testing Serv- completed application to the servicing ice, or on the American College Testing CBPO): (ACT) program tests, or on the Air (i) An AF Form 1786 for a Regular or Force Academy Selection Test. Reserve member of the Air Force, or a (h) Have an acceptable academic letter requesting enrollment by a Reg- record as determined by the Air Force ular member of the Army, Navy, or Academy Director of Cadet Admis- Marine Corps. sions. (ii) Certified transcripts from each (i) Not have previously attended a high school, civilian preparatory service academy preparatory school. school, or college attended by the ap- (j) Have received a nomination to the plicant. Air Force Academy, if a Regular mem- (iii) One copy of the applicant’s most ber of the Army, Navy, or Marine recent Airman Performance Report Corps. (AF Form 909 or 910, as applicable).

220

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00230 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 903.11

(iv) One copy of the applicant’s Re- (e) Air Force personnel entering the port of Individual Report (RIP). USAF Academy Preparatory School (v) A recommendation for selection will enter in the highest active duty or nonselection which gives a full de- grade they held as of the date of en- scription of the applicant’s character trance without change to DOR or effec- and suitability for the Preparatory tive date. Future promotions will be in School program and includes the fol- accordance with AFR 39–29. lowing statement: § 903.10 Disenrollment. Information regarding component, length of service, and date of birth have been Students may be disenrolled when verified from official records. the Commander of the Prep School determines that one or more of the fol- (d) The servicing CBPO (for active lowing conditions exist: duty personnel) is responsible for: (a) The student has failed to meet (1) Making sure that the applicant is and maintain academic standards. assigned an Assignment Availability (b) The student has failed to dem- Code ‘‘05’’ IAW table 3–3, AFR 39–11. onstrate adaptability and suitability (2) Sending the application to the Air for the Air Force Academy academic, Force Academy Director of Cadet Ad- military, or physical training pro- missions. grams. (c) The student’s conduct is unsatis- § 903.8 Selection procedures. factory. Applicants are selected for enroll- (d) The student’s retention in the ment by the Air Force Academy on the program is not in the best interests of basis of test scores, medical examina- the government. tion, prior academic record, rec- (e) The student marries. ommendation of the organization com- (f) The student becomes medically mander, and other reports and records disqualified for an appointment to the which indicate the applicant’s apti- Air Force Academy. tude, achievement, or ability to com- (g) The student request plete the program successfully. disenrollment.

§ 903.9 Notification of selection or non- § 903.11 Reassignment of students who selection. are disenrolled or not offered an appointment to a service academy. (a) When applicable, the Air Force Academy Director of Cadet Admissions These students will be reported by will send a notice of nonselection for USAFA/PL to USAFA/DPMU. Air Force personnel, to the applicant (a) Regular Air Force members will and the servicing CBPO. be reported by USAFA/DPMU to (b) Upon receipt of a notice of non- AFMPC/MPCRAC 3 for reassignment as selection, the servicing CBPO for Reg- follows: ular members of the Air Force will can- (1) Name, grade, and SSAN. cel the applicant’s Assignment Avail- (2) CAFSC, PAFSC, and any addi- ability Code 05. tional AFSCs. (c) Upon selection of Air Force per- (3) Former unit, base, and command sonnel to attend the USAFAPS, the Air of assignment. Force Academy Director of Cadet Ad- (4) DOS. missions will notify the Air Force (5) ODSD/STRD and last area of Academy CBPO/DPMUM of the select- oversea assignment. ee’s name, grade, SSAN, AFSC, and (6) Oversea volunteer status. unit of assignment. The Air Force (7) Assignment preferences. Academy CBPO will insure that the se- (8) Assignment deferment status. lectee is assigned to the USAFAPS, (9) Reason for reassignment action. USAF Academy CO 80840. (10) Statement as to the airman’s (d) The Department of Defense Med- possible appointment to another serv- ical Examination Review Board ice academy. (DODMERB) will notify applicants of (b) Air Force reservists are reas- their medical status. signed as follows:

221

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00231 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 903.12 32 CFR Ch. VII (7–1–05 Edition)

(1) Reserve Air Force members called be forwarded to AFMPC/MPCDOB for to active duty solely to attend the processing. school will be discharged from the (d) Regular airmen who enter any of United States Air Force under the au- the three service academies will be re- thority of this part and AFR 39–10. quired to sign the statement shown at (2) Reserve Air Force members pre- § 903.15. viously assigned to a Reserve Unit will (e) Regular members of the Army, be released from active duty and reas- Navy, or Marine Corps who enter the signed to the Air Reserve Personnel Air Force Academy will be reported to Center under the authority of this part the appropriate service as shown in and AFR 39–10. § 903.11(c). (3) Air National Guard members pre- (f) HQ USAFA/DPMQS will publish viously assigned to an ANG unit will be relieved from active duty orders for released from active duty and reas- USAF Academy Preparatory School signed to the appropriate State Adju- students who are regular and reserve tant General under the authority of airmen and who, upon completion of this part and AFR 39–10. the USAF Academy Preparatory (c) Regular members of the other School, accept appointments to a serv- services will be reported as follows: ice academy. (1) Members of the Navy will be reported to the Officer-in-Charge, § 903.13 Reserve enlistment proce- NAVUN Lowry, Colorado Springs De- dures. tachment, 801 Prospect Lake Drive, The enlistment into the Air Force Colorado Springs CO 80901. Reserve of civilian selectees for the (2) Members of the Army will be re- USAF Academy Preparatory School ported as currently specified in AR 600– will be accomplished as follows: 635. (a) The Office of Cadet Admissions (3) Members of the Marine Corps will and Registrar (RRS), USAF Academy, be reported to MARTU, MARTC, Den- CO, will send to each selectee a DD ver CO 80240. Form 1966, Application for Enlistment- Armed Forces of the United States, § 903.12 Reassignment of regular and with instructions for its completion. reserve members of the Air Force The selectee will be instructed to send and regular members of the Army, the completed DD form 1966 to HQ Navy, and Marine Corps who accept ARPC/DPRPP, Denver CO 80280. A an appointment to a service acad- preaddressed envelope will be provided emy. for this purpose. (a) Regular and Reserve Airmen will (b) Upon receipt of the completed DD be released from enlisted active duty Form 1966, HQ ARPC/DPRPP will re- and will be reassigned as active duty view the form for completion and ac- Air Force Academy cadets, to be effec- ceptance of the applicant for enlist- tive on the date of entry into the Acad- ment. emy in accordance with: (c) If the applicant is acceptable for (1) DAF Letter, ‘‘Members of the enlistment, HQ ARPC/DPRPP will Armed Forces Appointed to a Service complete a DD Form 4, Enlistment or Academy,’’ July 8, 1957. Reenlistment Agreement—Armed (2) 10 U.S.C. 516, 8201, 8203, 8205, and Forces of the United States, for each 8214. applicant. (3) AFR 39–10. (d) HQ ARPC/DPRPP and the USAF (b) Records for Regular and Reserve Academy Preparatory School will be members of the Air Force who enter responsible for administering the oath the Air Force Academy will be retained of enlistment for each applicant. This by the Academy until the airman is oath is administered on the date of commissioned or disenrolled. These inprocessing at the USAF Academy members will not be issued DD Form Preparatory School, and the effective 214, Report of Separation from Active date of enlistment is the date the ap- Duty. plicant took the oath. (c) Records for Regular Airmen who (e) HQ ARPC/DPRPP will publish Re- enter one of the other academies will serve Orders placing the applicant on

222

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00232 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 903.15

active duty for the purpose of attend- b. My academic transcripts are being re- ing the USAF Academy Preparatory quested from the appropriate school offi- School. The school will determine the cials. They will mail them to the Director of date of call to active dute (usually, this Cadet Admissions, USAFA/RRS. I last attended (name of high school, college, or pre- is the date the applicant was adminis- paratory school), (address of school). tered the oath of enlistment). HQ 4. I was born on (day) (month) (year). My ARPC/DPRPP will give copies of the present enlistment expires (day) (month) orders to the CBPO/DPMA, USAF (year). Academy CO 80840 on the date of NAME, Grade, Branch of Service. inprocessing. SSAN. Organization. § 903.14 Sample letter. Location. Telephone No. Subject: Application To Attend Air Force NOTE: To be used only by military nomi- Academy Preparatory School. nee—see § 903.7(b) (Army, Navy, and Marine Thru: Organization Commander. Corps only) (Regular and Reserve Air Force To: USAFA/RRS USAF Academy CO 80840. applicants must use AF Form 1786). 1. I hereby apply under the provision of AFR 53–14 to attend the Air § 903.15 Statement. Force Academy Preparatory School Upon acceptance as a Cadet in the lllll for Air Force Academy candidates. Academy, effective llll I understand 1. (Use appropriate sentence(s) list- that in accordance with the provisions of Pub. L. 614, 84th Congress, should my ap- ed below): pointment be terminated for reasons other a. I have been nominated by (indicate than acceptance of a commission in a Reg- name of Senator/Representative) for appoint- ular or Reserve component of the Armed ment to the Air Force Academy. Forces, or for physical Disability, I will re- b. I have applied for candidacy to the Air vert to my former enlisted or inducted sta- Force Academy under the following competi- tus in effect immediately prior to acceptance tion(s) (list those that apply) of appointment as a cadet in the llll for the purpose of completing any remaining ac- Presidential. tive and inactive service required under my Sons or Daughters of Deceased or Disabled enlistment contract or my service obligation Veterans. under the Universal Military Training and Sons or Daughters of Medal of Honor Re- Service Act, or both, as appropriate. I fur- cipients. ther understand that any time served as a 3. (Use appropriate sentence(s) listed Cadet shall be counted as time served under below): my enlistment contract or period of obli- a. My academic transcripts are attached. gated service, or both, as appropriate.

SUBCHAPTERS L–M [RESERVED]

223

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00233 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER N—TERRITORIAL AND INSULAR REGULATIONS

PART 935—WAKE ISLAND CODE Subpart J—Civil Actions 935.90 General. Subpart A—General 935.91 Summons. 935.92 Service of complaint. Sec. 935.93 Delivery of summons to plaintiff. 935.1 Applicability. 935.94 Answer. 935.2 Purpose. 935.95 Proceedings; record; judgment. 935.3 Definitions. 935.96 Execution of judgment. 935.4 Effective date. 935.97 Garnishment.

Subpart B—Civil Administration Authority Subpart K—Criminal Actions 935.10 Designation and delegation of author- 935.100 Bail. ity. 935.101 Seizure of property. 935.11 Permits. 935.102 Information. 935.12 Functions, powers, and duties. 935.103 Motions and pleas. 935.13 Revocation or suspension of permits 935.104 Sentence after a plea of guilty. and registrations. 935.105 Trial. 935.14 Autopsies. 935.15 Notaries public. Subpart L—Appeals and New Trials 935.16 Emergency authority. 935.110 Appeals. Subpart C—Civil Law 935.111 New trial. 935.20 Applicable law. Subpart M—Peace Officers 935.21 Civil rights, powers, and duties. 935.120 Authority. Subpart D—Criminal Law 935.121 Qualifications of peace officers. 935.122 Arrests. 935.30 General. 935.123 Warrants. 935.124 Release from custody. Subpart E—Petty Offenses 935.125 Citation in place of arrest. 935.40 Criminal offenses. Subpart N—Motor Vehicle Code Subpart F—Penalties 935.130 Applicability. 935.131 Right-hand side of the road. 935.50 Petty offenses. 935.132 Speed limits. 935.51 Motor vehicle violations. 935.133 Right-of-way. 935.52 Violations of Subpart O or P of this 935.134 Arm signals. part. 935.135 Turns. 935.53 Contempt. 935.136 General operating rules. 935.137 Operating requirements. Subpart G—Judiciary 935.138 Motor bus operation. 935.139 Motor vehicle operator qualifica- 935.60 Wake Island Judicial Authority tions. 935.61 Wake Island Court. 935.140 Motor vehicle maintenance and 935.62 Island Attorney. equipment. 935.63 Public Defender. 935.64 Clerk of the Court. Subpart O—Registration and Island Permits 935.65 Jurisdiction. 935.66 Court of Appeals. 935.150 Registration. 935.67 Clerk of the Court of Appeals. 935.151 Island permit for boat or vehicle. 935.68 Jurisdiction of the Court of Appeals. 935.152 Activities for which permit is re- 935.69 Qualifications and admission to prac- quired. tice. Subpart P—Public Safety Subpart H—Statute of Limitations 935.160 Emergency requirements and re- 935.70 Limitation of actions. strictions. 935.161 Fire hazards. Subpart I—Subpoenas, Wake Island Court 935.162 Use of special areas. 935.163 Unexploded ordnance material. 935.80 Subpoenas. 935.164 Boat operations.

224

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00234 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.11

935.165 Floating objects. Subpart B—Civil Administration AUTHORITY: Sec. 48, Pub. L. 86–624, 74 Stat. Authority 424; E.O. 11048, Sept. 1, 1962, 27 FR 8851, 3 CFR, 1959–1963 Comp., p. 632; agreement be- § 935.10 Designation and delegation of tween the Department of Interior and De- authority. partment of the Air Force, dated 19 June 1972, 37 FR 12255; and Secretary of the Air (a) The civil administration author- Force Order 111.1, dated 26 April 1999. ity at Wake Island is vested in the Sec- retary of the Air Force. That authority SOURCE: 67 FR 16999, Apr. 9, 2002, unless has been delegated to the General otherwise noted. Counsel of the Air Force with authority to redelegate all or any part of his Subpart A—General functions, powers, and duties under this part to such officers and employ- § 935.1 Applicability. ees of the Air Force as he may des- (a) The local civil and criminal laws ignate, but excluding redelegation of of Wake Island consist of this part and the power to promulgate, amend, or re- applicable provisions of the laws of the peal this part, or any part thereof. United States. Such redelegation must be in writing (b) For the purposes of this part, and must be in accordance with any ap- Wake Island includes Wake, Peale, and plicable Secretary of the Air Force Or- Wilkes Islands, and the appurtenant ders. Such redelegation may be further reefs, shoals, shores, bays, lagoons, redelegated subject to such restrictions keys, territorial waters, and superadja- as the delegating authority may im- cent airspace of them. pose. A redelegation may also be made to a commissioned officer serving in § 935.2 Purpose. another United States military service The purpose of this part is to pro- who exercises military command, but vide— such redelegation must explicitly and (a) For the civil administration of specifically list the powers redelegated Wake Island; and shall not include the power or au- (b) Civil laws for Wake Island not thority to issue permits, licenses, or otherwise provided for; other outgrants unless individually ap- (c) Criminal laws for Wake Island not proved by the Air Force official who otherwise provided for; and made the redelegation. The Com- (d) A judicial system for Wake Island mander is the agent of the Secretary, not otherwise provided for. his delegate and designee when carrying out any function, power, or duty § 935.3 Definitions. assigned under this part. In this part— (b) The authority of the General (a) General Counsel means the Gen- Counsel to appoint Judges shall not be eral Counsel of the Air Force or his delegated. successor in office. (c) Judges and officers of the court (b) Commander means the Com- may not redelegate their powers or au- mander, Wake Island. thorities except as specifically noted in (c) Commander, Wake Island means this part. the Commander of Pacific Air Forces or such subordinate commissioned offi- § 935.11 Permits. cer of the Air Force to whom he may (a) Permits in effect on the dates delegate his authority under this part. specified in § 935.4 continue in effect (d) He or his includes both the mas- until revoked or rescinded by the Com- culine and feminine genders, unless the mander. Permits issued by the Com- context implies otherwise. mander shall conform to the require- (e) Judge includes Judges of the Wake ments of Air Force Instruction 32–9003 Island Court and Court of Appeals. (Available from the National Technical Information Service, 5285 Port Royal § 935.4 Effective date. Road, Springfield, VA 22161.). No per- This part was originally applicable at mit or registration shall be issued 0000 June 25, 1972. Amendments to this under other authority that is incon- part apply April 10, 2002. sistent with this part. The Commander

225

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00235 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 935.12 32 CFR Ch. VII (7–1–05 Edition)

may issue island permits or registra- if he determines it would interfere with tion for— public business or endanger the health (1) Businesses, including any trade, and safety of persons and property on profession, calling, or occupation, and Wake Island; any establishment where food or bev- (n) Perform or direct any other acts, erages are prepared, offered, or sold for not inconsistent with this part or ap- human consumption. plicable laws and regulations, if he con- (2) Self-propelled motor vehicles, ex- siders it necessary for protection of the cept aircraft, including attached trail- health or safety of persons and prop- ers. erty on Wake Island; and (3) Vehicle operators. (o) Issue any order or notice nec- (4) Boats. essary to implement this section. Any (5) Food handlers. order or notice issued pursuant to Air (6) Drugs, narcotics, and poisons. Force directives and instructions as ap- (7) Construction. plicable to Wake Island shall con- (8) Burials. stitute an order or notice issued pursu- (b) To the extent it is not incon- ant to this section. sistent with this part, any permit or registration issued pursuant to Air § 935.13 Revocation or suspension of Force directives or instructions as ap- permits and registrations. plicable to Wake Island shall con- (a) The Commander may revoke or stitute a permit or registration under suspend any island permit or registra- this section, and no other permit or tion for cause, with or without notice. registration shall be required. (b) The holder of any revoked or suspended permit or registration may de- § 935.12 Functions, powers, and duties. mand a personal hearing before the The Commander may— Commander within 30 days after the ef- (a) Appoint Peace Officers; fective date of the revocation or sus- (b) Direct the abatement of any pub- pension. lic nuisance upon failure of any person (c) If a hearing is demanded, it shall to comply with a notice of removal; be granted by the Commander within (c) Direct sanitation and fire preven- 30 days of the date of demand. The ap- tion inspections; plicant may appear in person and (d) Establish records of vital statis- present such documentary evidence as tics; is pertinent. The Commander shall (e) Direct the registration and in- render a decision, in writing, setting spections of motor vehicles, boats, and forth his reasons, within 30 days there- aircraft; after. (f) Impose quarantines; (d) If a hearing is not granted within (g) Direct the impoundment and de- 30 days, a written decision is not ren- struction of unsanitary food, fish, or dered within 30 days after a hearing, or beverages; the applicant desires to appeal a deci- (h) Direct the evacuation of any per- sion, he may, within 30 days after the son from a hazardous area; latest of any of the foregoing dates ap- (i) Commission notaries public; peal in writing to the General Counsel, (j) Establish and maintain a facility whose decision shall be final. for the restraint or confinement of persons and provide for their care; § 935.14 Autopsies. (k) Direct the removal of any person The medical officer on Wake Island, from Wake Island and prohibit his fu- or any other qualified person under his ture presence on the island; supervision, may perform autopsies (l) Issue traffic regulations that are upon authorization of the Commander not inconsistent with this part, and or a Judge of the Wake Island Court. post traffic signs; (m) Prohibit the posting, distribu- § 935.15 Notaries public. tion, or public display of advertise- (a) To the extent he considers there ments, signs, circulars, petitions, or to be a need for such services, the Com- similar materials, soliciting, picketing, mander may commission one or more or parading in any public place or area residents of Wake Island as notaries

226

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00236 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.40

public. The Commander of Pacific Air Subpart D—Criminal Law Forces may not redelegate this authority. § 935.30 General. (b) A person applying for commission In addition to any act made criminal as a notary public must be a citizen of in this part, any act committed on the United States and shall file an ap- Wake Island that would be criminal if plication, together with evidence of committed on board a merchant vessel good character and a proposed seal in or other vessel belonging to the United such form as the Commander requires, States is a criminal offense and shall with a fee of $50 which shall be depos- be adjudged and punished according to ited in the Treasury as a miscellaneous the laws applicable on board those ves- receipt. sels on the high seas. (c) Upon determining there to be a need for such a service and after such Subpart E—Petty Offenses investigation as he considers necessary, the Commander may commis- § 935.40 Criminal offenses. sion an applicant as a notary public. No person may on Wake Island— Commissions shall expire 3 years after (a) Sell or give an alcoholic beverage the date thereof, and may be renewed manufactured for consumption (includ- upon application upon payment of a fee ing beer, ale, or wine) to any person of $25. who is not at least 21 years of age; (d) Judges and the Clerk of the Wake (b) Procure for, engage in, aid or abet Island Court and the Island Attorney in, or solicit for prostitution; shall have the general powers of a no- (c) Use any building, structure, vehi- tary public. cle, or public lands for the purpose of lewdness, assignation, or prostitution; § 935.16 Emergency authority. (d) Possess or display (publicly or pri- During the imminence and duration vately) any pornographic literature, of any emergency declared by him, the film, device, or any matter containing Commander may perform or direct any obscene language, that tends to cor- acts necessary to protect life and prop- rupt morals; erty. (e) Make any obscene or indecent exposure of his person; Subpart C—Civil Law (f) Commit any disorderly, obscene, or indecent act; § 935.20 Applicable law. (g) Commit any act of voyeurism (Peeping Tom); Civil acts and deeds taking place on (h) Enter upon any assigned residen- Wake Island shall be determined and tial quarters or areas immediately ad- adjudicated as provided in this part; jacent thereto, without permission of and otherwise, as provided in the Act the assigned occupant; of June 15, 1950 (64 Stat. 217) (48 U.S.C. (i) Discard or place any paper, debris, 644a), according to the laws of the refuse, garbage, litter, bottle, can, United States relating to such an act human or animal waste, trash, or junk or deed taking place on the high seas in any public place, except into a re- on board a merchant vessel or other ceptacle or place designated or used for vessel belonging to the United States. that purpose; (j) Commit any act of nuisance; § 935.21 Civil rights, powers, and du- (k) With intent to provoke a breach ties. of the peace or under such cir- In any case in which the civil rights, cumstances that a breach of the peace powers, and duties of any person on may be occasioned thereby, act in such Wake Island are not otherwise pre- a manner as to annoy, disturb, inter- scribed by the laws of the United fere with, obstruct, or be offensive to States or this part, the civil rights, any other person; powers, and duties as they obtain under (l) Be drunk in any public place; the laws of the State of Hawaii will (m) Use any profane or vulgar lan- apply to persons on Wake Island. guage in a public place;

227

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00237 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 935.50 32 CFR Ch. VII (7–1–05 Edition)

(n) Loiter or roam about Wake Is- vehicle operator’s permit, or any com- land, without any lawful purpose, at bination or all of these punishments. late and unusual hours of the night; (o) Lodge or sleep in any place with- § 935.52 Violations of Subpart O or P out the consent of the person in legal of this part. possession of that place; (a) Whoever is found guilty of a viola- (p) Grossly waste any potable water; tion of subpart O or P of this part is (q) Being a male, knowingly enter subject to a fine of not more than $100, any area, building, or quarters reserved or imprisonment of not more than 30 for women, except in accordance with days, or both. established visiting procedures; (b) The penalties prescribed in para- (r) Smoke or ignite any fire in any graph (a) of this section are in addition designated and posted ‘‘No Smoking’’ to and do not take the place of any area, or in the immediate proximity of criminal penalty otherwise applicable any aircraft or fueling pit; and currently provided by the laws of (s) Enter any airplane parking area the United States. or ramp, unless he is on duty therein, is a passenger under appropriate super- § 935.53 Contempt. vision, or is authorized by the Com- A Judge may, in any civil or criminal mander to enter that place; case or proceeding, punish any person (t) Interfere or tamper with any air- for disobedience of any order of the craft or servicing equipment or facil- Court, or for any contempt committed ity, or put in motion the engine of any in the presence of the Court, by a fine aircraft without the permission of its of not more than $100, or imprisonment operator; of not more than 30 days, or both. (u) Post, distribute, or publicly display advertisements, signs, circulars, Subpart G—Judiciary petitions, or similar materials, or solicit, picket, or parade in any public § 935.60 Wake Island Judicial Author- place or area where prohibited by the ity. Commander pursuant to § 935.12; (a) The judicial authority under this (v) Import onto or keep on Wake Is- part is vested in the Wake Island Court land any plant or animal not indige- and the Wake Island Court of Appeals. nous to the island, other than military (b) The Wake Island Court and the working dogs or a guide dog for the Wake Island Court of Appeals shall blind or visually-impaired accom- each have a seal approved by the Gen- panying its owner; or eral Counsel. (w) Import or bring onto or possess (c) Judges and Clerks of the Courts while on Wake Island any firearm, may administer oaths. whether operated by air, gas, spring, or otherwise, or explosive device, includ- § 935.61 Wake Island Court. ing fireworks, unless owned by the (a) The trial judicial authority for United States. Wake Island is vested in the Wake Is- land Court. Subpart F—Penalties (b) The Wake Island Court consists of one or more Judges, appointed by the § 935.50 Petty offenses. General Counsel as needed. The term of Whoever is found guilty of a viola- a Judge shall be for one year, but he tion of any provision of subpart E of may be re-appointed. When the Wake this part is subject to a fine of not Island Court consists of more than one more than $500 or imprisonment of not Judge, the General Counsel shall des- more than 6 months, or both. ignate one of the Judges as the Chief Judge who will assign matters to § 935.51 Motor vehicle violations. Judges, determine when the Court will Whoever is found guilty of a viola- sit individually or en banc, and pre- tion of subpart N of this part is subject scribe rules of the Court not otherwise to a fine of not more than $100, impris- provided for in this Code. If there is onment of not more than 30 days, or only one Judge appointed, that Judge suspension or revocation of his motor shall be the Chief Judge.

228

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00238 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.69

(c) Sessions of the Court are held on shall be for one year, but he may be re- Wake Island or Hawaii at times and appointed. The Chief Judge assigns places designated by the Chief Judge. matters to Judges, determines whether the Court sits individually or en banc, § 935.62 Island Attorney. and prescribes rules of the Court not There is an Island Attorney, ap- otherwise provided for in this part. pointed by the General Counsel as (c) Sessions of the Court of Appeals needed. The Island Attorney shall serve are held in the National Capital Region at the pleasure of the General Counsel. at times and places designated by the The Island Attorney represents the Chief Judge. The Court may also hold United States in the Wake Island Court sessions at Wake Island or in Hawaii. and in the Wake Island Court of Ap- (d) A quorum of the Court of Appeals peals. will consist of one Judge when sitting individually and three Judges when sit- § 935.63 Public Defender. ting en banc. There is a Public Defender, appointed (e) The address of the Court of Ap- by the General Counsel as needed. The peals is—Wake Island Court of Appeals, Public Defender shall serve at the SAF/GC, Room 4E856, 1740 Air Force pleasure of the General Counsel. The Pentagon, Washington, DC 20330–1740. Public Defender represents any person charged with an offense under this part § 935.67 Clerk of the Court of Appeals. who requests representation and who is not able to afford his own legal rep- There is a Clerk of the Court of Ap- resentation. peals, who is appointed by the Chief Judge. The Clerk serves at the pleasure § 935.64 Clerk of the Court. of the Chief Judge. The Clerk maintains a public docket containing such There is a Clerk of the Court, who is information as the Chief Judge may appointed by the Chief Judge. The Clerk shall serve at the pleasure of the prescribe, administers oaths, and per- Chief Judge. The Clerk maintains a forms such other duties as the Court public docket containing such informa- directs. The Clerk is an officer of the tion as the Chief Judge may prescribe, Court. administers oaths, and performs such § 935.68 Jurisdiction of the Court of other duties as the Court may direct. Appeals. The Clerk is an officer of the Court. The Court of Appeals has jurisdiction § 935.65 Jurisdiction. over all appeals from the Wake Island (a) The Wake Island Court has juris- Court. diction over all offenses under this part and all actions of a civil nature, cog- § 935.69 Qualifications and admission to practice. nizable at law or in equity, where the amount in issue is not more than (a) No person may be appointed a $1,000, exclusive of interests and costs, Judge, Island Attorney, or Public De- but not including changes of name or fender under this part who is not a domestic relations matters. member of the bar of a State, Common- (b) The United States is not subject wealth, or Territory of the United to suit in the Court. States or of the District of Columbia. (c) The United States may intervene (b) Any person, other than an officer in any matter in which the Island At- or employee of the Department of the torney determines it has an interest. Air Force, appointed as a Judge, Island Attorney, Public Defender, or to any § 935.66 Court of Appeals. other office under this part shall, prior (a) The appellate judicial authority to entering upon the duties of that of- for Wake Island is vested in the Wake fice, take an oath, prescribed by the Island Court of Appeals. General Counsel, to preserve, protect, (b) The Wake Island Court of Appeals and defend the Constitution of the consists of a Chief Judge and two Asso- United States. Such oath may be ad- ciate Judges, appointed by the General ministered by any officer or employee Counsel as needed. The term of a judge of the Department of the Air Force.

229

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00239 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 935.70 32 CFR Ch. VII (7–1–05 Edition)

(c) Civilian officers and employees of shall command each person to whom it the Department of the Air Force may is directed to attend and give testi- be appointed as a Judge, Island Attor- mony at the time and place specified ney, Public Defender, or Clerk, as an therein. The Clerk may issue a sub- additional duty and to serve without poena for a party requesting it, setting additional compensation. Officers and forth the name of the witness subpoe- employees of the Department of the naed. Air Force, both civilian and military, (b) A Judge or the Clerk may also who serve in positions designated as issue a subpoena commanding the per- providing legal services to the Depart- son to whom it is directed to produce ment and who are admitted to practice the books, papers, documents, or other law in an active status before the high- objects designated therein. The Court est court of a State, Commonwealth, or may direct that books, papers, docu- territory of the United States, or of the ments, or other objects designated in District of Columbia, and are in good the subpoena be produced before the standing therewith, are admitted to Court at a time before the trial or be- the Bar of the Wake Island Court and fore the time when they are to be of- the Wake Island Court of Appeals. fered into evidence. It may, upon their (d) No person may practice law before production, allow the books, papers, the Wake Island Court or the Wake Is- documents, or objects or portions land Court of Appeals who is not ad- thereof to be inspected by the parties mitted to Bar of those courts. Any per- and their representatives. son admitted to practice law in an ac- (c) Any peace officer or any other tive status before the highest court of person who is not a party and who is at a State, Commonwealth, or territory of least 18 years of age may serve a sub- the United States, or of the District of poena. Service of a subpoena shall be Columbia, and in good standing there- made by delivering a copy thereof to with, may be admitted to the Bar of the person named. the Wake Island Court and the Wake (d) The Clerk of the Court shall as- Island Court of Appeals. Upon request sess and collect a witness fee of $40 for of the applicant, the Court, on its own each subpoena requested by any party motion, may grant admission. A grant other than the United States, which of admission by either court constitutes admission to practice before shall be tendered to the witness as his both courts. witness fee together with service of the subpoena. Witnesses subpoenaed by the Island Attorney shall be entitled to a Subpart H—Statute of Limitations fee of $40 upon presentment of a proper claim therefor on the United States. § 935.70 Limitation of actions. No duly summoned witness may refuse, (a) No civil action may be filed more decline, or fail to appear or disobey a than 1 year after the cause of action subpoena on the ground that the wit- arose. ness fee was not tendered or received. (b) No person is liable to be tried (e) Upon a showing that the evidence under this part for any offense if the is necessary to meet the ends of justice offense was committed more than 1 and that the defendant is indigent, the year before the date the information or Public Defender may request the Court citation is filed with the Clerk of the to direct the Island Attorney to obtain Wake Island Court. the issuance of a subpoena on behalf of a defendant in a criminal case. Wit- Subpart I—Subpoenas, Wake nesses so called on behalf of the defend- Island Court ant shall be entitled to the same witness fees as witnesses requested by the § 935.80 Subpoenas. Island Attorney. (a) A Judge or the Clerk of the Court (f) Subpoenas may be credited only to shall issue subpoenas for the attend- persons or things on Wake Island. ance of witnesses. The subpoena must (g) No person who is being held on include the name of the Court and the Wake Island because of immigration title, if any, of the proceeding; and status shall be entitled to a witness

230

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00240 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.95

fee, but shall nevertheless be subject to Dated: llllll, 20 llllll. (Clerk, subpoena like any other person. Wake Island Court) llllllll § 935.92 Service of complaint. Subpart J—Civil Actions (a) A peace officer or other person § 935.90 General. designated by the Court to make service shall serve the summons and a copy (a) The Federal Rules of Civil Proce- of the complaint at Wake Island upon dure (28 U.S.C.) apply to civil actions the defendant personally, or by leaving in the Court to the extent the presiding them at his usual place of abode with Judge considers them applicable under any adult residing or employed there. the circumstances. (b) In the case of a corporation, part- (b) There is one form of action called nership, joint stock company, trading the ‘‘Civil Action.’’ association, or other unincorporated (c) Except as otherwise provided for association, service may be made at in this part, there is no trial by jury. Wake Island by delivering a copy of the (d) A civil action begins with the fil- summons and complaint to any of its ing of a complaint with the Court. The officers, a managing or general agent, form of the complaint is as follows ex- or any other agent authorized by ap- cept as it may be modified to conform pointment or by law to receive service. as appropriate to the particular action:

IN THE WAKE ISLAND COURT § 935.93 Delivery of summons to plaintiff. [Civil Action No. ] lll The Clerk of the Court shall prompt- llllll (Plaintiff) vs. lllllll, (Defendant) ly provide a copy of the summons to the plaintiff, together with notice that Complaint if the plaintiff fails to appear at the llllll plaintiff alleges that the defend- Court at the time set for the trial, the ant is indebted to plaintiff in the sum of case will be dismissed. The trial shall $lll; that plaintiff has demanded payment be set at a date that will allow each of said sum; that defendant has refused to party at least 7 days, after the plead- pay; that defendant resides at lllll on ings are closed, to prepare. Wake Island; that plaintiff resides at llllll. § 935.94 Answer. § 935.91 Summons. (a) The defendant may, at his election, file an answer to the complaint. Upon the filing of a complaint, a (b) The defendant may file a counter- Judge or Clerk of the Court shall issue claim, setoff, or any reasonable affirm- a summons in the following form and ative defense. deliver it for service to a peace officer (c) If the defendant elects to file a or other person specifically designated counterclaim, setoff, or affirmative de- by the Court to serve it: fense, the Court shall promptly send a IN THE WAKE ISLAND COURT copy of it to the plaintiff. [Civil Action No. lll] § 935.95 Proceedings; record; judg- llllllll (Plaintiff), vs. lllllllll ment. (Defendant) (a) The presiding Judge is responsible Summons for the making of an appropriate To the above-named defendant: record of each civil action. You are hereby directed to appear and an- (b) All persons shall give their testi- swer the attached cause at llllll on mony under oath or affirmation. The llllll day of lll 20—, at lllllll Chief Judge shall prescribe the oath -.M. and to have with you all books, papers, and affirmation that may be adminis- and witnesses needed by you to establish any tered by any Judge or the Clerk of the defense you have to said claim. Court. You are further notified that in case you do not appear, judgment will be given (c) Each party may present witnesses against you, for the amount of said claim, and other forms of evidence. In addi- together with cost of this suit and the serv- tion, the presiding Judge may infor- ice of this order. mally investigate any controversy, in

231

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00241 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 935.96 32 CFR Ch. VII (7–1–05 Edition)

or out of the Court, if the evidence ob- § 935.97 Garnishment. tained as a result is adequately dis- (a) If a judgment debtor fails to sat- closed to all parties. Witnesses, books, isfy a judgment in full within 60 days papers, documents, or other objects after the entry of judgment (or such may be subpoenaed as provided for in other period as the Court may pre- § 935.80 for criminal cases. scribe), the Court may, upon the appli- (d) The Court may issue its judgment cation of the judgment creditor issue a in writing or orally from the bench. writ of garnishment directed to any However, if an appeal is taken from the person having money or property in his judgment, the presiding Judge shall, possession belonging to the judgment within 10 days after it is filed, file a debtor or owing money to the judg- memorandum of decision as a part of ment debtor. The following are exempt the record. The Judge shall place in the from judgment: memorandum findings of fact, conclu- (1) Ninety percent of so much of the sions of law, and any comments that he gross wages as does not exceed $200 due considers will be helpful to a thorough to the judgment debtor from his em- understanding and just determination ployer. of the case on appeal. (2) Eighty percent of so much of the gross wages as exceeds $200 but does § 935.96 Execution of judgment. not exceed $500 due to the judgment (a) If, after 60 days after the date of debtor from his employer. entry of judgment (or such other period (3) Fifty percent of so much of the as the Court may prescribe), the judg- gross wages as exceeds $500 due to the ment debtor has not satisfied the judg- judgment debtor from his employer. ment, the judgment creditor may apply (b) The writ of garnishment shall be to the Court for grant of execution on served on the judgment debtor and the the property of the judgment debtor. garnishee and shall direct the gar- (b) Upon a writ issued by the Court, nishee to pay or deliver from the any peace officer may levy execution money or property owing to the judg- on any property of the judgment debtor ment debtor such money or property as the Court may prescribe. except— (c) The garnished amount shall be (1) His wearing apparel up to a total paid to the Clerk of the Court, who of $300 in value; shall apply it as follows: (2) His beds, bedding, household fur- (1) First, to satisfy the costs of gar- niture and furnishings, stove, and nishment and court costs. cooking utensils, up to a total of $300 (2) Second, to satisfy the judgment. in value; and (3) Third, the residue (if any) to the (3) Mechanics tools and implements judgment debtor. of the debtor’s trade up to a total of (d) Funds of the debtor held by the $200 in value. United States are not subject to gar- (c) Within 60 days after levy of execu- nishment. tion, a peace officer shall sell the seized property at public sale and shall Subpart K—Criminal Actions pay the proceeds to the Clerk of the Court. The Clerk shall apply the pro- § 935.100 Bail. ceeds as follows: (a) A person who is arrested on Wake (1) First, to the reasonable costs of Island for any violation of this part is execution and sale and court costs. entitled to be released on bail in an (2) Second, to the judgment. amount set by a Judge or Clerk of the (3) Third, the residue (if any) to the Court, which may not exceed the max- debtor. imum fine for the offense charged. If (d) In any case in which property has the defendant fails to appear for ar- been seized under a writ of execution, raignment, trial or sentence, or other- but not yet sold, the property seized wise breaches any condition of bail, the shall be released upon payment of the Court may direct a forfeiture of the judgment, court costs, and the costs of whole or part of the bail and may on execution. motion after notice to the surety or

232

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.103

sureties, if any, enter a judgment for the error or omission did not mislead the amount of the forfeiture. the accused to his prejudice. (b) The Chief Judge of the Wake Is- land Court may prescribe a schedule of § 935.103 Motions and pleas. bail for any offense under this part (a) Upon motion of the accused at which the defendant may elect to post any time after filing of the information and forfeit without trial, in which case or copy of citation, the Court may the Court shall enter a verdict of order the prosecutor to allow the ac- guilty and direct forfeiture of the bail. cused to inspect and copy or photo- (c) Bail will be deposited in cash with graph designated books, papers, docu- the Clerk of the Court. ments, or tangible objects obtained § 935.101 Seizure of property. from or belonging to the accused, or obtained from others by seizure or Any property seized in connection process, upon a showing that the items with an alleged offense (unless the sought may be material to the prepara- property is perishable) is retained tion of his defense and that the request pending trial in accordance with the is reasonable. orders of the Court. The property must (b) When the Court is satisfied that it be produced in Court, if practicable. At the termination of the trial, the Court has jurisdiction to try the accused as shall restore the property or the funds charged, it shall require the accused to resulting from the sale of the property identify himself and state whether or to the owner, or make such other prop- not he has counsel. If he has no coun- er order as may be required and incor- sel, but desires counsel, the Court shall porate its order in the record of the give him a reasonable opportunity to case. Any item used in the commission procure counsel. of the offense, may, upon order of the (c) When both sides are ready for ar- Court, be forfeited to the United raignment, or when the Court deter- States. All contraband, which includes mines that both sides have had ade- any item that is illegal for the owner quate opportunities to prepare for ar- to possess, shall be forfeited to the raignment, the Court shall read the United States; such forfeiture shall not charges to the accused, explain them relieve the owner from whom the item (if necessary), and, after the reading or was taken from any costs or liability stating of each charge in Court, ask for the proper disposal of such item. the accused whether he pleads ‘‘guilty’’ or ‘‘not guilty’’. The Court shall enter § 935.102 Information. in the record of the case the plea made (a) Any offense may be prosecuted by to each charge. a written information signed by the Is- (d) The accused may plead ‘‘guilty’’ land Attorney. However, if the offense to any or all of the charges against is one for which issue of a citation is him, except that the Court may in its authorized by this part and a citation discretion refuse to accept a plea of for the offense has been issued, the ci- guilty, and may not accept a plea with- tation serves as an information. out first determining that the plea is (b) A copy of the information shall be made voluntarily with understanding delivered to the accused, or his coun- of the nature of the charge. sel, as soon as practicable after it is (e) The accused may plead ‘‘not filed. guilty’’ to any or all of the charges (c) Each count of an information may against him. The Court shall enter a charge one offense only and must be plea of not guilty if the answer of the particularized sufficiently to identify accused to any charge is such that it the place, the time, and the subject does not clearly amount to a plea of matter of the alleged offense. It shall guilty or not guilty. refer to the provision of law under (f) The accused may, at any stage of which the offense is charged, but any the trial, with the consent of the error in this reference or its omission Court, change a plea of not guilty to may be corrected by leave of Court at one of guilty. The Court shall then pro- any time before sentence and is not ceed as if the accused had originally grounds for reversal of a conviction if pleaded guilty.

233

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00243 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 935.104 32 CFR Ch. VII (7–1–05 Edition)

§ 935.104 Sentence after a plea of be appealed, by filing a notice of appeal guilty. with the Clerk of the Wake Island If the Court accepts a plea of guilty Court and serving a copy on the oppos- to any charge or charges, it shall make ing party. Judgment is stayed while a finding of guilty on that charge. Be- the appeal is pending. fore imposing sentence, the Court shall (b) Upon receiving a notice of appeal hear such statements for the prosecu- with proof of service on the opposing tion and defense, if any, as it requires party, the Clerk shall forward the to enable it to determine the sentence record of the action to the Wake Island to be imposed. The accused or his coun- Court of Appeals. sel may make any reasonable state- (c) The appellant shall serve on the ment he wishes in mitigation or of pre- opposing party and file a memorandum vious good character. The prosecution setting forth his grounds of appeal with may introduce evidence in aggrava- the Wake Island Court of Appeals with- tion, or of bad character if the accused in 15 days after the date of the judg- has introduced evidence of good char- ment. The appellee may serve and file acter. The Court shall then impose any a reply memorandum within 15 days lawful sentence that it considers prop- thereafter. An appeal and the reply er. shall be deemed to be filed when deposited in the U.S. mail with proper post- § 935.105 Trial. age affixed, addressed to the Clerk, (a) If the accused pleads not guilty, Wake Island Court of Appeals, at his he is entitled to a trial on the charges address in Washington, DC. The period in accordance with procedures pre- for filing an appeal may be waived by scribed in the Rules of Criminal Proce- the Court of Appeals when the inter- dure for the U.S. District Courts (18 ests of justice so require. U.S.C.), except as otherwise provided (d) The Court of Appeals may proceed for in this part, to the extent the Court to judgment on the record, or, if the considers practicable and necessary to Court considers that the interests of the ends of justice. There is no trial by justice so require, grant a hearing. jury. (e) The decision of the Court of Ap- (b) All persons shall give their testi- peals shall be in writing and based on mony under oath or affirmation. The the record prepared by the Wake Island Chief Judge shall prescribe the oath Court, on the proceedings before the and affirmation that may be adminis- Court of Appeals, if any be had, and on tered by any Judge or the Clerk of the any memoranda that are filed. If the Court. Court of Appeals considers the record (c) Upon completion of the trial, the incomplete, the case may be remanded Court shall enter a judgment con- to the Wake Island Court for further sisting of a finding or findings and sen- proceedings. tence or sentences, or discharge of the (f) The decision of the Court of Ap- accused. peals is final. (d) The Court may suspend any sentence imposed, may order the revoca- § 935.111 New trial. tion of any Island automobile permit in A Judge of the Wake Island Court motor vehicle cases, and may place the may order a new trial as required in accused on probation. It may delay the interest of justice, or vacate any sentencing pending the receipt of any judgment and enter a new one, on mo- presentencing report ordered by it. tion made within a reasonable time after discovery by the moving party of Subpart L—Appeals and New matters constituting the grounds upon Trials which the motion for new trial or vacation of judgment is made. § 935.110 Appeals. (a) Any party to an action may, with- Subpart M—Peace Officers in 15 days after judgment, appeal an in- terlocutory order, issue of law, or judg- § 935.120 Authority. ment, except that an acquittal may not Peace officers—

234

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00244 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.123

(a) Have the authority of a sheriff at agents of the United States Immigra- common law; tion and Naturalization Service. (b) May serve any process on Wake Island that is allowed to be served § 935.122 Arrests. under a Federal or State law; the offi- (a) Any person may make an arrest cer serving the process shall execute on Wake Island, without a warrant, for any required affidavit of service; any crime (including a petty offense) (c) May conduct sanitation or fire that is committed in his presence. prevention inspections; (b) Any peace officer may, without a (d) May inspect motor vehicles, warrant, arrest any person on Wake Is- boats, and aircraft; land who violates any provision of this (e) May confiscate property used in part or commits a crime that is not a the commission of a crime; violation of this part, in his presence, (f) May deputize any member of the or that he reasonably believes that per- Air Force serving on active duty or ci- son to have committed. vilian employee of the Department of (c) In making an arrest, a peace offi- the Air Force to serve as a peace officer must display a warrant, if he has cer; one, or otherwise clearly advise the (g) May investigate accidents and person arrested of the violation al- suspected crimes; leged, and thereafter require him to (h) May direct vehicular or pedes- submit and be taken before the appro- trian traffic; priate official on Wake Island. (i) May remove and impound aban- (d) In making an arrest, a peace offi- doned or unlawfully parked vehicles, cer may use only the degree of force boats, or aircraft, or vehicles, boats, or needed to effect submission, and may aircraft interfering with fire control remove any weapon in the possession of apparatus or ambulances; the person arrested. (j) May take possession of property (e) A peace officer may, whenever lost, abandoned, or of unknown owner- necessary to enter any building, vehi- ship; cle, or aircraft to execute a warrant of (k) May enforce quarantines; arrest, force an entry after verbal (l) May impound and destroy food, warning. fish, or beverages found unsanitary; (f) A peace officer may force an entry (m) May be armed; into any building, vehicle, or aircraft (n) May exercise custody over per- whenever— sons in arrest or confinement; (1) It appears necessary to prevent se- (o) May issue citations for violations rious injury to persons or damage to of this part; and property and time does not permit the (p) May make arrests, as provided for obtaining of a warrant; in § 935.122. (2) To effect an arrest when in hot pursuit; or § 935.121 Qualifications of peace offi- (3) To prevent the commission of a cers. crime which he reasonably believes is Any person appointed as a peace offi- being committed or is about to be com- cer must be a citizen of the United mitted. States and have attained the age of 18 years. The following persons, while on § 935.123 Warrants. Wake Island on official business, shall Any Judge may issue or direct the be deemed peace officers: special Clerk to issue a warrant for arrest if, agents of the Air Force Office of Spe- upon complaint, it appears that there cial Investigations, members of the Air is probable cause to believe an offense Force Security Forces, agents of the has been committed and that the per- Federal Bureau of Investigation, son named in the warrant has com- United States marshals and their depu- mitted it. If a Judge is not available, ties, officers and agents of the United the warrant may be issued by the Clerk States Secret Service, agents of the and executed, but any such warrant United States Bureau of Alcohol, To- shall be thereafter approved or quashed bacco, and Firearms, agents of the by the first available Judge. The United States Customs Service, and issuing officer shall—

235

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00245 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 935.124 32 CFR Ch. VII (7–1–05 Edition)

(a) Place the name of the person § 935.132 Speed limits. charged with the offense in the war- Each person operating a motor vehi- rant, or if his name is not known, any cle on Wake Island shall operate it at a name or description by which he can be speed— identified with reasonable certainty; (a) That is reasonable, safe, and prop- (b) Describe in the warrant the offense charged; er, considering time of day, road and weather conditions, the kind of motor (c) Place in the warrant a command vehicle, and the proximity to persons that the person charged with the offense be arrested and brought before or buildings, or both; and the Wake Island Court; (b) That does not exceed 40 miles an (d) Sign the warrant; and hour or such lesser speed limit as may be posted. (e) Issue the warrant to a peace officer for execution. § 935.133 Right-of-way. § 935.124 Release from custody. (a) A pedestrian has the right-of-way over vehicular traffic when in the vi- The Chief Judge may authorize the cinity of a building, school, or residen- Clerk to issue pro forma orders of the Court discharging any person from cus- tial area. tody, with or without bail, pending (b) In any case in which two motor trial, whenever further restraint is not vehicles have arrived at an uncon- required for protection of persons or trolled intersection at the same time, property on Wake Island. Persons not the vehicle on the right has the right- so discharged shall be brought before a of-way. Judge or U.S. Magistrate as soon as a (c) If the driver of a motor vehicle Judge or Magistrate is available. enters an intersection with the intent Judges may discharge defendants from of making a left turn, he shall yield the custody, with or without bail or upon right-of-way to any other motor vehi- recognizance, or continue custody cle that has previously entered the pending trial as the interests of justice intersection or is within hazardous and public safety require. proximity. (d) When being overtaken by another § 935.125 Citation in place of arrest. motor vehicle, the driver of the slower In any case in which a peace officer vehicle shall move it to the right to may make an arrest without a warrant, allow safe passing. he may issue and serve a citation if he (e) The driver of a motor vehicle considers that the public interest does shall yield the right-of-way to emer- not require an arrest. The citation gency vehicles on an emergency run. must briefly describe the offense charged and direct the accused to ap- § 935.134 Arm signals. pear before the Wake Island Court at a (a) Any person operating a motor ve- designated time and place. hicle and making a turn or coming to a stop shall signal the turn or stop in Subpart N—Motor Vehicle Code accordance with this section. (b) A signal for a turn or stop is made § 935.130 Applicability. by fully extending the left arm as fol- This subpart applies to self-propelled lows: motor vehicles (except aircraft), in- (1) Left turn—extend left arm hori- cluding attached trailers. zontally. (2) Right turn—extend left arm up- § 935.131 Right-hand side of the road. ward. Each person driving a motor vehicle (3) Stop or decrease speed—extend on Wake Island shall drive on the left arm downward. right-hand side of the road, except (c) A signal light or other device may where necessary to pass or on streets be used in place of an arm signal pre- where a sign declaring one-way traffic scribed in paragraph (b) of this section is posted. if it is visible and intelligible.

236

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00246 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.139

§ 935.135 Turns. (m) Operate a tracked or cleated vehicle in a manner that damages a (a) Each person making a right turn paved or compacted surface; in a motor vehicle shall make the ap- (n) Operate any motor vehicle con- proach and turn as close as practicable trary to a posted traffic sign; to the right-hand curb or road edge. (o) Operate a motor vehicle as to fol- (b) Each person making a left turn in low any other vehicle closer than is a motor vehicle shall make the ap- safe under the circumstances; proach and turn immediately to the (p) Operate a motor vehicle off of es- right of the center of the road, except tablished roads, or in a cross-country that on multi-lane roads of one-way manner, except when necessary in con- traffic flow he may make the turn only ducting business; from the left lane. (q) Operate a motor vehicle at night (c) No person may make a U-turn in or when raining on the traveled part of a motor vehicle if he cannot be seen by a street or road, without using oper- the driver of any approaching vehicle ating headlights; or within a distance of 500 feet. (r) Operate a motor vehicle without (d) No person may place a vehicle in each passenger wearing a safety belt; motion from a stopped position, or this shall not apply to military combat change from or merge into a lane of vehicles designed and fabricated with- traffic, until he can safely make that out safety belts. movement. § 935.137 Operating requirements. § 935.136 General operating rules. Each person operating a motor vehi- No person may, while on Wake Is- cle on Wake Island shall— land— (a) Turn off the highbeam headlights (a) Operate a motor vehicle in a care- of his vehicle when approaching an on- less or reckless manner; coming vehicle at night; and (b) Operate or occupy a motor vehicle (b) Comply with any special traffic while he is under the influence of a instructions given by an authorized drug or intoxicant; person. (c) Consume an alcoholic beverage (including beer, ale, or wine) while he § 935.138 Motor bus operation. is in a motor vehicle; Each person operating a motor bus (d) Operate a motor vehicle that is on Wake Island shall— overloaded or is carrying more pas- (a) Keep its doors closed while the sengers than it was designed to carry; bus is moving with passengers on (e) Ride on the running board, step, board; and or outside of the body of a moving (b) Refuse to allow any person to motor vehicle; board or alight the bus while it is mov- (f) Ride a moving motor vehicle with ing. his arm or leg protruding, except when using the left arm to signal a turn; § 935.139 Motor vehicle operator quali- (g) Operate a motor vehicle in a speed fications. contest or drag race; (a) No person may operate a pri- (h) Park a motor vehicle for a period vately owned motor vehicle on Wake longer than the posted time limit; Island unless he has an island opera- (i) Stop, park, or operate a motor ve- tor’s permit. hicle in a manner that impedes or (b) The Commander may issue an op- blocks traffic; erator’s permit to any person who is at (j) Park a motor vehicle in an least 18 years of age and satisfactorily unposted area, except adjacent to the demonstrates safe-driving knowledge, right-hand curb or edge of the road; ability, and physical fitness. (k) Park a motor vehicle in a re- (c) No person may operate, on Wake served or restricted parking area that Island, a motor vehicle owned by the is not assigned to him; United States unless he holds a current (l) Sound the horn of a motor vehicle, operator’s permit issued by the United except as a warning signal; States.

237

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00247 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 935.140 32 CFR Ch. VII (7–1–05 Edition)

(d) Each person operating a motor ve- § 935.151 Island permit for boat and hicle on Wake Island shall present his vehicle. operator’s permit to any peace officer, (a) No person may use a privately for inspection, upon request. owned motor vehicle or boat on Wake Island unless he has an island permit § 935.140 Motor vehicle maintenance and equipment. for it. (b) The operator of a motor vehicle (a) Each person who has custody of a shall display its registration number motor vehicle on Wake Island shall on the vehicle in a place and manner present that vehicle for periodic safety prescribed by the Commander. inspection, as required by the Com- mander. § 935.152 Activities for which permit is (b) No person may operate a motor required. vehicle on Wake Island unless it is in a No person may engage in any of the condition that the Commander con- following on Wake Island unless he has siders to be safe and operable. an island permit: (c) No person may operate a motor (a) Any business, commercial, or rec- vehicle on Wake Island unless it is reational activity conducted for profit, equipped with an adequate and prop- including a trade, profession, calling, erly functioning— or occupation, or an establishment (1) Horn; where food or beverage is prepared, of- (2) Wiper, for any windshield; fered, or sold for human consumption (3) Rear vision mirror; (except for personal or family use). (4) Headlights and taillights; (b) The practice of any medical pro- (5) Brakes; fession, including dentistry, surgery, (6) Muffler; osteopathy, and chiropractic. (7) Spark or ignition noise suppres- (c) The erection of any structure or sors; and sign, including a major alteration or (8) Safety belts. enlargement of an existing structure. (d) No person may operate a motor (d) The burial of any human or ani- vehicle on Wake Island if that vehicle mal remains, except that fish and bait is equipped with a straight exhaust or scrap may be buried at beaches where muffler cutoff. fishing is permitted, without obtaining a permit. Subpart O—Registration and (e) Keeping or maintaining an indige- Island Permits nous animal. (f) Importing, storing, generating, or § 935.150 Registration. disposing of hazardous materials. (a) Each person who has custody of (g) Importing of solid wastes and im- any of the following on Wake Island porting, storing, generating, treating, shall register it with the Commander. or disposing of hazardous wastes, as (1) A privately owned motor vehicle. they are defined in the Solid Waste (2) A privately owned boat. Disposal Act, as amended, 42 U.S.C. (3) An indigenous animal, military 6901 et seq., and its implementing regu- working dog, or guide dog for the blind lations (40 CFR chapter I). or visually-impaired accompanying its owner. Subpart P—Public Safety (4) A narcotic or dangerous drug or any poison. § 935.160 Emergency requirements and (b) Each person who obtains custody restrictions. of an article described in paragraph (a) In the event of any fire, crash, search (4) of this section shall register it im- and rescue, natural disaster, national mediately upon obtaining custody. peril, radiological hazard, or other ca- Each person who obtains custody of lamitous emergency— any other article described in para- (a) No person may impede or hamper graph (a) of this section shall register any officer or employee of the United it within 10 days after obtaining cus- States or any other person who has tody. emergency authority;

238

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00248 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 935.165

(b) No unauthorized persons may con- (b) Prohibited activities areas—in gregate at the scene of the emergency; which no person may engage in any ac- and tivity that is specifically prohibited. (c) Each person present shall prompt- (c) Special purpose areas-in which no ly obey the instructions, signals, or person may engage in any activity alarms of any peace officer, fire or other than that for which the area is crash crew, or other authorized person, reserved. and any orders of the Commander. § 935.163 Unexploded ordnance mate- § 935.161 Fire hazards. rial. (a) Each person engaged in a business Any person who discovers any or other activity on Wake Island shall, unexploded ordnance material on Wake at his expense, provide and maintain Island shall refrain from tampering (in an accessible location) fire extin- with it and shall immediately report guishers of the type, capacity, and its site to the Commander. quantity satisfactory for protecting life and property in the areas under § 935.164 Boat operations. that person’s control. (b) To minimize fire hazards, no per- The operator of each boat used at son may store any waste or flammable Wake Island shall conform to the limi- fluids or materials except in a manner tations on its operations as the Com- and at a place prescribed by the Com- mander may prescribe in the public in- mander. terest.

§ 935.162 Use of special areas. § 935.165 Floating objects. The Commander may regulate the No person may anchor, moor, or use of designated or posted areas on beach any boat, barge, or other float- Wake Island, as follows: ing object on Wake Island in any loca- (a) Restricted areas—which no person tion or manner other than as pre- may enter without permission. scribed by the Commander.

SUBCHAPTER O—SPECIAL INVESTIGATION [RESERVED] SUBCHAPTERS P–S [RESERVED]

239

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00249 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 SUBCHAPTER T—ENVIRONMENTAL PROTECTION

PART 989—ENVIRONMENTAL Process (EIAP) and provides procedures IMPACT ANALYSIS PROCESS (EIAP) for environmental impact analysis both within the United States and Sec. abroad. Because the authority for, and 989.1 Purpose. rules governing, each aspect of the 989.2 Concept. EIAP differ depending on whether the 989.3 Responsibilities. action takes place in the United States 989.4 Initial considerations. or outside the United States, this part 989.5 Organizational relationships. provides largely separate procedures 989.6 Budgeting and funding. 989.7 Requests from Non-Air Force agencies for each type of action. Consequently, or entities. the main body of this part deals pri- 989.8 Analysis of alternatives. marily with environmental impact 989.9 Cooperation and adoption. analysis under the authority of the Na- 989.10 Tiering. tional Environmental Policy Act of 989.11 Combining EIAP with other docu- 1969 (NEPA) (Public Law 91–190, 42 mentation. United States Code (U.S.C.) Sections 989.12 AF Form 813, Request for Environ- mental Impact Analysis. 4321 through 4347), while the primary 989.13 Categorical exclusion. procedures for environmental impact 989.14 Environmental assessment. analysis of actions outside the United 989.15 Finding of no significant impact. States in accordance with Executive 989.16 Environmental impact statement. Order (E.O.) 12114, Environmental Ef- 989.17 Notice of intent. fects Abroad of Major Federal Actions, 989.18 Scoping. are contained in §§ 989.37 and 989.38. 989.19 Draft EIS. 989.20 Final EIS. (b) The procedures in this part are es- 989.21 Record of decision (ROD). sential to achieve and maintain com- 989.22 Mitigation. pliance with NEPA and the Council on 989.23 Contractor prepared documents. Environmental Quality (CEQ) Regula- 989.24 Public notification. tions for Implementing the Procedural 989.25 Base closure and realignment. Provisions of the NEPA (40 CFR Parts 989.26 Classified actions (40 CFR 1507.3(c)). 989.27 Occupational safety and health. 1500 through 1508, referred to as the 989.28 Airspace and range proposals. ‘‘CEQ Regulations’’). Further require- 989.29 Force structure and unit move pro- ments are contained in Department of posals. Defense Directive (DoDD) 4715.1, Envi- 989.30 Air quality. ronmental Security, Department of De- 989.31 Pollution prevention. fense Instruction (DoDI) 4715.9, Envi- 989.32 Noise. ronmental Planning and Analysis, 989.33 Environmental justice. 989.34 Special and emergency procedures. DoDD 5000.1, Defense Acquisition, and 989.35 Reporting requirements. Department of Defense Regulation 989.36 Waivers. 5000.2–R, Mandatory Procedures for 989.37 Procedures for analysis abroad. Major Defense Acquisition Programs 989.38 Requirements for analysis abroad. and Major Automated Information Sys- APPENDIX A TO PART 989—GLOSSARY OF REF- tem Acquisition Programs. 1 To comply ERENCES, ABBREVIATIONS, ACRONYMS, AND with NEPA and complete the EIAP, the TERMS. CEQ Regulations and this part must be APPENDIX B TO PART 989—CATEGORICAL EX- used together. CLUSIONS. APPENDIX C TO PART 989—PROCEDURES FOR (c) Air Force activities abroad will HOLDING PUBLIC HEARINGS ON DRAFT EN- comply with this part, E. O. 12114, and VIRONMENTAL IMPACT STATEMENTS (EIS). 32 CFR Part 187 (DoDD 6050.7, Environ- mental Effects Abroad of Major De- AUTHORITY: 10 U.S.C. 8013. partment of Defense Actions, March 31, SOURCE: 64 FR 38129, July 15, 1999, unless otherwise noted. 1 Copies of the publications are available, § 989.1 Purpose. at cost, from the National Technical Infor- mation Service, U.S. Department of Com- (a) This part implements the Air merce, 5285 Port Royal Road, Springfield, VA Force Environmental Impact Analysis 22161.

240

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00250 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.3

1979). To comply with E.O. 12114 and tional level public interest organiza- complete the EIAP, the Executive tions. Order, 32 CFR Part 187, and this part (iv) Ensures appropriate offices in the must be used together. Office of the Secretary of Defense are (d) Appendix A is a glossary of ref- kept informed on EIAP matters of De- erences, abbreviations, acronyms, and fense-wide interest. terms. Refer to 40 CFR 1508 for defini- (2) The General Counsel (SAF/GC). tions of other terminology used in this Provides final legal advice to SAF/MI, part. HQ USAF, and HQ USAF Environment, Safety and Occupational Health Com- [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001] mittee (ESOHC) on EIAP issues. (3) Office of Legislative Liaison (SAF/ § 989.2 Concept. LL): (i) Assists with narrowing and defin- (a) This part provides a framework ing key issues by arranging consulta- on how to comply with NEPA and E.O. tions with congressional delegations on 12114 according to Air Force Policy Di- potentially sensitive actions. rective (AFPD) 32–70 2. The Air Force (ii) Distributes draft and final EISs specific procedures and requirements to congressional delegations. in this part are intended to be used by (iii) Reviews and provides the Office Air Force decision-makers to fully of the Secretary of Defense (OSD) with comply with NEPA and the EIAP. analyses of the Air Force position on (b) Major commands (MAJCOM) pro- proposed and enrolled legislation and vide additional implementing guidance executive department testimony deal- in their supplemental publications to ing with EIAP issues. this part. MAJCOM supplements must (4) Office of Public Affairs (SAF/PA): identify the specific offices that have (i) Reviews and clears environmental implementation responsibility and in- documents in accordance with Air clude any guidance needed to comply Force Instruction (AFI) 35–101, Public with this part. All references to Affairs Policies and Procedures 3 prior MAJCOMs in this part include the Air to public release. National Guard Readiness Center (ii) Assists the environmental plan- (ANGRC) and other agencies des- ning function and the Air Force Legal ignated as ‘‘MAJCOM equivalent’’ by Services Agency, Trial Judiciary Divi- HQ USAF. sion (AFLSA/JAJT), in planning and § 989.3 Responsibilities. conducting public scoping meetings and hearings. (a) Office of the Secretary of the Air (iii) Ensures that public affairs as- Force: pects of all EIAP actions are conducted (1) The Deputy Assistant Secretary in accordance with this part and AFI of the Air Force for Environment, Safe- 35–101. 4 ty and Occupational Health (SAF/MIQ): (iv) The National Guard Bureau, Of- (i) Develops environmental planning fice of Public Affairs (NGB-PA), will policy and provides oversight of the assume the responsibilities of SAF/PA EIAP program. for the EIAP involving the National (ii) Determines the level of environ- Guard Bureau, Air Directorate. mental analysis required for especially (b) Headquarters U.S. Air Force (HQ important, visible, or controversial Air USAF). The Civil Engineer (HQ USAF/ Force proposals and approves selected ILE) is responsible for execution of the Environmental Assessments (EAs) and EIAP program. The National Guard all Environmental Impact Statements Bureau Air Directorate (NGB-CF) over- (EISs) prepared for Air Force actions, sees the EIAP for Air National Guard whether classified or unclassified, ex- actions. cept as specified in paragraph (c)(3) of (c) MAJCOMs, the Air National this section. Guard, Field Operating Agencies (iii) Is the liaison on environmental (FOAs), and Single Manager Programs. matters with Federal agencies and na- 3 See footnote 1 to § 989.1. 2 See footnote 1 to § 989.1. 4 See footnote 1 to § 989.1.

241

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00251 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.3 32 CFR Ch. VII (7–1–05 Edition)

These organizations establish proce- liminary draft and final EAs and EISs) dures that comply with this part wher- to SAF/AQR. The Single Manager will ever they are the host unit for pre- allow for concurrent review of EIAP paring and using required environ- documents by HQ AFMC/CEV and the mental documentation in making deci- Operational Command (HQ ACC, HQ sions about proposed actions and pro- AMC, HQ AFSPC, etc.) The Single grams within their commands or areas Manager is responsible for budgeting of responsibility. and funding EIAP efforts, including (1) Air Force Center for Environ- EIAP for research, development, test- mental Excellence (AFCEE). The ing, and evaluation activities. AFCEE Environmental Conservation (4) Key Air Force environmental partici- and Planning Directorate (AFCEE/EC) pants. The EIAP must be approached as is available to provide technical assist- an integrated team effort including ance and has the capability to provide key participants within the Air Force contract support to the proponent, and also involving outside federal EPF, and MAJCOMs in developing agencies, state, Tribal, and local gov- EIAP documents. ernments, interested outside parties, (2) Air Force Regional Environ- citizens groups, and the general public. mental Offices (REOs). REOs review Key Air Force participants may in- non-Air Force environmental docu- clude the following functional areas, as ments that may have an impact on the well as others: Air Force. Requests for review of such Proponent documents should be directed to the Civil Engineers/Environmental Planning proper REO (Atlanta, Dallas, or San Function Francisco) along with any relevant Staff Judge Advocate comments. The REO: Public Affairs (i) Notifies the proponent, after re- Medical Service (Bioenvironmental Engi- ceipt, that the REO is the single point neer) of contact for the Air Force review of Safety Office the document. Range and Airspace Managers (ii) Requests comments from poten- Bases and Units tially affected installations, Plans and Programs MAJCOMs, the ANG, and HQ USAF, as Logistics Personnel appropriate. Legislative Liaison (iii) Consolidates comments into the Air Force official response and submits (d) Proponent. Each office, unit, sin- the final response to the proponent. gle manager, or activity at any level (iv) Provides to HQ USAF/ILEB and that initiates Air Force actions is re- the appropriate MAJCOMs and instal- sponsible for: lations a copy of the final response and (1) Complying with the EIAP and a complete set of all review comments. shall ensure integration of the EIAP (3) Single Manager Acquisition Pro- during the initial planning stages of grams (system-related NEPA). The pro- proposed actions so that planning and ponent Single Manager (i.e., System decisions reflect environmental values, Program Director, Materiel Group delays are avoided later in the process, Managers, and Product Group Man- and potential conflicts are precluded. agers) for all programs, regardless of (2) Notifying the EPF of a pending acquisition category, shall comply action and completing Section I of AF with DoD Regulation 5000.2–R. SAF/ Form 813, Request for Environmental AQR, as the Air Force Acquisition Ex- Impact Analysis. Prepare the Descrip- ecutive Office, is the final approval au- tion of Proposed Action and Alter- thority for all system-related NEPA natives (DOPAA) through an inter- documents. SAF/AQR is responsible for disciplinary team approach including accomplishing appropriate Head- the EPF and other key Air Force par- quarters EPC/ESOHC review. The Sin- ticipants. gle Manager will obtain appropriate (3) Identifying key decision points Product Center EPC approval prior to and coordinating with the EPF on forwarding necessary EIAP documents EIAP phasing to ensure that environ- (i.e., Notices of Intent (NOIs) and pre- mental documents are available to the

242

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00252 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.3

decision-maker before the final deci- mental function located with a pro- sion is made and ensuring that, until gram office. The EPF: the EIAP is complete, resources are (1) Supports the EIAP by bringing not committed prejudicing the selec- key participants in at the beginning of tion of alternatives nor actions taken a proposed action and involving them having an adverse environmental im- throughout the EIAP. Key participants pact or limiting the choice of reason- play an important role in defining and able alternatives. focusing key issues at the initial stage. (4) Determining, with the EPF, as (2) At the request of the proponent, early as possible whether to prepare an prepares environmental documents EIS. The proponent and the EPF will using an interdisciplinary approach, or conduct an early internal scoping proc- obtains technical assistance through ess as part of the EIAP process. The in- Air Force channels or contract sup- ternal scoping process should involve port. Assists the proponent in obtain- key Air Force environmental partici- ing review of environmental docu- pants (see § 989.3(c)(4)) and other Air ments. Force offices as needed and conclude (3) Assists the proponent in preparing with preparation of a DOPAA. For a DOPAA and actively supports the complex or detailed EAs or EISs, an proponent during all phases of the outside facilitator trained in EIAP EIAP. may be used to focus and guide the dis- (4) Evaluates proposed actions and cussion. Department of the Air Force completes Sections II and III of AF personnel, rather than contractors, Form 813, subsequent to submission by should generally be used to prepare the the proponent and determines whether DOPAA. a Categorical Exclusion (CATEX) ap- (5) Presenting the DOPAA to the EPC plies. The responsible EPF member for review and comment. signs the AF Form 813 certification. (6) Coordinating with the EPF, Pub- (5) Identifies and documents, with lic Affairs, and Staff Judge Advocate technical advice from the Bioenviron- prior to organizing public or inter- mental Engineer and other staff mem- agency meetings which deal with EIAP bers, environmental quality standards elements of a proposed action and in- that relate to the action under evalua- volving persons or agencies outside the tion. Air Force. (6) Supports the proponent in pre- (7) Subsequent to the decision to preparing environmental documents, or pare an EIS, assisting the EPF and obtains technical assistance through Public Affairs Office in preparing a Air Force channels or contract support draft NOI to prepare an EIS. All NOIs and adopts the documents as official must be forwarded through the Air Force papers when completed and MAJCOM EPF to HQ USAF/ILEB for approved. review and publication in the FEDERAL (7) Ensures the EIAP is conducted on REGISTER. Publication in the FEDERAL base-level and MAJCOM-level plans, in- REGISTER is accomplished in accord- cluding contingency plans for the ance with AFI 37–120, FEDERAL REG- training, movement, and operations of ISTER. 5 (See § 989.17.) Air Force personnel and equipment. (8) Ensuring that proposed actions (8) Prepares the NOI to prepare an are implemented as described in the EIS with assistance from the pro- final EIAP decision documents. ponent and the Public Affairs Office. (e) Environmental Planning Function (9) Prepares applicable portions of (EPF). At every level of command, the the Certificate of Compliance for each EPF is one of the key Air Force par- military construction project accord- ticipants responsible for the EIAP. The ing to AFI 32–1021, Planning and Pro- EPF can be the environmental flight gramming of Facility Construction within a civil engineer squadron, a sep- Projects. 6 arate environmental management of- (10) Submits one hard copy and one fice at an installation, the CEV at electronic copy of the final EA/Finding MAJCOMs, or an equivalent environ- of No Significant Impact (FONSI) and

5 See footnote 1 to § 989.1. 6 See footnote 1 to § 989.1.

243

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00253 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.4 32 CFR Ch. VII (7–1–05 Edition)

EIS/Record of Decision (ROD) to the (7) For more comprehensive instruc- Defense Technical Information Center. tions about public affairs activities in (f) Environmental Protection Committee environmental matters, see AFI 35– (EPC). The EPC helps commanders as- 101. 8 sess, review, and approve EIAP docu- (i) Medical Service. The Medical Serv- ments in accordance with AFI 32–7005, ice, represented by the Bioenviron- Environmental Protection Commit- mental Engineer, provides technical tees. 7 assistance to EPFs in the areas of envi- (g) Staff Judge Advocate (SJA). The ronmental health standards, environ- Staff Judge Advocate: mental effects, and environmental (1) Advises the proponent, EPF, and monitoring capabilities. The Air Force EPC on CATEX determinations and the Armstrong Laboratory, Occupational legal sufficiency of environmental doc- and Environmental Health Directorate, uments. provides additional technical support. (2) Advises the EPF during the (j) Safety Office. The Safety Office scoping process of issues that should be provides technical review and assist- addressed in EISs and on procedures for ance to EPFs to ensure consideration the conduct of public hearings. of safety standards and requirements. (3) Coordinates the appointment of [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. the independent hearing officer with 28, 2001] AFLSA/JAJT and provides support for the hearing officer in cases of public § 989.4 Initial considerations. hearings on the draft EIS. The proponent pays administrative and Tem- Air Force personnel will: porary Duty (TDY) costs. The hearing (a) Consider and document environ- officer presides at hearings and makes mental effects of proposed Air Force final decisions regarding hearing proce- actions through AF Forms 813, EAs, dures. FONSIs, EISs, RODs, and documents (4) Promptly refers all matters caus- prepared according to E.O. 12114. ing or likely to cause substantial pub- (b) Evaluate proposed actions for pos- lic controversy or litigation through sible CATEX from environmental im- channels to AFLSA/JACE (or NGB-JA). pact analysis (appendix B). (h) Public Affairs Officer. This officer: (c) Make environmental documents, (1) Advises the EPF, the EPC, and comments, and responses, including the proponent on public affairs activi- those of other federal agencies, state, ties on proposed actions and reviews Tribal, and local governments, and the environmental documents for public public, part of the record available for involvement issues. review and use at all levels of decision- (2) Advises the EPF of issues and making. competing interests that should be ad- (d) Review the specific alternatives dressed in the EIS or EA. analyzed in the EIAP when evaluating (3) Assists in preparation of and at- the proposal prior to decisionmaking. tends public meetings or media ses- (e) Ensure that alternatives to be sions on environmental issues. considered by the decisionmaker are (4) Prepares, coordinates, and distrib- both reasonable and within the range utes news releases and other public in- of alternatives analyzed in the environ- formation materials related to the pro- mental documents. posal and associated EIAP documents. (f) Pursue the objective of furthering (5) Notifies the media (television, foreign policy and national security in- radio, newspaper) and purchases adver- terests while at the same time consid- tisements when newspapers will not ering important environmental factors. run notices free of charge. The EPF (g) Consider the environmental ef- will fund the required advertisements. fects of actions that affect the global (6) Determines and ensures Security commons. Review requirements are met for all in- (h) Determine whether any foreign formation proposed for public release. government should be informed of the

7 See footnote 1 to § 989.1. 8 See footnote 1 to § 989.1.

244

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00254 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.7

availability of environmental docu- (e) The MAJCOM of the scheduling ments. Formal arrangements with for- unit managing affected airspace is re- eign governments concerning environ- sponsible for preparing and approving mental matters and communications environmental analyses. with foreign governments concerning environmental agreements will be co- [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. 28, 2001] ordinated with the Department of State by the Deputy Assistant Sec- § 989.6 Budgeting and funding. retary of the Air Force for Environ- ment, Safety, and Occupational Health Contract EIAP efforts are proponent (SAF/MIQ) through the Deputy Under MAJCOM responsibilities. Each year, Secretary of Defense (Environmental the EPF programs for anticipated out- Security). This coordination require- year EIAP workloads based on inputs ment does not apply to informal work- from command proponents. If pro- ing-level communications and arrange- ponent offices exceed the budget in a ments. given year or identify unforeseen requirements, the proponent offices must § 989.5 Organizational relationships. provide the remaining funding. (a) The host EPF manages the EIAP § 989.7 Requests from Non-Air Force using an interdisciplinary team ap- agencies or entities. proach. This is especially important for tenant-proposed actions, because the (a) Non-Air Force agencies or entities host command is responsible for the may request the Air Force to under- EIAP for actions related to the host take an action, such as issuing a per- command’s installations. mit or outleasing Air Force property, (b) The host command prepares envi- that may primarily benefit the re- ronmental documents internally or di- quester or an agency other than the rects the host base to prepare the envi- Air Force. The EPF and other Air ronmental documents. Environmental Force staff elements must identify document preparation may be by con- such requests and coordinate with the tract (requiring the tenant to fund the proponent of the non-Air Force pro- EIAP), by the tenant unit, or by the posal, as well as with concerned state, host. Regardless of the preparation Tribal, and local governments. method, the host command will ensure (b) Air Force decisions on such pro- the required environmental analysis is posals must take into consideration accomplished before a decision is made the potential environmental impacts of on the proposal and an action is under- the applicant’s proposed activity (as taken. Support agreements should pro- described in an Air Force environ- vide specific procedures to ensure host mental document), insofar as the pro- oversight of tenant compliance, tenant posed action involves Air Force prop- funding or reimbursement of host EIAP erty or programs, or requires Air Force costs, and tenant compliance with the approval. EIAP regardless of the tenant not (c) The Air Force may require the re- being an Air Force organization. quester to prepare, at the requester’s (c) For aircraft beddown and unit re- expense, an analysis of environmental alignment actions, program elements impacts (40 CFR 1506.5), or the re- are identified in the Program Objective quester may be required to pay for an Memorandum. Subsequent Program EA or EIS to be prepared by a con- Change Requests must include AF tractor selected and supervised by the Form 813. Air Force. The EPF may permit re- (d) To ensure timely initiation of the questers to submit draft EAs for their EIAP, SAF/AQ forwards information proposed actions, except for actions de- copies of all Mission Need Statements scribed in § 989.16(a) and (b), or for ac- and System Operational Requirements tions the EPF has reason to believe Documents to SAF/MIQ, HQ USAF/ will ultimately require an EIS. For ILEB (or ANGRC/CEV), the Air Force EISs, the EPF has the responsibility to Medical Operations Agency, Aerospace prepare the environmental document, Medicine Office (AFMOA/SG), and the although responsibility for funding re- affected MAJCOM EPFs. mains with the requester. The fact that

245

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00255 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.8 32 CFR Ch. VII (7–1–05 Edition)

the requester has prepared environ- standards (for example, operational, mental documents at its own expense technical, or environmental standards does not commit the Air Force to allow suitable to a particular project). In or undertake the proposed action or its consultation with the EPF, the appro- alternatives. The requester is not enti- priate Air Force organization may de- tled to any preference over other po- velop written selection standards to tential parties with whom the Air firmly establish what is a ‘‘reasonable’’ Force might contract or make similar alternative for a particular project, but arrangements. they must not so narrowly define these (d) In no event is the requester who standards that they unnecessarily prepares or funds an environmental limit consideration to the proposal ini- analysis entitled to reimbursement tially favored by proponents. This dis- from the Air Force. When requesters cussion of reasonable alternatives ap- prepare environmental documents out- plies equally to EAs and EISs. side the Air Force, the Air Force must (d) Except in those rare instances independently evaluate and approve where excused by law, the Air Force the scope and content of the environ- must always consider and assess the mental analyses before using the anal- environmental impacts of the ‘‘no ac- yses to fulfill EIAP requirements. Any tion’’ alternative. ‘‘No action’’ may outside environmental analysis must mean either that current management evaluate reasonable alternatives as de- practice will not change or that the fined in § 989.8. proposed action will not take place. If no action would result in other predict- § 989.8 Analysis of alternatives. able actions, those actions should be (a) The Air Force must analyze rea- discussed within the no action alter- sonable alternatives to the proposed native section. The discussion of the no action and the ‘‘no action’’ alternative action alternative and the other alter- in all EAs and EISs, as fully as the pro- natives should be comparable in detail posed action alternative. to that of the proposed action. (b) ‘‘Reasonable’’ alternatives are those that meet the underlying purpose § 989.9 Cooperation and adoption. and need for the proposed action and (a) Lead and cooperating agency (40 that would cause a reasonable person CFR 1501.5 and 1501.6). When the Air to inquire further before choosing a Force is a cooperating agency in the particular course of action. Reasonable preparation of an EIS, the Air Force alternatives are not limited to those reviews and approves principal envi- directly within the power of the Air ronmental documents within the EIAP Force to implement. They may involve as if they were prepared by the Air another government agency or mili- Force. The Air Force executes a ROD tary service to assist in the project or for its program decisions that are even to become the lead agency. The based on an EIS for which the Air Air Force must also consider reason- Force is a cooperating agency. The Air able alternatives raised during the Force may also be a lead or cooper- scoping process (see § 989.18) or sug- ating agency on an EA using similar gested by others, as well as combina- procedures, but the MAJCOM EPC re- tions of alternatives. The Air Force tains approval authority unless other- need not analyze highly speculative al- wise directed by HQ USAF. Before in- ternatives, such as those requiring a voking provisions of 40 CFR 1501.5(e), major, unlikely change in law or gov- the lowest authority level possible re- ernmental policy. If the Air Force iden- solves disputes concerning which agen- tifies a large number of reasonable al- cy is the lead agency. ternatives, it may limit alternatives (b) Adoption of EA or EIS. The Air selected for detailed environmental Force, even though not a cooperating analysis to a reasonable range or to a agency, may adopt an EA or EIS pre- reasonable number of examples cov- pared by another entity where the pro- ering the full spectrum of alternatives. posed action is substantially the same (c) The Air Force may expressly as the action described in the EA or eliminate alternatives from detailed EIS. In this case, the EA or EIS must analysis, based on reasonable selection be recirculated as a final EA or EIS but

246

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00256 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.14

the Air Force must independently re- § 989.13 Categorical exclusion. view the EA or EIS and determine that (a) CATEXs define those categories of it is current and that it satisfies the actions that do not individually or cu- requirements of this part. The Air mulatively have potential for signifi- Force then prepares its own FONSI or cant effect on the environment and do ROD, as the case may be. In the situa- not, therefore, require further environ- tion where the proposed action is not mental analysis in an EA or an EIS. substantially the same as that de- The list of Air Force-approved CATEXs scribed in the EA or the EIS, the Air Force may adopt the EA or EIS, or a is in Appendix B. Supplements to this portion thereof, by circulating the EA part may not add CATEXs or expand or EIS as a draft and then preparing the scope of the CATEXs in Appendix the final EA or EIS. B. (b) Characteristics of categories of § 989.10 Tiering. actions that usually do not require either an EIS or an EA (in the absence of The Air Force should use tiered (40 extraordinary circumstances) include: CFR 1502.20) environmental documents, and environmental documents prepared (1) Minimal adverse effect on envi- by other agencies, to eliminate repet- ronmental quality. itive discussions of the same issues and (2) No significant change to existing to focus on the issues relating to spe- environmental conditions. cific actions. If the Air Force adopts (3) No significant cumulative envi- another Federal agency’s environ- ronmental impact. mental document, subsequent Air (4) Socioeconomic effects only. Force environmental documents may (5) Similarity to actions previously also be tiered. assessed and found to have no significant environmental impacts. § 989.11 Combining EIAP with other (c) CATEXs apply to actions in the documentation. United States and abroad. General ex- (a) The EPF combines environmental emptions specific to actions abroad are analysis with other related documenta- in 32 CFR part 187. The EPF or other tion when practicable (40 CFR 1506.4) decision-maker forwards requests for following the procedures prescribed by additional exemption determinations the CEQ regulations and this part. for actions abroad to HQ USAF/ILEB (b) The EPF must integrate com- with a justification letter. prehensive planning (AFI 32–7062, Air (d) Normally, any decision-making Force Comprehensive Planning 9) with level may determine the applicability the requirements of the EIAP. Prior to of a CATEX and need not formally making a decision to proceed, the EPF record the determination on AF Form must analyze the environmental im- 813 or elsewhere, except as noted in the pacts that could result from implemen- CATEX list. tation of a proposal identified in the (e) Application of a CATEX to an ac- comprehensive plan. tion does not eliminate the need to meet air conformity requirements (see § 989.12 AF Form 813, Request for En- § 989.30). vironmental Impact Analysis. [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. The Air Force uses AF Form 813 to 28, 2001] document the need for environmental analysis or for certain CATEX deter- § 989.14 Environmental assessment. minations for proposed actions. The (a) When a proposed action is one not form helps narrow and focus the issues usually requiring an EIS but is not cat- to potential environmental impacts. egorically excluded, the EPF supports AF Form 813 must be retained with the the proponent in preparing an EA (40 EA or EIS to record the focusing of en- CFR 1508.9). Every EA must lead to ei- vironmental issues. ther a FONSI, a decision to prepare an [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. EIS, or no action on the proposal. 28, 2001] (b) Whenever a proposed action usually requires an EIS, the EPF respon- 9 See footnote 1 to § 989.1. sible for the EIAP may prepare an EA

247

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00257 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.14 32 CFR Ch. VII (7–1–05 Edition)

to definitively determine if an EIS is companion FONSIs, when requested by required based on the analysis of envi- the MAJCOM (see § 989.30). ronmental impacts. Alternatively, the (i) In cases potentially involving a EPF may choose to bypass the EA and high degree of controversy or Air proceed with preparation of an EIS. Force-wide concern, the MAJCOM, (c) An EA is a written analysis that: after consultation with HQ USAF/ (1) Provides analysis sufficient to de- ILEB, may request HQ USAF ESOHC termine whether to prepare an EIS or a review and approval of an EA, or HQ FONSI. USAF may direct the MAJCOM to for- (2) Aids the Air Force in complying ward an EA (five hard copies and an with the NEPA when no EIS is re- electronic version) for HQ USAF quired. ESOHC review and approval. (d) The length of an EA should be as short and concise as possible, while (j) As a minimum, the following EAs matching the magnitude of the pro- require MAJCOM approval because posal. An EA briefly discusses the need they involve topics of special impor- for the proposed action, reasonable al- tance or interest. Unless directed oth- ternatives to the proposed action, the erwise by HQ USAF/ILEB, the installa- affected environment, the environ- tion EPF must forward the following mental impacts of the proposed action types of EAs to the MAJCOM EPF, and alternatives (including the ‘‘no ac- along with an unsigned draft FONSI: tion’’ alternative), and a listing of (MAJCOMs can require other EAs to agencies and persons consulted during receive MAJCOM approval in addition preparation. The EA should not con- to those types specified here.) tain long descriptions or lengthy, de- (1) All EAs on non-Air Force pro- tailed data. Rather, incorporate by ref- posals that require an Air Force deci- erence background data to support the sion, such as use of Air Force property concise discussion of the proposal and for highways, space ports, and joint-use relevant issues. proposals. (e) The format for the EA may be the (2) EAs where mitigation to insignifi- same as the EIS. The alternatives sec- cance is accomplished in lieu of initi- tion of an EA and an EIS are similar ating an EIS (§ 989.22(c)). and should follow the alternatives analysis guidance outlined in § 989.8. (k) A few examples of actions that (f) The EPF should design the EA to normally require preparation of an EA facilitate rapidly transforming the doc- (except as indicated in the CATEX list) ument into an EIS if the environ- include: mental analysis reveals a significant (1) Public land withdrawals of less impact. than 5,000 acres. (g) As a finding contained in the (2) Minor mission realignments and draft FONSI, a Finding of No Prac- aircraft beddowns. ticable Alternative (FONPA) must be (3) New building construction on base submitted (five hard copies and an within developed areas. electronic version) to the MAJCOM (4) Minor modifications to Military EPF when the alternative selected Operating Areas (MOAs), air-to-ground could be located in wetlands or weapons ranges, and military training floodplains, and must discuss why no routes. other practicable alternative exists to (l) The Air Force will involve other avoid impacts. See AFI 32–7064, Inte- federal agencies, state, Tribal, and grated Natural Resources Management. local governments, and the public in (h) EAs and accompanying FONSIs that require the Air Force to make the preparation of EAs (40 CFR Clean Air Act General Conformity De- 1501.4(b) and 1506.6). The extent of in- terminations shall be submitted (five volvement usually coincides with the hard copies and an electronic version) magnitude and complexity of the pro- through the MAJCOM EPF to HQ posed action and its potential environ- USAF/ILEB for SAF/MIQ approval. mental effect on the area. For proposed SAF/MIQ signs all General Conformity actions described in § 989.15(e)(2), use Determinations and will also sign the either the scoping process described in

248

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00258 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.15

§ 989.18 or the public notice process in SPOC or other equivalent agency is the § 989.24. official notification date. [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. (1) Before the FONSI is signed and 28, 2001] the action is implemented, the EPF should allow sufficient time to receive § 989.15 Finding of no significant im- comments from the public. The time pact. period will reflect the magnitude of the (a) The FONSI (40 CFR 1508.13) briefly proposed action and its potential for describes why an action would not have controversy. The greater the mag- a significant effect on the environment nitude of the proposed action or its po- and thus will not be the subject of an tential for controversy, the longer the EIS. The FONSI must summarize the time that must be allowed for public EA or, preferably, have it attached and review. Mandatory review periods for incorporated by reference, and must certain defined actions are contained note any other environmental docu- in § 989.15(e)(2). These are not all inclu- ments related to the action. sive but merely specific examples. In (b) If the EA is not incorporated by every case where an EA and FONSI are reference, the FONSI must include: prepared, the proponent and EPF must (1) Name of the action. determine how much time will be al- (2) Brief description of the action (in- lowed for public review. In all cases, cluding alternatives considered and the other than classified actions, a public chosen alternative). review period should be the norm un- (3) Brief discussion of anticipated en- less clearly unnecessary due to the vironmental effects. lack of potential controversy. (4) Conclusions leading to the FONSI. (2) In the following circumstances, (5) All mitigation actions that will be the EA and unsigned FONSI are made adopted with implementation of the available for public review for at least proposal (see § 989.22). 30 days before FONSI approval and im- (c) Keep FONSIs as brief as possible. plementing the action (40 CFR Only rarely should FONSIs exceed two 1501.4(e)(2)): typewritten pages. Stand-alone FONSIs without an attached EA may be longer. (i) When the proposed action is, or is (d) For actions of regional or local in- closely similar to, one that usually re- terest, disseminate the FONSI accord- quires preparation of an EIS (see ing to § 989.24. The MAJCOM and NGB § 989.16). are responsible for release of FONSIs to (ii) If it is an unusual case, a new regional offices of Federal agencies, kind of action, or a precedent-setting the state single point of contact case in terms of its potential environ- (SPOC), and state agencies concurrent mental impacts. with local release by the installations. (iii) If the proposed action would be (e) The EPF must make the EA and located in a floodplain or wetland. unsigned FONSI available to the af- (iv) If the action is mitigated to in- fected public and provide the EA and significance in the FONSI, in lieu of an unsigned FONSI to organizations and EIS (§ 989.22(c)). individuals requesting them and to (v) If the proposed action is a change whomever the proponent or the EPF to airspace use or designation. has reason to believe is interested in (vi) If the proposed action would have the action, unless disclosure is pre- a disproportionately high and adverse cluded for security classification rea- environmental effect on minority pop- sons. Draft EAs and unsigned draft ulations and low-income populations. FONSIs will be clearly identified as drafts and distributed via cover letter (f) As a general rule, the same orga- which will explain their purpose and nizational level that prepares the EA need. The EPF provides a copy of the also reviews and recommends the documents without cost to organiza- FONSI for approval by the EPC. tions and individuals requesting them. MAJCOMs may decide the level of EA The FONSI transmittal date (date of approval and FONSI signature, except letter of transmittal) to the state as provided in § 989.14(g), (h), (i), and (j).

249

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.16 32 CFR Ch. VII (7–1–05 Edition)

§ 989.16 Environmental impact state- § 989.18 Scoping. ment. (a) After publication of the NOI for (a) Certain classes of environmental an EIS, the EPF must initiate the pub- impacts normally require preparation lic scoping process (40 CFR 1501.7) to of an EIS (40 CFR 1501.4). These in- determine the scope of issues to be ad- clude, but are not limited to: dressed and to help identify significant (1) Potential for significant degrada- environmental issues to be analyzed in tion of the environment. depth. Methods of scoping range from (2) Potential for significant threat or soliciting written comments to con- hazard to public health or safety. ducting public scoping meetings (see 40 (3) Substantial environmental con- CFR 1501.7 and 1506.6(e)). The scoping troversy concerning the significance or process is an iterative, pro-active proc- nature of the environmental impact of ess of communicating with individual a proposed action. citizens, neighborhood, community, (b) Certain other actions normally, and local leaders, public interest but not always, require an EIS. These groups, congressional delegations, include, but are not limited to: state, Tribal, and local governments, (1) Public land withdrawals of over and federal agencies. The scoping proc- 5,000 acres (Engle Act, 43 U.S.C. 155 ess must start prior to official public through 158). scoping meetings and continue through to preparation of the draft EIS. The (2) Establishment of new air-to- purpose of this process is to de-empha- ground weapons ranges. size insignificant issues and focus the (3) Site selection of new airfields. scope of the environmental analysis on (4) Site selection of major installa- significant issues (40 CFR 1500.4(g)). tions. Additionally, scoping allows early and (5) Development of major new weap- more meaningful participation by the ons systems (at decision points that in- public. The result of scoping is that the volve demonstration, validation, pro- proponent and EPF determine the duction, deployment, and area or site range of actions, alternatives, and im- selection for deployment). pacts to be considered in the EIS (40 (6) Establishing or expanding super- CFR 1508.25). The EPF must send sonic training areas over land below scripts for scoping meetings to USAF/ 30,000 feet MSL (mean sea level). ILEV (or ANGRC/CEV) no later than 30 (7) Disposal and reuse of closing in- days before the first scoping meeting. stallations. Scoping meeting plans are similar in content to public hearing plans (see § 989.17 Notice of intent. Appendix C). Public scoping meetings The EPF must furnish, through the should generally be held at locations MAJCOM, to HQ USAF/ILEB the NOI not on the installation. (40 CFR 1508.22) describing the proposed (b) Where it is anticipated the pro- action for congressional notification posed action and its alternatives will and publication in the FEDERAL REG- have disproportionately high and ad- ISTER. The EPF, through the host base verse human health or environmental public affairs office, will also provide effects on minority populations or low- the approved NOI to newspapers and income populations, special efforts other media in the area potentially af- shall be made to reach these popu- fected by the proposed action. The EPF lations. This might include special in- must provide copies of the notice to formational meetings or notices in mi- the SPOC and must also distribute it nority and low-income areas con- to requesting agencies, organizations, cerning the regular scoping process. and individuals. Along with the draft [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. NOI, the EPF must also forward the 28, 2001; 66 FR 26793, May 15, 2001] completed DOPAA, through the MAJCOM, to HQ USAF for informa- § 989.19 Draft EIS. tion. (a) Preliminary draft. The EPF sup- [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. ports the proponent in preparation of a 28, 2001] preliminary draft EIS (PDEIS) (40 CFR

250

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.19

1502.9) based on the scope of issues de- else requesting the entire draft EIS (40 cided on during the scoping process. CFR 1502.19 and 1506.6). The format of the EIS must be in ac- (2) The EPF sponsors public hearings cordance with the format recon the draft EIS according to the pro- ommended in the CEQ regulations (40 cedures in Appendix C to this part. CFR 1502.10 and 1502.11). The CEQ regu- Hearings take place no sooner than 15 lations indicate that EISs normally days after the FEDERAL REGISTER pub- contain fewer than 150 pages (300 pages lication of the NOA and at least 15 days for proposals of unusual complexity). before the end of the comment period. The EPF provides a sufficient number Scheduling hearings toward the end of of copies of the PDEIS to HQ USAF/ the comment period is encouraged to ILEB for HQ USAF ESOHC security allow the public to obtain and more and policy review in each member’s thoroughly review the draft EIS. The area of responsibility and to AFCEE/EC EPF must provide hearing scripts to for technical review. HQ USAF/ILEB (or ANGRC/CEV) no (b) Review of draft EIS. After the HQ later than 30 days prior to the first USAF ESOHC review, the EPF assists public hearing. Public hearings should the appropriate Air Force organization generally be held at off-base locations. in making any necessary revisions to Submit requests to deviate from proce- the PDEIS and forwards it to HQ dures in Appendix C to this part to HQ USAF/ILEB as a draft EIS to ensure USAF/ILEB for SAF/MIQ approval. completion of all security and policy (3) Where analyses indicate that a reviews and to certify releasability. proposed action will potentially have Once the draft EIS is approved, HQ disproportionately high and adverse USAF/ILEB notifies the EPF to print human health or environmental effects sufficient copies of the draft EIS for on minority populations or low-income distribution to congressional delega- populations, the EPF should make spe- tions and interested agencies at least 7 cial efforts to ensure that these poten- calendar days prior to publication of tially impacted populations are the Notice of Availability (NOA) in the brought into the review process. FEDERAL REGISTER. After congressional (d) Response to comments (40 CFR distribution, the EPF sends the draft 1503.4). The EPF must incorporate in EIS to all others on the distribution the Final EIS its responses to com- list. HQ USAF/ILEB then files the doc- ments on the Draft EIS by modifying ument with the U.S. Environmental the text and referring in the appendix Protection Agency (USEPA) and pro- to where the comment is addressed or vides a copy to the Deputy Under Sec- providing a written explanation in the retary of Defense for Environmental comments section, or both. The EPF Security. may group comments of a similar na- (c) Public review of draft EIS (40 CFR ture together to allow a common re- 1502.19 and 1506.6): (1) The public com- sponse and may also respond to indi- ment period for the draft EIS is at viduals separately. least 45 days starting from the publica- (e) Seeking additional comments. The tion date of the NOA of the draft EIS EPF may, at any time during the EIS in the FEDERAL REGISTER. USEPA pub- process, seek additional public com- lishes in the FEDERAL REGISTER NOAs ments, such as when there has been a of EISs filed during the preceding significant change in circumstances, week. This public comment period may development of significant new infor- be extended by the EPF. If the draft mation of a relevant nature, or where EIS is unusually long, the EPF may there is substantial environmental con- distribute a summary to the public troversy concerning the proposed ac- with an attached list of locations (such tion. Significant new information lead- as public libraries) where the entire ing to public controversy regarding the draft EIS may be reviewed. The EPF scope after the scoping process is such must distribute the full draft EIS to a changed circumstance. An additional certain entities, for example, agencies public comment period may also be with jurisdiction by law or agencies necessary after the publication of the with special expertise in evaluating the draft EIS due to public controversy or environmental impacts, and anyone changes made as the result of previous

251

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.20 32 CFR Ch. VII (7–1–05 Edition)

public comments. Such periods when § 989.21 Record of decision (ROD). additional public comments are sought (a) The proponent and the EPF pre- shall last for at least 30 days. pare a draft ROD, formally staff it [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. through the MAJCOM EPC, to HQ 28, 2001] USAF/ILEB for verification of adequacy, and forwards it to either SAF/ § 989.20 Final EIS. MIQ or SAF/AQR, as the case may be, (a) If changes in the draft EIS are for approval and designation of the minor or limited to factual corrections signator. A ROD (40 CFR 1505.2) is a and responses to comments, the pro- concise public document stating what ponent and EPF may, with the prior an agency’s decision is on a specific ac- approval of HQ USAF/ILEB and SAF/ tion. The ROD may be integrated into MIQ, prepare a document containing any other document required to imple- only comments on the Draft EIS, Air ment the agency’s decision. A decision Force responses, and errata sheets of on a course of action may not be made changes staffed to the HQ USAF until the later of the following dates: ESOHC for coordination. However, the (1) 90 days after publication of the EPF must submit the Draft EIS and all of the above documents, with a new DEIS; or cover sheet indicating that it is a final (2) 30 days after publication of the EIS (40 CFR 1503.4(c)), to HQ USAF/ NOA of the Final EIS in the FEDERAL ILEB for filing with the EPA (40 CFR REGISTER. 1506.9). If more extensive modifications (b) The Air Force must announce the are required, the EPF must prepare a ROD to the affected public as specified preliminary final EIS incorporating in § 989.24, except for classified por- these modifications for coordination tions. The ROD should be concise and within the Air Force. Regardless of should explain the conclusion, the rea- which procedure is followed, the final son for the selection, and the alter- EIS must be processed in the same way natives considered. The ROD must as the draft EIS, including receipt of identify the course of action, whether copies of the EIS by SAF/LLP, except it is the proposed action or an alter- that the public need not be invited to native, that is considered environ- comment during the 30-day post-filing mentally preferable regardless of waiting period. The Final EIS should whether it is the alternative selected be furnished to every person, organiza- for implementation. The ROD should tion, or agency that made substantive summarize all the major factors the comments on the Draft EIS or re- agency weighed in making its decision, quested a copy. Although the EPF is including essential considerations of not required to respond to public com- national policy. ments received during this period, (c) The ROD must state whether the comments received must be considered selected alternative employs all prac- in determining final decisions such as ticable means to avoid, minimize, or identifying the preferred alternative, mitigate environmental impacts and, if appropriate mitigations, or if a supple- not, explain why. mental analysis is required. (b) The EPF processes all necessary [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. supplements to EISs (40 CFR 1502.9) in 28, 2001] the same way as the original Draft and Final EIS, except that a new scoping § 989.22 Mitigation. process is not required. (a) When preparing EIAP documents, (c) If major steps to advance the pro- indicate clearly whether mitigation posal have not occurred within 5 years measures (40 CFR 1508.20) must be im- from the date of the Final EIS ap- plemented for the alternative selected. proval, reevaluation of the documenta- If using Best Management Practices tion should be accomplished to ensure (BMPs), identify the specific BMPs its continued validity. being used and include those BMPs in [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. the mitigation plan. Discuss mitiga- 28, 2001] tion measures in terms of ‘‘will’’ and

252

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00262 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.24

‘‘would’’ when such measures have al- review within 90 days from the date of ready been incorporated into the pro- signature of the FONSI or ROD. posal. Use terms like ‘‘may’’ and [64 FR 38129, July 15, 1999; 66 FR 16868, Mar. ‘‘could’’ when proposing or suggesting 28, 2001] mitigation measures. Both the public and the Air Force community need to § 989.23 Contractor prepared docu- know what commitments are being ments. considered and selected, and who will All Air Force EIAP documents be- be responsible for implementing, fund- long to and are the responsibility of ing, and monitoring the mitigation the Air Force. EIAP correspondence measures. and documents distributed outside of (b) The proponent funds and imple- the Air Force should generally be ments mitigation measures in the signed out by Air Force personnel and mitigation plan that is approved by the documents should reflect on the cover decision-maker. Where possible and ap- sheet they are an Air Force document. propriate because of amount, the pro- Contractor preparation information ponent should include the cost of miti- should be contained within the docu- gation as a line item in the budget for ment’s list of preparers. a proposed project. The proponent § 989.24 Public notification. must ensure compliance with mitigation requirements, monitoring their ef- (a) Except as provided in § 989.26, pub- fectiveness, and must keep the EPF in- lic notification is required for various formed of the mitigation status. The aspects of the EIAP. EPF reports its status, through the (b) Activities that require public no- MAJCOM, to HQ USAF/ILEB when re- tification include: quested. Upon request, the EPF must (1) An EA and FONSI. also provide the results of relevant (2) An EIS NOI. mitigation monitoring to the public. (3) Public scoping meetings. (4) Availability of the draft EIS. (c) The proponent may ‘‘mitigate to (5) Public hearings on the draft EIS insignificance’’ potentially significant (which should be included in the NOA environmental impacts found during for the draft EIS). preparation of an EA, in lieu of pre- (6) Availability of the final EIS. paring an EIS. The FONSI for the EA (7) The ROD for an EIS. must include these mitigation meas- (c) For actions of local concern, the ures. Such mitigations are legally list of possible notification methods in binding and must be carried out as the 40 CFR 1506.6(b)(3) is only illustrative. proponent implements the project. If, The EPF may use other equally effec- for any reason, the project proponent tive means of notification as a sub- later abandons or revises in environ- stitute for any of the methods listed. mentally adverse ways the mitigation Because many Air Force actions are of commitments made in the FONSI, the limited interest to persons or organiza- proponent must prepare a supple- tions outside the Air Force, the EPF mental EIAP document before con- may limit local notification to the tinuing the project. If potentially sig- SPOC, local government representa- nificant environmental impacts would tives, and local news media. For all ac- result from any project revisions, the tions covered under § 989.15(e)(2), and proponent must prepare an EIS. for all EIS notices, the public affairs (d) For each FONSI or ROD con- office must purchase with EPF funds taining mitigation measures, the pro- an advertisement in a prominent sec- ponent prepares a plan specifically tion of the local newspaper(s) of gen- identifying each mitigation, discussing eral circulation (not ‘‘legal’’ news- how the proponent will execute the papers or ‘‘legal section’’ of general mitigations, identifying who will fund newspapers). and implement the mitigations, and (d) For the purpose of EIAP, the EPF stating when the proponent will com- begins the time period of local notifica- plete the mitigation. The mitigation tion when it sends written notification plan will be forwarded, through the to the state SPOC or other equivalent MAJCOM EPF to HQ USAF/ILEB for agency (date of letter of notification).

253

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00263 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.25 32 CFR Ch. VII (7–1–05 Edition)

§ 989.25 Base closure and realignment. under the applicable procedures for the Base closure or realignment may en- classification level pertinent to the tail special requirements for environ- particular information. At times (for mental analysis. The permanent base example, during weapons system devel- closure and realignment law, 10 U.S.C. opment and base closures and realign- 2687, requires a report to the Congress ments), certain but not all aspects of when an installation where at least 300 NEPA documents may later be declas- DoD civilian personnel are authorized sified. In those cases, the EPF should to be employed is closed, or when a re- organize the EIAP documents, to the alignment reduces such an installation extent practicable, in a way that keeps by at least 50 percent or 1,000 of such the most sensitive classified informa- personnel, whichever is less. In addition (which is not expected to be re- tion, other base closure laws may be in leased at any early date) in a separate effect during particular periods. Such annex that can remain classified; the nonpermanent closure laws frequently rest of the EIAP documents, when de- contain provisions limiting the extent classified, will then be comprehensible of environmental analysis required for as a unit and suitable for release to the actions taken under them. Such provi- public. Thus, the documents will re- sions may also add requirements for flect, as much as possible, the nature of studies not necessarily required by the action and its environmental im- NEPA. pacts, as well as Air Force compliance § 989.26 Classified actions (40 CFR with NEPA requirements. 1507.3(c)). (c) Where the proposed action is not (a) Classification of an action for na- classified, but certain aspects of it tional defense or foreign policy pur- need to be protected by security classi- poses does not relieve the requirement fication, the EPF should tailor the of complying with NEPA. In classified EIAP for a proposed action to permit matters, the Air Force must prepare as normal a level of public involvement and make available normal NEPA envi- as possible, but also fully protect the ronmental analysis documents to aid classified part of the action and envi- in the decision-making process; how- ronmental analysis. In some instances, ever, Air Force staff must prepare, the EPF can do this by keeping the safeguard, and disseminate these docu- classified sections of the EIAP documents according to established proce- ments in a separate, classified annex. dures for protecting classified docu- (d) For § 989.26(b) actions, an NOI or ments. If an EIAP document must be NOA will not be published in the FED- classified, the Air Force may modify or ERAL REGISTER until the proposed ac- eliminate associated requirements for tion is declassified. For § 989.26(c) ac- public notice (including publication in tions, the FEDERAL REGISTER will run the FEDERAL REGISTER) or public in- an unclassified NOA which will advise volvement in the EIAP. However, the the public that at some time in the fu- Air Force should obtain comments on ture the Air Force may or will publicly classified proposed actions or classified release a declassified document. aspects of generally unclassified actions, from public agencies having ju- (e) The EPF similarly protects classi- risdiction by law or special expertise, fied aspects of FONSIs, RODs, or other to the extent that such review and environmental documents that are part comment is consistent with security of the EIAP for a proposed action, such requirements. Where feasible, the EPF as by preparing separate classified an- may need to help appropriate personnel nexes to unclassified documents, as from those agencies obtain necessary necessary. security clearances to gain access to (f) Whenever a proponent believes documents so they can comment on that EIAP documents should be kept scoping or review the documents. classified, the EPF must make a report (b) Where the proposed action is clas- of the matter to SAF/MIQ, including sified and unavailable to the public, proposed modifications of the normal the Air Force may keep the entire EIAP to protect classified information. NEPA process classified and protected The EPF may make such submissions

254

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00264 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD § 989.31

at whatever level of security classifica- representative, greatly facilitates the tion is needed to provide a comprehen- airspace proposal process and helps re- sive understanding of the issues. SAF/ solve many NEPA issues during the MIQ, with support from SAF/GC and EIAP. other staff elements as necessary, makes final decisions on EIAP proce- § 989.29 Force structure and unit move dures for classified actions. proposals. Unless directed otherwise, the § 989.27 Occupational safety and MAJCOM plans and programs pro- health. ponent will forward a copy of all EAs Assess direct and indirect impacts of for force structure and unit moves to proposed actions on the safety and HQ USAF/ILEB for information only at health of Air Force employees and oth- the preliminary draft and preliminary ers at a work site. The EIAP document final stages. does not need to specify compliance procedures. However, the EIAP docu- [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001] ments should discuss impacts that require a change in work practices to § 989.30 Air quality. achieve an adequate level of health and safety. Section 176(c) of the Clean Air Act Amendments of 1990, 42 U.S.C. 7506(c), § 989.28 Airspace and range proposals. establishes a conformity requirement for Federal agencies which has been (a) EIAP Review. Airspace and range implemented by regulation, 40 CFR 93, proposals require review by HQ USAF/ Subpart B. All EIAP documents must XOO prior to public announcement and address applicable conformity require- preparation of the DOPAA. Unless di- ments and the status of compliance. rected otherwise, the airspace pro- Conformity applicability analyses and ponent will forward the DOPAA as an determinations are developed in par- attachment to the proposal sent to HQ allel with EIAP documents, but are USAF/XOO. separate and distinct requirements and (b) Federal Aviation Administration. should be documented separately. To The DoD and the Federal Aviation Ad- increase the utility of a conformity de- ministration (FAA) have entered into a termination in performing the EIAP, Memorandum of Understanding (MOU) the conformity determination should that outlines various airspace respon- be completed prior to the completion sibilities. For purposes of compliance of the EIAP so as to allow incorpora- with NEPA, the DoD is the ‘‘lead agen- tion of the information from the con- cy’’ for all proposals initiated by DoD, formity determination into the EIAP. with the FAA acting as the ‘‘cooper- See AFI 32–7040, Air Quality Compli- ating agency.’’ Where airspace pro- ance.10 posals initiated by the FAA affect military use, the roles are reversed. The § 989.31 Pollution prevention. proponent’s action officers (civil engineering and local airspace manage- The Pollution Prevention Act of 1990, ment) must ensure that the FAA is 42 U.S.C. 13101(b), established a na- fully integrated into the airspace pro- tional policy to prevent or reduce pol- posal and related EIAP from the very lution at the source, whenever feasible. beginning and that the action officers Pollution prevention approaches review the FAA’s responsibilities as a should be applied to all pollution-gen- cooperating agency. The proponent’s erating activities. The environmental airspace manager develops the prelimi- document should analyze potential pol- nary airspace proposal per appropriate lution that may result from the pro- FAA handbooks and the FAA-DoD posed action and alternatives and must MOU. The preliminary airspace pro- discuss potential pollution prevention posal is the basis for initial dialogue measures when such measures are fea- between DoD and the FAA on the pro- sible for incorporation into the proposed action. A close working relation- posal or alternatives. Where pollution ship between DoD and the FAA, through the FAA regional Air Force 10 See footnote 1 to § 989.1.

255

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00265 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 989.32 32 CFR Ch. VII (7–1–05 Edition)

cannot be prevented, the environ- forward all requests for procedural de- mental analysis and proposed mitiga- viations to HQ USAF/ILEB (or ANGRC/ tion measures should include, wherever CEV) for review and approval by SAF/ possible, recycling, energy recovery, MIQ. treatment, and environmentally safe (b) Emergency procedures (40 CFR disposal actions (see AFI 32–7080, Pollu- 1506.11). Emergency situations do not tion Prevention Program 11). exempt the Air Force from complying with NEPA, but do allow emergency re- § 989.32 Noise. sponse while completing the EIAP. Cer- Aircraft noise data files used for tain emergency situations may make it analysis during EIAP will be submitted necessary to take immediate action to HQ AFCEE for review and validation having significant environmental im- prior to public release, and upon compact, without observing all the provi- pletion of the EIAP for database entry. sions of the CEQ regulations or this Utilize the current NOISEMAP compart. If possible, promptly notify HQ puter program for air installations and USAF/ILEB, for SAF/MIQ coordination the Assessment System for Aircraft and CEQ consultation, before under- Noise for military training routes and taking emergency actions that would military operating areas. Guidance on otherwise not comply with NEPA or standardized Air Force noise data de- this part. The immediate notification velopment and analysis procedures is requirement does not apply where available from HQ AFCEE/EC. Develop emergency action must be taken with- EIAP land use analysis relating to air- out delay. Coordination in this in- craft noise impacts originating from stance must take place as soon as prac- air installations following procedures ticable. in AFI 32–7063, Air Installation Com- patible Use Zone (AICUZ) Program. [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. Draft EIAP aircraft noise/land use 28, 2001] analysis associated with air installa- § 989.35 Reporting requirements. tions will be coordinated with the MAJCOM AICUZ program manager. (a) EAs, EISs, and mitigation measures will be tracked at bases and [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. MAJCOMs through an appropriate en- 28, 2001] vironmental management system. § 989.33 Environmental justice. (b) Proponents, EPFs, and public affairs offices may utilize the World Wide During the preparation of environ- Web, in addition to more traditional mental analyses under this instruction, means, to notify the public of avail- the EPF should ensure compliance ability of EAs and EISs. When possible, with the provisions of E.O. 12898, Fed- allow distribution of documents elec- eral Actions to Address Environmental tronically. Public review comments Justice in Minority Populations and should be required in writing, rather Low-Income Populations, and Execu- than by electronic mail. tive Memorandum of February 11, 1994, (c) All documentation will be dis- regarding E.O. 12898. posed of according to AFMAN 37–139, 12 § 989.34 Special and emergency proce- Records Disposition Schedule. dures. [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. (a) Special procedures. During the 28, 2001] EIAP, unique situations may arise that require EIAP strategies different than § 989.36 Waivers. those set forth in this part. These situ- In order to deal with unusual cir- ations may warrant modification of the cumstances and to allow growth in the procedures in this part. EPFs should NEPA process, SAF/MIQ may grant only consider procedural deviations waivers to those procedures contained when the resulting process would ben- in this part not required by NEPA or efit the Air Force and still comply with the CEQ Regulations. Such waivers NEPA and CEQ regulations. EPFs must shall not be used to limit compliance

11 See footnote 1 to § 989.1. 12 See footnote 1 to § 989.1.

256

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00266 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 989, App. A

with NEPA or the CEQ Regulations but accordance with 32 CFR Part 187. HQ only to substitute other, more suitable USAF/ILEB also may inform interested procedures relative to the context of foreign governments or furnish copies the particular action. Such waivers of studies, in accordance with 32 CFR may also be granted on occasion to Part 187. allow experimentation in procedures in order to allow growth in the EIAP. [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. 28, 2001] This authority may not be delegated. [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. APPENDIX A TO PART 989—GLOSSARY OF 28, 2001] REFERENCES, ABBREVIATIONS, ACRO- NYMS, AND TERMS § 989.37 Procedures for analysis abroad. References Procedures for analysis of environ- Legislative mental actions abroad are contained in 10 U.S.C. 2687, Base Closures and Realignments 32 CFR Part 187. That directive pro- 42 U.S.C. 4321–4347, National Environmental vides comprehensive policies, defini- Policy Act of 1969 tions, and procedures for implementing 42 U.S.C. 7506(c), Clean Air Act Amendments of E.O. 12114. For analysis of Air Force ac- 1990 tions abroad, 32 CFR Part 187 will be 42 U.S.C. 13101(b), Pollution Prevention Act of followed. 1990 43 U.S.C. 155–158, Engle Act § 989.38 Requirements for analysis abroad. Executive Orders (a) The EPF will generally perform Executive Order 11988, Floodplain Manage- the same functions for analysis of ac- ment, May 24, 1977 Executive Order 11990, Protection of Wetlands, tions abroad that it performs in the May 24, 1977 United States. In addition to the re- Executive Order 12088, Federal Compliance quirements of 32 CFR Part 187, the fol- with Pollution Control Standards. lowing Air Force specific rules apply: Executive Order 12114, Environmental Effects (b) For EAs dealing with global com- Abroad of Major Federal Actions, January 4, mons (geographic areas beyond the ju- 1979 risdiction of the United States or any Executive Order 12372, Intergovernmental Re- foreign nation), HQ USAF/ILEB will review of Federal Programs, July 14, 1982 Executive Order 12898, Federal Actions to Ad- view actions that are above the dress Environmental Justice in Minority Pop- MAJCOM approval authority. In this ulations and Low-Income Populations, Feb- instance, approval authority refers to ruary 11, 1994 the same approval authority that would apply to an EA in the United U.S. Government Agency Publications States. The EPF documents a decision Council on Environmental Quality Regulations not to do an EIS. for Implementing the Procedural Provisions of (c) For EISs dealing with the global the National Environmental Policy Act, 40 commons, the EPF provides sufficient CFR parts 1500–1508 copies to HQ USAF/ILEB for the HQ Department of Defense Directive (DoDD) USAF ESOHC review and AFCEE/EC 4715.1, Environmental Security Department of Defense Directive (DoDD) technical review. After ESOHC review, 6050.7, Environmental Effects Abroad of Major the EPF makes a recommendation as Department of Defense Actions, March 31, to whether the proposed draft EIS will 1979 (32 CFR Part 187) be released as a draft EIS. Department of Defense Instruction (DoDI) (d) For environmental studies and en- 4715.9, Environmental Planning and Analysis vironmental reviews, forward, when ap- DoDD 5000.1, Defense Acquisition propriate, environmental studies and Department of Defense Regulation 5000.2–R, reviews to HQ USAF/ILEB for coordi- Mandatory Procedures for Major Defense Ac- quisition Programs and Major Automated In- nation among appropriate federal agen- formation System Acquisition Programs cies. HQ USAF/ILEB makes environmental studies and reviews available to Air Force Publications the Department of State and other in- AFPD 32–70, Environmental Quality terested federal agencies, and, on re- AFI 32–1021, Planning and Programming of Fa- quest, to the United States public, in cility Construction Projects

257

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00267 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 989, App. A 32 CFR Ch. VII (7–1–05 Edition)

AFI 32–7002, Environmental Information Man- AFI 32–7064, Integrated Natural Resources agement System Management AFI 32–7005, Environmental Protection Commit- AFI 32–7080, Pollution Prevention Program tees AFI 35–101, Public Affairs Policies and Proce- AFI 32–7040, Air Quality Compliance dures AFI 32–7062, Air Force Comprehensive Planning AFMAN 37–139, Records Disposition Schedule AFI 32–7063, Air Installation Compatible Use Zone Program Abbreviations and Acronyms

Abbreviation or Acronym Definition

AFCEE ...... Air Force Center for Environmental Excellence AFCEE/EC ...... Air Force Center for Environmental Excellence/Environmental Conservation and Planning Directorate AFI ...... Air Force Instruction AFLSA/JACE ...... Air Force Legal Services Agency/Environmental Law and Litigation Division AFLSA/JAJT ...... Air Force Legal Services Agency/Trial Judiciary Division AFMAN ...... Air Force Manual AFMOA/SG ...... Air Force Medical Operations Agency/Aerospace Medicine Office AFPD ...... Air Force Policy Directive AFRES ...... Air Force Reserve ANG ...... Air National Guard ANGRC ...... Air National Guard Readiness Center BMP ...... Best Management Practice CATEX ...... Categorical Exclusion CEQ ...... Council on Environmental Quality CFR ...... Code of Federal Regulations DoD ...... Department of Defense DoDD ...... Department of Defense Directive DoDI ...... Department of Defense Instruction DOPAA ...... Description of Proposed Action and Alternatives EA ...... Environmental Assessment EIAP ...... Environmental Impact Analysis Process EIS ...... Environmental Impact Statement E.O...... Executive Order EPA ...... Environmental Protection Agency EPC ...... Environmental Protection Committee EPF ...... Environmental Planning Function ESOHC ...... Environmental Safety and Occupational Health Committee FAA ...... Federal Aviation Administration FEIS ...... Final Environmental Impact Statement FOA ...... Field Operating Agency FONPA ...... Finding of No Practicable Alternative FONSI ...... Finding of No Significant Impact GSA ...... General Services Administration HQ AFMC ...... Headquarters, Air Force Materiel Command HQ USAF ...... Headquarters, United States Air Force HQ USAF/ILE ...... The Air Force Civil Engineer MAJCOM ...... Major Command MGM ...... Materiel Group Manager MOA ...... Military Operating Area MOU ...... Memorandum of Understanding MSL ...... Mean Sea Level NEPA ...... National Environmental Policy Act of 1969 NGB-CF ...... National Guard Bureau Air Directorate NGB-JA ...... National Guard Bureau Office of the Staff Judge Advocate NGB-PA ...... National Guard Bureau Office of Public Affairs NOA ...... Notice of Availability NOI ...... Notice of Intent OSD ...... Office of the Secretary of Defense OSHA ...... Occupational Safety and Health Administration PDEIS ...... Preliminary Draft Environmental Impact Statement PGM ...... Product Group Manager REO ...... Air Force Regional Environmental Office ROD ...... Record of Decision SAF/AQR ...... Deputy Assistant Secretary of the Air Force (Science, Technology, and Engineering) SAF/GC ...... Air Force General Counsel SAF/LL ...... Air Force Office of Legislative Liaison SAF/MI ...... Assistant Secretary of the Air Force for Manpower, Reserve Affairs, Installations, and Environment SAF/MIQ ...... Deputy Assistant Secretary of the Air Force (Environment, Safety, and Occupational Health) SAF/PA ...... Air Force Office of Public Affairs SJA ...... Staff Judge Advocate SM ...... Single Manager SPD ...... Single Program Director SPOC ...... Single Point of Contact TDY ...... Temporary Duty

258

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00268 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 989, App. B

Abbreviation or Acronym Definition

U.S.C...... United States Code

Terms United States—All states, commonwealths, the District of Columbia, territories and pos- NOTE: All definitions in the CEQ Regula- tions, 40 CFR part 1508, apply to this part. In sessions of the United States, and all waters addition, the following definitions apply: and airspace subject to the territorial jurisdiction of the United States. The territories Best Management Practices (BMPs)—Under and possessions of the United States include the EIAP, BMPs should be applied in furtherance of 40 CFR 1508.22, Mitigations or to ful- American Samoa, Guam, Johnston Atoll, fill permit requirements (see also E.O. 12088, Kingman Reef, Midway Island, Navassa Is- ‘‘Federal Compliance with Pollution Control land, Palmyra Island, the Virgin Islands, and Standards). Wake Island. Description of Proposed Action and Alter- [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. natives (DOPAA)—An Air Force document 28, 2001] that is the framework for assessing the environmental impact of a proposal. It describes APPENDIX B TO PART 989—CATEGORICAL the purpose and need for the action, the alternatives to be considered, and the ration- EXCLUSIONS ale used to arrive at the proposed action. The DOPAA often unfolds as writing pro- A2.1. Proponent/EPF Responsibility gresses. The DOPAA can change during the Although a proposed action may qualify internal scoping and public scoping process, for a categorical exclusion from the require- especially as ideas and issues become clear- ments for environmental impact analysis er, and as new information makes changes under NEPA, this exclusion does not relieve necessary. the EPF or the proponent of responsibility Environmental Impact Analysis Process for complying with all other environmental (EIAP)—The Air Force program that imple- requirements related to the proposal, includ- ments the requirements of NEPA and requirements for analysis of environmental ef- ing requirements for permits, and state regu- fects abroad under E.O. 12114. latory agency review of plans. Finding of No Practicable Alternative A2.2. Additional Analysis (FONPA)—Finding contained in a FONSI or ROD, according to Executive Orders 11988 Circumstances may arise in which usually and 11990, that explains why there are no categorically excluded actions may have a practicable alternatives to an action affect- significant environmental impact and, there- ing a wetland or floodplain, based on appro- fore, may generate a requirement for further priate EIAP analysis or other documenta- environmental analysis. Examples of situation. tions where such unique circumstances may Interdisciplinary—An approach to environ- be present include: mental analysis involving more than one dis- A2.2.1. Actions of greater scope or size than cipline or branch of learning. Pollution Prevention—‘‘Source reduction,’’ generally experienced for a particular cat- as defined under the Pollution Prevention egory of action. Act, and other practices that reduce or A2.2.2. Potential for degradation (even eliminate pollutants through increased effi- though slight) of already marginal or poor ciency in the use of raw materials, energy, environmental conditions. water, or other resources, or in the protec- A2.2.3. Initiating a degrading influence, action of natural resources by conservation. tivity, or effect in areas not already signifi- Proponent—Any office, unit, or activity cantly modified from their natural condi- that proposes to initiate an action. tion. Scoping—A process for proposing alter- A2.2.4. Use of unproved technology. natives to be addressed and for identifying A2.2.5. Use of hazardous or toxic substances the significant issues related to a proposed that may come in contact with the sur- action. Scoping includes affirmative efforts rounding environment. to communicate with other federal agencies, state, Tribal, and local governments, and the A2.2.6. Presence of threatened or endan- public. gered species, archaeological remains, his- Single Manager—Any one of the Air Force torical sites, or other protected resources. designated weapon system program man- A2.2.7. Proposals adversely affecting areas agers, that include System Program Direc- of critical environmental concern, such as tors (SPDs), Product Group Managers prime or unique agricultural lands, wetlands, (PGMs), and Materiel Group Managers coastal zones, wilderness areas, floodplains, (MGMs). or wild and scenic river areas.

259

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00269 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 989, App. B 32 CFR Ch. VII (7–1–05 Edition)

A2.2.8. Proposals with disproportionately cilities) on airfield property and usually ac- high and adverse human health or environ- cessible only to maintenance personnel. mental effects on minority populations or A2.3.14. Installing on previously developed low-income populations. land, equipment that does not substantially alter land use (i.e., land use of more than one A2.3. CATEX List acre). This includes outgrants to private les- Actions that are categorically excluded in sees for similar construction. The EPF must the absence of unique circumstances are: document application of this CATEX on AF A2.3.1. Routine procurement of goods and Form 813. services. A2.3.15. Laying-away or mothballing a pro- A2.3.2. Routine Commissary and Exchange duction facility or adopting a reduced main- operations. tenance level at a closing installation when A2.3.3. Routine recreational and welfare (1) agreement on any required historic pres- activities. ervation effort has been reached with the A2.3.4. Normal personnel, fiscal or budg- state historic preservation officer and the eting, and administrative activities and deci- Advisory Council on Historic Preservation, sions including those involving military and and (2) no degradation in the environmental civilian personnel (for example, recruiting, restoration program will occur. processing, paying, and records keeping). A2.3.16. Acquiring land and ingrants (50 A2.3.5. Preparing, revising, or adopting reg- acres or less) for activities otherwise subject ulations, instructions, directives, or guid- to CATEX. The EPF must document applica- ance documents that do not, themselves, re- tion of this CATEX on AF Form 813. sult in an action being taken. A2.3.17. Transferring land, facilities, and A2.3.6. Preparing, revising, or adopting reg- personal property for which the General ulations, instructions, directives, or guid- Services Administration (GSA) is the action ance documents that implement (without agency. Such transfers are excluded only if substantial change) the regulations, instruc- there is no change in land use and GSA com- tions, directives, or guidance documents plies with its NEPA requirements. from higher headquarters or other Federal A2.3.18. Transferring administrative con- agencies with superior subject matter juris- trol of real property within the Air Force or diction. to another military department or to an- A2.3.7. Continuation or resumption of pre- other Federal agency, not including GSA, in- existing actions, where there is no substan- cluding returning public domain lands to the tial change in existing conditions or existing Department of the Interior. land uses and where the actions were origi- A2.3.19. Granting easements, leases, li- nally evaluated in accordance with applica- censes, rights of entry, and permits to use ble law and regulations, and surrounding cir- Air Force controlled property for activities cumstances have not changed. that, if conducted by the Air Force, could be A2.3.8. Performing interior and exterior categorically excluded in accordance with construction within the 5-foot line of a build- this Appendix. The EPF must document ap- ing without changing the land use of the ex- plication of this CATEX on AF Form 813. isting building. A2.3.20. Converting in-house services to A2.3.9. Repairing and replacing real prop- contract services. erty installed equipment. A2.3.21. Routine personnel decreases and A2.3.10. Routine facility maintenance and increases, including work force conversion to repair that does not involve disturbing sig- either on-base contractor operation or to nificant quantities of hazardous materials military operation from contractor oper- such as asbestos and lead-based paint. ation (excluding base closure and realign- A2.3.11. Actions similar to other actions ment actions which are subject to congres- which have been determined to have an in- sional reporting under 10 U.S.C. 2687). significant impact in a similar setting as es- A2.3.22. Routine, temporary movement of tablished in an EIS or an EA resulting in a personnel, including deployments of per- FONSI. The EPF must document application sonnel on a TDY basis where existing facili- of this CATEX on AF Form 813, specifically ties are used. identifying the previous Air Force approved A2.3.23. Personnel reductions resulting environmental document which provides the from workload adjustments, reduced per- basis for this determination. sonnel funding levels, skill imbalances, or A2.3.12. Installing, operating, modifying, other similar causes. and routinely repairing and replacing utility A2.3.24. Study efforts that involve no com- and communications systems, data proc- mitment of resources other than personnel essing cable, and similar electronic equip- and funding allocations. ment that use existing rights of way, ease- A2.3.25. The analysis and assessment of the ments, distribution systems, or facilities. natural environment without altering it (in- A2.3.13. Installing or modifying airfield spections, audits, surveys, investigations). operational equipment (such as runway vis- This CATEX includes the granting of any ual range equipment, visual glide path sys- permits necessary for such surveys, provided tems, and remote transmitter or receiver fa- that the technology or procedure involved is

260

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00270 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 989, App. C

well understood and there are no adverse en- not cover regular activity on established vironmental impacts anticipated from it. routes or within special use airspace. The EPF must document application of this A2.3.34. Supersonic flying operations over CATEX on AF Form 813. land and above 30,000 feet MSL, or over water A2.3.26. Undertaking specific investigatory and above 10,000 feet MSL and more than 15 activities to support remedial action activi- nautical miles from land. ties for purposes of cleanup of Environ- A2.3.35. Formal requests to the FAA, or mental Restoration Account (ERA)—Air host-nation equivalent agency, to establish Force and Resource Conservation and Recov- or modify special use airspace (for example, ery Act (RCRA) corrective action sites. restricted areas, warning areas, military op- These activities include soil borings and erating areas) and military training routes sampling, installation, and operation of test or monitoring wells. This CATEX applies to for subsonic operations that have a base alti- studies that assist in determining final tude of 3,000 feet above ground level or high- cleanup actions when they are conducted in er. The EPF must document application of accordance with legal agreements, adminis- this CATEX on AF Form 813, which must ac- trative orders, or work plans previously company the request to the FAA. agreed to by EPA or state regulators. A2.3.36. Adopting airfield approach, depar- A2.3.27. Normal or routine basic and ap- ture, and en route procedures that are less plied scientific research confined to the lab- than 3,000 feet above ground level, and that oratory and in compliance with all applica- also do not route air traffic over noise-sen- ble safety, environmental, and natural re- sitive areas, including residential neighbor- source conservation laws. hoods or cultural, historical, and outdoor A2.3.28. Routine transporting of hazardous recreational areas. The EPF may categori- materials and wastes in accordance with ap- cally exclude such air traffic patterns at or plicable Federal, state, interstate, and local greater than 3,000 feet above ground level re- laws. gardless of underlying land use. A2.3.29. Emergency handling and trans- A2.3.37. Participating in ‘‘air shows’’ and porting of small quantities of chemical sur- fly-overs by Air Force aircraft at non-Air ety material or suspected chemical surety Force public events after obtaining FAA co- material, whether or not classified as haz- ordination and approval. ardous or toxic waste, from a discovery site A2.3.38. Conducting Air Force ‘‘open to a permitted storage, treatment, or disposal facility. houses’’ and similar events, including air A2.3.30. Immediate responses to the release shows, golf tournaments, home shows, and or discharge of oil or hazardous materials in the like, where crowds gather at an Air accordance with an approved Spill Preven- Force installation, so long as crowd and traf- tion and Response Plan or Spill Contingency fic control, etc., have not in the past pre- Plan or that are otherwise consistent with sented significant safety or environmental the requirements of the National Contin- impacts. gency Plan. [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. A2.3.31. Relocating a small number of air- 28, 2001] craft to an installation with similar aircraft that does not result in a significant increase of total flying hours or the total number of APPENDIX C TO PART 989—PROCEDURES aircraft operations, a change in flight FOR HOLDING PUBLIC HEARINGS ON tracks, or an increase in permanent per- DRAFT ENVIRONMENTAL IMPACT sonnel or logistics support requirements at STATEMENTS (EIS) the receiving installation. Repetitive use of this CATEX at an installation requires fur- A.3.1. General Information ther analysis to determine there are no cu- A3.1.1. The Office of the Judge Advocate mulative impacts. The EPF must document General, through the Air Force Legal Serv- application of this CATEX on AF Form 813. ices Agency/Trial Judiciary Division A2.3.32. Temporary (for less than 30 days) (AFLSA/JAJT) and its field organization, is increases in air operations up to 50 percent of the typical installation aircraft operation responsible for conducting public hearings rate or increases of 50 operations a day, and assuring verbatim transcripts are ac- whichever is greater. Repetitive use of this complished. CATEX at an installation requires further A3.1.2. The EPF, with proponent, AFLSA/ analysis to determine there are no cumu- JAJT, and Public Affairs support, estab- lative impacts. lishes the date and location, arranges for hir- A2.3.33. Flying activities that comply with ing the court reporter, funds temporary duty the Federal aviation regulations, that are costs for the hearing officer, makes dispersed over a wide area and that do not logistical arrangements (for example, pub- frequently (more than once a day) pass near lishing notices, arranging for press coverage, the same ground points. This CATEX does obtaining tables and chairs, etc.).

261

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00271 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 989, App. C 32 CFR Ch. VII (7–1–05 Edition)

A3.1.3. The procedures outlined below have A.3.3. Availability of the Draft EIS to the proven themselves through many prior appli- Public. cations. However, there may be rare in- The EPF makes copies of the Draft EIS stances when circumstances warrant con- available to the public at an Air Force in- ducting public hearings under a different for- stallation and other reasonably accessible mat, e.g., public/town meeting, information place in the vicinity of the proposed action booths, third party moderator, etc. In these and public hearing (e.g., public library). cases, forward a request with justification to deviate from these procedures to HQ USAF/ A3.4. Place of the Hearing ILEVP for SAF/MIQ approval. The EPF arranges to hold the hearing at a A3.2. Notice of Hearing (40 CFR 1506.6) time and place and in an area readily accessible to military and civilian organizations A3.2.1. Public Affairs officers: and individuals interested in the proposed A3.2.1.1. Announce public hearings and as- action. Generally, the EPF should arrange to semble a mailing list of individuals to be in- hold the hearing in an off-base civilian facil- vited. ity, which is more accessible to the public. A3.2.1.2. Distribute announcements of a hearing to all interested individuals and A3.5. Hearing Officer agencies, including the print and electronic A3.5.1. The AFLSA/JAJT selects a military media. trial judge to preside over hearings. The A3.2.1.3. Place a newspaper display adver- hearing officer does not need to have per- tisement announcing the time and place of sonal knowledge of the project, other than the hearing as well as other pertinent par- familiarity with the Draft EIS. In no event ticulars. should the hearing officer be a judge advo- A3.2.1.4. Distribute the notice in a timely cate from the proponent or subordinate com- manner so it will reach recipients or be pub- mand, be assigned to the same installation lished at least 15 days before the hearing with which the hearing is concerned, or have date. Distribute notices fewer than 15 days participated personally in the development before the hearing date when you have sub- of the project, or have rendered legal advice stantial justification and if the justification or assistance with respect to it (or be ex- for a shortened notice period appears in the pected to do so in the future). The principal notice. qualification of the hearing officer should be A3.2.1.5. Develop and distribute news re- the ability to conduct a hearing as an impar- lease. tial participant. A3.2.2. If an action has effects of national A3.5.2. The primary duties of the hearing concern, publish notices in the FEDERAL officer are to make sure that the hearing is REGISTER and mail notices to national orga- orderly, is recorded, and that interested par- nizations that have an interest in the mat- ties have a reasonable opportunity to speak. ter. The presiding officer should direct the A3.2.2.1. Because of the longer lead time re- speakers’ attention to the purpose of the hearing, which is to consider the environ- quired by the FEDERAL REGISTER, send out mental impacts of the proposed project. notices for publication in the FEDERAL REG- Speakers should have a time limit to ensure ISTER to arrive at HQ USAF/ILEB no later than 30 days before the hearing date. maximum public input to the decision- maker. A3.2.3. The notice should include: A3.2.3.1. Date, time, place, and subject of A3.6. Record of the Hearing the hearing. A3.2.3.2. A description of the general for- The EIS preparation team must make sure mat of the hearing. a verbatim transcribed record of the hearing is prepared, including all stated positions, all A3.2.3.3. The name and telephone number questions, and all responses. The EIS prepa- of a person to contact for more information. ration team should append all written sub- A3.2.3.4. A suggestion that speakers submit missions that parties provide to the hearing (in writing or by return call) their intention officer during the hearing to the record as to participate, with an indication of which attachments. The EIS preparation team environmental impact (or impacts) they should also append a list of persons who wish to address. spoke at the hearing and submitted written A3.2.3.5. Any limitation on the length of comments and a list of the organizations or oral statements. interests they represent with addresses. The A3.2.3.6. A suggestion that speakers submit EIS preparation team must make sure a ver- statements of considerable length in writing. batim transcript of the hearing is provided A3.2.3.7. A summary of the proposed action. to the EPF for inclusion as an appendix to A3.2.3.8. The location where the draft EIS the Final EIS. The officer should also ensure and any appendices are available for exam- that all persons who request a copy of the ination. transcript get a copy when it is completed.

262

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00272 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Department of the Air Force, DoD Pt. 989, App. C

Copying charges are determined according to action. Cross-examination of speakers, ei- 40 CFR 1506.6(f). ther those of the Air Force or the public, is not the purpose of an informal hearing. If A3.7. Hearing Format necessary, the hearing officer may limit Use the format outlined below as a general questioning or conduct portions of the hear- guideline for conducting a hearing. Hearing ing to ensure proper lines of inquiry. How- officers should tailor the format to meet the ever, the hearing officer should include all hearing objectives. These objectives provide questions in the hearing record. information to the public, record opinions of A3.7.5. Statement of Attendees. The hear- interested persons on environmental impacts ing officer must give the persons attending of the proposed action, and set out alter- the hearing a chance to present oral or writ- natives for improving the EIS and for later ten statements. The hearing officer should consideration. be sure the recorder has the name and ad- A3.7.1. Record of Attendees. The hearing dress of each person who submits an oral or officer should make a list of all persons who written statement. The officer should also wish to speak at the hearing to help the permit the attendees to submit written hearing officer in calling on these individ- statements within a reasonable time, usually uals, to ensure an accurate transcript of the two weeks, following the hearing. The officer hearing, and to enable the officer to send a should allot a reasonable length of time at copy of the Final EIS (40 CFR 1502.19) to any the hearing for receiving oral statements. person, organization, or agency that pro- The officer may waive any announced time vided substantive comments at the hearing. limit at his or her discretion. The hearing of- The hearing officer should assign assistants ficer may allow those who have not pre- to the entrance of the hearing room to pro- viously indicated a desire to speak to iden- vide cards on which individuals can volun- tify themselves and be recognized only after tarily write their names, addresses, tele- those who have previously indicated their in- phone numbers, organizations they rep- tentions to speak have spoken. resent, and titles; whether they desire to A3.7.6. Ending or Extending a Hearing. The make a statement at the hearing; and what hearing officer has the power to end the environmental area(s) they wish to address. hearing if the hearing becomes disorderly, if The hearing officer can then use the cards to the speakers become repetitive, or for other call on individuals who desire to make state- good cause. In any such case, the hearing of- ments. However, the hearing officer will not ficer must make a statement for the record deny entry to the hearing or the right to on the reasons for terminating the hearing. speak to people who decline to submit this The hearing officer may also extend the information on cards. hearing beyond the originally announced A3.7.2. Introductory Remarks. The hearing date and time. The officer should announce officer should first introduce himself or her- the extension to a later date or time during self and the EIS preparation team. Then the the hearing and prior to the hearing if pos- hearing officer should make a brief state- sible. ment on the purpose of the hearing and give the general ground rules on how it will be A3.8. Adjourning the Hearing conducted. This is the proper time to wel- come any dignitaries who are present. The After all persons have had a chance to hearing officer should explain that he or she speak, when the hearing has culled a rep- does not make any recommendation or deci- resentative view of public opinion, or when sion on whether the proposed project should the time set for the hearing and any reason- be continued, modified, or abandoned or how able extension of time has ended, the hearing the EIS should be prepared. officer adjourns the hearing. In certain cir- A3.7.3. Explanation of the Proposed Action. cumstances (for example, if the hearing offi- The Air Force EIS preparation team rep- cer believes it is likely that some partici- resentative should next explain the proposed pants will introduce new and relevant infor- action, the alternatives, the potential envi- mation), the hearing officer may justify ronmental consequences, and the EIAP. scheduling an additional, separate hearing A3.7.4. Questions by Attendees. After the session. If the hearing officer makes the de- EIS team representative explains the pro- cision to hold another hearing while pre- posed action, alternatives, and consequences, siding over the original hearing he or she the hearing officer should give attendees a should announce that another public hearing chance to ask questions to clarify points will be scheduled or is under consideration. they may not have understood. The EIS The officer gives notice of a decision to con- preparation team may have to reply in writ- tinue these hearings in essentially the same ing, at a later date, to some of the questions. way he or she announced the original hear- While the Air Force EIS preparation team ing, time permitting. The Public Affairs offi- should be as responsive as possible in an- cer provides the required public notices and swering questions about the proposal, they directs notices to interested parties in co- should not become involved in debate with ordination with the hearing officer. Because questioners over the merits of the proposed of lead-time constraints, SAF/MIQ may

263

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00273 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 989, App. C 32 CFR Ch. VII (7–1–05 Edition)

waive FEDERAL REGISTER notice require- record. The officer should also notify ments or advertisements in local publica- attendees of the deadline for the com- tions. At the conclusion of the hearing, the menting period of the Draft EIS. hearing officer should inform the attendees [64 FR 38129, July 15, 1999; 66 FR 16869, Mar. of the deadline (usually 2 weeks) to submit 28, 2001, as amended at 66 FR 31177, June 11, additional written remarks in the hearing 2001]

264

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00274 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Subtitle B—Other Regulations Relating to National Defense

265

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00275 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00276 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 CHAPTER XII—DEFENSE LOGISTICS AGENCY

SUBCHAPTER A [RESERVED]

SUBCHAPTER B—MISCELLANEOUS

Part Page 1280 Investigating and processing certain noncontrac- tual claims and reporting related litigation ...... 269 1285 Defense Logistics Agency Freedom of Information Act Program ...... 272 1288 Registration of privately owned motor vehicles ..... 291 1290 Preparing and processing minor offenses and violation notices referred to U.S. District Courts ...... 293 1292 Security of DLA activities and resources ...... 301

267

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00277 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00278 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 SUBCHAPTER A [RESERVED] SUBCHAPTER B—MISCELLANEOUS

PART 1280—INVESTIGATING AND this part 1280, to investigate and proc- PROCESSING CERTAIN NON- ess claims within the purview of this CONTRACTUAL CLAIMS AND RE- part 1280. (b) Member of the Army, member of the PORTING RELATED LITIGATION Navy, member of the Marine Corps, member of the Air Force. Officers and en- Sec. 1280.1 Purpose and scope. listed personnel of these Military Serv- 1280.2 Definitions. ices. 1280.3 Significant changes. 1280.4 Responsibilities. § 1280.3 Significant changes. 1280.5 Procedures. This revision provides current cita- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 125; 28 tions to the Army regulations which U.S.C. 2672; and DoD Directive 5105.22 dated have superseded those previously pre- December 9, 1965. scribed for the processing of some SOURCE: 39 FR 19470, June 3, 1974, unless claims. It reflects the new Army otherwise noted. claims processing procedures effected upon the reorganization of the Army. § 1280.1 Purpose and scope. Finally, it provides specific procedures (a) This part 1280 provides procedures for Air Force processed claims. for investigating and processing claims and related litigation: § 1280.4 Responsibilities. (1) By civilian and military personnel (a) DLA field activities. (1) Heads of of DLA for property lost or damaged DLA Primary Level Field Activities incident to service (31 U.S.C. 240 are responsible for: through 243). (i) Designating a qualified individual (2) Incident to use of Government ve- under their command, preferably one hicles and other property of the United experienced in the conduct of inves- States not cognizable under other law tigations, as the Claims Investigating (10 U.S.C. 2737). Officer for the activity. (3) Based on Negligence of Civilian (ii) Authorizing Heads of subordinate and Military Employees under the Fed- activities to appoint Claims Inves- eral Tort Claims Act, 28 U.S.C. 1346(b), tigating Officers where necessary. 2671 through 2680. (2) The Commander, DLA Adminis- (4) In favor of the United States, trative Support Center (DLASC) is re- other than contractual, for loss, dam- sponsible for designating a qualified in- age, or destruction of real or personal dividual, preferably one experienced in property in the possession, custody, or the conduct of investigations, as the control of DLA. Claims Investigating Officer for (b) This part 1280 is applicable to HQ DLASC and HQ DLA. DLA and DLA field activities, except (3) Claims Investigating Officers are nonappropriated funds and related ac- responsible for the expeditious conduct tivities established pursuant to DSAR of all investigations and the processing 1330.2, Open Messes and Other Military of reports in accordance with appro- Sundry Associations and Funds, and priate Departmental regulations as DSAR 1330.4, Civilian Nonappropriated prescribed by this part 1280. To ensure Funds and Related Activities. Claims prompt investigation of every incident involving these activities are processed while witnesses are available, and be- pursuant to the regulations referenced fore damage has been repaired, the du- therein. ties of personnel as Claims Inves- tigating Officers will ordinarily have § 1280.2 Definitions. priority over any other assignments (a) Claims Investigating Officer. A mili- they may have. tary officer or civilian employee of (4) The Counsel, DLA Field Activities DLA, appointed in accordance with are responsible for:

269

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00279 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1280.5 32 CFR Ch. XII (7–1–05 Edition)

(i) Receiving claims reports and in- nizant adjudicating authority as listed formation about related litigation, and in JAGINST 5800.7A, paragraph 2124. processing these reports and informa- (iii) Where the claimant is a member tion in accordance with this part 1280 of the Air Force; the Base Staff Judge and appropriate Departmental regula- Advocate of the nearest Air Force tions. Base. (ii) Providing directions and guid- (b) Claims incident to the use of Gov- ance to Claims Investigating Officers ernment property not cognizable under in the investigation and processing of any other law (10 U.S.C. 2737). (1) The claims. Claims Investigating Officer will con- (b) The Counsel, DLA (DLAH-G) is re- duct his investigation and prepare all sponsible for: necessary forms and reports in accord- (1) Providing guidance to Counsel at ance with the appropriate portions of DLA field activities on all claims and AR 27–20 where the claimant is a mem- litigation matters within the purview ber of the Army or a DLA civilian em- of this part 1280. ployee; JAGINST 5800.7A where the (2) Receiving claims reports and in- claimant is a member of the Navy or formation on related litigation for- Marine Corps; or AFM 112–1 where the warded to HQ DLA, Attention: DLAH- claimant is a member of the Air Force. G, and processing these in accordance (2) The completed report will be for- with this part 1280 and appropriate De- warded by the Claims Investigating Of- partmental regulations. ficer to the Counsel for his activity or, (3) Maintaining this part 1280 in a if the activity has no Counsel, to the current status and reviewing it annu- next higher echelon having such a posi- ally. tion. § 1280.5 Procedures.1 (3) The activity Counsel receiving the Claims Investigating Officer’s report (a) Claims by military and civilian per- will review the report, and take all sonnel of DLA for property lost or dam- necessary action to assure that it is aged incident to service (31 U.S.C. 240 complete and in accordance with the (1) The Claims Inves- through 243). appropriate regulation. He will forward tigating Officer will conduct his inves- the report together with his comments tigation and prepare all necessary and recommendations to one of the fol- forms and reports in accordance with lowing activities for settlement. Where the appropriate portions of AR 27–20 the incident giving rise to the claim where the claimant is a member of the was occasioned by an act or omission Army or a DLA civilian employee; of: JAGINST 5800.7A where the claimant is (i) DLA civilian personnel. Counsel, a member of the Navy or Marine Corps; DLA. or AFM 112–1 where the claimant is a member of the Air Force. (ii) A member of the Army. The Staff (2) The completed report will be for- Judge Advocate designated in AR 27–20, warded by the Claims Investigating Of- appendix F, as the Area Claims Author- ficer to one of the following activities ity where the claim arose. for settlement: (iii) A member of the Navy or Marine (i) Where the claimant is a DLA ci- Corps. The Director of the Navy Law vilian employee or a member of the Center in the Naval District in which Army; the Staff Judge Advocate des- the incident giving rise to the claim ignated in AR 27–20, appendix F, as the occurred. Area Claims Authority where the claim (iv) A member of the Air Force. The arose. Base Staff Judge Advocate of the Air (ii) Where the claimant is a member Force Base nearest the place where the of the Navy or Marine Corps the cog- incident giving rise to the claim occurred. (c) Claims under the Federal Tort 1 Copies of the Military Department regulations mentioned herein may be obtained Claims Act arising from negligence of from the Departments of the Army and DLA military or civilian personnel. (1) Navy, and the Superintendent of Documents, The Claims Investigating Officer will U.S. Government Printing Office. conduct his investigation and prepare

270

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00280 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1280.5

all necessary forms and reports in ac- Offers of compromise will be processed cordance with the appropriate portions pursuant to DSAM 7000.1, chapter 12, of AR 27–20 where the claim involves a section V, paragraph 120502. member of the Army or a DLA civilian (v) Where payment in full is not re- employee; JAGINST 5800.7A where the ceived after reasonable efforts have claim involves a member of the Navy been made to collect the claim admin- or Marine Corps; or AFM 112–1 where istratively, Counsel will refer the case the claim involves a member of the Air directly to the U.S. Attorney unless: Force. (a) The amount of the claim exceeds (2) The completed report of investiga- $10,000, in which event the case will be tion will be forwarded by the Claims referred to Counsel, DLA. Investigating Officer to one of the fol- (b) The amount of the debt is less lowing activities for settlement. Where than $250; or the record clearly shows the incident giving rise to the claim that the debtor is unable to pay; or the was occasioned by an act or omission debtor cannot be located; in which of: event the file may be closed and the (i) DLA civilian personnel or a member debt treated as an uncollectable which of the Army. The Staff Judge Advocate does not have to be referred to the Gen- designated in AR 27–20, appendix F, as eral Accounting Office. the Area Claims Authority where the (2) If, at any stage of the processing incident giving rise to the claim oc- of a claim under this paragraph (d), a curred. claim is filed against the Government (ii) A member of the Navy or Marine arising out of the same incident, or it Corps. The Director of the Navy Law becomes apparent that one will be Center in the Naval District in which filed, the claim under this paragraph the incident giving rise to the claim (d) will be treated as a counterclaim, occurred. and included under the report filed in (iii) A member of the Air Force. The accordance with the applicable para- Base Staff Judge Advocate of the Air graph of this part 1280. Force Base nearest the place where the (e) Claims involving GSA motor pool incident giving rise to the claim oc- system vehicles. (1) Where a motor pool curred. system vehicle issued to a DLA activ- (d) Tort claims in favor of the United ity is involved in an accident giving States for damage to or loss or destruction rise to a claim under the Federal Tort of DLA property, or property in its cus- Claims Act, the claim will be handled tody or control. (1) These claims will be pursuant to paragraph (c) of this sec- investigated and processed in accord- tion. ance with the provisions of AR 27–40, (2) In the event of damage to a motor Chapter 5, except: pool system vehicle which is not due to (i) The duties of the claims officer the fault of the operator, Counsel re- will be performed by the Claims Inves- ceiving the report will submit the re- tigating Officer. port to GSA’s Regional Counsel for the (ii) The duties of the Staff Judge Ad- region that issued the vehicle pursuant vocate will be performed by Counsel, to the Federal Property Management except where the property is a GSA Regulation, § 101–39.805. Damages to motor pool system vehicle (see para- motor pool system vehicles caused by graph (e) of this section). the negligence of vehicle operator em- (iii) The reports of the Claims Inves- ployed by DLA or caused by the neg- tigating Officer will be furnished direct ligence or misconduct of any other offi- to Counsel for his activity or, if his ac- cer or employee of DLA are reimbursed tivity has no Counsel, to the next high- to General Services Administration er echelon having such a position. (GSA). Determination affixing respon- (iv) With respect to reports referred sibility will be made by the Counsel to to them, Counsel are authorized to give which the report is referred, after con- receipts for any payments received and sidering the views of GSA. to execute releases where payment in (f) Reporting legal proceedings. (1) All full is received, except where the prop- process and pleadings served on any erty is a GSA motor pool system vehi- personnel or activity of DLA, and re- cle (see paragraph (e) of this section). lated to a claim covered by this part

271

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00281 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1285 32 CFR Ch. XII (7–1–05 Edition)

1280 or involving an incident which been filed and has been referred to a may give rise to a claim covered by Military Service, a copy of the process this part 1280, together with other im- and pleadings and any information not mediately available data concerning previously furnished will be sent to the the commencement of legal pro- appropriate Military Service Judge Ad- ceedings, will be promptly referred to vocate General. Counsel for the activity involved, or, if the activity has no Counsel, to the PART 1285—DEFENSE LOGISTICS next higher echelon having such a position. AGENCY FREEDOM OF INFOR- (2) Any Military Service member or MATION ACT PROGRAM civilian employee of DLA (or his personal representative) against whom a Sec. domestic civil action or proceeding is 1285.1 Purpose and scope. brought for damage to property, or for 1285.2 Policy. personal injury or death, on account of 1285.3 Definitions. his operation of a motor vehicle 1285.4 Responsibilities. (Government- or privately-owned) in 1285.5 Procedures. the scope of his employment (28 U.S.C. 1285.6 Fees and fee waivers. 2679) will: 1285.7 Reports. (i) Upon receipt of process and plead- APPENDIX A TO PART 1285—GAINING ACCESS ings or any other information regard- TO DLA RECORDS ing the commencement of such action AUTHORITY: 5 U.S.C. 552. or proceeding, immediately inform the SOURCE: 56 FR 65423, Dec. 17, 1991, unless Head of his activity and Counsel as otherwise noted. specified in paragraph (f)(1) of this section. § 1285.1 Purpose and scope. (ii) Promptly deliver all process and pleadings served upon him, or an at- This rule provides policies and proce- tested true copy thereof, to Counsel. dures for the DLA implementation of (3) Upon receipt of information or DoD 5400.7–R,1 DoD Freedom of Infor- process and pleadings pursuant to para- mation Act Program. It applies to HQ graph (f)(1) or (2) of this section, Coun- DLA and all DLA field activities and sel will promptly prepare and process takes precedence over all DLA regula- reports in accordance with the appro- tions that supplement the FOIA propriate portions of AR 27–40 except that: gram. A list of mailing addresses for (i) If the incident giving rise to the DLA activities is provided at appendix litigation was occasioned by an act or A to this part. omission of a member of the Navy or Marine Corps, or a member of the Air § 1285.2 Policy. Force, information and reports re- (a) General. The public has a right to quired to be furnished to The Judge information concerning the activities Advocate General of the Army will be of its Government. DLA policy is to furnished instead to The Judge Advo- conduct its activities in an open man- cate General of the Navy and Air Force ner and provide the public with a max- respectively. imum amount of accurate and timely (ii) If the litigation is under the Fed- information concerning its activities, eral Tort Claims Act and no adminis- consistent always with the legitimate trative claim has been filed, Counsel public and private interests of the will immediately advise the U.S. At- American people. A DLA record re- torney and furnish him a report of all quested by a member of the public who information the activity has with re- follows rules established herein shall spect to the claim and an affidavit by be withheld only when it is exempt the Claims Investigating Officer to the from mandatory public disclosure effect that no administrative claim has been filed. Two copies of the foregoing 1 Copies may be obtained, at cost, from the will be provided to the appropriate National Technical Information Service Military Service Judge Advocate Gen- (NTIS), 5285 Port Royal Road, Springfield, eral. If an administrative claim has VA 22161–2171.

272

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00282 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.2

under the FOIA. In order that the pub- (e) Avoidance of procedural obstacles. lic may have timely information con- DLA activities shall ensure that proce- cerning DLA activities, records re- dural matters do not unnecessarily im- quested through public information pede a requester from obtaining DLA channels by news media representa- records promptly. DLA activities shall tives that would not be withheld if re- provide assistance to requesters to help quested under the FOIA should be re- them understand and comply with pro- leased upon request. Prompt responses cedures established by this rule and to requests for information from news any rules published by the DLA media representatives should be en- PLFA’s. couraged to eliminate the need for (f) Prompt action on requests. When a these requesters to invoke the provi- member of the public complies with sions of the FOIA and thereby assist in the procedures established in this rule providing timely information to the for obtaining DLA records, the request public. Similarly, requests from other shall receive prompt attention; a reply members of the public for information shall be dispatched within 10 working should continue to be honored through days unless a delay is authorized. When appropriate means even though the re- a DLA activity has a significant num- quest does not qualify under FOIA re- ber of requests, e.g., 10 or more, the requirements. quests shall be processed in order of re- (b) Control system. A request for ceipt. However, this does not preclude records that invokes the FOIA shall an activity from completing action on a request which can be easily answered, enter a formal control system designed regardless of its ranking within the to ensure compliance with the FOIA. A order of receipt. A DLA activity may release determination must be made expedite action on a request regardless and the requester informed within the of its ranking within the order of re- time limits specified in this rule. Any ceipt upon a showing of exceptional request for DLA records that either ex- need or urgency. Exceptional need or plicitly or implicitly cites the FOIA urgency is determined at the discretion shall be processed under the provisions of the activity processing the request. of this rule, unless otherwise required (g) Public domain. Nonexempt records by paragraph (m) of this section. released under the authority of this (c) Compliance with the FOIA. DLA rule are considered to be in the public personnel are expected to comply with domain. Such records may also be the FOIA and this rule in both letter made available in reading rooms to fa- and spirit. This strict adherence is nec- cilitate public access. Exempt records essary to provide uniformity in the im- released pursuant to this rule or other plementation of the DLA FOIA pro- statutory or regulatory authority, gram and to create conditions that will however, may be considered to be in promote public trust. To promote a the public domain only when their re- positive attitude among DLA per- lease constitutes a waiver of the FOIA sonnel, each DLA Primary Level Field exemption. When the release does not Activity (PLFA) will establish edu- constitute such a waiver, such as when cation and training programs described disclosure is made to a properly con- in part 286, subpart H, of this title. stituted advisory committee or to a Training materials, including supple- Congressional committee, the released ments, will be coordinated with DLA- records do not lose their exempt sta- XAM prior to publication or issuance. tus. Also, while authority may exist to (d) Openness with the public. DLA disclose records to individuals in their shall conduct its activities in an open official capacity, the provisions of this manner consistent with the need for se- rule apply if the same individual seeks curity and adherence to other require- the records in a private or personal ca- ments of law and regulation. Records pacity. not exempt from disclosure under the (h) Creating a record. (1) There is no Act shall, upon request, be made read- obligation to create nor compile a ily accessible to the public in accord- record to satisfy an FOIA request. A ance with rules promulgated herein, DLA activity, however, may compile a whether or not the Act is invoked. new record when doing so would result

273

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00283 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.2 32 CFR Ch. XII (7–1–05 Edition)

in a more useful response to the re- mation about a record may be divided quester or be less burdensome to the into two broad categories. activity provided the requester does (i) Category I is file-related and in- not object. The cost of creating or com- cludes information such as type of piling such a record may not be record (for example, memorandum), charged to the requester unless the fee title, index citation, subject area, date for creating the record is equal to or the record was created, and originator. less than the fee which would be (ii) Category II is event-related and charged for providing the existing includes the circumstances that re- record. Fee assessments shall be in ac- sulted in the record being created or cordance with § 1285.6 of this part and the date and circumstances sur- part 286, subpart F, of this title. rounding the event the record covers. (2) With respect to electronic data, (3) Generally, a record is not reason- the issue of whether records are actu- ably described unless the description ally created or merely extracted from contains sufficient Category I informa- an existing database is not always tion to permit the conduct of an orga- readily apparent. Consequently, when nized, nonrandom search based on the responding to FOIA requests for elec- activity’s filing arrangements and ex- tronic data where creation of a record, isting retrieval systems, or unless the programming, or particular format are record contains sufficient Category II questionable, DLA activities should information to permit inference of the apply a standard of reasonableness. In Category I elements needed to conduct such a search. The decision of the DLA other words, if the capability exists to activity concerning reasonableness of respond to the request and the effort description must be based on knowl- would be a business-as-usual approach, edge of its files. If the description en- then the request should be processed. ables DLA activity personnel to locate However, the request need not be proc- the record with reasonable effort, the essed where the capability to respond description is adequate. does not exist without a significant ex- (4) The following guidelines deal with penditure of resources, thus not being a requests for personal records. Ordi- normal business-as-usual approach. narily, when only personal identifiers (i) Description of the requested record. are provided in connection with a re- (1) Identification of the record desired quest for records concerning the re- is the responsibility of the member of quester, then only records retrievable the public who requests a record. The by personal identifiers need be requester must provide a description of searched. The search for such records the desired record that enables DLA to may be conducted under Privacy Act locate the record with a reasonable procedures contained in DLAR 5400.21.2 amount of effort. When a DLA activity No record may be denied that is releas- receives a request that does not reasonable under the FOIA. ably describe the requested record, it (j) Possession and control. A record shall notify the requester of the defect. must exist and be in the possession and The requester may be asked to provide control of DLA at the time of the the type of information outlined in search to be considered subject to this paragraph (i)(2) of this section. Activi- rule and the FOIA. Mere possession of ties are not obligated to act on the re- a record does not presume Agency con- quest until the requester responds to trol. Information created or originated the specificity letter. When prac- by another activity shall be referred to ticable, DLA activities shall offer as- that activity for release determination sistance to the requester in identifying and direct response to the requester. the records sought and in reformu- (1) Referring requests. A DLA activity lating the request to reduce the burden having no responsive records to an on the agency in complying with the FOIA request may refer the request to Act. another DLA activity, DoD component, (2) The following guidelines are provided to deal with ‘‘fishing expedition’’ 2 Copies may be obtained, at cost, from requests and are based on the principle DASC-PD, Cameron Station, Alexandria, VA of reasonable effort. Descriptive infor- 22304–6130.

274

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00284 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.2

or Federal agency if, after consultation (iv) Within DLA, an activity shall or- with such activity, component, or dinarily refer an FOIA request for a agency, the intended recipient con- record that it holds but that was origi- firms that it has the requested record. nated by another activity or that con- In cases where the DLA activity receiv- tains substantial information obtained ing the request has reason to believe from another activity to that activity that the existence or nonexistence or for direct response after coordination the record may in itself be classified, and obtaining concurrence from the ac- that activity shall consult the DoD tivity. The requester shall then be no- component having cognizance over the tified of such referral. DLA activities record in question before referring the shall not, in any case, release or deny request. If the DoD component that is such records without prior consulta- consulted determines that the exist- tion with the other activity. ence or nonexistence of the record is in (3) On-loan documents. A DLA activ- itself classified, the requester shall be ity shall refer to the agency that pro- so notified by the DLA activity origi- vided the record any FOIA request for nally receiving the request, and no re- investigative, intelligence, or any ferral shall take place. Otherwise, the other type of records that are on loan request shall be referred to the other to DLA for a specific purpose if the DoD component, and the requester records are restricted from further re- shall be notified of any such referral. lease and so marked. However if, for in- Any DLA activity receiving a request vestigative or intelligence purposes, that has been misaddressed shall refer the outside agency desires anonymity, the request to the proper address and a DLA activity may only respond di- advise the requester. rectly to the requester after coordination with the outside agency. (2) Referring records. (i) Whenever a (4) General Accounting Office (GAO) record or a portion of a record is, after documents. On occasion, the DoD re- prior consultation, referred to another ceives FOIA requests for GAO docu- DLA activity, DoD component, or to a ments containing DoD information. Government agency outside of the DoD Even though the GAO is outside the ex- for a release determination and direct ecutive branch and not subject to the response, the requester shall be in- FOIA, all FOIA requests from GAO doc- formed of the referral. Referred records uments containing DoD information shall only be identified to the extent received either from the public or on consistent with security requirements. referral from GAO will be processed (ii) A DLA activity shall refer an under the provisions of the FOIA. FOIA request for a classified record (5) Agencies not subject to the FOIA. A that it holds to another DoD compo- DLA activity may refer an FOIA re- nent or agency outside the Department quest for any record that originated in of Defense if the record originated in an agency outside the DoD or that is the other DoD component or outside based on information obtained from an agency or if the classification is deriv- outside agency to the agency for direct ative. In this situation, provide the response to the requester after coordi- record and a release recommendation nation with the outside agency, if that on the record with the referral action. agency is subject to FOIA. Otherwise, (iii) A DLA activity may refer a re- the DLA activity must respond to the quest for a record that it originated to request. another DoD component or agency (6) Time to respond. DLA activities when the record was created for the use that receive referred requests shall an- of the other DoD component or agency. swer them in accordance with the time The DoD component or agency for limits established by the FOIA and this which the record was created may have rule. Those time limits shall begin to an equally valid interest in with- run upon proper receipt of the referral holding the record as the DLA activity by the PLFA FOIA manager to re- that created the record. In such situa- spond. tions, provide the record and a release (7) Accumulating fees. Requesters re- recommendation on the record with ceiving the first two hours of search the referral action. and the first 100 pages of duplication

275

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00285 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.2 32 CFR Ch. XII (7–1–05 Edition)

without charge (see part 286, subpart F, who cite or imply the FOIA or both of this title) are entitled to such only Acts will have their requests processed once per request. Consequently, if a under the time limits of the FOIA and DLA activity, after completing its por- the exemption and fee provisions of the tion of a request, finds it necessary to Privacy Act. refer the request to another DLA activ- (4) Requesters who seek access to ity or another DoD component to ac- Agency records and who cite or imply tion their portion of the request, the the Privacy Act, the FOIA, or both will referring activity shall inform the re- have their requests processed under the cipient of the expended amount of FOIA. search time and duplication cost to (5) Requesters should be advised in date. final responses why their request was (k) Requests for authentication of processed under a particular act. records. FOIA requests for authentica- (n) Reading rooms. (1) DLA activities tion of records shall be authenticated may provide a facility or room where with an appropriate seal, whenever the public may inspect and copy or necessary, to fulfill an official Govern- have copied the so-called ‘‘(a)(2)’’ mate- ment or other legal function according rial (see § 1285.3(b) of this part). At to DLA Regulation 5105.5.3 This serv- those activities where it is impractical ice, however, is in addition to that re- to set up a formal reading room, the quired under the FOIA and is not in- FOIA manager will arrange for a re- cluded in the FOIA fee schedule. DLA view of ‘‘(a)(2)’’ material at a suitable activities may charge for the service at time and location. Identifying details a rate of $5.20 for each authentication. that, if revealed, would create a clearly (l) Records management. FOIA records unwarranted invasion of personal pri- shall be maintained and disposed of in vacy may be deleted from ‘‘(a)(2)’’ ma- accordance with DLA Manual 5015.1.4 terials prior to placement in reading (m) Relationship between the FOIA and rooms. However, in every case, jus- the Privacy Act. Not all requesters are tification for the deletion must be fully knowledgeable of the appropriate stat- explained in writing. The public’s right utory authority to cite when request- to inspect first and then decide what is ing records. In some instances, they to be copied applies only to ‘‘(a)(2)’’ may cite neither Act but will imply material. Activities may elect to place one or both Acts. For these reasons, other documents in their reading room, the following guidelines are provided including so-called ‘‘(a)(1)’’ material to ensure that requesters receive the (see § 1285.3(a) of this part), as a means greatest amount of access rights under to provide public access to such docu- both Acts: ments and allow the public to first in- (1) Requesters who seek records spect them before copying. When ap- about themselves contained in a Pri- propriate, the cost of copying may be vacy Act system of records and who imposed on the person requesting the cite or imply the Privacy Act, will material in accordance with § 1285.6 of have their requests processed under the this part and part 286, subpart F, of provisions of the Privacy Act, 5 U.S.C. this title. 552a. (2) ‘‘(a)(2)’’ materials index. Each ac- (2) Requesters who seek records tivity maintaining a reading room about themselves which are not con- shall maintain an index of the ‘‘(a)(2)’’ tained in a Privacy Act system of materials that are issued, adopted, or records and who cite or imply the Pri- promulgated after 4 July 1967. No vacy Act, will have their requests proc- ‘‘(a)(2)’’ materials issued, promulgated, essed under the provisions of the FOIA, or adopted after 4 July 1967 that are since they have no access rights under not indexed and either made available the Privacy Act. or published may be relied upon or used (3) Requesters who seek records or cited as precedent against any indi- about themselves which are contained vidual unless such individual has ac- in a Privacy Act system of records and tual and timely notice of the contents of such materials. Each index shall be 3 See Footnote 2 to § 1285.2(i)(4). arranged topically or by descriptive 4 See Footnote 2 to § 1285.2(i)(4). words rather than by case name or

276

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.2

numbering system so that members of ity listed in appendix A. FOIA man- the public can readily locate material. agers will inform requesters of the lo- Case name and numbering arrange- cation and time the requested record ments, however, may also be included may be examined. Requesters may be for the convenience of the DLA activ- charged for the cost to reproduce cop- ity. Such materials issued, promul- ies subject to the guidelines § 1285.6 of gated, or adopted before 4 July 1967 this part and part 286, subpart F, of need not be indexed but must be made this title. available upon request if not exempted (r) Requests for copies of records. Indi- under part 286, subpart C, of this title. viduals seeking copies of DLA records (3) DLA publications and PLFA sup- should address their FOIA requests to plements may, at the discretion of the the FOIA manager of the appropriate DLA activity, be regarded as ‘‘(a)(2)’’ activity. Addresses and brief descrip- material and placed in reading rooms tions of functions are included in ap- subject to the restrictions in paragraph pendix A to this part. (o)(2) of this section. Otherwise, re- (s) Requests from private parties. The quests for publications will be handled provisions of the FOIA are reserved for according to paragraph (o)(1) of this persons with private interests as op- section. posed to Federal Governments seeking (o) Publications of DLA regulations, official information. Requests from pri- manuals, handbooks, and uncontrolled vate persons will be made in writing forms. (1) Since most DLA publications and will clearly show all other address- are available to the public through the ees within the Federal Government to publications distribution sales outlet, whom the request was also sent. This the requester may be referred to that procedure will reduce processing time outlet. requirements and ensure better inter- (2) Requests for DLA publications and intra-agency coordination. DLA which are classified, marked ‘‘FOR OF- activities are under no obligation to es- FICIAL USE ONLY,’’ or have limited tablish procedures to receive hand de- distribution statements will be referred livered requests. Release for records to to the issuing activity for release de- individuals under the FOIA is consid- termination and, if appropriate, formal ered public release of information, ex- denial. Such publications will not be cept as provided for in paragraph (g) of placed in reading rooms. However, this section and § 286.13(a) of this title. where a public reading room also (t) Requests from government officials. serves as an activity’s library, re- Requests from Members of Congress for stricted publications may be main- records on behalf for a Congressional tained provided they are appropriately Committee, Subcommittee, or either safeguarded and not commingled with House sitting as a whole will be proc- other nonensitive regulations. essed according to DLA Regulation (3) For DoD regulations, manuals, di- 5400.12.5 Requests from officials of for- rectives, handbooks and similar eign governments which do not invoke issuances, the FOIA manager may refer the FOIA shall be referred to HQ DLA- the requester to the National Tech- I or the appropriate foreign disclosure nical Information Service (NTIS), 5285 channel for processing and the re- Port Royal Road, Springfield, VA quester so notified. Requests invoking 22161–2171. the FOIA from the following govern- (p) Exemptions. The types of records ment officials will be considered the described in part 286, subpart C, of this same as any other requested and proc- title may be withheld in whole or in essed according to this rule: part from disclosure under the FOIA (1) Officials of State or local govern- unless otherwise prescribed by law. ments. (q) Requests for the examination of (2) Members of Congress seeking DLA records. Only those materials de- records on behalf of their constituents. scribed as ‘‘(a)(2)’’ (and ‘‘(a)(1)’’ at the (3) Officials of foreign governments. discretion of the PLFA head) are sub- (u) Privileged release to U.S. Govern- ject to the examination clause of the ment officials. (1) Records determined to FOIA. Such requests will be submitted directly to the appropriate DLA activ- 5 See Footnote 2 to § 1285.2(i)(4).

277

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00287 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.3 32 CFR Ch. XII (7–1–05 Edition)

be exempt from public disclosure under instruction as to the scope and con- one or more of FOIA exemptions may tents of papers, reports, or examina- be authenticated and released to U.S. tions, and any amendment, revision, or Government officials requesting them report of the aforementioned. on behalf of Federal governmental bod- (b) ‘‘(a)(2) material’’. Material de- ies, whether legislative, executive, ad- scribed in 5 U.S.C. 552(a)(2) encom- ministrative, or judicial, as follows: passing: (i) To a Committee or Subcommittee (1) Final opinions, including concur- of Congress or to either House sitting ring and dissenting opinions, and or- as a whole in accordance with DoD Di- ders made in the adjudication of cases, rective 5400.4.6 as defined in 5 U.S.C. 551, that may be (ii) To the Federal courts, whenever cited, used, or relied upon as prece- ordered by officers of the court as nec- dents in future adjudications. essary for the proper administration of (2) Statements of policy and interpre- justice. However, receipt of a subpoena tations that have been adopted by the duces tecum does not automatically agency and are not published in the compel disclosure of DLA records. To FEDERAL REGISTER. qualify for privileged release under this (3) Administrative staff manuals and section, the subpoena must be signed instructions, or portions thereof, that by the judge of a court of competent establish DLA policy or interpretations jurisdiction. A subpoena which has of policy that affect a member of the been sent through FOIA channels and public. This provision does not apply to signed by a litigating attorney, a sub- instructions for employees on tactics poena service agent, or an official of a and techniques to be used in per- state or local court will be treated as forming their duties or to instructions any other FOIA request and subject to relating only to the internal manage- the exemptions in part 286 subpart C, of ment of the DLA activities. Examples this title. Consult with Counsel before of manuals and instructions not nor- acting on such subpoenas. mally made available include but are (iii) To other Federal Agencies, both not limited to the following: executive and administrative, as deter- (i) Those issued for audit, investiga- mined by the DLA Director or des- tion, and inspection purposes or those ignee. that prescribe operational tactics, (2) Disclosure under these privileged standards of performance, or criteria release circumstances does not set a for defense, prosecution, or settlement precedent for disclosure to the general of cases. public under the FOIA. (ii) Operations and maintenance (3) DLA activities shall inform offi- manuals and technical information cials receiving records under the provi- concerning munitions, equipment, sys- sions of this paragraph that those tems, and foreign intelligence oper- records are exempt from public release ations. under the FOIA and are privileged. (c) Administrative appeal. A request DLA activities will also advise officials made under the FOIA by a member of of any special handling instructions. the general public asking the appellate See part 286, subpart D, of this title for authority to reverse an initial denial marking requirements under privileged authority’s decision to withhold all or release circumstances. part of a requested record, to review a ‘‘no record found’’ determination, to § 1285.3 Definitions. reverse a decision to deny a request for The following terms and meanings waiver or reduction of fees, or to re- shall be applicable: view a category determination for fee (a) ‘‘(a)(1) material’’. Material de- assessment purposes. scribed in 5 U.S.C. 552(a)(1) consisting (d) Agency record. (1) The products of of descriptions of central and field or- data compilation, such as all books, pa- ganizations and, to the extent that pers, maps and photographs, machine they affect the public, rules of proce- readable materials, or other documen- dures, descriptions of forms available, tary materials, regardless of physical form or characteristics, made or re- 6 See Footnote 1 to § 1285.1. ceived by an agency of the United

278

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00288 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.3

States Government under Federal law cies, functions, decisions, or procedures in connection with the transaction of of a DLA activity, such as computer public business and in DLA’s posses- models used to forecast budget outlays, sion and control at the time the FOIA calculate retirement system costs, or request is made. optimization models on travel costs. (2) The following are not included (iii) See part 286, subpart C, of this within the definition of the word title for guidance on release deter- ‘‘record’’: minations of computer software. (i) Objects or articles, such as struc- (4) A record must exist and be in the tures, furniture, vehicles and equip- possession and control of DLA at the ment, whatever their historical value time of the request to be considered or value as evidence. subject to this rule and the FOIA. (ii) Administrative tools by which There is no obligation to create, com- records are created, stored, and re- pile, or obtain a record to satisfy an trieved, if not created or used as FOIA request. sources of information about organiza- (5) If unaltered publications and proc- tions, policies, functions, decisions, or essed documents, such as regulations, procedures of a DLA activity. Nor- manuals, maps, charts, and related mally, computer software, including geophysical materials are available to source code, object code, and listings of the public through an established dis- source and object codes, regardless of tribution system with or without medium, are not agency records. (This charge, the provisions of 5 U.S.C. does not include the underlying data 552(a)(3) normally do not apply, and re- which is processed and produced by quests for such need not be processed such software and which may in some under the FOIA. Normally, documents instances be stored with the software.) disclosed to the public by publication Exceptions to this position are out- in the FEDERAL REGISTER also require lined in paragraph (d)(3) of this section. no processing under the FOIA. In such (iii) Anything that is not a tangible cases, DLA activities should direct the or documentary record, such as an in- requester to the appropriate source to dividual’s memory or oral communica- obtain the record. tion. (e) Appellate authority. The Director, (iv) Personal records of an individual DLA, or his designee, except for fee not subject to agency creation or re- waivers and category determinations. tention requirements, created and The appellate authority for such ap- maintained primarily for the conven- peals is the Staff Director, Office of ience of an agency employee and not Administration, HQ DLA. distributed to other agency employees (f) DLA activity. An element of DLA for their official use. authorized to receive and act independ- (v) Information stored within a com- ently on FOIA requests. A DLA activ- puter for which there is no existing ity has its own FOIA manager, initial computer program for retrieval of the denial authority, and office of counsel. requested information. (g) Electronic data. Those records and (3) In some instances, computer soft- information which are created, stored, ware may have to be treated as an and retrievable by electronic means. agency record and processed under the This does not include computer soft- FOIA. These situations are rare and ware, which is the tool by which to cre- shall be treated on a case-by-case basis. ate, store, or retrieve electronic data. Examples of when computer software See paragraphs (d)(2)(ii) and (d)(3) of may have to be treated as an agency this section for a discussion of com- record are: puter software. (i) When the data is embedded within (h) FOIA request. A written request the software and cannot be extracted for records made by any person, includ- without the software. In this situation, ing a member of the public (U.S. or for- both the data and the software must be eign citizen), an organization, or a reviewed for release or denial under the business, but not including a Federal FOIA. agency or a fugitive from the law, that (ii) Where the software itself reveals either explicitly or implicitly invokes information about organizations, poli- the FOIA, DoD 5400.7–R, DLAR 5400.14,

279

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00289 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.4 32 CFR Ch. XII (7–1–05 Edition)

this rule, or DLA activity viding guidance and instructions to supplementing regulations or instruc- PLFA’s and PSE’s. tions. (2) Designates a FOIA manager to ad- (i) Initial denial authority (IDA). An minister the DLA FOIA program. official who has been granted authority (3) Serves as the point of contact for by the Director, DLA, to withhold referring members of the public to the records requested under the FOIA for proper DLA source for Agency records. one or more of the nine categories of (4) Serves as appellate authority on records exempt from mandatory disclo- fee waivers and category determina- sure or to issue a ‘‘no record’’ deter- tions. mination. These include the Directors (5) Serve as initial denial authority (or equivalent) of HQ DLA Primary for record denials where more than one Staff Elements (PSE’s) and the Com- PSE is involved or where a PSE has manders (or equivalent) of PLFA’s. For made a determination that the re- fee waiver and requester category de- quested record cannot be found. terminations, the initial denial author- (6) Submits required reports to the ity is the FOIA manager or head of the Office of the Assistant Secretary of De- FOIA unit. fense, Public Affairs. (j) Public interest disclosures. Those (7) Collects and deposits fees for disclosures which shed light on DLA FOIA services performed at HQ DLA performance of its statutory duties and and DASC. thus inform citizens about what their (b) The General counsel, HQ DLA-G: (1) government is doing. The ‘‘public in- Provides legal advice and assistance to terest’’, however, is not fostered by dis- HQ DLA PSE’s and, where appropriate, closure of information about private PLFA’s in determining decisions to citizens that is accumulated in various withhold records. governmental files that reveals little (2) Processes appeals to the Director, or nothing about an agency’s or offi- DLA, of denials to provide records or cial’s own conduct. The public interest ‘‘no record’’ determinations. is one of several factors considered in (3) Coordinates denial actions with determining if a fee waiver is appro- Office of the General Counsel, DoD, and priate (see part 286, subpart F, of this the Department of Justice, as appro- title). priate. (k) Releasing official. Any individual (4) Ensures that case files of FOIA with sufficient knowledge of a re- appeals are maintained for 6 years quested record or program to allow him after final agency decision. or her to determine if harm would (c) The Staff Director, Office of Public come through release. Releasing offi- Affairs, HQ DLA-B, serves as a coordi- cials are at all levels and may be se- nating office for the release of informa- lected to review a particular document tion to the news media where potential because of their expertise in the sub- for controversy exists. ject area. The level must be high (d) The Staff Director, Office of Con- enough to make sure that releases are gressional Affairs, HQ DLA-Y, serves as made according to the policies outlined a coordinating office on final responses here. The authority to release records to FOIA requests from members of the of a routine nature, such as fact sheets Congress. or local directories, may be delegated (e) The heads of the DLA principal staff to any individual at the discretion of elements (PSE’s): (1) Appoint an indi- the denial authority. In doubtful cases, vidual to serve as FOIA monitor. Let- releasing officials may consult with ters of appointment will be forwarded the FOIA staff or servicing counsel to DLA-XAM. prior to release. (2) Forward to DLA-XAM any FOIA request received directly from the pub- § 1285.4 Responsibilities. lic so that the request may be adminis- (a) The Staff Director, Administration, tratively controlled. HQ DLA-X: (1) Has overall responsi- (3) Ensures that provisions of this bility for establishment and implemen- regulation are followed in processing tation of the DLA FOIA program, pro- requests for records from the public.

280

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00290 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.4

(4) Coordinate requests with other (4) Sign letters of denial and ‘‘no HQ DLA staff elements to the extent record’’ determinations after coordina- considered necessary. tion with Counsel. (5) Coordinate any proposed denial (5) Refer cases of significance to with the General Counsel. DLA-XAM for review and evaluation (6) Serve as initial denial authority. when the issues raised are unusual, (7) Ensure that FOIA case files of de- precedent setting, or otherwise require nials are maintained for 6 years and special guidance. that full releases are maintained for 2 (6) Establish safeguards to ensure years. that FOUO material is protected. (8) Make initial determinations to re- (7) Establish procedures to ensure lease records or designate individuals that a record is maintained of all FOIA to make such determinations. requests for logistical data (data on (f) The PSE FOIA monitors: (1) Process magnetic tape extracted from any of and control all FOIA requests received the DLA automated data processing from DLA-XAM. (ADP) systems). The record will con- (2) Make sure established suspenses tain the requester’s name and address, are met. the date of the request, what information was requested, and what informa- (3) Request extensions of time from tion was furnished. This record will be DLA-XAM when necessary and within kept for five years. the limits of § 1285.5(j) of this part. (8) Inform Public Affairs offices in (4) Gather cost estimates when re- advance when they intend to withhold quested. or partially withhold a record if it ap- (5) Ensure costs for processing each pears that the withholding action may Freedom of Information Act request be challenged in the media. are properly recorded. (h) Freedom of Information Act man- (6) Coordinate proposed full and par- agers at all levels: (1) Establish proce- tial denials with DLA-XAM prior to dures to receive, control, process, and signature by the PSE director. For- screen FOIA requests. To provide for ward a copy of the final response and rapid retrieval of information, FOIA cost information to DLA-XAM. managers will maintain a central log (g) The heads of DLA primary level of all incoming FOIA requests. field activities (PLFA’s): (1) Designate a (2) Review requests to determine if FOIA manager to administer the DLA they meet the requirements of 5 U.S.C. FOIA program within the PLFA. For- 552. Determine category of the re- ward the name, address, and telephone quester before assigning the request for number of the manager to DLA-XAM. search. Provide instructions to the (2) Ensure that the provisions of this searching office on fees and time limits regulation are followed in processing for response. requests for records from members of (3) Consult with requesters, where the public. necessary, to determine requester cat- (3) Provide facilities where members egory and to resolve fee issues. of the public may examine and copy (4) Establish training and education the following documents: program for those personnel who may (i) DLAH 5805.1 7, DLA Organization be involved in responding to FOIA re- Directory. quests. (ii) DLAH 5025.1 8, DLA Index of Pub- (5) Approve requests for formal ex- lications. tensions of time and notify requesters (iii) DLAM 5015.1, Files Maintenance in writing of the extension. and Disposition. (6) Grant or deny requests for fee (iv) Copies of local directories or in- waivers or requester category deter- dexes. minations and provide DLA-XAM with (v) Any other available ‘‘(a)(1)’’ or a copy of each such denial. ‘‘(a)(2)’’ material. (7) Establish procedures to ensure that § 1285.5(1) of this part regarding 7 See Footnote 2 to § 1285.2(i)(4). consultation with submitters of infor- 8 See Footnote 2 to § 1285.2(i)(4). mation is complied with.

281

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00291 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.5 32 CFR Ch. XII (7–1–05 Edition)

(8) Establish procedures for the col- manager receives it provided the re- lection and deposit of fees for FOIA quest has been reasonably described services. and the requester has either agreed to (9) Ensure that cost data is main- pay assessable fees or has provided suf- tained for each case file. ficient justification for a fee waiver. (10) Establish procedures to ensure (d) Screening requests. (1) Before as- that record denials and ‘‘no record’’ de- signing a request for search, the FOIA terminations are signed by the PLFA manager will screen the request for de- initial denial authority and a copy for- fects in the description, the requester warded to DLA-XAM. category, and the issue of fees. FOIA (11) Notify DLA-XAM of requesters managers will notify requesters of any who have failed to pay fees in a timely such defects and, wherever possible, manner. offer assistance to help remedy the de- (12) Prepare and submit reports as re- fects. If the FOIA manager must con- quired. sult with the requester on any of the (13) Consult with public affairs offi- following issues, then the request is cers (PAO’s) to become familiar with not considered to be properly received subject matter that is considered to be and the 10-day time limit does not newsworthy and advise PAO’s of all re- begin or resume until the requester has quests from news media representa- satisfactorily addressed the issue. tives. (i) Payments in arrears. If a requester (14) Establish procedures to provide has failed to pay fees for a previous re- the Congressional Affairs focal point quest, then the FOIA manager need not with an information copy of each FOIA process the current request until the request received from a member of the requester pays the delinquent amount. Congress. In such situations, the FOIA manager (15) Coordinate any proposed supple- will notify the requester of the defect ments or training material with DLA- and provide an opportunity to forward XAM prior to publication or dissemina- payment along with any assessable in- tion. (16) Establish procedures to ensure terest. At that time, the FOIA man- that case files of FOIA releases are ager may, at his or her discretion, de- maintained for two years after cutoff mand that the requester also pay an es- and that denials are maintained for 6 timated fee for the current request. years after cutoff. (ii) Faulty description. If the request (17) Review all proposed full and par- is not reasonably described, the FOIA tial denials prior to signature by the manager will notify the requester of initial denial authority for compliance the defect and advise that a search can- with these rules. not be initiated without more specific information. In making such deter- § 1285.5 Procedures. minations, FOIA managers may con- (a) FOIA channels. If DLA personnel sult with offices of primary interest to receive a FOIA request directly from determine the details that are needed the public that has not been logged in to conduct a search. See also paragraph and processed through the FOIA office, (f)(2) of this section and § 1285.2(i) of they will immediately forward it to the this part. local FOIA manager. (iii) Requester category and fees. The (b) Central log system. Each FOIA FOIA manager will analyze the request manager will maintain a central log of to determine the category of the re- FOIA requests received within the ac- quester. If the category of the re- tivity to ensure compliance with the quester is different than that claimed time limits and accurate cost account- by the requester, the FOIA manager ing, fee assessment, and reporting. will: (c) Time limit. FOIA requests must be (A) Notify the requester that he or responded to within 10 business days she should provide additional justifica- after proper receipt, except in unusual tion to warrant the category claimed circumstances outlined in paragraph (j) and that a search for responsive of this section. A request is considered records will not be initiated until properly received on the date the FOIA agreement has been attained relative

282

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00292 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.5

to the category of the requester. Ab- that search situations will vary among sent further category justification DLA activities and that an estimate is from the requester and within a rea- often difficult to obtain prior to an ac- sonable period of time (i.e., 30 calendar tual search, requesters who desire esti- days), the FOIA manager shall render a mates are entitled to such before com- final category determination, and no- mitting to a willingness to pay. Should tify the requester of such determina- actual costs exceed the actual amount tion, to include normal administrative of the estimate or the amount agreed appeal rights. to by the requester, the amount in ex- (B) Advise the requester that, not- cess of the estimate or the requester’s withstanding any appeal, a search for agreed amount shall not be charged responsive records will not be initiated without the requester’s agreement. until the requester indicates a willing- (f) Internal processing. (1) Upon mak- ness to pay assessable costs appro- ing a determination that the request is priate for the category determined by reasonably described, that the fee issue the FOIA manager. Requesters must has been settled, and that the resubmit a fee declaration appropriate quester does not owe for a prior re- for the following categories: quest, the FOIA manager will assign (1) Commercial. Requesters must indi- the request to the appropriate office of cate a willingness to pay all search, re- primary interest (OPI) for handling and view, and duplication costs. provide instructions on the category of (2) Educational or noncommercial sci- the requester, the fees to be charged or entific institution or news media. Re- waived, and what actions the OPI is to questers must indicate a willingness to take. pay duplication charges in excess of 100 (2) After reviewing a request, the OPI pages if more than 100 pages of records may determine, based on knowledge of are desired. the files and programs, that a request (3) All others. Requesters must indi- is, in fact, not reasonably described. cate a willingness to pay assessable OPI’s will notify FOIA managers of search and duplication costs if more such defects immediately so that fur- than two hours of search effort or 100 ther details may be sought from the re- pages of records are desired. quester. Any delays on the requester’s (iv) Justification for fee waivers. If the part in receiving more detailed infor- requester has asked for a fee waiver mation will not count toward the 10- but failed to provide a justification, day time limit. FOIA managers will ask requesters to (g) Initial determinations—(1) Reasons address the fee waiver criteria in part for not releasing a record. There are 286, subpart F, of this title before fur- seven reasons for not complying with a ther processing the request. FOIA man- request for a record: agers are reminded that with some (i) The request is transferred to an- types of records, a final decision can- other DLA activity, DOD component, not be made on waiver until after the or to another Federal agency. records have been surfaced, reviewed, (ii) The DLA activity determines and the public benefit and previous through knowledge of its files and rea- public availability assessed. sonable search efforts that it neither (2) In cases where there is disagree- controls nor otherwise possesses the re- ment on the category of the requester quested record. Responding officials or there is lack of justification for fee will advise requesters of the right to waiver, the FOIA manager may process appeal such determinations. See para- the request without further contacting graph (i)(5) of this section for details the requester if he or she believes it on processing ‘‘no record’’ responses. can be processed within the automatic (iii) A record has not been described $15 waiver limit. with sufficient particularity to enable (e) Providing estimates. In the situa- the DLA activity to locate it by con- tions described by paragraphs (d)(1)(iii) ducting a reasonable search. and (d)(1)(iv) of this section, DLA ac- (iv) The requester has failed unrea- tivities must be prepared to provide an sonably to comply with procedural re- estimate of assessable fees if desired by quirements, including payment of fees, the requester. While it is recognized imposed by this rule.

283

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00293 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.5 32 CFR Ch. XII (7–1–05 Edition)

(v) The request is withdrawn by the (i) Response to requester—(1) Time lim- requester. its. Initial determinations to release or (vi) The information requested is not deny a record normally shall be made a record within the meaning of the and the decision reported to the re- FOIA and this rule. quester within 10 working days after (vii) The record is denied in accord- receipt of the request by the FOIA ance with procedures set forth in the manager. When a decision is made to FOIA and this rule. release a record, a copy should be made (2) Reasonably segregable portions. Al- available promptly to the requester though portions of some records may once he has complied with procedural be denied, the remaining reasonably requirements. segregable portions must be released to (2) Acknowledging date of receipt. the requester when it reasonably can When the time for response becomes an be assumed that a skillful and knowl- issue, the official responsible for reply- edgeable person could not reconstruct ing shall acknowledge to the requester the excised information. When a record is denied in whole, the response advis- the date of the receipt of the request. ing the requester of that determination (3) Billing. When fees are being levied, will specifically state that it is not rea- the response to the requester will con- sonable to segregate portions of the tain a billing paragraph. Responding record for release. officials will advise requesters to make (h) Preparing documents for public re- checks or money orders payable to the lease—(1) Material containing For Offi- United States Treasury and forward cial Use Only marks. When a determina- them to the FOIA manager of the tion has been made that a FOUO docu- PLFA that incurred the expense. FOIA ment may be fully released to a re- managers will notify DLA-XAM of quester under any public information names and addresses of requesters who program, the FOUO markings will be have failed to pay after a second billing removed from the requester’s copy has been mailed and 30 days have prior to release. In cases where a per- elapsed without payment. son seeks access to his or her own (4) Full and partial denials. (i) When a record and the record is marked FOUO request for a record is denied in whole to protect that person’s personal or or in part on the basis of one or more proprietary interests, the FOUO marks of the exemptions in part 286, subpart will be deleted from the requester’s C, of this title the initial denial au- copy prior to release, even though the thority shall inform the requester in FOUO status has not been terminated. writing and shall explain to the re- In such cases, the official file copy will quester the basis for the determination retain the FOUO warning. If only por- in sufficient detail to permit the re- tions of a document marked as FOUO quester to make a decision concerning are to be released to the public under appeal. The requester specifically shall the FOIA, then the exempt portions be informed of the exemption(s) on will be taped out, blackened out, which the denial is based. When the whited out, or cut out and a copy reproduced for the requester from the initial denial is based in whole or in marked up copy. Initial denial authori- part on a security classification, the ties will ensure that the deleted por- explanation should include a summary tion cannot be read and that the FOUO of the applicable Executive Order cri- marks have been lined through prior to teria for classification, as well as an release. explanation, to the extent reasonably (2) Material containing classification feasible, of how those criteria apply to markings. The procedures in paragraph the particular record in question. The (h)(1) of this section apply to classified requester shall also be advised of the documents with the exception that the opportunity and procedures for appeal- classified portions will be cut out rath- ing an unfavorable determination to er than blackened, taped, or whited the Director, DLA. out. The classification markings on the (ii) FOIA managers shall forward a requester’s copy will be deleted prior to copy of each letter of denial to DLA- release. XAM, Cameron Station, Alexandria,

284

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00294 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.5

Virginia 22304–6100. Do not include at- (v) FOIA managers will ensure that a tachments, the incoming request, or copy of each ‘‘no record’’ response let- any backup material. ter is forwarded to DLA-XAM, Cam- (5) Providing ‘‘no record’’ responses. (i) eron Station, Alexandria, Virginia If no documents can be located in re- 22304–6100. Do not include attachments, sponse to a FOIA request, the initial the incoming request, or any backup denial authority will so advise the re- material. quester. Requesters will also be advised (6) Coordination. OPI’s will ensure that, if they consider the response to that the proposed response is fully co- be adverse, they may file an appeal ordinated with offices having an inter- within 60 calendar days from the date est in the request. Proposed responses of the response. Requesters are to be to FOIA requests from members of the advised to address appeals to the local Congress will be coordinated with FOIA manager and include the case DLA-Y or the local Congressional Af- number and reasons why they believe fairs focal point. the DLA activity should have records (j) Extensions of time—(1) Formal exten- on the subject matter. sions. In unusual circumstances, when (ii) Before a formal ‘‘no record’’ re- additional time is needed to respond, sponse is issued, OPI will verify that the FOIA manager will acknowledge the requester has adequately described the request in writing within the 10- the record. If additional details will aid day period, describe the circumstances the search, then the requester will be requiring the delay, and indicate the asked to provide those details. See anticipated date for substantive re- paragraph (d)(1)(ii) of this section and sponse that may not exceed 10 addi- § 1285.2(i) of this part for procedures for tional working days. Such extensions resolving inadequate descriptions. will be approved on a case-by-case (iii) In cases where the requested basis. In these unusual cases where the record has been destroyed, the initial statutory time limits cannot be met denial authority will confirm that the and no informal extension of time has record was retained for the period au- been agreed to, the inability to process thorized in DLAM 5015.1 before issuing any part of the request within the spec- a formal response. In responding to re- ified time should be explained to the questers in these cases, advise the re- requester with a request that he agree quester that the records were properly to await a substantive response by an destroyed according to Agency rules anticipated date. It should be made for record disposition and give the clear that any such agreement does not right to appeal as outlined in paragraph (i)(5)(i) of this section. However, prejudice the right of the requester to do not ask the requester to provide rea- appeal the initial decision after it is sons why the activity should have the made. Since the requester still retains records. the right to treat this delay as a (iv) Upon receipt of an appeal, the defacto denial with full administrative FOIA manager will direct that a second remedies, such extensions should be search be conducted using any informa- issued only when essential. The un- tion supplied by the requester. If the usual circumstances that may be cited second search produces no documents, to justify delay are: the appeal will be forwarded to HQ (i) Location. The requested record is DLA-G, Cameron Station, Alexandria, located in whole or in part at places Virginia 22304–6100, along with a copy other than the office processing the re- of the case file. The FOIA manager will quest. include the cost information and an ex- (ii) Volume. The request requires the planation of the method of search and collection and evaluation of a substan- the types of offices searched. In cases tial number of records. where the ‘‘no record’’ response was (iii) Consultation. Consulation is re- issued because the records have been quired with other DoD components or destroyed, the FOIA manager will agencies having substantial interest in verify that the records were destroyed the subject matter to determine wheth- as provided for in DLAM 5015.1 and pro- er the records requested are exempt vide a statement to that effect. from disclosure in whole or in part

285

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00295 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.5 32 CFR Ch. XII (7–1–05 Edition)

under provisions of this rule or should (ii) When a substantial issue has been be released as a matter of discretion. raised, the DLA activity may seek ad- (2) Informal extensions. Where prac- ditional information from the source tical and expedient, the FOIA manager and afford the source and requester or official designated to respond may reasonable opportunities to present negotiate with the requester and ar- their arguments on the legal and sub- range for an informal extension. Such stantive issues involved. extensions may be appropriate in in- (iii) Any objections to release will be stances where the records have to be evaluated and the source provided with ordered from a record repository; a copy of the activity’s final decision. where the record has been sent out for Where a decision is made to release in- commercial printing and is not ex- formation claimed to be exempt, the pected back before the 10-day time has source will be notified that the infor- elapsed; and similar circumstances. mation will be released on a specified (k) Misdirected requests. Misdirected date unless the source seeks a restrain- requests shall be forwarded promptly ing order or takes court action to pre- to the FOIA manager of the DLA activ- vent disclosure. Evaluators are cau- ity, DoD component, or Federal agency tioned that any decision to disclose in- with the responsibility for the records formation claimed to be exempt under requested. The period allowed for re- 5 U.S.C. 552(b)(4) must be made by an sponding to the request misdirected by official equivalent in rank to the ini- the requester shall not begin until the tial denial authority. (iv) When the source advises it will request is received by the FOIA man- seek a restraining order or take court ager of the PLFA that controls the action to prevent release of the record records requested. or information, the FOIA manager will (l) Records of contractors and other notify the requester and suspend action non-U.S. government sources. (1) Execu- on the request until after the outcome tive Order 12600 of 23 June 1987 (52 FR of that court action is known. When 23781) establishes predisclosure notifi- the requester brings court action to cation procedures for confidential com- compel disclosure, the FOIA manager mercial information. When a request is shall promptly notify the submitter of received for a record that was obtained this action. from a contractor or other non-U.S. (2) These procedures are required for Government source or for a record con- those FOIA requests for data not taining information clearly identified deemed clearly exempt from disclosure as having been provided by a con- under exemption (b)(4). If, for example, tractor or other non-U.S. Government the record or information was provided source, the source of the record or in- with actual or presumptive knowledge formation (also known as ‘‘the sub- of the non-U.S. Government source and mitter’’ for matters pertaining to pro- established that it would be made prietary data under 5 U.S.C. 552(b)(4)) available to the public upon request, (see § 286.13(a)(4) of this title) shall be there is no obligation to notify the notified promptly of that request and source. afforded reasonable time (e.g., 30 cal- (3) These coordination provisions also endar days) to present any objections apply to any non-U.S. Government concerning the release, unless it is record in the possession and control of clear that there can be no valid basis DLA from multi-national organiza- for objection. The following procedures tions, such as North Atlantic Treaty will be followed: Organization (NATO) and North Amer- (i) The person designated to respond ican Aerospace Defense Command will provide the source with a copy of (NORAD), or foreign governments. Co- the incoming request, a copy of the ordination with foreign governments documents responsive to the request, under the provisions of this paragraph and a letter of instruction. The notifi- shall be made through the Department cation letter will be addressed to the of State. president of the entity or the entity’s (m) File of initial denials. Copies of all counsel and sent by return receipt initial denials shall be maintained by mail. each DLA activity in a form suitable

286

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00296 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1285.5

for rapid retrieval, periodic statistical time for the appeal shall not begin compilation, and management evalua- until the requester receives the last tion. such notification. (n) Appeals—(1) General—(i) Appeals to (ii) Time of receipt. An FOIA appeal is record denials. Requesters denied access considered received by DLA when it to records under the provisions of part reaches DLA-G or, in the case of fee or 286, subpart C, of this title may appeal requester category appeals, when it such determinations to the Director, reaches DLA-XAM. Misdirected appeals DLA. The appeal should be accom- should be referred expeditiously to the panied by a copy of the letter denying appropriate office. the initial request and contain the (iii) Time limits to decide appeals. Final basis for disagreement with the initial determinations on appeals normally refusal. shall be made within 20 working days (ii) Appeals to a ‘‘no record’’ finding. after receipt. Requesters have the right to appeal (iv) Delay in responding to an appeal. any ‘‘no record’’ finding to the FOIA (A) If additional time is needed due to manager of the activity that issued the the unusual circumstances described in finding. The letter of appeal should in- paragraph (j) of this section, the final clude the case number and, where ap- decision may be delayed for the num- propriate, reasons why the requester ber of working days (not to exceed 10), believes the activity should have that were not used as additional time records on the subject matter. Using for responding to the initial request. the information supplied by the requester, the FOIA manager will direct (B) If a determination cannot be that a second search be conducted. If made and the requester notified within the second search produces no docu- 20 working days, the appellate author- ments, the appeal will be forwarded to ity shall acknowledge to the requester, HQ DLA-G, Cameron Station, Alexan- in writing, the date of receipt of the dria, Virginia 22304–6100, along with a appeal, the circumstances surrounding copy of the case file. The FOIA man- the delay, and the anticipated date for ager will include information on the substantive response. Requesters shall amount of time spent on the request be advised that if the delay exceeds the and provide an explanation of the statutory extension provision or is for method of search and the types of of- reasons other than the unusual cir- fices searched. cumstances identified in paragraph (j) (iii) Appeals to fee waiver denials or re- of this section, they may consider their quester category decisions. Requesters administrative remedies exhausted. may appeal an initial determination They may, however, without regarding placement in a certain fee prejudicing their right of judicial rem- assessment category or waiver or re- edy, await a substantive response. DLA duction of fees when disclosure serves shall continue to process the case expe- the public interest. Requesters will in- ditiously, whether or not the requester clude a basis for disagreement and sub- seeks a court order for release of the mit the appeal to the Staff Director, records, but a copy of any response pro- Office of Administration (Attn: DLA- vided subsequent to filing of a com- XAM), Cameron Station, Alexandria, plaint shall be forwarded to the De- Virginia 22304–6100. partment of Justice. (2) Time limits—(i) Time limits to file (C) When the appellate authority or appeals. The requester shall be advised the authority’s representative must to file an appeal so that it reaches the consult with the requester over an appellate authority no later than 60 issue not previously settled, such as calendar days after the date of the ini- agreement to pay fees for documents tial denial letter. At the conclusion of previously denied, then any delays on this period, the case may be considered the requester’s part will not count to- closed; however, such closure does not ward the 20-day time limit. preclude the requester from filing liti- (3) Response to the requester. (i) When gation. In cases where the requester is an appellate authority makes a deter- provided several incremental determination to release all or a portion of minations for a single request, the records withheld by an IDA, a copy of

287

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00297 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1285.6 32 CFR Ch. XII (7–1–05 Edition)

the records so released should be for- mail, certified mail, certificates of warded promptly to the requester after mailing and return receipts. However, compliance with any preliminary pro- their use should be limited to instances cedural requirements, such as payment where it appears advisable to establish of fees. proof of dispatch or receipt of FOIA (ii) Final refusal to provide a re- correspondence. quested record must be made in writing (p) Receipt accounts. The Treasurer of by the DLA Director or his designee. In the United States has established Re- the case of fee appeals, final refusal to ceipt Account 3210 for use in depositing waive or reduce fees must be made in search, review, and duplication fees writing by the Staff Director of Admin- collected under the FOIA. Upon receipt istration. Record denial responses, at a of payment, the FOIA manager will minimum, shall conform to the fol- forward the check or money order to lowing: DFAS/CO/PDG, P.O. Box 182317, Colum- (A) The basis for the refusal shall be bus, Ohio 43218–2317. FOIA managers explained to the requester with regard will advise DFAS that the check is to to the applicable statutory exemption be deposited to accounting classifica- or exemptions invoked. tion 21R3210.0004. This account will not, (B) When the final refusal is based in however, be used for depositing re- whole or in part on a security classi- ceipts for technical information re- fication, the explanation shall include leased under the FOIA, industrially- a determination that the record meets funded activities, and non-appropriated the cited criteria and rationale of the funded activities. Instead, payments governing Executive Order, and that for these shall be deposited to the ap- this determination is based on a declas- propriate fund. sification review, with the explanation of how that review confirmed the con- § 1285.6 Fees and fee waivers. tinuing validity of the security classi- The rules and rates published in part fication. 286, subpart F of this title apply to this (C) The response shall advise the re- rule. For purposes of computer search, quester that the material being denied DLA has established rates of $20 per does not contain meaningful portions minute of central processing unit time that are reasonably segregable. for mainframe computer use and $20 (D) The response shall advise the re- per hour of wall clock time for personal quester of the right to judicial review. computer use. These rates represent (4) Consultaton. (i) Final refusal in- average operational costs and may be volving issues not previously resolved used when the actual computer cost or that are known to be inconsistent cannot be determined. with rulings of other DoD components ordinarily should not be made without § 1285.7 Reports. first consulting with the Office of the The reporting requirement outlined General Counsel of the Department of in this rule is assigned Report Control Defense. Symbol DD-PA(A)1365 and will be pre- (ii) Tentative decisions to deny pared according to part 286, subpart G, records that raise new or significant of this title. legal issues of potential significance to other agencies of the Government shall APPENDIX A TO PART 1285—GAINING be provided to the Department of Jus- ACCESS TO DLA RECORDS tice, Attn: Office of Legal Policy, Of- fice of Information and Policy, Wash- I. General ington, DC 20530. The Defense Logistics Agency was estab- (5) Records management. Case files of lished pursuant to authority vested in the appeals shall be retained by DLA-G or, Secretary of Defense and is an agency of DoD in the case of fee or requester category under the direction, authority, and control appeals, by DLA-XAM for a period of of the Assistant Secretary of Defense (Pro- duction and Logistics) and is subject to DoD six years to meet the statute of limita- policies, directives, and instructions. DLA is tions of claims requirement. made up of a headquarters and 22 Primary (o) Special mail services. DLA activi- Level Field Activities (PLFA’s). DLA does ties are authorized to use registered not have a central repository for its records.

288

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00298 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Defense Logistics Agency Pt. 1285, App. A

FOIA requests, therefore, should be ad- and plumbing accessories to complex repair dressed to the FOIA Office of the DLA activ- parts for mechanical, construction, and ity that has custody of the record desired. In automotive equipment, and for military air- answering inquiries regarding FOIA re- craft, surface ships, submarines, combat ve- quests, DLA personnel will assist requesters hicles, and missile systems. in determining the correct DLA activity to b. Defense Electronics Supply Center address their requests. If there is uncer- (DESC). Responsible for the acquisition, tainty as to the ownership of the DLA record management, and supply of more than one- desired, the requester may be referred to the half million electronic components such as FOIA manager of the DLA activity most resistors, capacitors, tubes, transformers, likely to have the record or to HQ DLA- microcircuits, and components for various XAM. communications and weapons systems. c. Defense Fuel Supply Center (DFSC). II. Description of DLA’s Central and Field Serves as material manager for bulk petro- Organization leum and coal and is responsible for its A. HQ Defense Logistics Agency, Cameron worldwide supply, storage, and distribution. Station, Alexandria, Virginia 22304–6100 d. Defense Industrial Supply Center (DISC). Buys and manages industrial items The headquarters is organized by broad such as bearings, ferrous and nonferrous functional area and includes the following metals, electrical wire, gasket material, and offices and directorates: certain mineral ores and precious metals. Office of the Director. e. Defense Personnel Support Center Executive Director, Contracting. (DPSC). Buys and manages food, clothing, Executive Director, Supply Operations. and medical supplies for all the armed serv- Executive Director, Technical and Logistics ices, some Federal agencies and authorized Services. foreign governments. Executive Director, Contract Administra- f. Defense General Supply Center (DGSC). tion. Buys and manages such categories of mate- Executive Director, Quality Assurance. rials as electrical hardware, materials han- Executive Director, Program and Technical dling equipment, kitchen and laundry equip- Support. ment, woodworking and metalworking ma- Staff Director, Congressional Affairs. chines, photographic supplies, and precision Staff Director, Public Affairs. measuring instruments. Staff Director, Command Security. 2. Depots. DLA depots are responsible for Staff Director, Administration. the receipt, storage, and distribution of Staff Director, Civilian Personnel. DLA-managed materiel. The principal depots Staff Director, Contracting Integrity. are: Staff Director, Military Personnel. Defense Distribution Region West (DDRW) Staff Director, Small and Disadvantaged Defense Distribution Region East (DDRE) Business Utilization. Defense Depot Memphis (DDMT) Staff Director, Installation Services and En- Defense Depot Ogden (DDOU) vironmental Protection. 3. Service centers. DLA operates six service Assistant Director, Information Systems and centers which provide technical and logistics Technology. services. The service centers are: Assistant Director, Policy and Plans. a. Defense Logistics Services Center General Counsel. (DLSC). Responsible for maintenance of the Comptroller. Federal Supply Catalog System, including the development and dissemination of cata- B. The PLFA’s. loging and item intelligence data to the The 22 PLFA’s are organized into six sup- Military Departments and other authorized ply centers, four depots, six service centers, customers. and six contract districts. b. Defense Reutilization and Marketing 1. Supply centers. The six supply centers are Service (DRMS). The central clearinghouse responsible for materiel management of as- for the reutilization, donation, sale, or dis- signed commodities and items of supply re- posal of DoD-owned excess property, includ- lating to food, clothing, textiles, medical, ing scrap and waste. chemical, petroleum, industrial, construc- c. Defense Industrial Plant Equipment tion, electronics, and general items of sup- Center (DIPEC). Manages the reserve of DoD- ply. The six supply centers are: owned industrial plant equipment. The cen- a. Defense Construction Supply Center ter repairs, rebuilds, and updates equipment (DCSC). Buys and manages construction ma- to avoid new procurement costs. terials, automotive, and construction equip- d. DLA Administrative Support Center ment components, and many repair parts (DASC). Provides general administrative used by the Military Services and other Fed- support to designated DLA activities. eral agencies. Manages items ranging from e. Defense National Stockpile Center common commercial items such as lumber (DNSC). Maintains the national reserve of

289

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00299 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 1285, App. A 32 CFR Ch. XII (7–1–05 Edition)

strategic materials stored for use in event of V. FOIA Mailing Addresses war or other national emergency. f. DLA Systems Automation Center HQ Defense Logistics Agency, Attn: HQ (DSAC). Develops and maintains DLA’s auto- DLA-XAM, Cameron Station, Alexandria, mated and computerized systems. VA 22304–6100. 4. Contract districts. Six districts, each re- Defense Construction Supply Center, Attn: sponsible for contracts covering a multistate DCSC-WXA, 3990 E. Broad Street, Colum- or specialized area, administer materiel con- bus, OH 43216–5000. tracts after they are awarded by the military Defense Electronics Supply Center, Attn: services, defense agencies, some civil agen- DESC-WXA, 1507 Wilmington Pike, Day- cies, and certain foreign governments. The ton, OH 45444–5252. districts are: Defense Fuel Supply Center, Attn: DFSC-DB, Defense Contract Management District Cameron Station, Alexandria, VA 22304– Northeast (DCMDN). 6160. Defense Contract Management District Mid Defense General Supply Center, Attn: DGSC- Atlantic (DCMDM). DB, Richmond, VA 23297–5000. Defense Contract Management District Defense Industrial Supply Center, Attn: North Central (DCMDC). DISC-PPR, 700 Robbins Avenue, Philadel- Defense Contract Management District phia, PA 19111–5096. South (DCMDS). Defense Personnel Support Center, Attn: Defense Contract Management District West DPSC-WXA, 2800 South 20th Street, Phila- (DCMDW). delphia, PA 19101–8419. Defense Contract Management Command Defense Distribution Region East, Attn: International (DCMCI). DDRE-WX, New Cumberland, PA 17070– 5001. III. Requester Requirements Defense Depot Memphis, Attn: DDMT-WX, 2163 Airways Blvd., Memphis, TN 38114– A. Addressing Requests 5000. Address requests to the DLA PLFA most Defense Depot Ogden, Attn: DDOU-G, 800 likely to hold the records (see paragraph V of West 12th Street, Ogden, UT 84407–5000. this appendix for mailing addresses of FOIA Defense Distribution Region West, Attn: managers). If the PLFA is undeterminable, DDRW-WX, Tracy, California 95376–5000. address requests to HQ DLA-XAM for proper Defense National Stockpile Center Attn: routing. Requests must be in writing. DNSC-L, 1745 Jefferson Davis Highway, Crystal Square No. 4, suite 100, Arlington, B. Description of Records. VA 22202–3402. Provide a reasonable description of the Defense Industrial Plant Equipment Center, documents you are seeking. If you have de- Attn: DIPEC-LP, 2163 Airways Blvd., Mem- tailed information which would help reduce phis, TN 38114–5051. the search time involved, please include it in Defense Logistics Services Center, Attn: your request. If you have a document which DLSC-WXA, 74 N. Washington Avenue, references the DLA record you seek, include Battle Creek, MI 49017–3084. a copy of that document. Defense Reutilization and Marketing Serv- ice, c/o Defense Logistics Services Center, C. Fees and fee waivers. Attn: CLSC-WXA, 74 N. Washington Ave- State your willingness to pay fees above nue, Battle Creek, MI 49017–3084. the $15 automatic waiver or provide a jus- DLA Systems Automation Center, Attn: tification for waiver of all or part of the DSAC-E, P.O. Box 1605, Columbus, OH costs. Waiver requests must address with 43216–5002. specificity each of the fee waiver elements in DLA Administrative Support Center, Attn: part 286, subpart F, of this title. DASC-RA, Cameron Station, Alexandria, VA 22304–6130. IV. Availability of DLA Publications Defense Contract Management District Unrestricted DLA regulations, manuals, South, Attn: DCMDS-W, 805 Walker Street, and handbooks may be purchased from the Marietta, Georgia 30060–2789. DLA publications sales outlet. DLA Hand- Defense Contract Management District book 5025.1, Defense Logistics Agency Index Northeast, Attn: DCMDN-WX, 495 Summer of Publications, is published quarterly and Street, Boston, MA 02210–2184. may be used to help you identify publica- Defense Contract Management District tions of interest to you. Orders for this and North Central, Attn: DCMDC-WX, O’Hare other nonrestricted publications may be International Airport, P.O. Box 66926, Chi- placed through DASC-PD, Cameron Station, cago, Il 60666–0926. Alexandria, VA 22304–6130. That office will Defense Contract Management District West, advise you of cost before completing your Attn: DCMDW-WXA, 222 N. Sepulveda order. Blvd., El Segundo, CA 90245–4320.

290

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00300 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1288.5

Defense Contract Management District Mid (c) The DLA vehicle decal will be Atlantic, Attn: DCMDM-RW, 2800 S. 20th valid for a period of 3 years from the Street, Philadelphia, PA 19101–7478. year and month of issue. Defense Contract Management Command International, Attn: DCMCI-MBW, Wright- (d) Activities will use DLA Form Patterson AFB, OH 45433–5000. 1454, Vehicle Registration/Driver Record, as the basic vehicle registra- PART 1288—REGISTRATION OF PRI- tion and driver record. VATELY OWNED MOTOR VEHI- (e) DLA tenant activities will comply with host installation policies and pro- CLES cedures for registering POV’s.

Sec. § 1288.3 Definitions. 1288.1 Purpose and scope. 1288.2 Policy. Terms used in this part 1288 are con- 1288.3 Definitions. tained in DLAR 5720.1. 1288.4 Responsibilities. 1288.5 Procedures. § 1288.4 Responsibilities. 1288.6 Forms and reports. (a) HQ DLA. (1) The command secu- APPENDIX A TO PART 1288—DECAL SPECIFICA- TIONS rity officer, DLA (DLA-T) will provide staff supervision and assistance to DLA AUTHORITY: 5 U.S.C. 301; DOD Directive activities on matters concerning this 5105.22, June 8, 1978. part 1288. SOURCE: 43 FR 40806, Sept. 13, 1978, unless (2) The inspector general, DLA (DLA- otherwise noted. I) will procure, issue, and control in- § 1288.1 Purpose and scope. spector general (IG) vehicle decals in accordance with § 1288.6 of this part, To prescribe policy and procedures with the exception of the 3-year valida- for the registration, inspection, and tion requirement. (Vehicles bearing marking of privately owned vehicles such decals will be permitted entry to (POV) on Defense Logistics Agency all DLA activities.) (DLA) activities. This regulation is ap- (b) The heads of DLA primary level plicable to individuals serving in or field activities will: employed by the Defense Logistics (1) Insure that personnel adhere to Agency, and to all other individuals the provisions of this part 1288 when subject to motor vehicle registration implemented. requirements set forth in this part 1288 and DLAR 5720.1/AR 190–5/OPNAVINST (2) Procure, issue, and control vehicle 11200.5B/AFR 125–14/MCO 5110.1B, Mili- decals in accordance with this DLAR. tary Police Motor Vehicle Traffic Su- (3) Periodically inform personnel of pervision. the requirements of this DLAR, DLAR 5720.1, and local requirements con- § 1288.2 Policy. cerning the motor vehicle registration (a) The operation of a POV on a DLA program. activity constitutes a conditional (4) Activity/tenant employees are not privilege extended by the Head of the considered visitors and will not be activity. The Heads of DLA primary issued visitor passes. Employees oper- level field activities (PLFA’s) have the ating loaner/rental vehicles may be authority to supplement this regula- temporarily registered in accordance tion to implement additional controls with DLAR 5720.1, paragraph 3–2c. and restraints warranted by existing conditions at a PLFA. For example, § 1288.5 Procedures. commanders of depots and supply cen- (a) Issuance of DLA POV decal and 3- ters may impose searches of vehicles as year validation sticker. (1) One decal will warranted to reduce pilferage, and pro- be affixed to the left front bumper (op- tect Government interests. erator’s side) of a four-wheel vehicle. (b) POV’s permanently registered for An additional decal may be placed on operation on a DLA activity will be the rear bumper of the vehicle. For ve- identified by use of one of the decals hicles not equipped with bumpers and prescribed in this part 1288 (appendices two-wheeled vehicles, the placement of A and B). decals will be determined locally.

291

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00301 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1288.6 32 CFR Ch. XII (7–1–05 Edition)

(2) A 3-year validation sticker indi- vehicle and will remain valid for as cating the decal expiration will be long as the registrant retains owner- issued at the same time the DLA decal ship of the vehicle and complies with is issued. Every 3 years, or following a registration requirements. A Privacy significant change, registrants will be Act statement for use in conjunction required to update their registration with DLA form 1454 will be made avail- information. Evidence of compliance able to the individual supplying data will be documented by the issuance and on the form. display of a new 3-year validation (b) Data blocks 3, 4, and 14 on DLA sticker. form 1454 will be entered in ink; re- (3) The validation sticker will be maining entries will be in pencil. placed next to the DLA decal affixed to (c) One copy of DLA form 1454 will the front bumper of the vehicle. This also serve as the driver record of the sticker will reflect the month and year registrant. of the decal expiration, e.g., vehicles (d) Upon permanent change of station registered during the month of June of the military service registrant, ac- 1978 will have affixed a validation tivity clearance procedures will pro- sticker with the numbers ‘‘6–81’’, indi- vide for DLA form 1454 to be included cating expiration of the decal at the in the registrant’s military personnel end of June 1981. The specifications for folder for transmittal to the gaining the validation sticker will be deter- activity. DLA forms 1454 for transfer- mined locally. ring civilian personnel will be for- (4) Decals or other media used to warded to the security officer of the identify vehicles of temporary reg- gaining activity. istrants or visitors will be locally pre- (e) The DLA form 1454 for military scribed. personnel being discharged or sepa- (5) Decals will be removed from rated will be forwarded to the appro- POV’s by the registrant when activity priate personnel office for inclusion in registration is terminated. See DLAR the records folder for subsequent re- 5720.1, chapter 3, for information on tirement. termination of registration. (6) Vehicle decals will be purchased APPENDIX A TO PART 1288—DECAL with appropriated funds for issuance at SPECIFICATIONS no cost to authorized users. A. The design format of the standard DLA (b) Proof of insurance. (1) Individuals decal to be used for identifying POV’s perma- registering vehicles will certify posses- nently registered for operation on DLA ac- sion of insurance per DLAR 5720.1, tivities is shown in enclosure 2. The IG decal paragraph 3–3c. will be of the same design and color as that (2) The certification contained on prescribed for the standard DLA decal except DLA form 1454 will, as indicated there- that the registration letter/number scheme will consist of the letters ‘‘IG’’ followed by a on, be witnessed and manifested by a number. Standard DLA decals may be pro- signature. cured from the U.S. Disciplinary Barracks, (c) Vehicle inspection. (1) DLA activi- USDB, Fort Leavenworth, Kans. 66027, which ties located in States or jurisdictions is an approved Federal printing plant. Exist- having mandatory vehicle safety in- ing stocks of decals with ‘‘DSA’’ inscribed spections will reflect the provisions of will be used until exhausted. DLAR 5720.1, paragraph 3–3d, in the B. The following specifications apply to supplementation of this DLAR. the separate elements of the decal: 1. Basic construction. Decal will meet Fed- (2) Vehicle safety inspections are not eral Specification L-5300A, 7 Jan 70, type I, mandatory for DLA activities located class 4, reflectivity 1. in areas not requiring such inspections. 2. Colors: (d) Registrant. Registrant must in- a. Background—Silver. form the vehicle registration office b. DLA emblem, field activity name, and within 72 hours as information on DLA scroll, the letters DLA, and year/date— form 1454 becomes invalid. Black. C. Registration letters/numbers: § 1288.6 Forms and reports. (1) Mandatory categories: (a) Officer personnel—Blue. (a) DLA form 1454 will be prepared at (b) Enlisted personnel—Red. the time of initial registration of the (c) Civilian employees—Green.

292

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00302 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Defense Logistics Agency Pt. 1290

(2) The following additional colors will be 4. Dimensions: used to categorize registration further: a. Maximum size: 3 inches by 6 inches. For (a) Noncommissioned officer personnel— economy a reduced size decal may be used on Brown. POV’s to include those with less than four (b) Civilian employees (nonappropriated wheels. fund), Red Cross, concessionaires, contrac- b. Registration letters and numerals: 11⁄4 to tors, and other similar categories—Black. 11⁄2 inches in height. 3. Registration letters/numbers. For each reg- 1 3 istration category a combination of letters c. DLA emblem letters: 1 ⁄2 inches to 1 ⁄4 and number(s) separated by the DLA emblem inches in height. will be used. The number-letter system will d. DLA letters: 1⁄2 inch to 3⁄4 inch in height. progress from AA-1 to AA-2, and so on, to e. Activity designation scroll and let- AA-99, from AB-1 to AB-99, eventually from tering: See appendix B. AZ-1 to AZ-99, and so on from ZZ-1 to ZZ-99.

PART 1290—PREPARING AND APPENDIX B TO PART 1290—TICKET SAMPLE— PROCESSING MINOR OFFENSES A PARKING VIOLATION APPENDIX C TO PART 1290—TICKET SAMPLE—A AND VIOLATION NOTICES RE- MOVING VIOLATION FERRED TO U.S. DISTRICT APPENDIX D TO PART 1290—TICKET SAMPLE— COURTS A NONTRAFFIC VIOLATION AUTHORITY: Department of Defense In- Sec. struction 6055.4; 18 U.S.C. 13, 3401, and 3402. 1290.1 References. 1 1290.2 Purpose and scope. 1290.3 Policy. 1290.4 Definitions. 1 Reference (a) may be purchased from the 1290.5 Background. Commander, U.S. Army AG Publications 1290.6 Significant changes. Center, 2800 Eastern Blvd., Baltimore, MD 1290.7 Responsibilities. 21220; reference (b) from the Defense Logis- 1290.8 Procedures. tics Agency (DASC-IP), Cameron Station, 1290.9 Forms and reports. Alexandria, VA 22314; references (c), (d), and APPENDIX A TO PART 1290—PREPARATION (e) from the Superintendent of Documents, GUIDE FOR DD FORM 1805, VIOLATION NO- Government Printing Office, Washington, DC TICE 20402.

293

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00303 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 EC25OC91.005 § 1290.1 32 CFR Ch. XII (7–1–05 Edition)

SOURCE: 44 FR 55859, Sept. 28, 1979, unless minor offenses committed by civilian otherwise noted. personnel.

§ 1290.1 References. § 1290.4 Definitions. (a) DLAR 5720.1/AR 190–5/ For the purpose of this part 1290 the OPNAVINST 11200.5B/AFR 125–14/MCO following definitions apply: 5110.1B, Motor Vehicle Traffic Super- vision. This part 1290 supersedes part 1290 (b) DLAR 5710.1, Authority of Mili- April 26, 1972. tary Commanders To Issue Security (a) Law Enforcement Personnel. Per- Orders and Regulations for the Protec- sons authorized by the Head of the tion of Property or Places Under Their PLFA to direct, regulate, control traf- Command. fic; to make apprehensions or arrests (c) Sections 1, 3401 and 3402, title 18, for violations of traffic regulations; or U.S.C. to issue citations or tickets. Personnel (d) Rules of procedures for the Trial so designated will include the Com- of Minor Offenses before United States mand Security Officer and all other Magistrates. personnel in 080, 083, 085, or 1800 series (e) Section 13, title 18, U.S.C., As- positions. similative Crimes Act. (b) Minor Federal Offenses. Those of- § 1290.2 Purpose and scope. fenses for which the authorized penalty does not exceed imprisonment for a pe- (a) This part 1290 implements DoD In- riod of 1 year, or a fine of not more struction 6055.4, Department of Defense than $1000, or both (18 U.S.C. 3401f). Traffic Safety Program, and sets forth basic objectives and procedures appli- (c) Petty Federal Offenses. Those of- cable to implementation of the Federal fenses for which the authorized penalty Magistrate System by DLA. This part does not exceed imprisonment for a pe- 1290 is applicable to HQ DLA, Defense riod of 6 months or a fine of not more Supply Centers (DSC’s), less Defense than $500, or both (18 U.S.C. 1(3)). Fuel Supply Center and Defense Indus- NOTE: A petty offense is a type of minor of- trial Supply Center, and to Defense De- fense. pots, less Defense Depot Mechanics- (d) Violation Notice. DD Form 1805, burg. DLA activities/personnel tenant Violation Notice, which will be used to on other DoD activities will abide by refer all petty offenses to the U.S. Mag- the requirements of the host. istrate/District Courts for disposition. (b) This part 1290 provides Heads of DLA primary level field activities NOTE: A complaint, made under oath on (PLFAs) with a means of exercising ef- forms provided by the magistrate, is the pre- fective control over violators who are scribed form for charging minor offenses not otherwise under their jurisdiction. other than petty offenses.

§ 1290.3 Policy. § 1290.5 Background. (a) It is the policy of HQ DLA that (a) DoD Instruction 6055.4 requires the Heads of DLA PLFAs will take that all traffic violations occurring on such steps as are necessary to prevent DoD installations be referred to the ap- offenses. Emphasis will be placed on propriate United States Magistrate, or prevention rather than apprehension State or local system magistrate, in and prosecution of offenders. the interest of impartial judicial deter- (b) The procedures outlined in this mination and effective law enforce- part 1290 may, at the discretion of the ment. Exceptions will be made only for Head of the activity concerned, be in- those rare violations in which military voked in lieu of the provisions of the discipline is the paramount consider- Uniform Code of Military Justice ation, or where the Federal court sys- (UCMJ) to deal with minor offenses of tem having jurisdiction has notified a civil nature, other than violations of the PLFA commander it will not ac- state traffic laws, committed by mili- cept certain offenses for disposition. tary personnel. These procedures may (b) Generally, the Federal Magistrate also be invoked to deal with nontraffic System applies state traffic laws and

294

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00304 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency § 1290.8

appropriate Federal laws to all per- court hearing, to pay their fines by sonnel while on Federal property (sec- using mail-in, preaddressed, postage tion 13, title 18 U.S.C., Assimilative paid envelopes furnished to them with Crimes Act). the violation notice. (2) Efficient, minimal commitment of § 1290.6 Significant changes. judicial and clerical time by using uni- This revision incorporates the DoD form procedures which centralize the requirement for referral of traffic vio- collection of fines, the scheduling of lations occurring on military installa- mandatory hearings or hearings where tions to the Federal or local mag- violators request them, and the keep- istrate. ing of violator records. (3) A simple but sure method of ac- § 1290.7 Responsibilities. counting for fines collected and tickets (a) HQ DLA. (1) The Command Security issued. Officer, DLA (DLA-T) will: (4) Impartial enforcement of minor (i) Exercise staff supervision over the offense laws. Magistrate system within DLA. (b) Court Appearances—(1) Mandatory (ii) Provide guidance and assistance Appearances. (i) As required by the Ad- to DLA activities concerning adminis- ministrative Office of the United trative and procedural aspects of this States Courts, each District Court will part 1290. determine, by local court rule, those (2) The Counsel, DLA (DLA-G) will offenses requiring mandatory appear- provide guidance and assistance to ance of violators. PLFA Counsels will DLA activities concerning legal as- coordinate with local magistrates or pects of this part 1290. district courts and secure a court ap- (b) The Heads of DLA Primary Level proved list of offenses requiring man- Field Activities will: datory appearance of violators before (1) Develop and put into effect the the local U.S. Magistrate. necessary regulatory and supervisory (ii) Mandatory appearance offense procedures to implement this part 1290. categories normally include: (2) Ensure implementing directives (A) Indictable offenses. authorize law enforcement/security (B) Offenses resulting in accidents. force (080, 083, 085 and 1800 series) per- (C) Operation of motor vehicle while sonnel to issue DD Form 1805. under the influence of intoxicating al- (3) Periodically publish in the PLFA cohol or a narcotic or habit producing Daily or Weekly Bulletin, a listing of or other mind altering drug, or permit- offenses for which mail-in procedures ting another person who is under the apply, with the amount of the fine for influence of intoxicating alcohol, or a each, and a listing of offenses requiring narcotic or habit producing or mind al- mandatory appearance of the violator tering drug to operate a motor vehicle before the U.S. Magistrate. The listings owned by the defendant or in his/her will indicate that they are not nec- custody or control. essarily all inclusive and that they are (D) Reckless driving or speeding. subject to change. A copy of the list- (2) Voluntary Appearances—(i) Re- ings will be provided to the local Union quested by violators at the time DD Form representatives. 1805 is issued. (A) Personnel issuing DD Form 1805 will refer violator for hear- § 1290.8 Procedures. ings before U.S. Magistrates in each in- (a) The U.S. Magistrate Court Provides stance where a hearing is requested by DLA with: the violator. (1) The means to process and dispose (B) Command security officers will of certain categories of minor offenses provide security force personnel with by mail. Under this system, U.S. Mag- necessary information to facilitate istrate and District Courts will, by scheduling violators to appear before local court rule, preset fines for the U.S. Magistrates. Box B of the DD bulk of petty violations (Federal or As- Form 1805 will be marked by the similated) and permit persons charged issuing official for each violator re- with such violations, who do not con- questing a hearing. Additionally proce- test the charge nor wish to have a dures set forth in appendix A will be

295

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00305 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1290.9 32 CFR Ch. XII (7–1–05 Edition)

accomplished by the official issuing Form 1805 is dependent upon two con- violation notice. siderations: (ii) Requested by violators by mail. (A) (i) The type of violation, i.e., park- Voluntary appearance procedures are ing, (such as blocking a fire lane) mov- also available for violators who are not ing traffic violation, or nontraffic of- present at the time a DD Form 1805 is fenses. issued (i.e., parking violations) or who (ii) Whether the offense cited re- subsequently decide to voluntarily ap- quires the mandatory appearance of pear before a U.S. Magistrate rather the violator before a U.S. Magistrate. than pay the fine indicated in the DD (2) Preparation and disposition of DD Form 1805. Form 1805: (B) Violators who use the mail-in (i) See illustration in appendix B for procedure to voluntarily appear before petty offenses where the mail-in fine a U.S. Magistrate must follow the in- procedures are authorized. structions in Box B of the DD Form (A) The amount of the fine for a spe- 1805 (violator copy). The violator will cific offense must be recorded in the be notified by the clerk of the District lower right corner of the DD Form 1805. Court of the time and place to appear This amount will always be predeter- for the scheduled hearing. mined by the U.S. Magistrate and provided to on duty enforcement personnel § 1290.9 Forms and reports. by the activity security officer or (a) General information on preparation equivalent authority. When violation and issue of DD Form 1805. (1) The U.S. notices are issued for an offense (e.g., Magistrate system is based on use of a parking violation) and the offender is four-ply ticket designed to provide absent, all entries concerning the vio- legal notice to violators and records re- lator will be left blank. quired by the court, law enforcement (B) Disposition of DD Form 1805 will authorities, and, if appropriate, the be as follows: state motor vehicle departments. The (1) The fourth copy (envelope) will be DD Form 1805 is printed on chemically issued to the violator or placed on the carbonized paper and prenumbered in vehicle of the violator. series for accounting control. Heads of DLA primary level field activities are (2) Copies one (white copy), two (yel- responsible for maintaining account- low copy), and three (pink copy) will be ability for each ticket issued and returned to the Security Officer’s of- stocks on hand. fice. The Security Officer will forward (2) DLA field activity Counsels will copies one and two, by letter of trans- coordinate with the U.S. Magistrate of mittal, to the appropriate U.S. District the judicial district in which the activ- Court. ity is located and maintain the infor- (3) Copy three will be filed at the Se- mation listed below: curity Office or equivalent issuing au- (i) List of petty offenses for which thority. DLA Form 1454, Vehicle Reg- mail-in procedure is authorized and the istration/Driver Record, will be anno- amount of the fine for each specific of- tated with each traffic offense. fense. The District Court address will (ii) When DD Form 1805 is used to be prestamped on the violator’s copy of cite personnel for mail-in type viola- the DD Form 1805 by the applicable tions, the appropriate supervisor will issuing authority. be provided an information copy of (ii) List of minor offenses requiring DLA Form 635, Security/Criminal Inci- mandatory appearance of the violator dent Report, denoting the date, time, before the magistrate. The name and place, and type of violation, and the location of the magistrate before whom amount of fine assessed. violators will appear. Schedule will be (iii) Heads of DLA primary level field coordinated with nearest Military activities or their representative will Service activity and appearance will be not accept or otherwise collect any conducted jointly whenever possible. fines or keep records of fines paid or (b) Issue procedures for DD Form 1805. not paid. They also will take no action (1) Information entered on the DD concerning nonpayment delinquencies

296

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00306 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Defense Logistics Agency Pt. 1290, App. A

except where warrants are subse- pervisor will be provided an informa- quently issued for the violator con- tion copy of DLA Form 635, denoting cerned by the appropriate court au- the date, time, place, and type of viola- thorities. tion, and the date the violator is sched- (iv) See illustrations in appendices C uled to appear before the U.S. Mag- and D for minor offenses requiring the istrate. mandatory appearance of violators be- (v) Additional information governing fore the U.S. Magistrate: preparation of DD Form 1805 is pro- (A) Mail-in fine procedures will not vided as appendix A. apply in mandatory appearance cases. The law enforcement authority issuing APPENDIX A TO PART 1290—PREPARA- a violation notice for an offense requir- TION GUIDE FOR DD FORM 1805, VIO- ing mandatory appearance of the viola- LATION NOTICE tor, will place a check mark in ‘‘Box A’’, DD Form 1805. The name and loca- All violations will require: tion of the U.S. Magistrate before Last four digits of the Social Security whom the violator must appear will be Number of the Issuing guard/police officer (placed in space marked ‘‘Officer No.’’). Date inserted on the line below ‘‘United of notice (is also violation date unless other- States District Court’’ as shown in ap- wise shown) and time. Description of viola- pendix C. The date and time of the ini- tion, including place noted. Violation code tial appearance will be entered in the number and issuing location code number (as space provided in ‘‘Box A’’. It is the determined by local Magistrate/District violator’s responsibility to verify the Court). Examples are shown at appendices B, date, time, and place of required court C, and D. appearances. In addition to above items (B) Disposition of DD Form 1805 will be as follows: Parking offenses require: Vehicle descrip- (1) The fourth copy (envelope) will be tion (make, color, body type), licensing issued to the violator. state, auto license number; and, if violator is present: Driver permit number, driver ad- (2) Copies one (white copy), two (yel- dress, driver’s name (all of above items and); low copy), and three (pink copy) will be moving traffic offenses require: Birth date returned to the Security Officer’s of- and sex, race (if it appears on driver’s per- fice. The Security Officer will forward mit), height and weight. copies one and two, by transmittal as Nontraffic offenses require: Statute vio- soon as possible, to the magistrate be- lated, person’s name, person’s address, birth fore whom the violator is scheduled to date, and sex; and, if applicable: Race, appear. height, and weight. (3) Copy three will be filed in the of- All mailable disposition offenses—amount of fine (collateral). fice of the Security Officer or equiva- All mandatory court offenses—Above data, lent issuing authority. as appropriate, and the place of court (i.e., (C) When DD Form 1805 is used to Magistrate Court Address), the date and cite personnel for mandatory appear- time of appearance (if known by officer), and ance type offenses, the individual’s su- check mark in Box ‘‘A’’.

297

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00307 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 1290, App. B 32 CFR Ch. XII (7–1–05 Edition)

APPENDIX B TO PART 1290—TICKET SAMPLE—A PARKING VIOLATION

298

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00308 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 EC25OC91.006 Defense Logistics Agency Pt. 1290, App. C

APPENDIX C TO PART 1290—TICKET SAMPLE—A MOVING VIOLATION

299

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00309 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 EC25OC91.007 Pt. 1290, App. D 32 CFR Ch. XII (7–1–05 Edition)

APPENDIX D TO PART 1290—TICKET SAMPLE—A NONTRAFFIC VIOLATION

300

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00310 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 EC25OC91.008 Defense Logistics Agency § 1292.4

PART 1292—SECURITY OF DLA tions and orders in fulfillment of their ACTIVITIES AND RESOURCES responsibility to protect property and places under their jurisdiction and ad- Sec. ministration. However, separate secu- 1292.1 Purpose and scope. rity regulations and orders should not 1292.2 Policy. be issued when the host has issued se- 1292.3 Background. curity regulations and orders that af- 1292.4 Responsibilities. ford protection to the DLA activity. 1292.5 Procedures. (d) Detailed physical security and APPENDIX A TO PART 1292—SECTION 21 OF THE emergency plans developed in conjunc- INTERNAL SECURITY ACT OF 1950 tion with these security regulations AUTHORITY: DoD Directive 5200.8 and in ac- and orders will be as prescribed by cordance with Sec. 21 of the Internal Secu- DLAM 5710.1, Physical Security Man- rity Act of 1950, 50 U.S.C. 797. ual, and DLA War and Emergency Sup- SOURCE: 46 FR 13216, Feb. 20, 1981, unless port Plan (WESP), part II, Annex A. otherwise noted. § 1292.3 Background. § 1292.1 Purpose and scope. Section 21 of the Internal Security ‘‘To establish policy, assign respon- Act of 1950 (appendix A) authorizes the sibilities, and prescribe procedures for Secretary of Defense to designate mili- the issuance of security regulations tary commanders to promulgate or ap- and orders by Heads of DLA activities. prove regulations and orders for the This part 1292 implements DoD Direc- protection of property and places under tive 5200.8, Security of Military Instal- their command. DoD Directive 5200.8 lations and Resources, and is applica- designates military commanders of ble to HQ DLA, DLA field activities Army, Navy, Air Force, and Defense and property/places subject to the ju- Agency activities as having authority risdiction or administration of the De- to promulgate regulations and orders fense Logistics Agency. pursuant to the Internal Security Act § 1292.2 Policy. of 1950. (a) Military Heads of DLA field ac- § 1292.4 Responsibilities. tivities are authorized to issue or approve necessary security regulations (a) HQ DLA. (1) The Director, DLA/ and orders for the protection of prop- Deputy Director/Deputy Director, CAS erty and places under their jurisdic- will issue necessary security regulation/administration. Regulations and tions and orders for PLFAs headed by orders for the protection of property civilians. and personnel of subordinate activities (2) The Command Security Officer, headed by civilians shall be promul- DLA (DLA-T) will: gated by the military commander in (i) Provide technical staff guidance the chain of command immediately on the issuance of security regulations above such subordinate activity. and orders. (b) Regulations and orders for the (ii) Keep the Director, DLA informed protection of property and personnel of of violations of regulations/orders as primary level field activities (PLFAs) reported. headed by civilians, and subordinate (b) Field Activities. (1) The Heads of activities of such PLFAs which like- Primary Level Field Activities will: wise are headed by civilians, shall be (i) Publish a physical security plan promulgated by the Director, DLA/Dep- which provides proper and economical uty Director/Deputy Director, CAS. use of personnel and equipment to pre- (c) Heads of DLA field activities that vent or minimize loss or damage from are tenants on a military reservation, theft, espionage, sabotage, and other post, camp, station, installation, base, criminal or disruptive activities. or Government-owned or leased facility (ii) Report violations of security reg- administered by another command or ulations and orders to HQ DLA, ATTN: agency are responsible for protection of DLA-T, in accordance with DLAR property and places under their com- 5705.1, Reporting of Security and mand and may issue security regula- Criminal Violations.

301

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00311 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1292.5 32 CFR Ch. XII (7–1–05 Edition)

(2) The Military Heads of DLA field of applicable directives, will suffice activities will issue security regula- provided it cites the authority to issue tions and orders as necessary for the such directive. The posting of volumi- protection of places and property under nous, individual security regulations their jurisdiction pursuant to the pro- and orders will be avoided. visions of this part 1292 and other pertinent directives. APPENDIX A TO PART 1292—SECTION 21 OF THE INTERNAL SECURITY ACT OF 1950 § 1292.5 Procedures. 797. Security regulations and orders; penalty for (a) Security regulations and orders violation will be promulgated by any of the fol- (a) Whoever willfully shall violate any lowing means: such regulation or order as, pursuant to law- (1) Written directives of the activity ful authority, shall be or has been promul- Head. gated or approved by the Secretary of De- (2) Signs and similar media. fense, or by any military commander des- (3) Orally, when required by a contin- ignated by the Secretary of Defense, or by gency/emergency. the Director of the National Advisory Com- mittee for Aeronautics, for the protection or (b) Written directives and orders will security of military or naval aircraft, air- contain so much of the following state- ports, airport facilities, vessels, harbors, ment as is pertinent: ports, piers, waterfront facilities, bases, forts, posts, laboratories, stations, vehicles, This order (directive, bulletin, etc.) is equipment, explosives, or other property or issued pursuant to section 21, Internal Secu- places subject to the jurisdiction, adminis- rity Act of 1950, 50 U.S.C. 797, DoD Directive tration, or in the custody of the Department 5200.8, DLAR 5710.1, (directive issued by the of Defense, any Department or agency of Head of a DLA field activity subordinate to which said Department consists, or any offi- HQ DLA). cer or employeee of said Department or (c) Signs used as the sole vehicle for agency, or of the National Advisory Com- issuing a security regulation or order mittee for Aeronautics or any officer or em- must contain a recitation of the au- ployee thereof, relating to fire hazards, fire thority under which issued and the protection, lighting, machinery, guard service, disrepair, disuse or other unsatisfactory title of the authorized official who conditions thereon, or the ingress thereto or issued the regulation or order. DLAM egress or removal of persons therefrom, or 5710.1, chapter 3, contains instructions otherwise providing for safeguarding the on the exact wording of such signs. same against destruction, loss, or injury by (d) Oral orders will include a state- accident or by enemy action, sabotage or ment which clearly indicates the au- other subversive actions, shall be guilty of a thority for issuance similar to the pro- misdemeanor and upon conviction thereof visions of paragraph (b) of this section. shall be liable to a fine of not to exceed $5,000 (e) Written security orders and regu- or to imprisonment for not more than one year or both. lations will be posted in conspicuous (b) Every such regulation or order shall be and appropriate places to ensure widest posted in conspicuous and appropriate dissemination. The posting of a general places. Sept. 23, 1950, c. 1024, Title I, Par. 21, security regulation/order, or a listing 64 Stat. 1005.

302

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00312 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 CHAPTER XVI—SELECTIVE SERVICE SYSTEM

Part Page 1600–1601 [Reserved] 1602 Definitions ...... 305 1605 Selective Service System organization ...... 306 1609 Uncompensated personnel...... 312 1615 Administration of registration ...... 313 1618 Notice to registrants ...... 314 1621 Duty of registrants ...... 315 1624 Inductions ...... 316 1627 Volunteers for induction ...... 319 1630 Classification rules...... 320 1633 Administration of classification ...... 326 1636 Classification of conscientious objectors ...... 328 1639 Classification of registrants preparing for the Min- istry ...... 332 1642 Classification of registrants deferred because of hardship to dependents ...... 334 1645 Classification of ministers of religion ...... 336 1648 Classification by local board ...... 336 1651 Classification by District Appeal Board ...... 340 1653 Appeal to the President ...... 342 1656 Alternative service...... 344 1657 Overseas registrant processing ...... 353 1659 Extraordinary expenses of registrants ...... 354 1662 Freedom of Information Act (FOIA) procedures ..... 354 1665 Privacy Act procedures ...... 358 1690 [Reserved] 1697 Salary offset...... 364 1698 Advisory opinions...... 368 1699 Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by Selective Service System ...... 369

303

VerDate Aug<04>2004 11:43 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00313 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00314 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PARTS 1600–1601 [RESERVED] (2) A person, though not a citizen of the United States, who owes allegiance PART 1602—DEFINITIONS to the United States. § 1602.4 Area office. Sec. 1602.1 Definitions to govern. The Selective Service Office which is 1602.2 Administrative classification. responsible for all administrative and 1602.3 Aliens and nationals. operational support for the one or more 1602.4 Area office. local boards within its jurisdiction. 1602.5 Area office staff. 1602.6 Board. § 1602.5 Area office staff. 1602.7 Classification. 1602.8 Classifying authority. The compensated employees, civilian 1602.9 Computation of time. and military, of the Selective Service 1602.10 County. System employed in an area office will 1602.11 District appeal board. be referred to as the area office staff. 1602.12 Governor. 1602.13 Judgmental Classification. § 1602.6 Board. 1602.14 Local board. 1602.15 Local board of jurisdiction. The word board when used alone, un- 1602.16 MEPS. less the context otherwise indicates, 1602.17 Military service. includes a local board, district appeal 1602.18 National Appeal Board. board, and the National Appeal Board 1602.19 Numbers. and panels thereof. 1602.20 Registrant. 1602.21 Selective Service Law. § 1602.7 Classification. 1602.22 Singular and plural. 1602.23 State. Classification is the exercise of the 1602.24 Claim. power to determine claims or questions 1602.25 Director. with respect to inclusion for or exemption or deferment from training and AUTHORITY: Military Selective Service Act, 50 U.S.C. App. 451 et seq.; E.O. 11623. service under Selective Service Law. SOURCE: 42 FR 4643, Feb. 1, 1982, unless oth- § 1602.8 Classifying authority. erwise noted. The term classifying authority refers § 1602.1 Definitions to govern. to any official or board who is author- The definitions contained in section ized in § 1633.1 to classify a registrant. 16 of the Military Selective Service Act, and the definitions contained in § 1602.9 Computation of time. this part shall govern in the interpre- Unless otherwise specified the period tation of the regulations of this chap- of days allowed a registrant or other ter. person to perform any act or duty required of him shall be counted as be- § 1602.2 Administrative classification. ginning on the day following that on A reclassification action relating to a which the notice is issued. registrant’s claim for Class 1-C, 1-D-D, 1-D-E, 1-H, 1-O-S, 1-W, 3-A-S, 4-A-A, 4- § 1602.10 County. A, 4-B, 4-C, 4-F, 4-G, 4-T, or 4-W. These The word county includes, where ap- classes shall be identified as adminis- plicable, counties, independent cities, trative classes. and similar subdivisions, such as the [52 FR 24454, July 1, 1987] independent cities of Virginia and the parishes of Louisiana. § 1602.3 Aliens and nationals. (a) The term alien means any person § 1602.11 District appeal board. who is not a citizen or national of the A district appeal board or a panel United States. thereof of the Selective Service System (b) The term national of the United is a group of not less than three civil- States means: ian members appointed by the Presi- (1) A citizen of the United States, or dent to act on cases of registrants in

305

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00315 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1602.12 32 CFR Ch. XVI (7–1–05 Edition)

accordance with the provisions of parts dent to act on cases of registrants in 1651 and 1656 of this chapter. accord with the provisions of part 1653 of this chapter. [69 FR 20543, Apr. 16, 2004] [52 FR 24454, July 1, 1987] § 1602.12 Governor. The word Governor includes, where § 1602.19 Numbers. applicable, the Governor of each of the Cardinal numbers may be expressed States of the United States, the Mayor by Arabic or Roman symbols. of the District of Columbia, the Gov- ernor of Puerto Rico, the Governor of § 1602.20 Registrant. the Virgin Islands, and the Governor of A registrant is a person registered Guam. under the Selective Service Law.

§ 1602.13 Judgmental Classification. § 1602.21 Selective Service Law. A classification action relating to a The term Selective Service Law in- registrant’s claim for Class 1-A-O, 1-O, cludes the Military Selective Service 2-D, 3-A, or 4-D. Act, all rules and regulations issued thereunder, and Proclamations of the § 1602.14 Local board. President pertaining to registration A local board or a panel thereof of under that Act. the Selective Service System is a group of not less than three civilian § 1602.22 Singular and plural. members appointed by the President Words importing the singular number after nomination by a Governor to act shall include the plural number, and on cases of registrants in accord with words importing the plural number the provisions of part 1648 of this chap- shall include the singular, except ter. where the context clearly indicates otherwise. [52 FR 24454, July 1, 1987] § 1602.23 State. § 1602.15 Local board of jurisdiction. The word State includes, where appli- The local board of jurisdiction is the cable, the several States of the United local board to which a registrant is as- States, the City of New York, the Dis- signed and which has authority, in ac- trict of Columbia, Puerto Rico, the cord with the provisions of this chap- Virgin Islands, and Guam. ter, to determine his claim or to issue to him an order. His local board and reg- § 1602.24 Claim. istrant’s local board refer to the local board of jurisdiction. A claim is a request for postponement of induction or classification into a [52 FR 24454, July 1, 1987] class other than 1–A. § 1602.16 MEPS. [52 FR 24454, July 1, 1987] A Military Entrance Processing Sta- § 1602.25 Director. tion is a military installation to which Director is the Director of Selective registrants are ordered to report for ex- Service. amination or induction. [52 FR 24454, July 1, 1987] § 1602.17 Military service. The term military service includes PART 1605—SELECTIVE SERVICE service in the Army, the Navy, the Air SYSTEM ORGANIZATION Force, the Marine Corps, and the Coast Guard. NATIONAL ADMINISTRATION § 1602.18 National Appeal Board. Sec. 1605.1 Director of Selective Service. The National Appeal Board or a panel 1605.6 National Appeal Board. thereof of the Selective Service System is a group of not less than three civil- REGION ADMINISTRATION ian members appointed by the Presi- 1605.7 Region Manager.

306

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00316 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1605.6

1605.8 Staff of Region Headquarters for Se- essary for carrying out the functions of lective Service. the Selective Service System. STATE ADMINISTRATION (c) To obligate and authorize expenditures from funds appropriated for car- 1605.11 Governor. rying out the functions of the Selective 1605.12 State Director of Selective Service. Service System. 1605.13 Staff of State Headquarters for Se- lective Service. (d) To appoint and to fix, in accord- 1605.14 State Director of Selective Service ance with provisions of chapter 51 and for New York City. subchapter III of chapter 53 of title 5 U.S.C., relating to classification and DISTRICT APPEAL BOARDS General Schedule pay rates, the com- 1605.21 Area. pensation of such officers, agents, and 1605.22 Composition and appointment of dis- employees as shall be necessary for trict appeal boards. carrying out the functions of the Selec- 1605.23 Designation. tive Service System. 1605.24 Jurisdiction. 1605.25 Disqualification. (e) To procure such space as he may 1605.26 Organization and meetings. deem necessary for carrying out the 1605.27 Minutes of meetings. functions of the Selective Service Sys- 1605.28 Signing official papers. tem by lease pursuant to existing statutes. LOCAL BOARDS (f) To obtain by purchase, loan, or 1605.51 Area. gift such equipment, supplies, printing, 1605.52 Composition of local boards. binding, and blankbook work for the 1605.53 Designation. Selective Service System as he may 1605.54 Jurisdiction. deem necessary to carry out the func- 1605.55 Disqualification. 1605.56 Organization and meetings. tions of the Selective Service System. 1605.58 Minutes of meetings. (g) To perform such other duties as 1605.59 Signing official papers. shall be required of him under the Se- lective Service Law or which may be AREA OFFICE ADMINISTRATION delegated to him by the President. 1605.60 Area. (h) To delegate any of his authority 1605.61 Staff of area offices for selective to such officers, agents, or persons as service. he may designate and to provide for the subdelegation of any such author- INTERPRETERS ity. 1605.81 Interpreters.

AUTHORITY: Military Selective Service Act, § 1605.6 National Appeal Board. 50 U.S.C. App. 451 et seq.; E.O. 11623. (a) There is hereby created and estab- SOURCE: 47 FR 4644, Feb. 1, 1982, unless oth- lished within the Selective Service erwise noted. System a civilian agency of appeal which shall be known as the National NATIONAL ADMINISTRATION Appeal Board. The President shall appoint not less than three members to § 1605.1 Director of Selective Service. the National Appeal Board, and he The Director of Selective Service shall designate one member as chair- shall be responsible directly to the man. President. The Director of Selective (b) The President shall appoint mem- Service is hereby authorized and di- bers of the National Appeal Board from rected: among citizens of the United States (a) To prescribe such rules and regu- who: lations as he shall deem necessary for (1) Are not active or retired members the administration of the Selective of the Armed Forces or any reserve Service System, the conduct of its offi- component thereof; cers and employees, the distribution (2) Have not served as a member of and performance of its business, and the National Appeal Board for a period the custody, use, and preservation of of more than five years; its records, papers, and property. (3) Are at least 18 years of age; (b) To issue such public notices, or- (4) Are able to devote sufficient time ders, and instructions, as shall be nec- to duties of the Board; and

307

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00317 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1605.7 32 CFR Ch. XVI (7–1–05 Edition)

(5) Are willing to fairly and uni- diem in lieu of subsistence in accord- formly apply Selective Service Law. ance with rates established by Federal (c)(1) A majority of the members of Travel Regulations. the board shall constitute a quorum for (g) The Director shall pay the ex- the transaction of business, and a ma- penses of the members of the National jority of the members present at any Appeal Board in accord with applicable meeting at which a quorum is present, Federal Travel Regulations and shall shall decide any question. furnish that Board and its panels nec- (2) The National Appeal Board may essary personnel, suitable office space, sit en banc, or upon the request of the necessary facilities and services. Director or as determined by the chair- [52 FR 8890, Mar. 20, 1987] man of the National Appeal Board, in panels, each panel to consist of at least REGION ADMINISTRATION three members. The Chairman of the National Appeal Board shall designate § 1605.7 Region Manager. the members of each panel and he shall (a) Subject to the direction and con- designate one member of each panel as trol of the Director of Selective Serv- chairman. A majority of the members ice, the Region Manager of Selective of a panel shall constitute a quorum Service for each region shall be in im- for the transaction of business, and a mediate charge of the Region Head- majority of the members present at quarters and shall be responsible for any meeting at which a quorum is carrying out the region functions of present, shall decide any question. the Selective Service System in the Each panel of the National Appeal various States assigned to the region. Board shall have full authority to act (b) The Region Manager will perform on all cases assigned to it. such duties as are prescribed by the Di- (3) The National Appeal Board or a rector of Selective Service. panel thereof shall hold meetings in Washington, DC, and upon request of § 1605.8 Staff of Region Headquarters the Director or as determined by the for Selective Service. Chairman of the National Appeal (a) Subject to applicable law, and Board, at any other place. within the limits of available funds, (d) The National Appeal Board or the staff of each region for Selective panel thereof shall classify each reg- Service shall consist of as many offi- istrant whose classification has been cers, either military or civilian, as appealed to the President under part shall be authorized by the Director of 1653 of this chapter. Selective Service. (e) No member of the National Ap- (b) In accordance with limitations peal Board shall act on the case of a imposed by the Director of Selective registrant who is the member’s first Service, the Region Manager is author- cousin or closer relation either by ized to appoint such civilian personnel blood, marriage, or adoption, or who is as he considers are required in the op- the member’s employer, employee or eration of the Region Headquarters. fellow employee or stands in the relationship of superior or subordinate of STATE ADMINISTRATION the member in connection with any employment, or is a partner or close § 1605.11 Governor. business associate of the member, or is The Governor is authorized to rec- a fellow member or employee of the ommend a person to be appointed by National Appeal Board. A member of the President as State Director of Se- the National Appeal Board must dis- lective Service for his State, who shall qualify himself in any matter in which represent the Governor in all Selective we would be restricted for any reason Service matters. in making an impartial decision. (f) Each member of the National Ap- § 1605.12 State Director of Selective peal Board while on the business of the Service. National Appeal Board away from his (a) The State Director of Selective home or regular place of business shall Service for each State, subject to the receive actual travel expenses and per direction and control of the Director of

308

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00318 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1605.24

Selective Service, shall be in imme- DISTRICT APPEAL BOARDS diate charge of the State Headquarters for Selective Service in his State. The § 1605.21 Area. State Headquarters for Selective Serv- The Director of Selective Service ice shall be an office of record for Se- shall establish one or more district ap- lective Service operations only, and no peal boards in each of the Federal Judi- records other than Selective Service cial Districts in the several states of records shall be maintained in such of- the United States, the District of Co- fice. lumbia, Guam, Puerto Rico, and the (b) The State Director of Selective Virgin Islands. The Director of Selec- Service will perform such duties as are tive Service may establish panels of prescribed by the Director of Selective appeal boards. Service. § 1605.22 Composition and appoint- § 1605.13 Staff of State Headquarters ment of district appeal boards. for Selective Service. The Director of Selective Service will (a) Subject to applicable law and prescribe the number of members for within the limits of available funds, the district appeal boards. The Presi- the staff of each State Headquarters dent shall appoint members of district for Selective Service shall consist of as appeal boards from among citizens of many officers, either military or civil- the United States who are residents of ian, as shall be authorized by the Di- the area for which the respective rector of Selective Service. boards have jurisdiction. The Director (b) In accordance with limitations of Selective Service shall furnish nec- imposed by the Director of Selective essary personnel, suitable office space, Service, the State Director of Selective facilities and services to support each Service is authorized to appoint such district appeal board. civilian personnel as he considers are required in the operation of the State § 1605.23 Designation. Headquarters for Selective Service. The Director of Selective Service § 1605.14 State Director of Selective shall assign each district appeal board Service for New York City. within a Federal Judicial District a The Governor of the State of New specific identification by which it shall York is authorized to recommend a be known. If a district appeal board person to be appointed by the Presi- consists of more than one panel, each dent as State Director of Selective panel shall have a specific identifying Service for New York City, who shall number. Such numbers shall be as- represent the Governor in all Selective signed in numerical sequence begin- Service matters within the City of New ning with numeral 1. York. Subject to the direction and con- § 1605.24 Jurisdiction. trol of the Director of Selective Serv- ice, the State Director of Selective (a) The district appeal board shall Service for New York City shall be in have jurisdiction to review and to af- immediate charge of the State Head- firm or change any local board decision quarters for Selective Service for New appealed to it when: York City and shall perform such du- (1) An appeal is submitted by a reg- ties as are prescribed by the Director of istrant from a local board in its area; Selective Service. The State Director or of Selective Service for the State of (2) An appeal is submitted to it from New York shall have no jurisdiction in a local board not in the appeal board Selective Service matters within the area by a registrant whose principal City of New York. The State head- place of employment or residence is lo- quarters of Selective Service for New cated within the jurisdiction of the ap- York City shall be an office of record peal board; or for Selective Service operations only, (3) An appeal is submitted or trans- and no records other than Selective ferred to it by the Director of Selective Service records shall be maintained in Service to assure the fair and equitable such office. administration of the Law.

309

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00319 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1605.25 32 CFR Ch. XVI (7–1–05 Edition)

(b) The district appeal board shall hamper the work of the board, the have jurisdiction to review and to af- chairman, a member of the board or firm or change any Alternative Service panel concerned, or an area office em- Office Manager decision appealed to it ployee shall report that fact to the Di- by an Alternative Service Worker pur- rector of Selective Service and such ac- suant to part 1656 of this chapter. tion as appropriate shall be taken. If, through death, resignation, or other [47 FR 4644, Feb. 1, 1982, as amended at 69 FR 20543, Apr. 16, 2004] causes, the membership of the board falls below the prescribed number of § 1605.25 Disqualification. members, the board or panel shall con- (a) No member of a district appeal tinue to function, provided a quorum of board shall act on the case of a reg- the prescribed membership is present istrant who is the member’s first cous- at each official meeting. in or closer relation, either by blood, § 1605.27 Minutes of meetings. marriage, or adoption, or who is the member’s employer, employee, or fel- A Selective Service compensated em- low employee, or stands in the rela- ployee will keep the minutes of each tionship of superior or subordinate of appeal board meeting. In the absence of the member in connection with any a compensated employee the minutes employment, or is a partner or close will be kept by an appeal board mem- business associate of the member, or is ber. a fellow member or employee of the § 1605.28 Signing official papers. board. (b) A member of a district appeal Official documents issued and min- board must disqualify himself in any utes of meetings maintained by a dis- matter in which he would be restricted trict appeal board may be signed by for any reason in making an impartial any member of the board, or by any decision. compensated employee of the Selective (c) Whenever a quorum of the district Service System authorized to perform appeal board or a panel thereof cannot administrative duties for the board, exact on the case of a registrant that it cept when otherwise prescribed by the has been assigned, and there is no Director of Selective Service. other panel of the district appeal board to which the case may be transferred, LOCAL BOARDS the district appeal board shall transmit § 1605.51 Area. such case to the director of Selective Service for transfer to another district (a) The Director of Selective Service appeal board. shall divide each State into local board areas and establish local boards. There § 1605.26 Organization and meetings. shall be at least one local board in each Each district appeal board, or panel county except where the Director of thereof, shall elect a chairman and a Selective Service establishes an inter- vice-chairman at least every two years. county board. When more than one A majority of the members of the local board is established within the board when present at any meeting same geographical jurisdiction, reg- shall constitute a quorum for the istrants residing in that area will be transaction of business. A majority of assigned among the boards as pre- the members present at any meeting at scribed by the Director of Selective which a quorum is present shall decide Service. The Director of Selective any question. Every member, unless Service may establish panels of local disqualified, shall vote on every ques- boards. tion or classification. In case of a tie (b) [Reserved] vote on a question or classification, the [47 FR 4644, Feb. 1, 1982, as amended at 52 FR board shall postpone action until the 24454, July 1, 1987] next meeting. If the question or classification remains unresolved at the next § 1605.52 Composition of local boards. meeting, the file will be transferred for The Director of Selective Service classification in accord with § 1605.25(c). shall prescribe the number of members If any member is absent so long as to of local boards.

310

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00320 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1605.60

§ 1605.53 Designation. ship of the board shall constitute a The Director of Selective Service quorum for the transaction of business. shall assign each local board within a A majority of the members present at State a specific identifying number by any meeting at which a quorum is which it shall be known. Such identi- present shall decide any question or fying numbers shall be assigned in nu- classification. Every member present, merical sequence beginning with the unless disqualified, shall vote on every numeral 1. question or classification. In case of a tie vote on any question or classifica- § 1605.54 Jurisdiction. tion, the board shall postpone action The local board shall have full au- on the question or classification until thority to perform all acts within its it can be decided by a majority vote at jurisdiction authorized by law, to in- the next meeting. If the question or clude the acting on any claim pre- classification remains unresolved at sented to it when: the next meeting, the file will be trans- (a) The claim is submitted by a reg- ferred for classification in accord with istrant who is assigned to it; or § 1605.55(c). If any member is absent so (b) The claim is transferred to it long as to hamper the work of the from another board in the manner pro- board, the chairman, a member of the vided in these regulations; or board, or a Selective Service com- (c) The claim is submitted or pensated employee shall report that tranferred to it by the Director of Se- fact to the Director of Selective Serv- lective Service to assure the fair and ice and appropriate action shall be equitable administration of the Law. taken. If through death, resignation, or other cause, the membership of a board § 1605.55 Disqualification. falls below the prescribed number, it (a) No member of a local board shall shall continue to function provided a act on the case of a registrant who is quorum of the prescribed membership the member’s first cousin or closer re- is present at each official meeting. lation, either by blood, marriage, or adoption, or who is the member’s em- § 1605.58 Minutes of meetings. ployer, employee, or fellow employee, A compensated employee of the ap- or stands in the relationship of supe- propriate area office will keep the min- rior or subordinate of the member in utes of each meeting of a local board. connection with any employment, or is In the absence of a compensated em- a partner or close business associate of ployee the minutes will be kept by a the member, or a fellow member or em- board member. ployee of the area office. (b) A member of the local board must § 1605.59 Signing official papers. disqualify himself in any matter in which he would be restricted, for any Official papers issued by a local reason, in making an impartial deci- board may be signed by any member of sion. the board or compensated employee of (c) Whenever a quorum of a local the area office, or any compensated board cannot act on the case of a reg- employee of the Selective Service Sys- istrant, the area office supervisor shall tem whose official duties require him cause such case to be transferred to an- to perform administrative duties at the other board within the area office. In area office except when otherwise pre- those instances where only one board scribed by the Director of Selective exists in an area office, the case should Service. be transmitted to the nearest area office for transfer to a board under its ju- AREA OFFICE ADMINISTRATION risdiction. § 1605.60 Area. § 1605.56 Organization and meetings. (a) The Director of Selective Service Each local board shall elect a chair- shall prescribe the number of area of- man and vice-chairman at least every fices to be established and shall define two years. A majority of the member- the boundaries thereof.

311

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00321 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1605.61 32 CFR Ch. XVI (7–1–05 Edition)

(b) The area office shall be an office Law shall be uncompensated. No per- of record and responsible for all admin- son serving without compensation istrative and operational support of the shall accept remuneration from any one or more local boards within its ju- source for services rendered in connec- risdiction. tion with Selective Service matters.

§ 1605.61 Staff of area offices for selec- [52 FR 24454, July 1, 1987, as amended at 69 tive service. FR 20544, Apr. 16, 2004] Subject to applicable law and within § 1609.2 Citizenship. the limits of available funds, the staff No person shall be appointed to any of each area office shall consist of as uncompensated position in the Selec- many compensated employees, either tive Service System who is not a cit- military or civilian, as shall be author- izen of the United States. ized by the Director of Selective Serv- ice. § 1609.3 Eligibility. (a) The President, upon the rec- INTERPRETERS ommendation of the respective Gov- § 1605.81 Interpreters. ernors, will consider for appointment as a member of a local board, any per- (a) The local board, district appeal son who: board and the National Selective Serv- (1) Is within the age limits prescribed ice Appeal Board are authorized to use by the Military Selective Service Act; interpreters when necessary. and (b) The following oath shall be ad- (2) Is a citizen of the United States; ministered by a member of the board or and a compensated employee of the System (3) Is a resident of the county in to an interpreter each time he or she which the local board has jurisdiction; interprets: and Do you swear (or affirm) that you will (4) Is not an active or retired member truly interpret in the matter now in hear- of the Armed Forces or any reserve ing? component thereof; and (c) Any interpreter who fails to re- (5) Has not served as a member of a spond in the affirmative shall not be Selective Service board for a period of permitted to function in this capacity. more than 20 years; and (6) Is able to perform such duties as [47 FR 4644, Feb. 1, 1982, as amended at 52 FR necessary during standby status; and 24454, July 1, 1987] (7) Is able to devote sufficient time to board affairs; and PART 1609—UNCOMPENSATED (8) Is willing to fairly and uniformly PERSONNEL apply Selective Service Law. (b) The President, upon the rec- Sec. ommendation of the Director of Selec- 1609.1 Uncompensated positions. tive Service, will consider for appoint- 1609.2 Citizenship. ment as a member of a district appeal 1609.3 Eligibility. board any person who: 1609.4 Oath of office. (1) Is within the age limits prescribed 1609.5 Suspension. by the Military Selective Service Act; 1609.6 Removal. 1609.7 Use of information. and (2) Is a citizen of the United States; AUTHORITY: Military Selective Service Act, and 50 U.S.C. App. 451 et seq; E.O. 11623. (3) Is a resident of the Federal Judi- SOURCE: 47 FR 4647, Feb. 1, 1982, unless oth- cial District in which the district ap- erwise noted. peal board has jurisdiction; and (4) Is not an active or retired member § 1609.1 Uncompensated positions. of the Armed Forces or any reserve Members of local boards, district ap- component thereof; and peal boards, and all other persons vol- (5) Has not served as a member of a unteering their services to assist in the Selective Service board for a period of administration of the Selective Service more than 20 years; and

312

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00322 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1615.1

(6) Is able to perform such duties as 1615.4 Duty of persons required to register. necessary during standby status; and 1615.5 Persons not to be registered. (7) Is able to devote sufficient time to 1615.6 Selective service number. the district appeal board affairs; and 1615.7 Evidence of registration. (8) Is willing to fairly and uniformly 1615.8 Cancellation of registration. apply Selective Service Law. 1615.9 Registration card or form. AUTHORITY: Military Selective Service Act, § 1609.4 Oath of office. 50 U.S.C. App. 451 et seq.; E.O. 11623, 36 FR Every person who undertakes to 19963, 3 CFR, 1971–1975 Comp., p. 614, as render voluntary uncompensated serv- amended by E.O. 12608, 52 FR 34617, 3 CFR, ice in the administration of the Selec- 1987 Comp., p. 245. tive Service Law shall execute an Oath SOURCE: 45 FR 48130, July 18, 1980, unless of Office and Waiver of Pay before he otherwise noted. enters upon his duties. § 1615.1 Registration. § 1609.5 Suspension. (a) Registration under selective serv- The Director of Selective Service ice law consists of: may suspend from duty any uncompensated person engaged in the adminis- (1) Completing a registration card or tration of the Selective Service Law other method of registration prescribed pending his consideration of the advis- by the Director of Selective Service by ability of removing such person. a person required to register; and (2) The recording of the registration § 1609.6 Removal. information furnished by the reg- (a) The Director of Selective Service istrant in the records (master com- may remove any uncompensated per- puter file) of the Selective Service Sys- son engaged in the administration of tem. Registration is completed when the Selective Service Law. both of these actions have been accom- (b) The Governor may recommend to plished. the Director of Selective Service the (b) The Director of Selective Service removal, for cause, of the State Direc- will furnish to each registrant a tor or any uncompensated person en- verification notice that includes a copy gaged in the administration of the Se- of the information pertaining to his lective Service Law in his State. The registration that has been recorded in Director of Selective Service shall the records of the Selective Service make such investigation of the Gov- System together with a correction ernor’s recommendation as he deems form. If the information is correct, the necessary, and upon completion of his registrant should take no action. If the investigation, he shall take such action information is incorrect, the registrant as he deems proper. should forthwith furnish the correct in- § 1609.7 Use of information. formation to the Director of Selective Any information or records obtained Service. If the registrant does not re- by compensated or uncompensated per- ceive the verification notice within 90 sonnel during the performance of their days after he completed a method of official duties, including proceedings registration prescribed by the Director, before the boards, shall be restricted to he shall advise in writing the Selective official use by the personnel of the Se- Service System, P.O. Box 94638, Pala- lective Service System except as spe- tine, IL 60094–4638. cifically authorized by law. (c) The methods of registration prescribed by the Director include com- PART 1615—ADMINISTRATION OF pleting a Selective Service Registra- REGISTRATION tion Card at a classified Post Office, registration on the Selective Service Sec. Internet web site (http://www.sss.gov), 1615.1 Registration. telephonic registration, registration on 1615.2 Responsibility of Director of Selec- approved Federal and State Govern- tive Service in registration. ment forms, registration through high 1615.3 Registration procedures.

313

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00323 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1615.2 32 CFR Ch. XVI (7–1–05 Edition)

school and college registrars, and Se- § 1615.5 Persons not to be registered. lective Service remainder mailback No person who is not required by se- card. lective service law or the Proclamation [45 FR 48130, July 18, 1980, as amended at 65 of the President to register shall be FR 47670, Aug. 3, 2000; 65 FR 60101, Oct. 10, registered. 2000] § 1615.6 Selective service number. § 1615.2 Responsibility of Director of Every registrant shall be given a se- Selective Service in registration. lective service number. The Social Se- Whenever the President by proclama- curity Account Number will not be tion or other public notice fixes a day used for this purpose. or days for registration, the Director of Selective Service shall take the nec- § 1615.7 Evidence of registration. essary steps to prepare for registration The Director of Selective Service and, on the day or days fixed, shall su- Shall issue to each registrant written pervise the registration of those per- evidence of his registration. The Direc- sons required to present themselves for tor of Selective Service will replace and submit to registration. The Direc- that evidence upon written request of tor of Selective Service shall also ar- the registrant, but such request will range for and supervise the registra- not be granted more often than once in tion of those persons who present any period of six months. themselves for registration at times other than on the day or days fixed for § 1615.8 Cancellation of registration. any registration. The Director of Selective Service may cancel the registration of any par- § 1615.3 Registration procedures. ticular registrant or of a registrant Persons required by selective service who comes within a specified group of law and the Proclamation of the Presi- registrants. dent to register shall be registered in accord with procedures prescribed by § 1615.9 Registration card or form. the Director of Selective Service. For the purposes of these regulations, the terms Registration Card and § 1615.4 Duty of persons required to Registration Form are synonomous. register. A person required by selective service PART 1618—NOTICE TO law to register has the duty: REGISTRANTS (a) To complete the registration process by a method prescribed by the Sec. Director of Selective Service and to 1618.1 Abandonment of rights or privileges. record thereon his name, date of birth, 1618.2 Filing of documents. sex, Social Security Account Number 1618.4 Transmission of orders and other offi- (SSAN), current mailing address, per- cial papers to registrants. manent residence, telephone number, AUTHORITY: Military Selective Service Act, date signed, and signature, if re- 50 U.S.C. App. 451 et seq.; E.O. 11623. quested; and SOURCE: 47 FR 4648, Feb. 1, 1982, unless oth- (b) To submit for inspection, upon re- erwise noted. quest, evidence of his identity to a person authorized to accept the registra- § 1618.1 Abandonment of rights or tion information. Evidence of identity privileges. may be a birth certificate, motor vehi- If a registrant fails to claim and ex- cle operator’s license, student’s identi- ercise any right or privilege within the fication card, United States Passport, required time, he shall be deemed to or a similar document. have abandoned the right or privilege unless the Director of Selective Serv- [45 FR 48130, July 18, 1980, as amended at 65 FR 60101, Oct. 10, 2000] ice, for good cause, waives the time limit.

314

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00324 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1621.3

§ 1618.2 Filing of documents. facts or circumstances relating to the A document other than a registration postponement, deferment or exemp- card received by an element of the Se- tion; and lective Service System will be consid- (d) Who has a postponement of exam- ered to have been filed on the date that ination, to notify the System imme- it is received: Provided, That a docu- diately of any changes in facts or cir- ment that is received which was trans- cumstances relating to the postpone- mitted by the United States Postal ment. Service (USPS) and was enclosed in a [52 FR 24454, July 1, 1987] cover that bears a legible USPS post- mark date will be deemed to have been § 1621.2 Duty to report for and submit received on that date. to induction. § 1618.4 Transmission of orders and When the Director of Selective Serv- other official papers to registrants. ice orders a registrant for induction, it Personnel of the Selective Service shall be the duty of the registrant to System will transmit orders or other report for and submit to induction at official papers addressed to a registrant the time and place ordered unless the by handing them to him personally or order has been canceled. If the time mailing them to him to the current when the registrant is ordered to re- mailing address last reported by him in port for induction is postponed, it shall writing to the Selective Service Sys- be the continuing duty of the reg- tem. istrant to report for and submit to induction at such time and place as he PART 1621—DUTY OF REGISTRANTS may be reordered. Regardless of the time when or the circumstances under Sec. which a registrant fails to report for 1621.1 Reporting by registrants of their cur- induction when it is his duty to do so, rent status. it shall thereafter be his continuing 1621.2 Duty to report for and submit to in- duty from day to day to report for and duction. submit to induction at the place speci- 1621.3 Duty to report for and submit to ex- fied in the order to report for induc- amination. tion. AUTHORITY: Military Selective Service Act, 50 U.S.C. App. 451 et seq.; E.O. 11623. [47 FR 4648, Feb. 1, 1982]

§ 1621.1 Reporting by registrants of § 1621.3 Duty to report for and submit their current status. to examination. Until otherwise notified by the Direc- When the Director orders a reg- tor of Selective Service, it is the duty istrant for examination, it shall be the of every registrant who registered after duty of the registrant to report for and July 1, 1980: submit to examination at the time and (a) To notify the System within 10 place ordered unless the order has been days of any change in the following canceled. If the time when the reg- items of information that he provided istrant is ordered to report for exam- on his registration form: name, current ination is postponed, it shall be the mailing address and permanent resi- continuing duty of the registrant to re- dence address; and port for and submit to examination at (b) To submit to the classifying au- such time and place as he may be reor- thority, all information concerning his dered. Regardless of the time when, or status within 10 days after the date on the circumstances under which a reg- which the classifying authority mails istrant fails to report for examination him a request therefor, or within such when it is his duty to do so, it shall longer period as may be fixed by the thereafter be his continuing duty from classifying authority; and day to day to report for and submit to (c) Who has a postponement of induc- examination at the place specified in tion, or has been deferred or exempted the order to report for examination. from training and service, to notify the System immediately of any changes in [52 FR 8890, Mar. 20, 1987]

315

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00325 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1624 32 CFR Ch. XVI (7–1–05 Edition)

PART 1624—INDUCTIONS registration records are in the master computer file at the beginning of any Sec. day on which orders are issued. Orders 1624.1 Random selection procedures for in- shall be issued in such numbers and at duction. such times as will assure that such call 1624.2 Issuance of induction orders. or requisition is filled. The names con- 1624.3 Age selection groups. tained in the Selective Service System 1624.4 Selection and/or rescheduling of reg- data base on a given day will con- istrants for induction. 1624.5 Order to report for induction. stitute the valid list of registrants 1624.6 Postponement of induction. from which induction orders can be 1624.7 Expiration of deferment or exemp- issued on that day. tion. 1624.8 Transfer for induction. § 1624.3 Age selection groups. 1624.9 Induction into the Armed Forces. 1624.10 Order to report for examination. Age selection groups are established as follows: AUTHORITY: Military Selective Service Act, (a) The age 20 selection group for 50 U.S.C. App. 451 et seq.: E.O. 11623. each calendar year consists of reg- SOURCE: 47 FR 4648, Feb. 1, 1982, unless oth- istrants who have attained or will at- erwise noted. tain the age of 20 in that year. § 1624.1 Random selection procedures (b) The age 21 selection group for for induction. each calendar year consists of registrants who have attained or will at- (a) The Director of Selective Service tain the age of 21 in that year and, in shall from time to time establish a ran- like manner, each age selection group dom selection sequence for induction will be so designated through age group by a drawing to be conducted in the 25. place and on a date the Director shall (c) The age 26 through 34 selection fix. The random selection method shall groups consist of registrants who meet use 365 days, or when appropriate, 366 the following three criteria: days to represent the birthdays (month (1) They have attained or will attain and day only) of all registrants who, the age of 26 through 34, respectively, during the specified calendar year(s) during the calendar year; and attain their 18th year of birth. The drawing, commencing with the first (2) They have been previously ordered day selected, and continuing until all to report for induction but have not 365 days or, when appropriate 366 days been inducted; and are drawn, shall be accomplished im- (3) They have been classified in one partially. The random sequence num- of the following classes: ber thus determined for any registrant (i) Class 1-D-D. shall apply to him so long as he re- (ii) Class 2-D. mains subject to induction for military (iii) Class 3-A. training and service by random selec- (iv) Class 4-B. tion. (v) Class 4-F. (b) The date of birth of the registrant (d) The age 19 selection group for that appears on his Selective Service each calendar year consists of reg- Registration Record on the day before istrants who have attained the age of the lottery is conducted to establish 19 in that year. his random selection sequence will be (e) The age 18 selection group shall conclusive as to his date of birth in all consist of registrants who have at- matters pertaining to his relations tained the age of 18 years and six with the Selective Service System. months and who have not attained the age of 19 years in the order of their § 1624.2 Issuance of induction orders. dates of birth with the oldest being se- The Director of Selective Service, lected first. upon receipt of a call from the Sec- retary of Defense for persons to be in- § 1624.4 Selection and/or rescheduling ducted into the Armed Forces in accord of registrants for induction. with § 1624.4, shall issue orders to re- A registrant in Class 1–A or a reg- port for induction to registrants whose istrant subsequently classified 1–A–0

316

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00326 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1624.6

shall be selected and ordered or redress most recently provided by the scheduled to report for induction in the registrant to the Selective Service Sys- following categories and in the order tem. The date specified to report for in- indicated: Provided, That a registrant duction shall be at least 10 days after who has been identified in accord with the date on which the Order to Report the procedures prescribed by the Direc- for Induction is issued. The filing of a tor of Selective Service as one who will claim for reclassification in accord become a member of one of the fol- with § 1633.2 of this chapter delays the lowing categories on the next January date the registrant is required to re- 1, may, prior to January 1, be selected port for induction until not earlier and ordered to report for induction on than the tenth day after the claim is a date after January 1 as a member of determined to have been abandoned or such category. is finally determined is finally deter- (a) Volunteers for induction in the mined in accord with the provisions of order in which they volunteered. this chapter. A claim is finally deter- (b) Registrants whose postponements mined when the registrant does not have expired in the order of expiration. have the right to appeal the last classi- (c) Registrants who previously have fication action with respect to the been ordered to report for induction claim or he fails to exercise his right to and whose exemptions or deferments appeal. have expired, in the order of their ran- (b) Any person who has been ordered dom sequence number (RSN) estab- for induction who is distant from the lished by random selection procedures address to which the order was sent in accord with § 1624.1 must either report at the time and (d) Registrants in the age 20 selection place specified in the order, or volun- group for the current calendar year in tarily submit himself for induction the order of their random sequence processing at another MEPS on or be- number (RSN) established by random fore the day that he was required to re- selection procedures in accord with port in accordance with his induction § 1624.1. order. (e) Registrants in each succeeding (c) The Director of Selective Service age selection group commencing with may direct the cancellation of any age 21 selection group and terminating Order to Report for Induction at any with the age 34 selection group, in time. turn, within the group, in the order of (d) Any Order to Report for Induction their random sequence number (RSN) issued by the Director of Selective established by random selection proce- Service to a registrant who is an alien, dures in accord with § 1624.1. who has not resided in the United (f) Registrants in the age 19 selection States for one year will be void. Such group for the current calendar year in order will be deemed only to be an the order of their random sequence order to produce evidence of his status. number (RSN) established by random When an alien registrant has been selection procedures in accord with within the United States for two or § 1624.1. more periods (including periods before (g) Registrants in the age 18 year and his registration) and the total of such six months selection group and who periods equals one year, he shall be have not attained the age of 19 in the deemed to have resided in the United order of their date of birth with the States for one year. In computing the oldest being selected first. length of such periods, any portion of one day shall be counted as a day. [47 FR 4648, Feb. 1, 1982, as amended at 52 FR 24455, July 1, 1987] Upon establishing a one year residency, the alien registrant will be assigned to § 1624.5 Order to report for induction. the age selection group corresponding (a) Immediately upon determining to his age. which persons are to be ordered for in- [47 FR 4648, Feb. 1, 1982, as amended at 52 FR duction, the Director of Selective Serv- 24455, July 1, 1987] ice shall issue to each person selected an Order to Report for Induction. The § 1624.6 Postponement of induction. order will be sent to the current ad- (a) [Reserved]

317

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00327 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1624.6 32 CFR Ch. XVI (7–1–05 Edition)

(b) In the case of the death of a mem- (d) The Director of Selective Service ber of the registrant’s immediate fam- may authorize a delay of induction for ily, extreme emergency involving a any registrant whose date of induction member of the registrant’s immediate conflicts with a religious holiday his- family, serious illness or injury of the torically observed by a recognized registrant, or other emergency beyond church, religious sect or religious orga- the registrant’s control, the Director, nization of which he is a member. Any after the Order to Report for Induction registrant so delayed shall report for has been issued, may postpone for a induction on the next business day fol- specific time the date when such reg- lowing the religious holiday. istrant shall be required to report. The (e) [Reserved] period of postponement shall not ex- (f) The Director of Selective Service ceed 60 days from the date of the induc- may authorize a postponement of in- tion order. When necessary, the Direc- duction to a registrant when: tor may grant one further postpone- (1) The registrant qualifies and is ment, but the total postponement shall scheduled for a State or National ex- not exceed 90 days from the reporting amination in a profession or occupa- date on the induction order. tion which requires certification before (c)(1) Any registrant who is satisfac- being authorized to engage in the prac- torily pursuing a full-time course of in- tice of that profession or occupation; struction at a high school or similar or institution of learning and is issued an (2) The registrant has been accepted order to report for induction shall, in the next succeeding class as a cadet upon presentation of appropriate facts at the U.S. Military Academy, or the in the manner prescribed by the Direc- U.S. Air Force Academy, or the U.S. tor of Selective Service, have his in- Coast Guard Academy; or as a mid- duction postponed: shipman at the U.S. Naval Academy, or (i) Until the time of his graduation the U.S. Merchant Marine Academy; or therefrom; or (3) The registrant is a ROTC applicant who has been designated to par- (ii) Until he attains the twentieth anticipate in the next succeeding ROTC niversary of his birth; or field training program prior to enroll- (iii) Until the end of his last aca- ment in the ROTC; or demic year, even if he has attained the (4) The registrant has been accepted twentieth anniversary of his birth; or as a ROTC scholarship student in the (iv) Until he ceases satisfactorily to next succeeding ROTC program at a pursue such course of instruction, college or university. whichever is the earliest. (g) The Director of Selective Service (2) Any registrant who, while satis- shall issue to each registrant whose in- factorily pursuing a full-time course of duction is postponed a written notice instruction at a college, university, or thereof. similar institution of learning, is or- (h) No registrant whose induction has dered to report for induction shall, been postponed shall be inducted into upon the presentation of appropriate the Armed Forces during the period of facts in the manner prescribed by the any such postponement. A postpone- Director of Selective Service, have his ment of induction shall not render in- induction postponed: valid the Order to Report for Induction (i) Until the end of the semester or which has been issued to the reg- term, or in the case of his last aca- istrant, but shall operate only to post- demic year, the end of the academic pone the reporting date, and the reg- year; or istrant shall report on the new date (ii) Until he ceases to satisfactorily scheduled without having issued to him pursue such course of instruction, a new Order to Report for Induction. whichever is the earlier. (i) Any registrant receiving a post- (3) A postponement authorized by ponement under the provisions of this this subsection may be terminated by section, shall, after the expiration of the Director of Selective Service for such postponement, be rescheduled to cause upon no less than 10 days notice report for induction at the place to to the registrant. which he was originally ordered.

318

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00328 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1627.2

(j) The initial determination of (c) If a registrant fails to report for claims for all postponements is made or complete an examination, the local by area office compensated personnel. board will determine that he has aban- After a denial of a claim for a student doned his claim. postponement, the registrant may re- (d) If a registrant is determined not quest the local board to consider the acceptable for military service, he will claim. Such registrant shall be af- be reclassified in Class 4–F. forded an opportunity to appeal before (e) If a registrant is determined ac- the board in accord with the proce- ceptable for military service, the proc- dures of §§ 1648.4 and 1648.5. essing of his claim will be completed. [47 FR 4648, Feb. 1, 1982, as amended at 52 FR [52 FR 24455, July 1, 1987] 24455, July 1, 1987] PART 1627—VOLUNTEERS FOR § 1624.7 Expiration of deferment or exemption. INDUCTION

The Director shall issue an Order to Sec. Report for Induction to a registrant 1627.1 Who may volunteer. who is liable for induction whenever 1627.2 Registration of volunteers. his deferment or exemption expires. 1627.3 Classification of volunteers. [52 FR 24455, July 1, 1987] AUTHORITY: Military Selective Service Act, 50 U.S.C. App 451 et seq.: E.O. 11623.

§ 1624.8 Transfer for induction. SOURCE: 47 FR 4650, Feb. 1, 1982, unless oth- The Director of Selective Service erwise noted. may direct that a registrant or registrants in a specified group of reg- § 1627.1 Who may volunteer. istrants be transferred for induction to Any registrant who has attained the such MEPS as he may designate. age of 17 years, who has not attained the age of 26 years, and who has not § 1624.9 Induction into the Armed completed his active duty obligation Forces. under the Military Selective Service Registrants in classes 1–A and 1–A–0, Act, when inductions are authorized, who have been ordered for induction may volunteer for induction into the and found qualified under standards Armed Forces unless he; prescribed by the Secretary of Defense, (a) Is classified in Class 4–F or is eli- will be inducted at the MEPS into the gible for Class 4–F; or Armed Forces. (b) Has been found temporarily unacceptable with reexamination believed § 1624.10 Order to report for examina- justified (RBJ) and the period of time tion. specified for his return for examination (a) The Director of Selective Service has not been terminated and the basis may order any registrant in Class 1–A for his temporary rejection continues who has filed a claim for classification to exist; or in a class other than Class 1–A or (c) Is an alien who has not resided in whose induction has been postponed, to the United States for a period of at report for an Armed Forces examina- least one year; or tion to determine acceptability for (d) Has not attained the age of 18 military service. The date specified to years and does not have the consent of report for examination shall be at least his parent or guardian for his induc- 7 days after the date on which the tion. Order to Report for Examination is issued. Such registrant will not be in- § 1627.2 Registration of volunteers. ducted until his claim for reclassifica- (a) If a person who is required to be tion has been decided or abandoned. registered but who has failed to reg- (b) The reporting date for examina- ister volunteers for induction, he shall tion may be postponed for any reason a be registered. reporting date for induction may be (b) In registering a volunteer, the postponed in accord with § 1624.6 (b), (d) area office shall follow the procedure or (f)(1). set forth in § 1615.3 of this chapter.

319

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00329 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1627.3 32 CFR Ch. XVI (7–1–05 Edition)

§ 1627.3 Classification of volunteers. SOURCE: 47 FR 4651, Feb. 1, 1982, unless otherwise noted. When a registrant who is eligible to volunteer files an Application for Vol- § 1630.2 Classes. untary Induction, he shall be classified Each registrant shall be classified in in Class 1–A and processed for induc- one of the classes prescribed in this tion. part.

PART 1630—CLASSIFICATION RULES § 1630.10 Class 1-A: Available for unrestricted military service. Sec. (a) All registrants available for unre- 1630.2 Classes. stricted military service shall be in 1630.10 Class 1-A: Available for unrestricted military service. Class 1-A. 1630.11 Class 1-A-0: Conscientious objector (b) All registrants in the selection available for noncombatant military groups as determined by the Director service only. of Selective Service are available for 1630.12 Class 1-C: Member of the Armed unrestricted Military Service, except Forces of the United States, the National those determined by a classifying au- Oceanic and Atmospheric Administration thority to be eligible for exemption or or the Public Health Service. deferment from military service or for 1630.13 Class 1-D-D: Deferment for certain noncombatant or alternative service, members of a reserve component or student taking military training. or who have random sequence numbers 1630.14 Class 1-D-E: Exemption of certain (RSNs) determined by the Director not members of a reserve component or stu- to be required to fill calls by the Sec- dent taking military training. retary of Defense. 1630.15 Class 1-H: Registrant not subject to processing for induction. § 1630.11 Class 1-A-0: Conscientious ob- 1630.16 Class 1-O: Conscientious objector to jector available for noncombatant all military service. military service only. 1630.17 Class 1-O-S: Conscientious objector In accord with part 1636 of this chap- to all military service (separated). 1630.18 Class 1-W: Conscientious objector or- ter any registrant shall be palced in dered to perform alternative service. Class 1-A-0 who has been found, by rea- 1630.26 Class 2-D: Registrant deferred be- son of religious, ethical, or moral because of study preparing for the min- lief, to be conscientiously opposed to istry. participation in combatant military 1630.30 Class 3-A: Registrant deferred be- tranining and service in the Armed cause of hardship to dependents. Forces. 1630.31 Class 3-A-S: Registrant deferred because of hardship to dependents (sepa- § 1630.12 Class 1-C: Member of the rated). Armed Forces of the United States, 1630.40 Class 4-A: Registrant who has com- the National Oceanic and Atmos- pleted military service. pheric Administration or the Public 1630.41 Class 4-B: Official deferred by law. Health Service. 1630.42 Class 4-C: Alien or dual national. 1630.43 Class 4-D: Minister of religion. In Class 1-C shall be placed: 1630.44 Class 4-F: Registrant not acceptable (a) Every registrant who is or who for military service. becomes by enlistment or appointment, 1630.45 Class 4-G: Registrant exempted from a commissioned officer, a warrant offi- service because of the death of his parent cer, a pay clerk, an enlisted man or an or sibling while serving in the Armed aviation cadet of the Regular Army, Forces or whose parent or sibling is in a the Navy, the Air Force, the Marine captured or missing in action status. Corps, the Coast Guard, the National 1630.46 Class 4-T: Treaty alien. 1630.47 Class 4-W: Registrant who has com- Oceanic and Atmospheric Administra- pleted alternative service in lieu of in- tion or the Public Health Service. duction. (b) Every registrant who is a cadet, 1630.48 Class 4-A-A: Registrant who has per- United States Military Academy; or formed military service for a foreign na- midshipman, United States Naval tion. Academy; or a cadet, United States Air AUTHORITY: Military Selective Service Act, Force Academy; or cadet, United 50 U.S.C. App. 451 et seq., E.O. 11623. States Coast Guard Academy.

320

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00330 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1630.13

(c) Every registrant who by induction completion or termination of the becomes a member of the Army of the course of instruction and so long there- United States, the United States Navy, after as he continues in a reserve sta- the United States Marine Corps, the tus upon being commissioned except Air Force of the United States, or the during any period he is eligible for United States Coast Guard. Class 1-C under the provision of (d) Exclusive of periods for training § 1630.12; or only, every registrant who is a member (b) Is a fully qualified and accepted of a reserve component of the Armed aviation cadet applicant of the Army, Forces and is on active duty, and every Navy, or Air Force, who has signed an member of the reserve of the Public agreement of service and is within such Health Service on active duty and as- numbers as have been designated by signed to staff the various offices and the Secretary of Defense. Such reg- bureaus of the Public Health Service istrant shall be retained in Class 1-D-D including the National Institutes of during the period covered by such Health, or assigned to the Coast Guard, agreement but in no case in excess of the Bureau of Prisons of the Depart- four months; or ment of Justice, Environmental Pro- (c) Is other than a registrant referred tection Agency, or the National Oce- to in paragraph (a) or (d) of this section anic and Atmospheric Administration who: or who are assigned to assist Indian (1) Prior to the issuance of orders for tribes, groups, bands, or communities him to report for induction; or pursuant to the Act of August 5, 1954 (2) Prior to the date scheduled for his (68 Stat. 674), as amended. induction and pursuant to a proclama- § 1630.13 Class 1-D-D: Deferment for tion by the Governor of a State to the certain members of a reserve com- effect that the authorized strength of ponent or student taking military any unit of the National Guard of that training. State cannot be maintained by the en- In Class 1-D-D shall be placed any listment or appointment of persons registrant who: who have not been issued orders to re- (a)(1) Has been selected for enroll- port for induction; or ment or continuance in the Senior (en- (3) Prior to the date scheduled for his tire college level) Army Reserve Offi- induction and pursuant to a determina- cer’s Training Corps, or the Air Force tion by the President that the strength Reserve Officer’s Training Corps, or the of the Ready Reserve of the Army Re- Naval Reserve Officer’s Training Corps, serve, Naval Reserve, Marine Corps Re- or the Naval and Marine Corps officer serve, Air Force Reserve, or Coast candidate program of the Navy, or the Guard Reserve cannot be maintained platoon leader’s class of the Marine by the enlistment or appointment of Corps, or the officer procurement pro- persons who have not been issued or- grams of the Coast Guard and the ders to report for induction: Coast Guard Reserve, or is appointed enlists or accepts an appointment be- an ensign, U.S. Naval Reserve while fore attaining the age of 26 years, in undergoing professional training; and the Ready Reserve of any Reserve com- (2) Has agreed in writing to accept a ponent of the Armed Forces, the Army commission, if tendered, and to serve National Guard, or the Air National subject to order of the Secretary of the Guard. Such registrant shall remain el- military department having jurisdic- igible for Class 1-D-D so long as he tion over him (or the Secretary of serves satisfactorily as a member of an Transportation with respect to the organized unit of such Ready Reserve U.S. Coast Guard), not less than 2 years or National Guard, or satisfactorily on active duty after receipt of a com- performs such other Ready Reserve mission; and service as may be prescribed by the (3) Has agreed to remain a member of Secretary of Defense, or serves satis- a regular or reserve component until factorily as a member of the Ready Re- the eighth anniversary of his receipt of serve of another reserve component, a commission. Such registrant shall re- the Army National Guard, or the Air main eligible for Class 1-D-D until National Guard, as the case may be; or

321

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00331 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1630.14 32 CFR Ch. XVI (7–1–05 Edition)

(d) At any time has enlisted in the § 1630.16 Class 1-O: Conscientious ob- Army Reserve, the Naval Reserve, the jector to all military service. Marine Corps Reserve, the Air Force (a) Any registrant whose accept- Reserve, or the Coast Guard Reserve ability for military service has been and who thereafter has been commis- satisfactorily determined and who, in sioned therein upon graduation from accord with part 1636 of this chapter, an Officer’s Candidate School of such has been found, by reason of religious, Armed Force and has not has been or- ethical, or moral belief, to be conscien- dered to active duty as a commissioned tiously opposed to participation in officer. Such registrant shall remain both combatant and noncombatant eligible for Class 1-D-D so long as he training and service in the Armed performs satisfactory service as a com- Forces shall be classified in Class 1-O. missioned officer in an appropriate (b) Upon the written request of the unit of the Ready Reserve, as deter- registrant filed with his claim for clas- mined under regulations prescribed by sification in Class 1-O, the local board the Secretary of the department con- will consider his claim for classifica- cerned; or tion in Class 1-O before he is examined. (e) Is serving satisfactorily as a If the local board determines that the member of a reserve component of the registrant would qualify for Class 1-O if Armed Forces and is not eligible for he were acceptable for military service, Class 1-D-D under the provisions of any it will delay such classification until other paragraph of this section: Pro- he is found acceptable for military vided: That, for the purpose of this service. Upon the written request of paragraph, a member of a reserve com- such registrant, he will be deemed ac- ponent who is in the Standby Reserve ceptable for military service without or the Retired Reserve shall be deemed examination only for the purpose of to be serving satisfactorily unless the paragraph (a) of this section. Armed Forces of which he is a member informs the Selective Service System [52 FR 8891, Mar. 20, 1987; 52 FR 12641, Apr. 17, that he is not serving satisfactorily. 1987] [52 FR 24455, July 1, 1987] § 1630.17 Class 1-O-S: Conscientious objector to all military service (sep- § 1630.14 Class 1-D-E: Exemption of arated). certain members of a reserve component or student taking military Any registrant who has been sepa- training. rated from the Armed Forces (including their reserve components) by rea- In Class 1-D-E shall be placed any son of conscientious objection to par- registrant who: ticipation in both combatant and non- (a) Is a student enrolled in an officer combatant training and service in the procurement program at a military Armed Forces shall be classified in college the curriculum of which is ap- Class 1-O-S unless his period of mili- proved by the Secretary of Defense; or tary service qualifies him for Class 4-A. (b) Has been enlisted in the Delayed A registrant in Class 1-O-S will be re- Entry Program (DEP) at least ten days quired to serve the remainder of his ob- prior to his scheduled induction date; ligation under the Military Selective or Service Act in Alternative Service. (c) Has been transferred to a reserve component of the Army, Navy, Air [52 FR 8891, Mar. 20, 1987] Force, Marine Corps or Coast Guard § 1630.18 Class 1-W: Conscientious ob- after a period of extended active duty, jector ordered to perform alter- which was not for training only. native service. § 1630.15 Class 1-H: Registrant not sub- In Class 1-W shall be placed any reg- ject to processing for induction. istrant who has been ordered to perform alternative service contributing In Class 1-H shall be placed any reg- to the mainenance of the national istrant who is not eligible for Class 1- health, safety, or interest. A and is not currently subject to processing for induction. [52 FR 24456, July 1, 1987]

322

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00332 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1630.40

§ 1630.26 Class 2-D: Registrant de- § 1630.31 Class 3-A-S: Registrant deferred because of study preparing ferred because of hardship to de- for the ministry. pendents (separated). In accord with part 1639 of this chap- Any registrant who has been sepa- ter any registrant shall be placed in rated from active military service by Class 2-D who has requested such reason of dependency or hardship shall deferment and: be placed in Class 3-A-S unless his period of military service qualifies him (a) Who is preparing for the ministry for Class 4-A or 1-D-E. No registrant under the direction of a recognized shall be retained in Class 3-A-S for church or religious organization; and more than six months. (b) Who is satisfactorily pursuing a full-time course of instruction required [52 FR 24456, July 1, 1987] for entrance into a recognized theo- § 1630.40 Class 4-A: Registrant who has logical or divinity school in which he completed military service. has been pre-enrolled; or (a) In Class 4-A shall be placed any (c) Who is satisfactorily pursuing a registrant other than a registrant eli- full-time course of instruction in or at gible for classification in Class 1-C, 1- the direction of a recognized theo- D-D, or 1-D-E who is within any of the logical or divinity school; or following categories: (d) Who having completed theological (1) A registrant who was discharged or divinity school is a student in a full- or transferred to a reserve component time graduate program or is a full-time of the Armed Forces for the conven- intern. The registrant’s studies must ience of the Government after having be related to and lead to entry into served honorably on active duty for a service as a regular or duly ordained period of not less than six months in minister of religion, and satisfactory the Army, the Navy, the Air Force, the progress in these studies as required by Marine Corps, or the Coast Guard; or the school in which the registrant is (2) A registrant who has served hon- enrolled must be maintained for con- orably on active duty for a period of not less than one year in the Army, the tinued eligibility for the deferment. Navy, the Air Force, the Marine Corps, § 1630.30 Class 3-A: Registrant de- or the Coast Guard; or ferred because of hardship to de- (3) A registrant who has served on ac- pendents. tive duty for a period of not less than twenty-four months as a commissioned (a) In accord with part 1642 of this officer in the National Oceanic and At- chapter any registrant shall be classi- mospheric Administration or the Pub- fied in Class 3-A: lic Health Service, provided that such (1) Whose induction would result in period of active duty in the Public extreme hardships to his wife when she Health Service as a commissioned Re- alone is dependent upon him for sup- serve Officer shall have been performed port; or by the registrant while assigned to (2) Whose deferment is advisable be- staff any of the various offices and bu- cause his child(ren), parent(s), reaus of the Public Health Service in- grrandparent(s), brother(s), or sister(s) cluding the National Institutes of is dependent upon him for support; or Health, or while assigned to the Coast (3) Whose deferment is advisable be- Guard, or the Bureau of Prisons of the Department of Justice, Environmental cause his wife and his child(ren), par- Protection Agency, or the National ent(s), grandparent(s), brother(s), or Oceanic and Atmospheric Administra- sister(s) are dependent upon him for tion, or who are assigned to assist In- support. dian tribes, groups, bands or commu- (b) The classification of each reg- nities pursuant to the Act of August 5, istrant in Class 3-A will not be granted 1954 (68 Stat. 674), as amended; for a period longer than 365 days. (4) [Reserved] [52 FR 24456, July 1, 1987] (5) A registrant who has completed six years of satisfactory service as a member of one or more of the Armed

323

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00333 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1630.41 32 CFR Ch. XVI (7–1–05 Edition)

Forces including the Reserve compo- member of a legislative body of the nents thereof. United States or of a State, Territory (b) For the purpose of computation of or Possession; a judge of a court of periods of active duty referred to in record of the United States or of a paragraphs (a) (1), (2), or (3) of this sec- State, Territory or Possession, or the tion, no credit shall be allowed for: District of Columbia. (1) Periods of active duty training performed as a member of a reserve § 1630.42 Class 4-C: Alien or dual na- component pursuant to an order or call tional. to active duty solely for training pur- In Class 4-C shall be placed any reg- poses; or istrant who: (2) Periods of active duty in which (a) Establishes that he is a national the service consisted solely of training of the United States and of a country under the Army specialized training with which the United States has a program, the Army Air Force college treaty or agreement that provides that training program, or any similar pro- such person is exempt from liability for gram under the jurisdiction of the military service in the United States. Navy, Marine Corps, or Coast Guard; or (b) Is an alien and who has departed (3) Periods of active duty as a cadet from the United States prior to being at the United States Military Acad- issued an order to report for induction emy, United States Air Force Acad- or alternative service that has not been emy, or United States Coast Guard canceled. If any registrant who is clas- Academy, or as a midshipman at the sified in Class 4-C pursuant to this United States Naval Academy, or in a paragraph returns to the United States preparatory school after nomination as he shall be classified anew. a principal, alternate, or candidate for (c) Is an alien and who has registered admission to any such academies; or at a time when he was required by the (4) Periods of active duty in any of Selective Service Law to present him- the Armed Forces while being proc- self for and submit to registration and essed for entry into or separation from thereafter has acquired status within any educational program or institute one of the groups of persons exempt referred to in paragraph (b) (2) or (3) of from registration. this section; or (d) Is an alien lawfully admitted for (5) Periods of active duty of members permanent residence as defined in of the Reserve of the Public Health paragraph (2) of section 101(a) of the Service other than when assigned to Immigration and Nationality Act, as staff any of the various offices and bu- amended (66 Stat. 163, 8 U.S.C. 1101), reaus of the Public Health Service, in- and who by reason of occupational sta- cluding the National Institute of tus is subject to adjustment to non- Health, or the Coast Guard or the Bu- immigrant status under paragraph reau of Prisons of the Department of (15)(A), (15)(E), or (15)(G) or section Justice, Environmental Protection 101(a) but who executes a waiver in ac- Agency, or the Environmental Science cordance with section 247(b) of that Act Services Administration, or who are of all rights, privileges, exemptions, assigned to assist Indian tribes, groups, and immunities which would otherwise bands, communities pursuant to the accrue to him as a result of that occu- Act of August 5, 1954 (68 Stat. 674), as pational status. A registrant placed in amended. Class 4-C under the authority of this [47 FR 4651, Feb. 1, 1982, as amended at 52 FR paragraph shall be retained in Class 4- 24456, July 1, 1987] C only for so long as such occupational status continues. § 1630.41 Class 4-B: Official deferred (e) Is an alien and who has not re- by law. sided in the United States for one year, In Class 4-B shall be placed any reg- including any period of time before his istrant who is the Vice President of the registration. When such a registrant United States, a governor of a State, has been within the United States for Territory or possession, or any other two or more periods and the total of official chosen by the voters of the en- such period equals one year, he shall be tire State, Territory or Possession; a deemed to have resided in the United

324

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00334 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1630.48

States for one year. In computing the Forces of the United States, or died length of such periods, any portion of after that date due to injuries received one day shall be counted as a day. or disease incurred in the line of duty during such service before Janaury 1, § 1630.43 Class 4-D: Minister of reli- 1960. gion. [47 FR 4651, Feb. 1, 1982, as amended at 52 FR In accord with part 1645 of this chap- 24456, July 1, 1987] ter any registrant shall be placed in Class 4-D who is a: § 1630.46 Class 4-T: Treaty alien. (a) Duly ordained minister of religion; or In Class 4-T shall be placed any reg- (b) Regular minister of religion. istrant who is an alien who established that he is exempt from military service § 1630.44 Class 4-F: Registrant not ac- under the terms of a treaty or inter- ceptable for military service. national agreement between the United In Class 4-F shall be placed any reg- States and the country of which he is a istrant who is found by the Secretary national, and who has made applica- of Defense, under applicable physical, tion to be exempted from liability for mental or administrative standards, to training and service in the Armed be not acceptable for service in the Forces of the United States. Armed Forces; except that no such reg- § 1630.47 Class 4-W: Registrant who istrant whose further examination or has completed alternative service re-examination is determined by the in lieu of induction. Secretary of Defense to be justified In Class 4-W shall be placed any reg- shall be placed in Class 4-F until such istrant who subsequent to being or- further examination has been accom- dered to perform alternative service in plished and such registrant continues lieu of induction has been released to be found not acceptable for military from such service after satisfactorily service. performing the work for a period of 24 [52 FR 24456, July 1, 1987] months, or has been granted an early release by the Director of Selective § 1630.45 Class 4-G: Registrant exempt- Service after completing at least 6 ed from service because of the months of satisfactory service. death of his parent or sibling while serving in the Armed Forces or whose parent or sibling is in a cap- § 1630.48 Class 4-A-A: Registrant who tured or missing in action status. has performed military service for a foreign nation. In Class 4-G shall be placed any reg- In Class 4-A-A shall be placed any istrant who, except during a period of registrant who, while an alien, has war or national emergency declared by served on active duty for a period of Congress, is: not less than 12 months in the armed (a) A surviving son or brother: forces of a nation determined by the (1) Whose parent or sibling of the Department of State to be a nation whole blood was killed in action or died with which the United States is associ- in the line of duty while serving in the ated in mutual defense activities and Armed Forces of the United States which grants exemptions from training after December 31, 1959, or died subse- and service in its armed forces to citi- quent to such date as a result of inju- zens of the United States who have ries received or disease incurred in the served on active duty in the Armed line of duty during such service; or Forces of the United States for a period (2) Whose parent or sibling of the of not less than 12 months; Provided: whole blood is in a captured or missing That all information which is sub- status as a result of such service in the mitted to the Selective Service System Armed Forces during any period of concerning the registrant’s service in time; or the armed forces of a foreign nation (b) The sole surviving son of a family shall be written in the English lan- in which the father or one or more sib- guage. lings were killed in action before Janu- ary 1, 1960 while serving in the Armed [52 FR 24456, July 1, 1987]

325

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00335 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1633 32 CFR Ch. XVI (7–1–05 Edition)

PART 1633—ADMINISTRATION OF 1-O-S, 1-W, 3-A-S, 4-A, 4-A-A, 4-B, 4-C, CLASSIFICATION 4-F, 4-G, 4-T or 4-W for which he is eligible upon request by the registrant for Sec. a review of a classification denial ac- 1633.1 Classifying authority. tion under § 1633.1(f). No individual 1633.2 Claim for other than Class 1-A. shall be classified into Class 4-F unless 1633.3 Submission of claims. the Secretary of Defense has deter- 1633.4 Information relating to claims for mined that he is unacceptable for mili- deferment or exemption. 1633.5 Securing information. tary service. 1633.6 Consideration of classes. (f) Compensated employees of an area 1633.7 General principles of classification. office may in accord with § 1633.2 may 1633.8 Basis of classification. classify a registrant into an adminis- 1633.9 Explanation of classification action. trative class for which he is eligible. 1633.10 Notification to registrant of classification action. No individual shall be classified into 1633.11 Assignment of registrant to a local Class 4-F unless the Secretary of De- board. fense has determined that he is unac- 1633.12 Reconsideration of classification. ceptable for military service. AUTHORITY: Military Selective Service Act, [47 FR 4654, Feb. 1, 1982, as amended at 52 FR 50 U.S.C. App. 451 et seq.; E.O. 11623. 24456, July 1, 1987] SOURCE: 47 FR 4654, Feb. 1, 1982, unless otherwise noted. § 1633.2 Claim for other than Class 1-A. § 1633.1 Classifying authority. (a) Any registrant who has received an order to report for induction may, The following officials are authorized to classify registrants into the indi- prior to the day he is scheduled to re- cated classes established by part 1630 of port, submit to the Selective Service this chapter: System a claim that he is eligible to be (a) The Director of Selective Service classified into any class other than may in accord with the provisions of Class 1-A. The registrant may assert a this chapter classify a registrant into claim that he is eligible for more than any class for which he is eligible except one class other than Class 1-A. The reg- Classes 1-A-0, 1-0, 2-D, 3-A, and 4-D: istrant cannot subsequently file a Provided, That, the Director may not claim with respect to a class for which reclassify a registrant other than a vol- he was eligible prior to the day he was unteer for induction, into Class 1-A out originally scheduled to report. Infor- of another class prior to the expiration mation and documentation in support of the registrant’s entitlement to such of claims for reclassification and post- classification. The Director may, be- ponement of induction shall be filed in fore issuing an induction order to a accordance with instructions from the registrant, appropriately classify him Selective Service System. if the Secretary of Defense has cer- (b) Any registrant who has received tified him to be a member of an armed an order to report for induction that force or reserve component thereof. has not been canceled may, at any time (b) The National Selective Service before his induction, submit a claim Appeal Board may in accord with part that he is eligible to be classified into 1653 of this chapter classify a reg- any class other than Class 1-A based istrant into any class for which he is upon events over which he has no con- eligible. (c) A district appeal board may in ac- trol that occurred on or after the day cord with part 1651 of this chapter clas- he was originally scheduled to report sify a registrant into any class for for induction. which he is eligible. (c)(1) Claims will be filed with the (d) A local board may in accord with area office supporting the local board part 1648 of this chapter classify a reg- of jurisdiction. istrant into Class 1-A-0, 1-0, 2-D, 3-A, or (2) Claims will be considered by the 4-D for which he is eligible. local board identified in paragraph (e) A local board may also classify a (c)(1) or its supporting area office as registrant into Class 1-C, 1-D-D, 1-D-E, prescribed in this part.

326

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00336 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1633.6

(d) The initial determination of § 1633.6 Consideration of classes. claims for all administrative classifica- Claims of a registrant will be consid- tions are made by area office compensated personnel. After a denial of a ered in inverse order of the listing of claim for an administrative classifica- the classes below. When grounds are es- tion the registrant may request the tablished to place a registrant in one local board to consider the claim. or more of the classes listed in the fol- (e) The initial determination of a lowing table, the registrant shall be judgmental classification is made by a classified in the lowest class for which local board. he is determined to be eligible, with (f) A registrant may request and Class 1-A-O considered the highest shall be granted a personal appearance class and Class 1-H considered the low- whenever a local or appeal board con- est class, according to the following siders his claim for reclassification. table: Personal appearances will be held in Class 1-A-O: Conscientious Objector Avail- accord with parts 1648, 1651 and 1653 of able for Noncombatant Military Service this chapter. Only. (g) A registrant who has filed a claim Class 1-O: Conscientious Objector to all for classification in Class 1-A-O or Military Service. Class 1-0 shall be scheduled for a per- Class 1-O-S: Conscientious Objector to all sonal appearance in accord with § 1648.4 Military Service (Separated). before his claim is considered. Class 2-D: Registrant Deferred Because of (h) If granted, a deferment or exemp- Study Preparing for the Ministry. tion supersedes the original order to Class 3-A: Registrant Deferred Because of report for induction. When a deferment Hardship to Dependents. or exemption expires or ends, a new Class 3-A-S: Registrant Deferred Because order to report for induction will be of Hardship to Dependents (Separated). issued. Class 4-D: Minister of Religion. Class 1-D-D: Deferment for Certain Mem- [52 FR 24457, July 1, 1987] bers of a Reserve Component or Student Taking Military Training. § 1633.3 Submission of claims. Class 4-B: Official Deferred by Law. Except as otherwise expressly pro- Class 4-C: Alien or Dual National. vided by the Director, no document re- Class 4-G: Registrant Exempted From lating to any registrant’s claims or po- Service Because of the Death of his Parent tential claims will be retained by the or Sibling While Serving in the Armed Selective Service System and no file Forces or Whose Parent or Sibling is in a relating to a registrant’s possible clas- Captured or Missing in Action Status. sification status will be established Class 4-A: Registrant Who Has Completed prior to that registrant being ordered Military Service. to report for induction. Class 4-A-A: Registrant Who Has Per- formed Military Service For a Foreign Na- § 1633.4 Information relating to claims tion. for deferment or exemption. Class 4-W: Registrant Who Has Completed Alternative Service in Lieu of Induction. The registrant shall be entitled to Class 1-D-E: Exemption of Certain Mem- present all relevant written informa- bers of a Reserve Component or Student tion which he believes to be necessary Taking Military Training. to assist the classifying authority in Class 1-C: Member of the Armed Forces of determining his proper classification; the United States, the National Oceanic and such information may include docu- Atmospheric Administration, or the Public ments, affidavits, and depositions. The Health Service. affidavits and depositions shall be as Class 1-W: Conscientious Objector Ordered concise and brief as possible. to Perform Alternative Service in Lieu of In- duction. § 1633.5 Securing information. Class 4-T: Treaty Alien. The classifying authority is author- Class 4-F-: Registrant Not Acceptable for ized to request and receive information Military Service. whenever such information will assist Class 1-H: Registrant Not Subject to Proc- in determining the proper classifica- essing for Induction. tion of a registrant. [52 FR 24457, July 1, 1987]

327

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00337 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1633.7 32 CFR Ch. XVI (7–1–05 Edition)

§ 1633.7 General principles of classi- § 1633.11 Assignment of registrant to a fication. local board. (a) Each classified registrant in a se- (a) A registrant is assigned to the lection group is available for unre- local board that has jurisdiction over stricted military service until his eligi- his permanent address that he last fur- bility for noncombatant service, alter- nished the Selective Service System native service, or deferment or exemp- prior to the issuance of his induction tion from service has been determined order. by a classifying authority. (b) The Director may change a reg- (b) The classifying authority in con- istrant’s assignment when he deems it sidering a registrant’s claim for classi- necessary to assure the fair and equi- fication shall not discriminate for or table administration of the Selective against him because of his race, creed, Service Law. color or ethnic background and shall [52 FR 24457, July 1, 1987] not discriminate for or against him because of his membership or activity in § 1633.12 Reconsideration of classifica- any labor, political, religious, or other tion. organization. No classification is permanent. The [47 FR 4654, Feb. 1, 1982, as amended at 52 FR Director of Selective Service may 24457, July 1, 1987] order the reconsideration of any classification action when the facts, upon § 1633.8 Basis of classification. which the classification is based, change or when he finds that the reg- The registrant’s classification shall istrant made a misrepresentation of be determined on the basis of the offi- any material fact related to his claim cial forms of the Selective Service Sys- for classification. No action may be tem and other written information in taken under the preceding sentence of his file, oral statements, if made by the this paragraph unless the registrant is registrant at his personal appearance notified in writing of the impending ac- before the board, and oral statements, tion and the reasons thereof, and is if made by the registrant’s witnesses at given an opportunity to respond in his personal appearance. Any informa- writing within 10 days of the mailing of tion in any written summary of the the notice. If the Director orders a re- oral information presented at a reg- consideration of a classification in ac- istrant’s personal appearance that was cord with this paragraph, the claim prepared by an official of the Selective will be treated in all respects as if it Service System or by the registrant were the original claim for that classi- will be placed in the registrant’s file. fication. The file shall be subject to review by the registrant during normal business PART 1636—CLASSIFICATION OF hours. CONSCIENTIOUS OBJECTORS § 1633.9 Explanation of classification action. Sec. 1636.1 Purpose; definitions. Whenever a classifying authority de- 1636.2 The claim of conscientious objection. nies the request of a registrant for 1636.3 Basis for classification in Class 1-A-0. classification into a particular class or 1636.4 Basis for classification in Class 1-0. classifies a registrant in a class other 1636.5 Exclusion from Class 1-A-0 and Class than that which he requested, it shall 1-0. record the reasons therefor in the reg- 1636.6 Analysis of belief. istrant’s file. 1636.7 Impartiality. 1636.8 Considerations relevant to granting § 1633.10 Notification to registrant of or denying a claim for classification as a classification action. conscientious objector. 1636.9 Types of decisions. The Director will notify the reg- 1636.10 Statement of reasons for denial. istrant of any classification action. AUTHORITY: Military Selective Service Act, [52 FR 24457, July 1, 1987] 50 U.S.C. App. 451 et seq.; E.O. 11623.

328

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00338 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1636.6

SOURCE: 47 FR 4655, Feb. 1, 1982, unless oth- life of a registrant a place parallel to erwise noted. that filled by belief in a Supreme Being for those holding more traditionally re- § 1636.1 Purpose; definitions. ligious views. (a) The provisions of this part govern (c) A registrant’s objection must be the consideration of a claim by a reg- sincere. istrant for classification in Class 1-A-0 [47 FR 4655, Feb. 1, 1982, as amended at 52 FR (§ 1630.11 of this chapter), or Class 1-0 24457, July 1, 1987] (§ 1630.17 of this chapter). (b) The definitions of this paragraph § 1636.4 Basis for classification in shall apply in the interpretation of the Class 1-0. provisions of this part: (a) A registrant must be conscien- (1) Crystallization of a Registrant’s Be- tiously opposed to participation in war liefs. The registrant’s becoming con- in any form and conscientiously op- scious of the fact that he is opposed to posed to participation in both combat- participation in war in any form. ant and noncombatant training and (2) Noncombatant Service. Service in service in the Armed Forces. any unit of the Armed Forces which is (b) A registrant’s objection may be unarmed at all times; any other mili- founded on religious training and be- tary assignment not requiring the lief; it may be based on strictly reli- bearing of arms or the use of arms in gious beliefs, or on personal beliefs combat or training in the use of arms. that are purely ethical or moral in (3) Noncombatant Training. Any train- source or centent and occupy in the life ing which is not concerned with the of a registrant a place parallel to that study, use, or handling of arms or other filled by belief in a Supreme Being for implements of warfare designed to de- those holding more traditionally reli- stroy human life. gious views. (c) A registrant’s objection must be § 1636.2 The claim of conscientious ob- sincere. jection. A claim to classification in Class 1-A- § 1636.5 Exclusion from Class 1-A-0 0 or Class 1-0, must be made by the reg- and Class 1-0. istrant in writing. Claims and docu- A registrant shall be excluded from ments in support of claims may only be Class 1-A-0 or Class 1-0: submitted after the registrant has re- (a) Who asserts beliefs which are of a ceived an order to report for induction religious, moral or ethical nature, but or after the Director has made a spe- who is found not to be sincere in his as- cific request for submission of such sertions; or documents. All claims or documents in (b) Whose stated objection to partici- support of claims received prior to a pation in war does not rest at all upon registrant being ordered to report for moral, ethical, or religious principle, induction or prior to the Director’s but instead rests solely upon consider- specific request for such documenta- ations of policy, pragmatism, expedition will be returned to the registrant ency, or his own self-interest or well- and no file or record of such submission being; or will be established. (c) Whose objection to participation in war is directed against a particular § 1636.3 Basis for classification in war rather than against war in any Class 1-A-0. form (a selective objection). If a reg- (a) A registrant must be conscien- istrant objects to war in any form, but tiously opposed to participation in also believes in a theocratic, spiritual combatant training and service in the war between the forces of good and Armed Forces. evil, he may not by reason of that be- (b) A registrant’s objection may be lief alone be considered a selective con- founded on religious training and be- scientious objector. lief; it may be based on strictly religious beliefs, or on personal beliefs § 1636.6 Analysis of belief. that are purely ethical or moral in (a) A registrant claiming conscien- source or content and occupy in the tious objection is not required to be a

329

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00339 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1636.7 32 CFR Ch. XVI (7–1–05 Edition)

member of a peace church or any other convictions were acquired through church, religious organization, or reli- training, study, contemplation, or gious sect to qualify for a 1-A-0 or 1-0 other activity comparable to the proc- classification; nor is it necessary that esses by which traditional religious he be affiliated with any particular convictions are formulated. He must group opposed to participation in war show that these religious, moral, or in any form. ethical convictions, once acquired, (b) The registrant who identifies his have directed his life in the way tradi- beliefs with those of a traditional tional religious convictions of equal church or religious organization must strength, depth, and duration have di- show that he basically adheres to be- rected the lives of those whose beliefs liefs of that church or religious organi- are clearly founded in traditional reli- zation whether or not he is actually af- gious conviction. filiated with the institution whose (f) The registrant need not use formal teachings he claims as the basis of his or traditional language in describing conscientious objection. He need not the religious, moral, or ethical nature adhere to all beliefs of that church or of his beliefs. Board members are not religious organization. free to reject beliefs because they find (c) A registrant whose beliefs are not them incomprehensible or inconsistent religious in the traditional sense, but with their own beliefs. are based primarily on moral or ethical (g) Conscientious objection to par- principle should hold such beliefs with ticipation in war in any form, if based the same strength or conviction as the on moral, ethical, or religious beliefs, belief in a Supreme Being is held by a may not be deemed disqualifying sim- person who is religious in the tradi- ply because those beliefs may influence tional sense. Beliefs may be mixed; the registrant concerning the Nation’s they may be a combination of tradi- domestic or foreign policy. tional religious beliefs and nontradi- tional religious, moral or ethical be- [47 FR 4655, Feb. 1, 1982, as amended at 52 FR liefs. The registrant’s beliefs must play 24457, July 1, 1987] a significant role in his life but should § 1636.7 Impartiality. be evaluated only insofar as they pertain to his stated objection to his par- Boards may not give preferential ticipation in war. treatment to one religion over another, (d) Where the registrant is or has and all beliefs whether of a religious, been a member of a church, religious ethical, or moral nature are to be given organization, or religious sect, and equal consideration. where his claim of a conscientious objection is related to such membership, § 1636.8 Considerations relevant to the board may properly inquire as to granting or denying a claim for classification as a conscientious ob- the registrant’s membership, the reli- jector. gious teachings of the church, religious organization, or religious sect, and the (a) After the registrant has sub- registrant’s religious activity, insofar mitted a claim for classification as a as each relates to his objection to par- conscientious objector and his file is ticipation in war. The fact that the complete, a determination of his sin- registrant may disagree with or not cerity will be made based on: subscribe to some of the tenets of his (1) All documents in the registrant’s church or religious sect does not nec- file folder; and essarily discredit his claim. (2) The oral statements of the reg- (e)(1) The history of the process by istrant at his personal appearance(s) which the registrant acquired his be- before the local and/or appeal board; liefs, whether founded on religious, and moral, or ethical principle is relevant (3) The oral statements of the reg- to the determination whether his stat- istrant’s witnesses, if any, at his per- ed opposition to participation in war in sonal appearance(s) before the local any form is sincere. board; and (2) The registrant must demonstrate (4) The registrant’s general demeanor that his religious, ethical, or moral during his personal appearance(s).

330

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00340 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1636.9

(b) The registrant’s stated convic- bases his objection on a belief in non- tions should be a matter of conscience. violence. (c) The board should be convinced (2) Care should be exercised that that the registrant’s personal history nervous, frightened, or apprehensive since the crystallization of his con- behavior at the personal appearance is scientious objection is not inconsistent not misconstrued as a reflection of in- with his claim and demonstrates that sincerity. the registrant’s objection is not solely (h) Oral response to questions posed a matter of expediency. A recent crys- by board members should be consistent tallization of beliefs does not in itself with the written statements of the reg- indicate expediency. istrant and should generally substan- (d) The information presented by the tiate the submitted information in the registrant should reflect a pattern of registrant’s file folder; any incon- behavior in response to war and weap- sistent material should be explained by ons which is consistent with his stated the registrant. It is important to rec- beliefs. Instances of violent acts or ognize that the registrant need not be conviction for crimes of violence, or eloquent in his answers. But, a clear employment in the development or inconsistency between the registrant’s manufacturing of weapons of war, if oral remarks at his personal appear- the claim is based upon or supported by ance and his written submission to the a life of nonviolence, may be indicative board may be adequate grounds, if not of inconsistent conduct. satisfactorily explained, for concluding (e) The development of a registrant’s that his claim is insincere. opposition to war in any form may (i) The registrant may submit letters bear on his sincerity. If the registrant of reference and other supporting claims a recent crystallization of be- statements of friends, relatives and ac- liefs, his claim should be supported by quaintances to corroborate the sin- evidence of a religious or educational cerity of his claim, although such sup- experience, a traumatic event, an his- plemental documentation is not essen- torical occasion, or some other special tial to approval of his claim. A finding situation which explains when and how of insincerity based on these letters or his objection to participation in war supporting statements must be care- crystallized. fully explained in the board’s decision, (f) In the event that a registrant has specific mention being made of the par- previously worked in the development ticular material relied upon for denial of or manufacturing of weapons of war of classification in Class 1-A-0 or Class or has served as a member of a military 1-0. reserve unit, it should be determined whether such activity was prior to the [47 FR 4655, Feb. 1, 1982, as amended at 52 FR stated crystallization of the reg- 24457, July 1, 1987; 60 FR 13908, Mar. 15, 1995] istrant’s conscientious objector beliefs. § 1636.9 Types of decisions. Inconsistent conduct prior to the actual crystallization of conscientious The following are the types of deci- objector beliefs is not necessarily in- sions which may be made by a board dicative of insincerity. But, incon- when a claim for classification in Class sistent conduct subsequent to such 1-A-0 or Class 1-0 has been considered. crystallization may indicate that reg- (a) Decision to grant a claim for clas- istrant’s stated objection is not sin- sification in Class 1-A-0 or Class 1-0, as cere. requested, based on a determination (g) A registrant’s behavior during his that the truth or sincerity of the reg- personal appearance before a board istrant’s claim is not refuted by any in- may be relevant to the sincerity of his formation contained in the registrant’s claim. file or obtained during his personal ap- (1) Evasive answers to questions by pearance. board members or the use of hostile, (b) Decision to deny a claim for clas- belligerent, or threatening words or ac- sification in Class 1-A-0 or Class 1-0 tions, for example, may in proper cir- based on all information before the cumstances be deemed inconsistent board, and a finding that such informa- with a claim in which the registrant tion fails to meet the tests specified in

331

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00341 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1636.10 32 CFR Ch. XVI (7–1–05 Edition)

§ 1636.3 or 1636.4 of this part. If sup- religious organization established on ported by information contained in the the basis of a community of faith and registrant’s file or obtained during his belief, doctrines and practices of a reli- personal appearance the board may gious character, and which engages pri- find that the facts presented by the marily in religious activities. registrant in support of his claim are (3) The term recognized theological or untrue. divinity school refers to a theological or divinity school whose graduates are ac- [47 FR 4655, Feb. 1, 1982, as amended at 53 FR 25328, July 6, 1988] ceptable for ministerial duties either as an ordained or regular minister by § 1636.10 Statement of reasons for de- the church or religious organization nial. sponsoring a registrant as a ministerial (a) Denial of a conscientious objector student. claim by a board must be accompanied (4) The term graduate program refers by a statement specifying the reason(s) to a program in which the registrant’s for such denial as prescribed in §§ 1633.9, studies are officially approved by his 1651.4 and 1653.3 of this chapter. The church or religious organization for reason(s) must, in turn, be supported entry into service as a regular or duly by evidence in the registrant’s file. ordained minister of religion. (b) If a board’s denial is based on (5) The term full-time intern applies to statements by the registrant or on a a program that must run simultaneous determination that the claim is incon- with or immediately follow the com- sistent or insincere, this should be pletion of the theological or divinity fully explained in the statement of rea- training and is required by a recog- sons accompanying the denial. nized church or religious organization for entry into the ministry. (6) The term satisfactorily pursuing a PART 1639—CLASSIFICATION OF full-time course of instruction means REGISTRANTS PREPARING FOR maintaining a satisfactory academic THE MINISTRY record as determined by the institution while receiving full-time instructions Sec. in a structured learning situation. A 1639.1 Purpose; definitions. full-time course of instruction does not 1639.2 The claim for Class 2-D. 1639.3 Basis for classification in Class 2-D. include instructions received pursuant 1639.4 Exclusion from Class 2-D. to a mail order program. 1639.5 Impartiality. 1639.6 Considerations relevant to granting § 1639.2 The claim for Class 2-D. or denying claims for Class 2-D. A claim to classification in Class 2-D 1639.7 Types of decisions. must be made by the registrant in 1639.8 Statement of reason for denial. writing, such document being placed in AUTHORITY: Military Selective Service Act, his file folder. 50 U.S.C. App. 451 et seq.; E.O. 11623.

SOURCE: 47 FR 4657, Feb. 1, 1982, unless oth- § 1639.3 Basis for classification in erwise noted. Class 2-D. (a) In Class 2-D shall be placed any § 1639.1 Purpose; definitions. registrant who is preparing for the (a) The provisions of this part shall ministry under the direction of a rec- govern the consideration of a claim by ognized church or religious organiza- a registrant for classification in Class tion; and 2-D (§ 1630.26 of this chapter). (1) Who is satisfactorily pursuing a (b) The definitions of this paragraph full-time course of instruction required shall apply to the interpretation of the for entrance into a recognized theo- provisions of this part: logical or divinity school in which he (1) The term ministry refers to the vo- has been pre-enrolled or accepted for cation of a duly ordained minister of reli- admission; or gion or regular minister of religion as de- (2) Who is satisfactorily pursuing a fined in part 1645 of this chapter. full-time course of instruction in a rec- (2) The term recognized church or reli- ognized theological or divinity school; gious organization refers to a church or or

332

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00342 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1639.8

(3) Who, having completed theo- pursuing a full-time course of instruc- logical or divinity school, is a student tion in a recognized theological or di- in a full-time graduate program or is a vinity school; or full-time intern, and whose studies are (4) Current certification to the effect related to and lead toward entry into that the registrant, having completed service as a regular or duly ordained theological or divinity school, is satis- minister of religion. Satisfactory factorily pursuing a full-time graduate progress in these studies as determined program or is a full-time intern, whose by the school in which the registrant is studies are related to and lead toward enrolled, must be maintained for quali- entry into service as a regular or duly fication for the deferment. ordained minister of religion. (b) The registrant’s classification (b) A board may require the reg- shall be determined on the basis of the istrant to obtain from the church, reli- written information in his file folder, gious organization, or school detailed oral statements, if made by the reg- information in order to determine istrant at his personal appearance be- whether or not the theological or di- fore a board, and oral statements, if vinity school is in fact a recognized made by the registrant’s witnesses at school or whether or not the church or his personal appearance. religious organization which is spon- [47 FR 4657, Feb. 1, 1982, as amended at 52 FR soring the registrant is recognized. 24458, July 1, 1987] [47 FR 4657, Feb. 1, 1982, as amended at 52 FR § 1639.4 Exclusion from Class 2-D. 24458, July 1, 1987] A registrant shall be excluded from § 1639.7 Types of decisions. Class 2-D when: (a) He fails to establish that the (a) A board may grant a classifica- theological or divinity school is a rection into Class 2-D until the end of the ognized school; or academic school year. (b) He fails to establish that the (b) Upon the expiration of a 2-D clas- church or religious organization which sification, a board shall review any re- is sponsoring him is so recognized; or quest for extension of the classification (c) He ceases to be a full-time stu- in the same manner as the first request dent; or for Class 2-D. This section does not re- (d) He fails to maintain satisfactory lieve a registrant of his duties under academic progress. § 1621.1 of this chapter. (c) The board may deny a claim for § 1639.5 Impartiality. Class 2-D when the evidence fails to Boards may not give precedence to merit any of the criteria established in any religious organization or school this section. over another, and all are to be given equal consideration. [47 FR 4657, Feb. 1, 1982, as amended at 52 FR 24458, July 1, 1987] § 1639.6 Considerations relevant to granting or denying claims for § 1639.8 Statement of reason for de- Class 2-D. nial. (a) The registrant’s claim for Class 2- (a) Denial of a claim for a ministerial D must include the following: student deferment by a board must be (1) A statement from a church or reli- accompanied by a statement specifying gious organization that the registrant the reason(s) for such denial as pre- is preparing for the ministry under its scribed in §§ 1633.9, 1651.4 and 1653.3 of direction; and this chapter. The reason(s) must in (2) Current certification to the effect turn, be supported by evidence in the that the registrant is satisfactorily registrant’s file. pursuing a full-time course of instruc- (b) If a board’s denial is based on tion required for entrance into a recog- statements by the registrant or his nized theological or divinity school in witnesses at a personal appearance, which he has been pre-enrolled; or this must be fully explained in the (3) Current certification to the effect statement of reasons accompanying that the registrant is satisfactorily the denial.

333

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00343 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1642 32 CFR Ch. XVI (7–1–05 Edition)

PART 1642—CLASSIFICATION OF § 1642.2 The claim for classification in REGISTRANTS DEFERRED BECAUSE Class 3-A. OF HARDSHIP TO DEPENDENTS A claim for classification in Class 3- A must be made by the registrant in Sec. writing. Prior to the consideration of 1642.1 Purpose; definitions. the claim, the registrant shall submit 1642.2 The claim for classification in Class supporting documentation, such docu- 3-A. ments being placed in his file folder. 1642.3 Basis for classification in Class 3-A. 1642.4 Ineligibility for Class 3-A. § 1642.3 Basis for classification in 1642.5 Impartiality. Class 3-A. 1642.6 Considerations relevant to granting (a) In Class 3-A shall be placed any or denying claims for Class 3-A. registrant: 1642.7 Types of decisions. (1) Whose induction would result in 1642.8 Statement of reason for denial. extreme hardship to his wife when she AUTHORITY: Military Selective Service Act, alone is dependent upon him for sup- 50 U.S.C. App. 451 et seq. E.O. 11623. port; or (2) Whose deferment is advisable be- SOURCE: 47 FR 4658, Feb. 1, 1982, unless otherwise noted. cause his child(ren), parent(s), grandparent(s), brother(s), or sister(s) is de- § 1642.1 Purpose; definitions. pendent upon him for support; or (3) Whose deferment is advisable be- (a) The provisions of this part govern cause his wife and child(ren), parent(s), the consideration of a claim by a reg- grandparent(s), brother(s), or sister(s) istrant for classification in Class 3-A are dependent upon him for support. (§ 1630.30 of this chapter). (b) In its consideration of a claim by (b) The following definitions apply to a registrant for classification in Class the interpretation of the provisions of 3-A, the board will first determine this part. whether the registrant’s wife, (1) The term dependent shall apply to child(ren), parent(s), grandparent(s), the wife, child, parent, grandparent, brother(s), or sister(s) is dependent brother or sister of a registrant. upon the registrant for support. Sup- (2) The term child includes an unborn port may be financial assistance, per- child, a stepchild, a foster child or a le- sonal care or companionship. If finan- gally adopted child, who is legitimate cial assistance is the basis of support, or illegitimate, but shall not include the registrant’s contribution must be a any person 18 years of age or older un- substantial portion of the necessities of less he or she is physically or mentally the dependent. Under most cir- handicapped. cumstances 40 to 50% of the cost of the (3) The term parent shall include any necessities may be considered substan- person who has stood in the place of a tial. If that determination is affirma- parent to the registrant for at least 5 tive, the board will determine whether years preceding the 18th anniversary of the registrant’s induction would result the registrant’s date of birth and is in extreme hardship to his wife when now supported in good faith by the reg- she is the only dependent, or whether istrant. the registrant’s deferment is advisable (4) The term brother or sister shall in- because his child(ren), parent(s), grand- clude a person having one or both par- parent(s), brother(s), or sister(s) is de- ents in common with the registrant, pendent upon him for support, or be- who is either under 18 years of age or is cause his wife and his child(ren), par- physically or mentally handicapped. ent(s), grandparent(s), brother(s), or (5) The term support includes but is sister(s) are dependent upon him for not limited to financial assistance. support. A deferment is advisable (6) Hardship is the unreasonable dep- whenever the registrant’s induction rivation of a dependent of the financial would result in hardship to his depend- assistance, personal care or compan- ents. ionship furnished by the registrant (c) The registrant’s classification when that deprivation would be caused shall be determined on the basis of the by the registrant’s induction. written information in his file, oral

334

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00344 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1642.8

statements, if made by the registrant § 1642.6 Considerations relevant to at his personal appearance before a granting or denying claims for board, and oral statements, if made by Class 3-A. the registrant’s witnesses at his per- (a) The registrant’s claim for Class 3- sonal appearances. A must include the following, with doc- [52 FR 24458, July 1, 1987] umentation, as applicable: (1) Registrant’s and his dependent’s § 1642.4 Ineligibility for Class 3-A. marital status; (a) A registrant is ineligible for Class (2) Physician’s statement concerning 3-A when: any dependent who is physically or (1) He assumed an obligation to his mentally handicapped; dependents specifically for the purpose (3) Employment status of registrant of evading training and service; or and his dependents; and (2) He acquired excessive financial (b) Each case must be weighed care- obligations primarily to establish his fully and decided on its own merits. dependency claim; or § 1642.7 Types of decisions. (3) His dependents would not be de- prived of reasonable support if the reg- (a) A board may grant a classifica- istrant is inducted; or tion into Class 3-A for such period of (4) There are other persons willing time it deems appropriate but in no and able to assume the support of his event the period exceed one year. dependents; or (b) Upon the expiration of a 3-A clas- (5) The dependents would suffer only sification a board shall review any re- normal anguish of separation from the quest for an extension of the classifica- registrant if he is inducted; or tion as if it were the first request for (6) The hardship to a dependent is that classification, and the fact that based solely on financial conditions the registrant was placed in Class 3-A and can be removed by payment and al- under apparently similar cir- lowances which are payable by the cumstances will not be a factor in the United States to the dependents of per- decision of the board. This section does sons who are serving in the Armed not relieve a registrant from his duties Forces; or under § 1621.1 of this chapter. (7) The hardship to the dependent is (c) [Reserved] based upon considerations that can be (d) A board shall deny a claim for eliminated by payments and allow- Class 3-A when the evidence fails to ances which are payable by the United meet the criteria established in this States to the dependents of persons part. who are serving in the Armed Forces. [47 FR 4658, Feb. 1, 1982, as amended at 52 FR (b) [Reserved] 24458, July 1, 1987] [47 FR 4658, Feb. 1, 1982, as amended at 52 FR § 1642.8 Statement of reason for de- 24458, July 1, 1987] nial. § 1642.5 Impartiality. (a) Denial of a claim for Class 3-A by (a) Boards shall consider all ques- a board must be accompanied by a tions in a claim for classification in statement specifying the reason(s) for Class 3-A with equal consideration of such denial as prescribed in §§ 1633.9, race, creed, color, sex or ethnic back- 1651.4 and 1653.3 of this chapter. The ground. reason must in turn, be supported by (b) Boards may not give precedence evidence in the registrant’s file. to one type of dependency hardship (b) If a board’s denial is based on over another. statements by the registrant or his witnesses at a personal appearance, [52 FR 24458, July 1, 1987] this must be fully explained in the statement of reasons accompanying the denial.

335

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00345 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1645 32 CFR Ch. XVI (7–1–05 Edition)

PART 1645—CLASSIFICATION OF (3) The term regular or duly ordained MINISTERS OF RELIGION minister of religion does not include: (i) A person who irregularly or inci- Sec. dentally preaches and teaches the prin- 1645.1 Purpose; definitions. ciples of religion of a church, religious 1645.2 The claim for minister of religion sect, or organization; or classification. (ii) Any person who has been duly or- 1645.3 Basis for classification in Class 4-D. 1645.4 Exclusion from Class 4-D. dained a minister in accordance with 1645.5 Impartiality. the ceremonial rite or discipline of a 1645.6 Considerations relevant to granting church, religious sect or organization, or denying a claim for Class 4-D. but who does not regularly, as a bona 1645.7 Evaluation of claim. fide vocation, teach and preach the 1645.8 Types of decisions. principles of religion and administer 1645.9 Statement of reason for denial. the ordinances of public worship, as AUTHORITY: Military Selective Service Act, embodied in the creed or principles of 50 U.S.C. App. 451 et seq.; E.O. 11623. his church, sect, or organization. SOURCE: 47 FR 4660, Feb. 1, 1982, unless oth- (4) The term vocation denotes one’s erwise noted. regular calling or full-time profession.

§ 1645.1 Purpose; definitions. § 1645.2 The claim for minister of reli- (a) The provisions of this part govern gion classification. the consideration of a claim by a reg- A claim to classification in Class 4-D istrant for classification in Class 4-D must be made by the registrant in (§ 1630.43 of this chapter). writing, such document being placed in (b) The definitions of this paragraph his file folder. shall apply in the interpretation of the provisions of this part: § 1645.3 Basis for classification in (1) The term duly ordained minister of Class 4-D. religion means a person: (i) Who has been ordained in accord- In accordance with part 1630 of this ance with the ceremonial ritual or dis- chapter any registrant shall be placed cipline of a church, religious sect, or in Class 4-D who is a: organization established on the basis of (a) Duly ordained minister of reli- a community of faith and belief, doc- gion; or trines and practices of a religious char- (b) Regular minister of religion. acter; and (ii) Who preaches and teaches the § 1645.4 Exclusion from Class 4-D. doctrines of such church, sect, or orga- A registrant is excluded from Class 4- nization; and D when his claim clearly shows that: (iii) Who administers the rites and (a) He is not a regular minister or a ceremonies thereof in public worship; duly ordained minister; or and (iv) Who, as his regular and cus- (b) He is a duly ordained minister of tomary vocation, preaches and teaches religion in accordance with the cere- the principles of religion; and monial rite or discipline of a church, (v) Who administers the ordinances religious sect or organization, but who of public worship as embodied in the does not regularly as his bona fide vo- creed or principles of such church, sect, cation, teach and preach the principles or organization. of religion and administer the ordi- (2) The term regular minister of reli- nances of public worship, as embodied gion means one who as his customary in the creed or principles of his church, vocation preaches and teaches the prin- sect, or organization; or ciples of religion of a church, a reli- (c) He is a regular minister of religious sect, or organization of which he gion, but does not regularly, as his is a member, without having been for- bona fide vocation, teach and preach mally ordained as a minister of reli- the principles of religion; or gion, and who is recognized by such (d) He is not recognized by the church, sect, or organization as a reg- church, sect, or organization as a regular minister. ular minister of religion; or

336

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00346 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1645.9

(e) He is a duly ordained minister of (d) If the board determines that the religion but does not administer the or- registrant is a regular minister of reli- dinances of public worship, as em- gion or duly ordained minister of reli- bodied in the creed of his church, sect, gion he shall be classified in Class 4-D. or organization. § 1645.7 Evaluation of claim. § 1645.5 Impartiality. (a) In evaluating a claim for classi- Boards may not give preferential fication in Class 4-D, the board will not treatment to one religion or sect over consider: another and no preferential treatment (1) The training or abilities of the will be given a duly ordained minister registrant for duty as a minister; or over a regular minister. (2) The motive or sincerity of the registrant in serving as a minister. § 1645.6 Considerations relevant to granting or denying a claim for (b) The board should be careful to as- Class 4-D. certain the actual duties and functions of registrants seeking classification in (a) The board shall first determine Class 4-D, such classification being ap- whether the registrant is requesting propriate only for leaders of the var- classification in Class 4-D because he is ious religious groups, not granted to a regular minister of religion or be- members of such groups generally. cause he is a duly ordained minister of (c) Preaching and teaching the prin- religion. ciples of one’s sect, if performed part- (b) If the registrant claims to be a time or half-time, occasionally or ir- duly ordained minister of religion, the regularly, are insufficient to establish board will: eligiblity for Class 4-D. These activi- (1) Determine whether the registrant ties must be regularly performed and has been ordained, in accordance with must comprise the registrant’s regular the ceremonial ritual or discipline of a calling or full-time profession. The church, religious sect, or organization mere fact of some secular employment established on the basis of a commu- on the part of a registrant requesting nity of faith and belief, doctrines and classification in Class 4-D does not in practices of religious character, to itself make him ineligible for that preach and teach the doctrines of such class. church, sect, or organization and to administer the rites and ceremonies (d) The board should request the reg- thereof in public worship; and istrant to furnish any additional infor- (2) Determine whether the registrant mation that it believes will be of as- as his regular, customary, and bona sistance in the consideration of the fide vocation, preaches and teaches the registrant’s claim for classification in principles of religion and administers Class 4-D. the ordinances of public worship, as § 1645.8 Types of decisions. embodied in the creed or principles of the church, sect, or organization by (a) If the board determines that the which the registrant was ordained. registrant is a regular minister of reli- (c) If the registrant claims to be a gion or a duly ordained minister of re- regular minister of religion, the board ligion, he shall be classified in Class 4- will: D. (1) Determine whether the registrant (b) The board will deny a claim for as his customary and regular calling or Class 4-D when the evidence fails to customary and regular full-time pro- meet the criteria established in this fession, preaches and teaches the prin- part. ciples of religion of a church, a religious sect, or organization of which he § 1645.9 Statement of reason for deis a member, without having been for- nial. mally ordained as a minister of reli- (a) Denial of a 4-D claim by a board gion; and must be accompanied by a statement (2) Determine whether the registrant specifying the reason(s) for such denial is recognized by such church, sect, or as prescribed in §§ 1633.9, 1651.4 and organization as a regular minister. 1653.3 of this chapter. The reason(s)

337

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00347 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1648 32 CFR Ch. XVI (7–1–05 Edition)

must in turn, be supported by evidence requests that the denial of such claim in the registrant’s file. be reviewed by the board. (b) If the board’s denial is based on [47 FR 4661, Feb. 1, 1982, as amended at 52 FR statements by the registrant or his 24458, July 1, 1987] witnesses at a personal appearance or on documentation in the registrant’s § 1648.4 Appointment for personal ap- file, such basis will be fully explained pearances. in the statement of reasons accom- (a) Not less than 10 days (unless the panying the denial. registrant requests an earlier appointment) in advance of the meeting at PART 1648—CLASSIFICATION BY which he may appear, the registrant LOCAL BOARD shall be informed of the time and place of such meeting and that he may Sec. present evidence, including witnesses, 1648.1 Authority of local board. bearing on his classification. 1648.3 Opportunity for personal appear- (b) Should the registrant who has ances. filed a claim for classification in Class 1648.4 Appointment for personal appear- 1-A-O or Class 1-O fail to appear at his ances. scheduled personal appearance, the 1648.5 Procedures during personal appear- board will not consider his claim for ance before the local board. classification in Class 1-A-O or Class 1- 1648.6 Registrants transferred for classifica- O. The board shall consider any written tion. explanation of such failure that has 1648.7 Procedures upon transfer for classi- been filed within 5 days (or extension fication. thereof granted by the board) after AUTHORITY: Military Selective Service Act, such failure to appear. It the board de- 50 U.S.C. App. 451 et seq.; E.O. 11623. termines that the registrant’s failure to appear was for good cause it shall § 1648.1 Authority of local board. reschedule the registrant’s personal ap- A local board shall consider and de- pearance. If the board does not receive termine all claims which it receives in a timely written explanation of the accord with § 1633.2 or § 1648.6 of this registrant’s failure to appear for his chapter. No action shall be taken by scheduled personal appearance or if the the board in the absence of a quorum of board determines that the registrant’s its prescribed membership. failure to appear was not for good cause, the registrant will be deemed to [52 FR 24458, July 1, 1987] have abandoned his claim for Class 1-A- O or 1-O and will be notified that his § 1648.3 Opportunity for personal ap- claim will not be considered. The board pearances. will notify the registrant in writing of (a) A registrant who has filed a claim its action under this paragraph. for classification in Class 1-A-O or (c) Whenever a registrant who has Class 1-O shall be scheduled for a per- filed a claim for a class other than sonal appearance in accord with § 1648.4 Class 1-A-0 or Class 1-0 for whom a per- before his claim is considered. sonal appearance has been scheduled, (b) A registrant who has filed a claim fails to appear in accord with such for classification in Class 2-D, Class 3- schedule, the board shall consider any written explanation of such failure A, or Class 4-D, shall, upon his written that has been filed within 5 days (or ex- request, be afforded an opportunity to tension thereof granted by the board) appear in person before the board be- after such failure to appear. If the fore his claim for classification is con- board determines that the registrant’s sidered. failure to appear was for good cause it (c) Any registrant who has filed a shall reschedule the registrant’s per- claim for classification in an adminis- sonal appearance. If the board does not trative class and whose claim has been receive a timely written explanation of denied, shall be afforded an oppor- the registrant’s failure to appear for tunity to appear before the board if he his scheduled personal appearance or if

338

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00348 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1648.6

the board determines that the reg- choosing and may confer with the advi- istrant’s failure to appear was not for sor before responding to an inquiry or good cause, the registrant will be statement by the board: Provided, That, deemed to have abandoned his request those conferences do not substantially for personal appearance and the board interfere with or unreasonably delay will proceed to classify him on the the orderly process of the personal ap- basis of the material in his file. The pearance. board will notify the registrant in writ- (g) If, in the opinion of the board, the ing of its action under this paragraph. informal, administrative nature of the [47 FR 4661, Feb. 1, 1982, as amended at 52 FR personal appearance is unduly dis- 24458, July 1, 1987] rupted by the presence of an advisor, the board chairman may require the § 1648.5 Procedures during personal advisor to leave the hearing room. In appearance before the local board. such case, the board chairman shall (a) A quorum of the prescribed mem- put a statement of reasons for his ac- bership of a board shall be present dur- tion in the registrant’s file. ing all personal appearances. Only (h) The making of verbatim tran- those members of the board before scripts, and the using of cameras or whom the registrant appears shall clas- other recording devices are prohibited sify him. in proceedings before the board. This (b) At any such appearance, the reg- does not prevent the registrant or Se- istrant may present evidence, includ- lective Service from making a written ing witnesses; discuss his classifica- summary of all testimony presented. tion; direct attention to any informa- (i) Proceedings before the local tion in his file; and present such fur- boards shall be open to the public only ther information as he believes will as- upon the request of or with the permis- sist the board in determing his proper sion of the registrant. The board chair- classification. The information fur- man may limit the number of persons nished should be as concise as possible. attending the hearing in order to main- (c) The registrant may present the tain order. If during the hearing the testimony of not more than three wit- presence on nonparticipants in the pro- nesses unless it is the judgment of the ceeding becomes disruptive, the chair- board that the testimony of additional man may close the hearing. witnesses is warranted. The registrant [47 FR 4661, Feb. 1, 1982, as amended at 52 FR may summarize in writing, the oral in- 24459, July 1, 1987] formation that he or his witnesses presented. Such summary shall be placed § 1648.6 Registrants transferred for in the registrant’s file. classification. (d) A summary will be made of all (a) Before a board of jurisdiction has oral testimony given by the registrant undertaken the classification of a reg- and his witnesses at his personal ap- istrant, the file may, at his request, be pearance and such summary shall be transferred for classification to a local placed in the registrant’s file. board nearer to his current address (e) If the registrant does not speak than is the local board of jurisdiction. English adequately he may appear with (b) The Director of Selective Service a person to act as interpreter for him. may transfer a registrant to another The interpreter shall be sworn in ac- board for classification at any time cordance with § 1605.81(b). Such inter- when: preter will not be deemed to be a witness unless he testifies in behalf of the (1) A board cannot act on the reg- registrant. istrant’s claim because of disqualifica- (f) During the personal appearance tion under the provisions of § 1605.55 of only the registrant or his witnesses this chapter; or may address the board or respond to (2) He deems such transfer to be nec- questions of the board and only the essary in order to assure equitable ad- registrant and the board will be al- ministration of the Selective Service lowed to address questions to wit- Law. nesses. A registrant may, however, be [47 FR 4661, Feb. 1, 1982, as amended at 52 FR accompanied by an advisor of his 24459, July 1, 1987]

339

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00349 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1648.7 32 CFR Ch. XVI (7–1–05 Edition)

§ 1648.7 Procedures upon transfer for tion. The registrant who wishes a per- classification. sonal appearance before the district ap- A board to which a registrant is peal board must file the request at the transferred for classification shall clas- same time he files the appeal. sify the registrant in the same manner § 1651.3 Procedures for taking an ap- it would classify a registrant assigned peal. to it. When the classification has been decided by the transfer board, the file (a) When the Director of Selective will be returned to the local board of Service appeals to a district appeal jurisdiction in the manner prescribed board he shall place in the registrant’s by the Director. file a written statement of his reasons for taking such appeal. When an appeal [47 FR 4661, Feb. 1, 1982] is taken by the Director, the registrant will be notified that the appeal has PART 1651—CLASSIFICATION BY been taken, the reason therefor, and DISTRICT APPEAL BOARD that the registrant may appear in person before the appeal board in accord Sec. with § 1651.4(e). 1651.1 Who may appeal to a district appeal (b) The registrant may appeal the board. classification action of the local board 1651.2 Time within which registrants may by filing with it a written notice of ap- appeal. peal. The registrant’s notice of appeal 1651.3 Procedures for taking an appeal. need not be in a particular form but 1651.4 Review by district appeal board. 1651.5 File to be returned after appeal to the must include the name of the reg- district appeal board is decided. istrant and his request. Any notice shall be liberally construed so as to AUTHORITY: Military Selective Service Act, permit the appeal. 50 U.S.C. App. 451 et seq. E.O. 11623. (c) The registrant may also request SOURCE: 47 FR 4662, Feb. 1, 1982, unless oth- an opportunity to appear in person be- erwise noted. fore the district appeal board and such appeal will be considered by the board § 1651.1 Who may appeal to a district appeal board. having jurisdiction over the local board which last classified him. (a) The Director of Selective Service (d) The registrant may attach to his may appeal from any determination of appeal a statement specifying the rea- a local board when he deems it nec- sons he believes the classification ac- essary to assure the fair and equitable tion that he is appealing is inappro- administration of the Selective Service priate, directing attention to any in- Law: Provided, That, no such appeal formation in his file, and setting out will be taken after the expiration of any information relevant to his claim. the appeal period prescribed in § 1651.2. (b) The registrant may appeal to a § 1651.4 Review by district appeal district appeal board the denial of his board. claim for a judgmental classification (a) An appeal to the district appeal by the local board. The registrant may board is determined by the classifica- appeal to a district appeal board the tion of the registrant in a class other denial of his claim for an administra- than 1-A or by its refusal to take such tive classification by the local board action. No action shall be taken by the whenever its decisions is not unani- board in the absence of a quorum of its mous. prescribed membership. [47 FR 4662, Feb. 1, 1982, as amended at 52 FR (b) Prior to the adjudication of an ap- 24459, July 1, 1987] peal, the clerk of the appeal board or any compensated employee authorized § 1651.2 Time within which registrants to perform the administrative duties of may appeal. the board shall review the file to insure The registrant who wishes to appeal that no procedural errors have oc- must file the appeal with his local curred during the history of the cur- board within 15 days after the date he rent claim. Files containing procedural is mailed a notice of classification ac- errors will be returned to the local

340

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00350 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1651.4

board that classified the registrant for appear in accord with such schedule, any additional processing necessary to the board shall consider any written correct such errors. explanation of such failure that has (c) Files containing procedural errors been filed within 5 days (or extension that were not detected during the ini- thereof granted by the board) after tial screening but which subsequently such failure to appear. If the board de- surfaced during processing by the ap- termines that the registrant’s failure peal board, will be acted on and the to appear was for good cause it shall board will take such action necessary reschedule the registrant’s personal ap- to correct the errors and process the pearance. If the board does not receive appeal to completion. a timely written explanation of the (d) A board shall consider appeals in registrant’s failure to appear for his the order of their having been filed. scheduled personal appearance or if the (e) Upon receipt of the registrant’s board determines that the registrant’s file, a board shall ascertain whether failure to appear was not for good the registrant has requested a personal cause, the registrant will be deemed to appearance before the board. If no such have abandoned his request for per- request has been made, the board may sonal appearance and he will be classi- classify the registrant on the bases of the material in his file. fied on the basis of the material in his (f) Not less than 10 days (unless the file. The board will notify the reg- registrant requests an earlier appoint- istrant in writing of its action under ment) in advance of the meeting at this paragraph. which his classification will be consid- (j) A quorum of the prescribed mem- ered, the board shall inform any reg- bership of a board shall be present dur- istrant with respect to whom the Di- ing all personal appearances. Only rector of Selective Service has ap- those members of the board before pealed or who has requested a personal whom the registrant appears shall clas- appearance that he may appear at such sify him. meeting and present written evidence (k) At any personal appearance, the bearing on his classification. registrant may: Present his oral testi- (g) During the personal appearance, mony; point out the class or classes in only the registrant may address the which he thinks he should have been board or respond to questions of the placed; and direct attention to any in- board. The registrant will not be per- formation in his file. The registrant mitted to present witnesses at the per- may present any additional written in- sonal appearance before the district ap- formation he believes will assist the peal board. A registrant may, however, board in determining his proper classi- be accompanied by an advisor of his fication. The information furnished choosing and may confer with the advi- should be as concise as possible. sor before responding to an inquiry or (l) The registrant may summarize in statement by the board: Provided, That, writing the oral information that he those conferences do not substantially presented. Such summary shall be interfere with or unreasonably delay placed in the registrant’s file. the orderly process of the personal ap- (m) A summary will be made of oral pearance. testimony given by the registrant at (h) If, in the opinion of the board, the his personal appearance and such sum- informal, administrative nature of the mary shall be placed in the registrant’s hearing is unduly disrupted by the file. presence of an advisor during the per- (n) A district appeal board shall clas- sonal appearance, the board chairman may require the advisor to leave the sify a registrant who has requested a hearing room. In such case, the board personal appearance after he: chairman shall put a statement of rea- (1) Has appeared before the board; or sons for his action in the registrant’s (2) Has withdrawn his request to ap- file. pear; or (i) Whenever a registrant who has (3) Has abandoned his right to an op- filed a claim for whom a personal ap- portunity to appear; or pearance has been scheduled, fails to (4) Has failed to appear.

341

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00351 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1651.5 32 CFR Ch. XVI (7–1–05 Edition)

(o) In considering a registrant’s ap- § 1653.1 Who may appeal to the Presi- peal, a board shall not receive or con- dent. sider any information other than the (a) The Director of Selective Service following: may appeal to the President from any (1) Information contained in the reg- non-unanimous determination of a dis- istrant’s file; and trict appeal board when he deems it (2) Oral statements by the registrant necessary to assure the fair and equi- during the registrant’s personal ap- table administration of the Selective pearance; and Service Law: Provided, That, no such (3) Written evidence submitted by the appeal will be taken after the expira- registrant to the board during his per- tion of the appeal period prescribed in sonal appearance. paragraph (b) of this section. (p) In the event a board classifies the (b) When a registrant has been classi- registrant in a class other than that fied by a district appeal board and one which he requested, it shall record its or more members of the board dis- reasons therefor in the file. sented from that classification, he may (q) The making of verbatim tran- within 15 days after a notice thereof scripts, and the using of cameras or has been mailed, appeal to the Presi- other recording devices are prohibited dent and may request a personal ap- in proceedings before the board. This pearance before the National Selective does not prevent the registrant or Se- Service Appeal Board. lective Service from making a written summary of his testimony. § 1653.2 Procedures for taking an ap- (r) Proceedings before the appeal peal to the President. boards shall be open to the public only (a) When the Director of Selective upon the request of or with the permis- Service appeals to the President he sion of the registrant. The board chair- shall place in the registrant’s file a man may limit the number of persons written statement of his reasons for attending the hearing in order to main- taking such appeal. When an appeal is tain order. If during the hearing the taken by the Director the registrant presence of non-participants in the pro- will be notified that the appeal has ceedings becomes disruptive the chair- been taken, the reasons therefor, and man may close the hearing. that the registrant may appear in per- [47 FR 4662, Feb. 1, 1982, as amended at 52 FR son before the National Board in ac- 24459, July 1, 1987] cord with § 1653.1(b). (b) An appeal to the President by the § 1651.5 File to be returned after ap- registrant shall be taken by filing a peal to the district appeal board is written notice of appeal with the local decided. board that classified him. He may at When the appeal to a district appeal the same time file a written request to board has been decided, the file shall be appear before the National Selective returned as prescribed by the Director Service Appeal Board. Such notice of Selective Service. need not be in any particular form but must state the name of the registrant PART 1653—APPEAL TO THE and the fact that he wishes the Presi- PRESIDENT dent to review the determination. § 1653.3 Review by the National Ap- Sec. peal Board. 1653.1 Who may appeal to the President. 1653.2 Procedures for taking an appeal to (a) An appeal to the President is de- the President. termined by the National Appeal Board 1653.3 Review by the National Appeal by its classification of the registrant in Board. a class other than 1-A or by its refusal 1653.4 File to be returned after appeal to the to take such action. No action shall be President is decided. taken by the board in the absence of a AUTHORITY: Military Selective Service Act, quorum of its prescribed membership. 50 U.S.C. App. 451 et seq.: E.O. 11623. (b) Prior to the adjudication of an ap- SOURCE: 47 FR 4663, Feb. 1, 1982, unless oth- peal, the clerk of the appeal board or erwise noted. any compensated employee authorized

342

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00352 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1653.3

to perform the administrative duties of the board chairman may require the the board shall review the file to insure advisor to leave the hearing room. In that no procedural errors have oc- such a case, the board chairman shall curred during the history of the cur- put a statement of reasons for his ac- rent claim. Files containing procedural tion in the registrant’s file. errors will be returned to the board (j) Whenever a registrant who has where the errors occurred for any addi- filed a claim for whom a personal ap- tional processing necessary to correct pearance has been scheduled fails to such errors. appear in accord with such schedule, (c) Files containing procedural errors the board shall consider any written that were not detected during the ini- explanation of such failure that has tial screening but which subsequently been filed within five days (or exten- surfaced during processing by the ap- sion thereof granted by the board) after peal board, will be acted on and the such failure to appear. If the board de- board will take such action necessary termines that the registrant’s failure to correct the errors and process the to appear was for good cause it shall appeal to completion. reschedule the registrant’s personal ap- (d) The board shall consider appeals pearance. If the board does not receive in the order of their having been filed. a timely written explanation of the (e) Upon receipt of the registrant’s registrant’s failure to appear for his file, the board shall ascertain whether scheduled personal appearance or if the the registrant has requested a personal board determines that the registrant’s appearance before the board. If no such failure to appear was not for good request has been made, the board may cause, the registrant will be deemed to classify the registrant on the basis of have abandoned his request for per- the material in his file. sonal appearance and the board will (f) The board shall proceed to classify proceed to classify him on the basis of any registrant who has not requested a the material in his file. The registrant personal appearance after the specified will be notified in writing of its action time in which to request a personal ap- under this paragraph. pearance has elapsed. (k) A quorum of the prescribed mem- (g) Not less than 10 days in advance bership of a board shall be present dur- of the meeting at which his claim will ing all personal appearances. Only be considered, the board shall inform those members of the board before any registrant with respect to whom whom the registrant appears shall clas- the Director of Selective Service has sify him. appealed or who has requested a per- (l) At any such appearance, the reg- sonal appearance that he may appear istrant may: Present oral testimony; at such meeting and present written point out the class or classes in which evidence bearing on his classification. he thinks he should have been placed; (h) During the personal appearance and direct attention to any informa- only the registrant may address the tion in his file. The registrant may board or respond to questions of the present such further written informa- board. The registrant will not be per- tion as he believes will assist the board mitted to present witnesses at the per- in determining his proper classifica- sonal appearance before the National tion. The information furnished should Appeal Board. A registrant may, how- be as concise as possible. ever, be accompanied by an advisor of (m) The registrant may summarize in his choosing and may confer with the writing the oral information that he advisor before responding to an inquiry presented and any such summary shall or statement by the board: Provided, be placed in his file. That, those conferences do not sub- (n) A summary will be made of the stantially interfere with or unreason- oral testimony given by the registrant ably delay the orderly process of the at his personal appearance and such personal appearance. summary shall be placed in the reg- (i) If, in the opinion of the board, the istrant’s file. informal, administrative nature of the (o) The board shall classify a reg- personal appearance is unduly dis- istrant who has requested a personal rupted by the presence of an advisor, appearance after he:

343

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00353 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1653.4 32 CFR Ch. XVI (7–1–05 Edition)

(1) Has appeared before the National 1656.7 Employer responsibilities. Board; or 1656.8 Employment agreements. (2) Has withdrawn his request to ap- 1656.9 Alternative service worker’s respon- pear; or sibilities. (3) Has waived his right to an oppor- 1656.10 Job placement. tunity to appear; or 1656.11 Job performance standards and sanc- (4) Has failed to appear. tions. (p) Whenever the National Board or 1656.12 Job reassignment. the panel thereof to which a case has 1656.13 Review of alternative service job assignments. been assigned cannot act on the case of 1656.14 Postponement of reporting date. a registrant, and there is no other 1656.15 Suspension of order to perform alter- panel of the National Board to which native service because of hardship to de- the case may be transferred, the deci- pendents. sion of the District Appeal Board will 1656.16 Early release—grounds and proce- be final. dures. (q) In considering a registrant’s ap- 1656.17 Administrative complaint process. peal, the board shall not receive or con- 1656.18 Computation of creditable time. sider any information other than the 1656.19 Completion of alternative service. following: 1656.20 Expenses for emergency medical (1) Information contained in the reg- care. istrant’s file; and AUTHORITY: Sec. 6(j) Military Selective (2) Oral statements by the registrant Service Act; 50 U.S.C. App. 456(j). at the registrant’s personal appearance; and SOURCE: 48 FR 16676, Apr. 19, 1983, unless (3) Written evidence submitted by the otherwise noted. registrant to the board during his per- § 1656.1 Purpose; definitions. sonal appearance. (r) In the event that the board classi- (a) The provisions of this part govern fies the registrant in a class other than the administration of registrants in that which he requested, it shall record Class 1-W and the Alternative Service its reasons therefor in his file. Program. (s) The making of verbatim tran- (b) The definitions of this paragraph scripts, and the using of cameras or shall apply in the interpretation of the other recording devices are prohibited provisions of this part: in proceedings before the board. This (1) Alternative Service (AS). Civilian does not prevent the registrant or Se- work performed in lieu of military lective Service from making a written service by a registrant who has been summary of his testimony. classified in Class 1-W. (t) Proceedings before the National (2) Alternative Service Office (ASO). An Appeal Board are closed to the public. office to administer the Alternative [47 FR 4663, Feb. 1, 1982, as amended at 52 FR Service Program in a specified geo- 24459, July 1, 1987] graphical area. (3) Alternative Service Office Manager § 1653.4 File to be returned after ap- (ASOM). The head of the ASO. peal to the President is decided. (4) Alternative Service Work. Civilian When the appeal to the President has work which contributes to the mainte- been decided, the file shall be returned nance of the national health, safety or as prescribed by the Director of Selec- interest, as the Director may deem ap- tive Service. propriate. (5) Alternative Service Worker (ASW). A PART 1656—ALTERNATIVE SERVICE registrant who has been found to be qualified for service and has been or- Sec. dered to perform alternative service 1656.1 Purpose; definitions. (Class 1-W). 1656.2 Order to perform alternative service. (6) Creditable Time. Time that is 1656.3 Responsibility for administration. counted toward an ASWs fulfillment of 1656.4 Alternative Service Office: jurisdiction and authority. his alternative service obligation. 1656.5 Eligible employment. (7) Director. The Director of Selective 1656.6 Overseas assignments. Service, unless used with a modifier.

344

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00354 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1656.2

(8) Employer. Any institution, firm, duction conflicts with a religious holi- agency or corporation engaged in law- day historically observed by a recog- ful activity in the United States, its nized church, religious sect or religious territories or possessions, or in the organization of which he is a member. Commonwealth of Puerto Rico, that Any registrant so delayed shall report has been approved by Selective Service for alternative service on the next to employ ASWs. business day following the religious (9) Job Assignment. A job with an eli- holiday. gible employer to which an ASW is as- (d)(1) Any registrant who is satisfac- signed to perform his alternative serv- torily pursuing a full-time course of in- ice. struction at a high school or similar (10) Job Bank. A current inventory of institution of learning and is issued an alternative service job openings. order to perform alternative service (11) Job Matching. A comparison of shall, upon presentation of appropriate the ASW’s work experience, education, facts in the manner prescribed by the training, special skills, and work pref- Director of Selective Service, have his erences with the requirements of the date to report to perform alternative positions in the job bank. service postponed: (12) Job Placement. Assignment of the (i) Until the time of his graduation ASW to alternative service work. therefrom; or (13) Open Placement. The assignment (ii) Until he attains the twentieth an- of ASWs without employer interview to niversary of his birth; or employers who have agreed to employ (iii) Until the end of his last aca- all ASWs assigned to them up to an demic year, even if he has attained the agreed number. twentieth anniversary of his birth; or [48 FR 16676, Apr. 19, 1983, as amended at 69 (iv) Until he ceases satisfactorily to FR 20544, Apr. 16, 2004] pursue such course of instruction, whichever is the earliest. § 1656.2 Order to perform alternative (2) Any registrant who, while satis- service. factorily pursuing a full-time course of (a) The local board of jurisdiction instruction at a college, university or shall order any registrant who has been similar institution of learning, is or- classified in Class 1-O or 1-O-S to per- dered to perform alternative service form alternative service at a time and shall, upon the presentation of appro- place to be specified by the Director. priate facts in the manner prescribed (b) When the local board orders a reg- by the Director of Selective Service, istrant to perform alternative service, have his date to report to perform al- it shall be the duty of the registrant to ternative service. report for and perform alternative (i) Until the end of the semester or service at the time and place ordered term, or in the case of his last aca- unless the order has been canceled. If demic year, the end of the academic the time when the registrant is ordered year; or to report for alternative service is (ii) Until he ceases to satisfactorily postponed, it shall be the continuing pursue such course of instruction, duty of the registrant to report for and whichever is the earlier. perform alternative service at such (e) After the order to perform alter- time and place as he may be reordered. native service has been issued, the Di- Regardless of the time when or the cir- rector may postpone for a specific time cumstances under which a registrant the date when such registrant is re- fails to report for and perform alter- quired to report in the following cir- native service when it is his duty to do cumstances: so, it shall thereafter be his continuing (1) In the case of the death of a mem- duty from day to day to report for and ber of the registrant’s immediate fam- perform alternative service at the ily, extreme emergency involving a place specified in the order to report member of the registrant’s immediate for and perform alternative service. family, serious illness or injury of the (c) The Director may authorize a registrant, or other emergency beyond delay of reporting for alternative serv- the registrant’s control. The period of ice for any registrant whose date of in- postponement shall not exceed 60 days

345

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00355 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1656.3 32 CFR Ch. XVI (7–1–05 Edition)

from the date of the order to perform (10) Refer to the Department of Jus- alternative service. When necessary, tice, when appropriate, any ASW who the Director may grant one further fails to perform satisfactorily his alter- postponement but the total postpone- native service; ment shall not exceed 90 days from the (11) Perform all other functions nec- reporting date on the order to perform essary for the administration of the Al- alternative service. ternative Service Program; and (2) When the registrant qualifies and (12) Delegate any of his authority to is scheduled for a State or National ex- such office, agent or person as he may amination in a profession or occupa- designate and provide as appropriate tion which requires certification before for the subdelegation of such author- being authorized to engage in the prac- ity. tice of that profession or occupation. (b) The Region Director shall be re- (f) The Director shall issue to each sponsible for the administration and registrant whose reporting date to per- operation of the Alternative Service form alternative service is postponed a Program in his Region as prescribed by written notice thereof. the Director. (g) A postponement of reporting date (c) The State Director shall perform to perform alternative service shall not duties for the administration and oper- render invalid the order to report for ation of the Alternative Service Pro- alternative service which has been gram in his State as prescribed by the issued to the registrant, but shall oper- Director. ate only to postpone the reporting (d) The ASOM shall perform duties date, and the registrant shall report on for the administration and operation of the new date scheduled without having the Alternative Service Program as issued to him a new order to report for prescribed by the Director. alternative service. (1) The ASO shall be an office of (h) Any registrant receiving a post- record that is responsible for the ad- ponement under the provisions of this ministration and operation of the Al- section, shall, after the expiration of ternative Service Program in its as- such postponement, be rescheduled to signed geographical area of jurisdic- report for alternative service at the tion. place to which he was originally or- (2) The staff of each ASO shall con- dered. sist of as many compensated employees [52 FR 8891, Mar. 20, 1987] as shall be authorized by the Director. (3) Appointment of civilians to ASO § 1656.3 Responsibility for administra- positions requiring direct dealing with tion. ASWs will be made as soon as feasible. (a) The Director in the administra- (e) The manager of an area office tion of the Alternative Service Pro- shall perform duties for Alternative gram shall establish and implement ap- Service as prescribed by the Director. propriate procedures to: (1) Assure that the program complies [48 FR 16676, Apr. 19, 1983, as amended at 69 with the Selective Service Law; FR 20544, Apr. 16, 2004] (2) Provide information to ASWs § 1656.4 Alternative Service Office: ju- about their rights and duties; risdiction and authority. (3) Find civilian work for ASWs; (4) Place ASWs in jobs approved for (a) Jurisdiction over the ASW will be alternative service; transferred from the area office imme- (5) Monitor the work performance of diately after his classification in Class ASWs placed in the program; 1-W to the ASO that administers the (6) Order reassignment and authorize Alternative Service Program in the job separation; area in which he is assigned to perform (7) Issue certificates of completion; alternative service. (8) Specify the location of Alter- (b) The ASO shall: native Service Offices; (1) Evaluate and approve jobs and (9) Specify the geographical area in employers for Alternative Service; which the ASOs shall have jurisdiction (2) Order the ASW to report for alter- over ASWs; native service work;

346

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00356 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1656.6

(3) Issue such orders as are required medial programs and scientific re- to schedule the ASW for job interviews; search; (4) Issue such orders as are required (iii) Environmental programs, includ- to schedule the ASW for job placement; ing but not limited to conservation and (5) Monitor the ASW’s job perform- firefighting, park and recreational ac- ance; tivities, pollution control and moni- (6) Issue a certificate of satisfactory toring systems, and disaster relief; completion of the ASW’s Alternative (iv) Social services, including but not Service obligation; limited to sheltered or handicapped (7) Return the ASW to the jurisdic- workshops, vocational training or re- tion of the area office from which he training programs, senior citizens ac- was directed to perform Alternative tivities, crisis intervention and poverty Service; and relief; (8) Perform such other actions the (v) Community services, including Director may authorize as necessary to but not limited to fire protection, pub- administer the Alternative Service lic works projects, sanitation services, Program. school or public building maintenance, correctional facility support programs, § 1656.5 Eligible employment. juvenile rehabilitation programs, and (a) The Director will determine in ac- (vi) Agricultural work. cordance with the Selective Service (b) An organization desiring to em- Law which civilian employment pro- ploy ASWs is encouraged to submit a grams or activities are appropriate for request in writing to the Director or an Alternative Service work. ASOM for approval. Such requests will (1) Employers which are considered be considered at any time. appropriate for Alternative Service as- (c) Selective Service shall negotiate signments are limited to: employment agreements with prospec- (i) The U.S. Government or a state, tive employers with the objective of territory or possession of the United obtaining an adequate number of States or a political subdivision there- agreements to assure the timely place- of, the District of Columbia or the ment of all ASWs. Participating em- Commonwealth of Puerto Rico; ployers will provide prospective job (ii) Organizations, associations or listings to Selective Service. corporations primarily engaged either (d) Selective Service shall also nego- in a charitable activity conducted for tiate employment agreements with eli- the benefit of the general public or in gible employers wherein the employer carrying out a program for the im- will agree to hire a specified number of provement of the public health, welfare ASWs for open placement positions. or environment, including educational (e) A registrant classfied in Class 1-O and scientific activities in support or Class 1-O-S may seek his own alter- thereof, when such activity or program native service work by identifying a is not principally for the benefit of the job with an employer he believes would members of such organization, associa- be appropriate for Alternative Service tion or corporation or for increasing assignments and by having the em- the membership thereof. ployer advise the ASO in writing that (2) Employment programs or activi- he desires to employ the ASW. The ac- ties generally considered to be appro- ceptability of the job and employer so priate for Alternative Service work in- identified will be evaluated in accord- clude: ance with § 1656.5(a). (i) Health care services, including but [48 FR 16676, Apr. 19, 1983, as amended at 51 not limited to hospitals, nursing FR 17627, May 14, 1986; 52 FR 8892, Mar. 20, homes, extended care facilities, clinics, 1987; 54 FR 27001, June 27, 1989] mental health programs, hospices, community outreach programs and § 1656.6 Overseas assignments. hotlines; Alternative Service job assignments (ii) Educational services, including outside the United States, its terri- but not limited to teachers, teacher’s tories or possessions or the Common- aides, counseling, administrative sup- wealth of Puerto Rico, will be allowed port, parent counseling, recreation, re- when:

347

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00357 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1656.7 32 CFR Ch. XVI (7–1–05 Edition)

(a) The employer is deemed eligible produces substantial evidence of viola- to employ ASWs and is based in the tions of § 1656.7, Selective Service will United States, its territories or posses- resolve the matter. sions, or the Commonwealth of Puerto (d) Termination of Employment Agree- Rico; ment. If a resolution of a dispute can- (b) The job meets the criteria listed not be reached by negotiation within a in § 1656.5(a); reasonable time, the Selective Service (c) The ASW and the employer sub- System shall terminate the employ- mit a joint application to Selective ment agreement and shall reassign the Service for the ASW to be employed in ASW. a specific job; (d) The employer satisfies Selective § 1656.9 Alternative service worker’s Service that the employer has the ca- responsibilities. pability to supervise and monitor the (a) A registrant classified in Class 1- overseas work of the ASW; and W is required to comply with all orders (e) International travel is provided issued under this part. without expense to Selective Service. (b) A registrant classified in Class 1- W is liable to perform 24 months of § 1656.7 Employer responsibilities. creditable time toward completion of Employers participating in the Alter- Alternative Service, unless released native Service Program are responsible earlier by the Director. for: (a) Complying with the employment § 1656.10 Job placement. agreement with Selective Service; (a) Selective Service will maintain a (b) Providing a clear statement of du- job bank for the exclusive purpose of ties, responsibilities, compensation and placing ASWs in alternative service employee benefits to the ASW; jobs. (c) Providing full-time employment (b) An ASW who has identified his for ASWs; own job in accordance with § 1656.5(e) of (d) Assuring that wages, hours and this part may be assigned by the ASO working conditions of ASWs confrom in that job pending review of the job by with Federal, state and local laws; Selective Service. If the job is then ap- (e) Providing adequate supervision of proved as Alternative Service Work in ASWs in their employ; and accordance with § 1656.5(a) the ASW (f) Providing nondiscriminatory will receive creditable time beginning treatment of ASWs in their employ. with the date he was placed on the job by Selective Service. If the job is not § 1656.8 Employment agreements. approved he will not receive creditable (a) Nature of Agreement. Before any time and will be placed by Selective ASW is placed with an employer, Selec- Service in a position approved for Al- tive Service and the employer shall ternative Service Work. Selective enter into an employment agreement Service must review the job within 30 that specifies their respective duties calendar days of the time it assigned and responsibilities under the Alter- the ASW to begin work. If the elapsed native Service Program. time from date of placement to the (b) Restrictions on Selective Service. date of Selective Service review ex- The Selective Service System shall not ceeds 30 days, the ASW will receive act in any controversy involving creditable time from the date of place- ASW’s wages, hours and working condi- ment regardless of the final determinations except to the extent any of these tion of employer eligibility made by subjects is specifically covered in Selective Service. If the placement is § 1656.7, § 1656.9, or the employment ultimately determined to be inappro- agreement between Selective Service priate for Alternative Service the ASW and the employer. will be reassigned in accordance with (c) Investigating and Negotiating. § 1656.12. Whenever there is evidence that an em- (c) In making job interview referrals ployer appears to be in violation of and in making assignments of ASWs to § 1656.7, Selective Service will inves- jobs, Selective Service will consider tigate the matter. If the investigation the compatibility of the ASW’s skills,

348

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00358 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1656.13

work experience, and preferences with § 1656.12 Job reassignment. the qualification criteria for the job. (a) Grounds for Reassignment. The Di- (d) When An ASW is hired, the ASO rector may reassign an ASW whenever will issue a Job Placement Order speci- the Director determines that: fying the employer, the time, date and (1) The job assignment violates the place to report for his alternative serv- ASW’s religious, moral or ethical be- ice work. liefs or convictions as to participation (e) The ASO will normally place the in a war that led to his classification ASW in an alternative service job with- as a conscientious objector or violates in 30 calendar days after classification § 1656.5(a) of this part. in Class 1-W. (2) An ASW experiences a change in his mental or physical condition which § 1656.11 Job performance standards renders him unfit or unable to continue and sanctions. performing satisfactorily in his as- (a) Standards of Performance. An ASW signed job; is responsible for adhering to the (3) An ASW’s dependents incur a standards of conduct, attitude, appear- hardship which is not so severe as to ance and performance demanded by the justify a suspension of the Order to employer of his other employees in Perform Alternative Service under similar jobs. If there are no other em- § 1656.15; ployees, the standards shall conform to (4) The ASW’s employer ceases to op- those that are reasonable and cus- erate an approved program or activity; tomary in a similar job. (5) The ASW’s employer fails to com- (b) Failure to Perform. An ASW will be ply with terms and conditions of these deemed to have failed to perform satis- regulations or; factorily whenever: (6) Continual and severe differences (1) He refuses to comply with an between the ASW’s employer and ASW order of the Director issued under this remain unresolved. part; (7) The sanctions authorized in (2) He refuses employment by an ap- § 1656.11 should be applied. proved employer who agrees to hire (b) Who May Request Reassignment. him; Any ASW may request reassignment to (3) His employer terminates the another job. An employer may request ASW’s employment because his con- job reassignment of an ASW who is in duct, attitude, appearance or perform- his employ. ance violates reasonable employer (c) Method for Obtaining a Reassign- standards; or ment. All requests for reassignment (4) He quits or leaves his job without must be in writing with the reasons reasonable justification, and has not specified. The request may be filed submitted an appeal of his job assign- with the ASO of jurisdiction at any ment to the District Appeal Board. time during an ASW’s alternative service employment. An ASW must con- (c) Sanctions for ASW’s Failure to Per- tinue in his assigned job, if available, form. (1) The sanctions for failure to until the request for assignment is ap- meet his Alternative Service obliga- proved. tion are job reassignment, loss of creditable time during such period and re- § 1656.13 Review of alternative service ferral to the Department of Justice for job assignments. failure to comply with the Military Se- (a) Review of ASW job assignments lective Service Act. will be accomplished in accordance (2) Prior to invoking any of the sanc- with the provisions of this subsection. tions discussed herein, the ASO will (b) Whenever the ASW believes that conduct a review as prescribed in his job assignment violates his reli- § 1656.17 of all allegations that an ASW gious, moral or ethical beliefs or con- has failed to perform pursuant to any victions as to participation in war that of the provisions of § 1656.11(b). led to his classification as a conscien- [48 FR 16676, Apr. 19, 1983, as amended at 69 tious objector or is in violation of the FR 20544, Apr. 16, 2004] provisions of this part he may request

349

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00359 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1656.14 32 CFR Ch. XVI (7–1–05 Edition)

a reassignment by the ASOM, as pro- § 1656.14 Postponement of reporting vided for in § 1656.12. date. (c) The ASOM shall reassign the ASW (a) General. The reporting date in any if the ASOM concludes that the ASW’s of the following orders may be post- work assignment violates his religious, poned in accord with this section. moral or ethical beliefs or convictions (1) Report for Job Placement; as to participation in war which led to (2) Report for a Job Interview; or his classification as a CO or is in viola- (3) Report to an Employer to Com- tion of the provisions of this part. mence Employment. (d) If the ASOM does not reassign the (b) Requests for Postponement. A re- ASW, the ASW may, within 15 days quest for postponement of a reporting after the date of mailing of the deci- date specified in an order listed in sion of the ASOM, request a review of paragraph (a) must be made in writing his job assignment by a District Appeal and filed prior to the reporting date Board. with the office which issued the order. (e) It shall be the function of the Dis- Such requests must include a state- trict Appeal Board to determine wheth- ment of the nature of the emergency er or not an ASW’s job assignment vio- and the expected period of its duration. lates the ASW’s religious, moral, or (c) Grounds for Postponement. An ASW ethical beliefs of convictions as to par- may, upon presentation of the appro- ticipation in war which led to his clas- priate facts in his request, be granted a sification as a conscientious objector postponement based on one or more of or is in violation of the provisions the following conditions: § 1656.5(a) of this part. In making the (1) The death of a member of his im- former determination, the Review mediate family; Board must be convinced by the ASW (2) An extreme emergency involving that if the ASW performed the job, his a member of his immediate family; convictions as to participation in war (3) His serious illness or injury; or would be violated in a similar way as if (4) An emergency condition directly the ASW had participated in war. affecting him which is beyond his con- (f) The District Appeal Board may af- trol. firm the assignment or order the reas- (d) Basis for Considering Request. The signment of the ASW in any matter ASW’s eligibility for a postponement considered by it. shall be determined by the office of ju- (g) Procedures of the District Appeal risdiction based upon official docu- Board are: ments and other written information (1) Appeals to the Board shall be in contained in his file. Oral statements writing, stating as clearly as possible made by the ASW or made by another the ground for the appeal. person in support of the ASW shall be (2) The ASW may appear before the reduced to writing and placed in the Board at his request. He may not be ASW’s file. represented by counsel or present wit- (e) Duration of Postponement. The ini- nesses. The ASOM or his representative tial postponement shall not exceed 60 may represent the Selective Service days from the reporting date in the System at the hearing and present evi- order. When necessary, the Director dence. may grant one further postponement, (3) The Board’s determination will be but the total postponement period based on all documents in the ASW’s shall not exceed 90 days from the re- file folder and statements made at the porting date in the order invovled. hearing. (f) Termination of Postponement. (1) A (4) The decision of the Board will be postponement may be terminated by binding only in the case before it. A de- the Director for cause upon no less cision of a Board will not be relied than ten days written notice to the upon by a Board in any other case. ASW. (5) A decision of the Board is not sub- (2) Any postponement shall be termi- ject to review within the Selective nated when the basis for the postpone- Service System. ment has ceased to exist. [48 FR 16676, Apr. 19, 1983, as amended at 69 (3) It is the responsibility of the ASW FR 20544, Apr. 16, 2004] promptly to notify in writing the office

350

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00360 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1656.17

that granted the postponement when- (c) Local boards shall follow the pro- ever the basis for which his postpone- cedures established in parts 1642 and ment was granted ceases to exist. 1648 of this chapter to the extent they (g) Effect of Postponement. A post- are applicable in considering a request ponement of the reporting date in an for the suspension of an Order to Per- order shall not render the order inform Alternative Service. valid, but shall only serve to postpone the date on which the ASW is to re- § 1656.16 Early release—grounds and port. The ASW shall report at the expi- procedures. ration or termination of the postpone- (a) General Rule of Service Completion. ment. An ASW will not be released from al- (h) Religious Holiday. The Director ternative service prior to completion of may authorize a delay of reporting 24 months of creditable service unless under any of the orders specified for an granted an early release. ASW whose date to report conflicts (b) Reasons For Early Release. The Di- with a religious holiday historically rector may authorize the early release observed by a recognized church, reli- of an ASW whenever the ASO deter- gious sect or religious organization of mines that the ASW: which he is a member. Any ASW so de- (1) Has failed to meet the perform- layed shall report on the next business ance standards of available alternative day following the religious holiday. service employment because of physical, mental or moral reasons; § 1656.15 Suspension of order to per- (2) No longer meets the physical, form alternative service because of mental or moral standards that are re- hardship to dependents. quired for retention in the Armed (a) Whenever, after an ASW has Forces based on a physical or mental begun work, a condition develops that examination at a MEPS or other loca- results in hardship to his dependent as tion designated by Selective Service; contemplated by § 1630.30(a) of this (3) Is planning to return to school chapter which cannot be alleviated by and has been accepted by such school his reassignment under § 1656.12 (a)(3) of and scheduled to enter within 30 days this part, the ASW may request a sus- prior to the scheduled completion of pension of Order to Perform Alter- his alternative service obligation; native Service. If the local board that (4) Has been accepted for employ- ordered the ASW to report for Alter- ment and that such employment will native Service determines he would be not be available if he remains in alter- entitled to classification in Class 3-A, native service the full 24 months. Such assuming that the ASW were eligible early release shall not occur more than to file a claim for that class, further 30 days before the scheduled comple- compliance with his order shall be sus- tion of his alternative service obliga- pended for a period not to exceed 365 tion; or days, as the local board specifies. Ex- (5) Has enlisted in or has been in- tensions of not more than 365 days each ducted into the Armed Forces of the may be granted by the local board so United States. long as the hardship continues until (c) Reclassification and Records. Upon the ASW’s liability for training and granting an early release to an ASW, service under the Military Selective the Director will reclassify the ASW Service Act terminates. and transfer his records in accordance (b) An ASW may file a request for the with § 1656.19 of this part. suspension of his Order to Perform Al- ternative Service with the ASO. This § 1656.17 Administrative complaint request must be in writing, state as process. clearly as possible the basis for the re- (a) Whenever the ASOM learns that quest, and be signed and dated by the the ASW may have failed to perform ASW. The ASW must continue working satisfactorily his work (see § 1656.11(b)) in his assigned job until his request for or he receives a complaint by an em- the suspension of his Order to Perform ployer or an ASW involving the ASW’s Alternative Service has been approved. work other than matters described in

351

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00361 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1656.18 32 CFR Ch. XVI (7–1–05 Edition)

§ 1656.8(b) of this part, he shall take (b) Creditable time will be awarded necessary action to: for periods of travel, job placement and (1) Interview, as appropriate, all par- job interviews performed under orders ties concerned to obtain information issued by Selective Service. Creditable relevant to the problems or com- time may be awarded for normal em- plaints; ployer leave periods. (2) Place a written summary of each (c) Creditable time will be awarded to interview in the ASW’s file and em- an ASW for the time lost after he ployer’s file; leaves his job assignment following his (3) Inform the persons interviewed request for reassignment on the basis that they may prepare and submit to of § 1656.13(b) of this part until he is re- him within ten days after the interview assigned pursuant to § 1656.13 (c) or (f) their personal written statements con- of this part. Creditable time for the cerning the problem; corresponding period will be lost if neither the ASOM nor the District Appeal (4) Place such statements in the Board orders the ASW’s reassignment ASW’s file; and on the basis of § 1656.12(a)(1) of this (5) Resolve the matter. part. (b) The employer or ASW may seek a review of the decision pursuant to [48 FR 16676, Apr. 19, 1983, as amended at 69 § 1656.17(a)(5). Such request must be FR 20544, Apr. 16, 2004] filed in writing with the ASO, for ac- § 1656.19 Completion of alternative tion by the State Director of Selective service. Service, within ten days after the date the notice of the decision is trans- Upon completion of 24 months of mitted to the ASW and employer. creditable time served in alternative service or when released early in ac- § 1656.18 Computation of creditable cordance with § 1656.16(b) (3) or (4): time. (a) The ASW shall be released from the Alternative Service Program; and (a) Creditable time starts when the (b) The Director shall issue to the ASW begins work pursuant to an Order ASW a Certificate of Completion and to Perform Alternative Service or 30 the registrant shall be reclassified in days after the issuance of such order, Class 4-W in accordance with § 1630.47 of whichever occurs first. Creditable time this chapter, and will accumulate except for periods of: (c) The ASW’s records shall be re- (1) Work of less than 35 hours a week turned to the area office of jurisdiction or an employer’s full-time work week after the ASW has completed his obli- whichever is greater; gation or has been separated from the (2) Leaves of absence in a calendar Alternative Service Program for any year of more than 5 days in the aggre- reason. gate granted by the employer to the ASW to attend to his personal affairs § 1656.20 Expenses for emergency med- unless such absence is approved by the ical care. ASOM; (a) Claims for payment of actual and (3) Time during which an ASW fails reasonable expenses for emergency or neglects to perform satisfactorily medical care, including hospitaliza- his assigned Alternative Service; tion, of ASWs who suffer illness or in- (4) Time during which the ASOM de- jury, and the transportation and burial termines that work of the ASW is un- of the remains of ASWs who suffer satisfactory because of his failure to death as a direct result of such illness comply with reasonable requirements or injury will be paid in accordance of his employer; with the provisions of this section. (5) Time during which the ASW is not (b) The term ‘‘emergency medical employed in an approved job because of care, including hospitalization’’, as his own fault; or used in this section, means such med- (6) Time during which the ASW is in ical care or hospitalization that nor- a postponement period or his Order to mally must be rendered promptly after Perform Alternative Service has been occurrence of the illness or injury ne- suspended. cessitating such treatment. Discharge

352

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00362 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1657.6

by a physician or facility subsequent to § 1657.1 Purpose; definition. such medical care or hospitalization (a) The provisions of this part apply shall terminate the period of emer- to the processing of overseas reg- gency. istrants, and, where applicable, they (c) Claims will be considered only for supersede inconsistent provisions in expenses: this chapter. (1) For which only the ASW is liable (b) An overseas registrant is a reg- and for which there is no legal liability istrant whose bona fide current address for his reimbursement except in accord most recently provided by him to the with the provisions of this section; and Selective Service System is outside the (2) That are incurred as a result of United States, its territories or posses- illness or injury that occurs while the sions, Commonwealth of Puerto Rico, ASW is acting in accord with orders of Canada and Mexico. Selective Service to engage in travel or perform work for his Alternative Serv- § 1657.2 Local boards. ice employer. The Director shall establish local (d) No claim shall be allowed in any boards with jurisdiction to determine case in which the Director determines claims of overseas registrants. Such that the injury, illness, or death oc- boards shall consist of three or more curred because of the negligence or members appointed by the President. misconduct of the ASW. The Director shall prescribe the geo- (e) No claim shall be paid unless it is graphic jurisdiction of each board, and presented to the Director within one designate or establish an area office to year after the date on which the ex- support it. pense was incurred. § 1657.3 District appeal boards. (f) Cost of emergency medical care including hospitalization greater than The Director shall establish district usual and customary fees for service appeal boards with jurisdiction to de- established by the Social Security Ad- termine appeals of claims of overseas ministration, will prima facie be consid- registrants. Such boards shall consist ered unreasonable. Payment for burial of three or more members appointed by expenses shall not exceed the max- the President. The Director shall pre- imum that the Administrator of Vet- scribe the geographic jurisdiction of eran’s Affairs may pay under the provi- each board. sions of 38 U.S.C. 902(a) in any one case. § 1657.4 Consideration of claims. (g) Payment of claims when allowed shall be made only directly to the ASW An overseas registrant’s claim shall or his estate unless written authoriza- be determined by a local board (or its tion of the ASW or the personal rep- supporting area office) or appeal board resentative of his estate has been reas may be established in accord with ceived to pay another person. this part or, upon the request of the registrant filed no later than the filing of his claim for reclassification, by the PART 1657—OVERSEAS REGISTRANT board having geographic jurisdiction PROCESSING over his permanent address within the United States last reported by him to Sec. the Selective Service System prior to 1657.1 Purpose; definition. issuance of his induction order. 1657.2 Local boards. 1657.3 Distsrict appeal boards. § 1657.5 Place of induction. 1657.4 Consideration of claims. The Director may order an overseas 1657.5 Place of induction. registrant to any place in the world for 1657.6 Transportation. induction. AUTHORITY: Military Selective Service Act, 50 U.S.C. 451 et seq.; E.O. 11623. § 1657.6 Transportation.

SOURCE: 52 FR 24459, July 1, 1987, unless (a) The Director shall furnish trans- otherwise noted. portation for an overseas registrant

353

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00363 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1659 32 CFR Ch. XVI (7–1–05 Edition)

from the place at which the registrant while so acting and occurs prior istrant’s order to report for induction to the completion of an emergency was sent to the place he is required to medical care, including hospitaliza- report for induction. If such registrant tion, occasioned by such illness or in- is not inducted, the Director shall fur- jury. nish him transportation from the place (d) No such claim shall be paid unless he reported for induction to the place it is presented within the period of one to which his order to report for induc- year from the date on which the ex- tion was sent. penses were incurred. (b) In the event the personal appear- (e) No such claim shall be allowed in ance before a local board or appeal case it is determined that the cause of board of an overseas registrant is re- injury, illness, or death was due to neg- quired or permitted by regulation, ligence or misconduct of the reg- travel expenses incurred in personally istrant. appearing before the board shall be at (f) Burial expenses shall not exceed the registrant’s own expense. the maximum prescribed in Section 11 of the Military Selective Service Act in PART 1659—EXTRAORDINARY any one case. EXPENSES OF REGISTRANTS (g) Payment of such claims when allowed shall be made only: (1) Directly to the person or facility AUTHORITY: Military Selective Service Act, with which the expenses were incurred; 50 U.S.C. App. 451 et seq.; E.O. 11623. or (2) By reimbursement to the reg- § 1659.1 Claims. istrant, a relative of the registrant, or (a) Claims for payment of actual and the legal representative of the reg- reasonable expenses of: istrant’s estate, for original payment (1) Emergency medical care, includ- of such expenses. ing hospitalization of registrants who suffer illness or injury; and [47 FR 4664, Feb. 1, 1982] (2) The transportation and burial of the remains of registrants who suffer PART 1662—FREEDOM OF INFOR- death while acting under orders issued MATION ACT (FOIA) PROCE- by or under the authority of the Direc- DURES tor of Selective Service will be paid in accordance with the provisions of this Sec. section. 1662.1 Applicability of this part. (b) Claims for payment of expenses 1662.2 Procedure for requesting information. incurred for the purposes set forth in 1662.3 Identification of information re- paragraph (a) of this section shall be quested. presented to the Director of Selective 1662.4 Consideration of requests for infor- Service. mation. 1662.5 Inspection, copying, and obtaining (c)(1) The term emergency medical copies. care, including hospitalization, as used in 1662.6 Fee schedule; waiver of fees. this section, shall be construed to mean such medical care or hospitaliza- AUTHORITY: 5 U.S.C. 552, as amended. tion that normally must be rendered SOURCE: 47 FR 7223, Feb. 18, 1982, unless promptly after an occurrence of illness otherwise noted. or injury. Discharge by a physician or facility subsequent to such medical § 1662.1 Applicability of this part. care or hospitalization shall be jus- The provisions of this part prescribe tification to terminate the period of the procedures for requests for infor- emergency. mation under 5 U.S.C. 552, as amended (2) The death of a registrant shall be (Freedom of Information Act). deemed to have occurred while acting under orders issued by or under the au- § 1662.2 Procedure for requesting in- thority of the Director of Selective formation. Service if it results directly from an Requests for information under the illness or injury suffered by the reg- Freedom of Information Act (FOIA)

354

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00364 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1662.6

shall be in writing and should be ad- regular business hours by writing or dressed to the Director, Selective Serv- telephoning the records manager at the ice System, ATTN: Records Manager, address listed in § 1662.2. Such mate- Washington, DC 20435. rials may be copied manually without charge, and reasonable facilities will be § 1662.3 Identification of information made available for that purpose. Also, requested. copies of individual pages of such ma- Any person who requests information terials will be made available as speci- under FOIA shall provide a reasonably fied in § 1662.6; however, the right is re- specific description of the information served to limit to a reasonable quan- sought so that it may be located with- tity the copies of such materials which out undue search. If the description is may be made available in this manner. not sufficient, the records manager will notify the requester and, to the extent § 1662.6 Fee schedule; waiver of fees. possible, indicate the additional infor- (a) Definitions. For the purposes of mation required. Every reasonable ef- this section: fort shall be made to assist a requester (1) Direct costs mean those expendi- in the identification and location of tures which the Selective Service Sys- the record or records sought. tem (SSS) actually incurs in searching for and duplicating (and in the case of § 1662.4 Consideration of requests for commercial requesters, reviewing) doc- information. uments to respond to a FOIA request. (a) Upon receipt of any request for in- Direct costs include, for example, the formation or records, the records man- salary of the employee performing ager will determine within 10 days (ex- work (the basic rate of pay for the em- cepting Saturdays, Sundays, and legal ployee plus 16 percent of the rate to federal holidays) whether it is appro- cover benefits) and the cost of oper- priate to grant the request and will im- ating duplicating machinery. Not in- mediately provide written notification cluded in direct costs are overhead ex- to the person making the request. If penses such as costs of space, and heat- the request is denied, the written noti- ing or lighting the facility in which the fication to the person making the re- records are stored. quest will include the reasons therefor (2) The term search includes all time and a notice that an appeal may be spent looking for material that is re- lodged with the Director of Selective sponsive to a request, including page- Service. by-page or line-by-line identification of (b) Appeals shall be in writing and material within documents. Search addressed to the Director of Selective should be distinguished from review of Service at the address specified in material in order to determine whether § 1662.2 of this part. The appeal shall in- the material is exempt from disclosure clude a statement explaining the basis (see paragraph (a)(4) of this section). for the appeal. Determinations of ap- Searches may be done manually or by peals will be in writing and signed by computer using existing programming. the Director, or his designee, within 20 (3) Duplication refers to the process of days (excepting Saturdays, Sundays, making a copy of a document nec- and legal federal holidays). If, on ap- essary to respond to an FOIA request. peal, the denial is in whole or in part Such copies may take the form of upheld, the written determination will paper copy, microform, audio-visual include the reasons therefor and also materials, or machine readable docu- contain a notification of the provisions mentation (e.g., magnetic tape or for judicial review. disk), among others. (4) Review refers to the process of ex- § 1662.5 Inspection, copying, and ob- amining documents located in response taining copies. to a commercial use request to deter- When a request for information has mine whether any portion of any docu- been approved in accord with § 1662.4, ment located is permitted to be with- the person making the request may held. It also includes processing any make an appointment to inspect or documents for disclosure, e.g., doing all copy the materials requested during that is necessary to excise them and

355

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00365 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1662.6 32 CFR Ch. XVI (7–1–05 Edition)

otherwise to prepare them for release. Moreover, as traditional methods of Review does not include time spent re- news delivery evolve (e.g., electronic solving general legal or policy issues dissemination of newspapers through regarding the application of exemp- telecommunications services), such al- tions. ternative media would be included in (5) The term ‘commercial use’ request this category. In the case of freelance refers to a request from or on behalf of journalists, they may be regarded as one who seeks information for the use working for a news organization if they or purpose that furthers the commer- can demonstrate a solid basis for ex- cial, trade, or profit interests of the re- pecting publication through that orga- quester or the person on whose behalf nization, even though not actually em- the request is made. In determining ployed by it. A publication contract whether a request properly belongs in would be the clearest proof, but the this category the agency must deter- agency may also look to the past publi- mine the use to which a requester will cation record of a requester in making put the documents requested. Moreover this determination. where there is reasonable cause to (b) Fees to be charged—categories of re- doubt the use to which a requester will questers. There are four categories of put the records sought, or where that FOIA requesters: Commercial use reuse is not clear from the request itself, questers; education and non-commer- the agency may seek additional clari- cial scientific institutions; representa- fication before assigning the request to tives of the news media; and other re- a specific category. questers. The FOI Reform Act pre- (6) The term educational institution re- scribes specific levels of fees for each of fers to a preschool, a public or private these categories: elementary or secondary school, an institution of graduate higher education, (1) Commercial use requesters. A re- an institution of undergraduate higher quest for documents for commercial education, an institution of profes- use will be assessed charges which re- sional education, and an institution of cover the full direct costs of searching vocational education, which operates a for, reviewing for release, and dupli- program or programs of scholarly re- cating the records sought. Requesters search. must reasonably describe the record (7) The term non-commercial scientific sought. Commercial use requesters are institution refers to an institution that not entitled to two hours of free search is not operated on a commercial basis as time nor 100 free pages of reproduction that term is referenced in paragraph of documents. The cost of searching for (a)(5) of this section, and which is oper- and reviewing records will be recovered ated solely for the purpose of con- even if there is ultimately no disclo- ducting scientific research the results sure of records (see paragraph (c)(5) of of which are not intended to promote this section). any particular product or industry. (2) Educational and non-commercial sci- (8) The term representative of the news entific institution requesters. Documents media refers to any person actively to requesters in this category will be gathering news for an entity that is or- provided for the cost of reproduction ganized and operated to publish or alone, excluding charges for the first broadcast news to the public. The term 100 pages. To be eligible for inclusion in news means information that is about this category, a requester must show current events or that would be of cur- that the request is being made as au- rent interest to the public. Examples of thorized by and under the auspices of a news media entities include television qualifying institution and that the or radio stations broadcasting to the records are not sought for a commer- public at large, and publishers of peri- cial use, but are sought in furtherance odicals (but only in those instances of scholarly (if the request is from an when they can qualify as disseminators educational institution) or scientific (if of news) who make their products the request is from a non-commercial available for purchase or subscription scientific institution) research. Re- by the general public. These examples questers must reasonably describe the are not intended to be all-inclusive. records sought.

356

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00366 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1662.6

(3) Requesters who are representatives Records Manager may also require full of the news media. Documents will be payment in advance where a requester provided to requesters in this category has previously failed to pay fees in a for the cost of reproduction alone, ex- timely fashion. cluding charges for the first 100 pages. (B) If the Records Manager estimates To be eligible for inclusion in this cat- that the fees will likely exceed $25, he egory, a requester must meet the cri- will notify the requester of the esti- teria in paragraph (a)(8) of this section, mated amount of fees, unless the re- and his or her request must not be quester has indicated in advance his made for a commercial use. A request willingness to pay fees as high as those for records supporting the news dis- anticipated. Such a notice shall offer a semination function of the requester requester the opportunity to confer shall not be considered to be a request with agency personnel with the object that is for a commercial use. Request- of reformulating the request to meet ers must reasonably describe the his or her needs at a lower cost. records sought. (3) Late charges. The Records Man- (4) All other requesters. The agency ager may assess interest charges when will charge requesters who do not fit fee payment is not made within 30 days into any of the categories above fees of the date on which the billing was which recover the full reasonable di- sent. Interest will be at the rate pre- rect cost of searching for and reproduc- scribed in section 3717 of title 31 ing records that are responsive to the U.S.C.A. request, except that the first 100 pages (4) Waiver or reduction of fees—(i) of reproduction and the first two hours Standards for determining waiver or re- of search time shall be furnished with- duction. The Records Manager shall out charge. Moreover, requests from grant a waiver or reduction of fees record subjects for records about them- chargeable under this section where it selves filed in the agency’s systems of is determined that disclosure of the in- records will continue to be treated formation is in the public interest be- under the fee provisions of the Privacy cause it is likely to contribute signifi- Act of 1974 which permit fees only for cantly to public understanding of the reproduction. operations or activities of the Selec- (c) Assessment and collection of fees— tive Service System and is not pri- (1) Aggregated requests. If the Records marily in the commercial interest of Manager reasonably believes that a re- the requester. The Records Manager quester or group of requesters is at- shall also waive fees that are less than tempting to break a request down into the average cost of collecting fees. In a series of requests for the purpose of determining whether disclosure is in evading the assessment of fees, the the public interest, the following fac- Records Manager may aggregate any tors may be considered: such requests accordingly. (A) The relation of the records to the (2) Payment procedures—(i) Fee pay- operations or activities of the System; ment. The Records Manager may assume that a person requesting records (B) The information value of the in- pursuant to this part will pay the ap- formation to be disclosed; plicable fees, unless a request includes (C) Any contribution to an under- a limitation on fees to be paid or seeks standing of the subject by the general a waiver or reduction of fees pursuant public likely to result from disclosure; to paragraph (c)(4) of this section. Un- (D) The significance of that contribu- less applicable fees are paid, the agen- tion to the public understanding of the cy may use the authorities of the Debt subject; Collection Act (Pub. L. 97-365), includ- (E) The nature of the requester’s per- ing disclosure to consumer reporting sonal interest, if any, in the disclosure agencies and use of collection agencies, requested; and where appropriate, to encourage pay- (F) Whether the disclosure would be ment. primarily in the requester’s commer- (ii) Advance payment. (A) The Records cial interest. Manager may require advance payment (ii) Contents of request for waiver. of any fee estimated to exceed $250. The The Records Manager will normally

357

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00367 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1665 32 CFR Ch. XVI (7–1–05 Edition)

deny a request for a waiver of fees that formation, packaging and mailing records, does not include: and sending records by special methods such (A) A clear statement of the request- as express mail. The Records Manager may er’s interest in the requested docu- provide self-service photocopy machines and microfiche printers as a convenience to re- ments; questers and set separate perpage fees re- (B) The use proposed for the docu- flecting the cost of operation and mainte- ments and whether the requester will nance of those machines. derive income or other benefit from such use; Fee waivers: (C) A statement of how the public For qualifying educational and non- will benefit from such use and from the commercial scientific institution requesters release of the requested documents; and representatives of the news media the and Records Manager will not assess fees for re- (D) If specialized use of the docu- view time, for the first 100 pages of reproduc- ments or information is contemplated, tion, or, when the records sought are reason- a statement of the requester’s quali- ably described, for search time. For other noncommercial use requests no fees will be fications that are relevant to the spe- assessed for review time, for the first 100 cialized use. pages of reproduction, or for the first two (iii) Burden of proof. In all cases the hours of search time. burden shall be on the requester to The Records Manager will waive in full present evidence or information in sup- fees that total less than $1.00 or that are less port of a request for a waiver of fees. than the average cost of collecting fees. (5) Fees for nonproductive search. Fees The Records Manager will also waive or re- for record searches and review may be duce fees, upon proper request, if disclosure charged even if not responsive docu- of the information is in the public interest ments are located or if the request is because it is likely to contribute significantly to public understanding of the oper- denied, particularly if the requester in- ations or activities of the System and is not sists upon a search after being in- primarily in the commercial interest of the formed that it is likely to be non- requester. productive or that any records found are likely to be exempt from disclo- [52 FR 13665, Apr. 24, 1987] sure. The Records Manager shall apply the standards set out in paragraph PART 1665—PRIVACY ACT (c)(4) of this section in determining PROCEDURES whether to waive or reduce fees. Sec. APPENDIX A TO § 1662.6— FREEDOM OF 1665.1 Rules for determining if an individual INFORMATION FEE SCHEDULE is the subject of a record. Duplication: 1665.2 Requests for access. 1665.3 Access to the accounting of disclo- Photocopy, per standard page ...... $.10 sures from records. Paper Copies of microfiche, per frame 1665.4 Requests to amend records...... $.10 1665.5 Request for review. Search and review: 1665.6 Schedule of fees. 1665.7 Information available to the public or Salary of the employee (the basic rate of to former employers of registrants. pay of the employee plus 16 percent of that 1665.8 Systems of records exempted from rate to cover benefits), performing the work certain provisions of this act. of manual search and review. AUTHORITY: 5 U.S.C. 552a. Computer search and production: SOURCE: 47 FR 7224, Feb. 18, 1982, unless For each request the Records Manager will otherwise noted. separately determine the actual direct costs of providing the service, including computer § 1665.1 Rules for determining if an in- search time, tape or printout production, dividual is the subject of a record. and operator salary. (a) Individuals desiring to know if a Special services: specific system of records maintained The Records Manager may agree to provide by the Selective Service System (SSS) and set fees to recover the costs of special contains a record pertaining to them services not covered by the Freedom of Infor- should address their inquiries to the mation Act, such as certifying records or in- Selective Service System, ATTN:

358

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00368 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1665.2

Records Manager, Public & Intergov- (b) Procedures—(1) Content of the re- ernmental Affairs, Arlington, VA 22209- quest. (i) The request for access to a 2425. The written inquiry should con- record in a system of records shall be tain a specific reference to the system addressed to the records manager, at of records maintained by Selective the address cited above, and shall name Service listed in the SSS Notices of the system of records or contain a de- Systems of Records or it should description of such system of records. scribe the type of record in sufficient The request should state that the re- detail to reasonably identify the sys- quest is pursuant to the Privacy Act of tem of records. Notice of SSS Systems 1974. In the absence of specifying solely of Records subject to the Privacy Act the Privacy Act of 1974 and, if the re- is in the FEDERAL REGISTER and copies quest may be processed under both the of the notices will be available upon re- Freedom of Information Act and the quest to the records manager. A com- Privacy Act and the request specifies pilation of such notices will also be both or neither act, the procedures made and published by the Office of under the Privacy Act of 1974 will be Federal Register, in accord with sec- employed. The individual will be ad- tion 5 U.S.C. 552a(f). vised that the procedures of the Pri- (b) At a minimum, the request should vacy Act will be utilized, of the exist- also contain sufficient information to ence and the general effect of the Free- identify the requester in order to allow dom of Information Act, and the dif- SSS to determine if there is a record ference between procedures under the pertaining to that individual in a par- two acts (e.g. fees, time limits, access). ticular system of records. In instances The request should contain necessary when the information is insufficient to information to verify the identity of insure that disclosure will be to the in- the requester (see § 1665.2(b)(2)(vi)). In dividual to whom the information per- addition, the requester should include tains, in view of the sensitivity of the any other information which may as- information, SSS reserves the right to sist in the rapid identification of the ask the requester for additional identi- record for which access is being re- fying information. quested (e.g., maiden name, dates of (c) Ordinarily the requester will be employment, etc.) as well as any other informed whether the named system of identifying information contained in records contains a record pertaining to and required by SSS Notice of Systems the requester within 10 days of receipt of Records. of such a request (excluding Saturdays, (ii) If the request for access follows a Sundays, and legal federal holidays). prior request under § 1665.1, the same Such a response will also contain or identifying information need not be in- reference the procedures which must be cluded in the request for access if a ref- followed by the individual making the erence is made to that prior cor- request in order to gain access to the respondence, or a copy of the SSS re- record. sponse to that request is attached. (d) Whenever a response cannot be (iii) If the individual specifically de- made within the 10 days, the records sires a copy of the record, the request manager will inform the requester of should so specify. the reason for the delay and the date (2) SSS action on request. A request for by which a response may be antici- access will ordinarily be answered pated. within 10 days, except when the records [47 FR 7224, Feb. 18, 1982; 69 FR 1525, Jan. 9, manager determines that access cannot 2004] be afforded in that time, in which case the requester will be informed of the § 1665.2 Requests for access. reason for the delay and an estimated (a) Requirement for written requests. date by which the request will be an- Individuals desiring to gain access to a swered. Normally access will be grant- record pertaining to them in a system ed within 30 days from the date the re- of records maintained by SSS must quest was received by the Selective submit their request in writing in ac- Service System. At a minimum, the cord with the procedures set forth in answer to the request for access shall paragraph (b) below. include the following:

359

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00369 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1665.2 32 CFR Ch. XVI (7–1–05 Edition)

(i) A statement that there is a record access. The extent of the identification as requested or a statement that there documentation required will depend on is not a record in the system of records the type of record to be accessed. In maintained by SSS; most cases, identification verification (ii) A statement as to whether access will be accomplished by the presen- will be granted only by providing copy tation of two forms of identification. of the record through the mail; or the Any additional requirements are speci- address of the location and the date fied in the system notices published and time at which the record may be pursuant to 5 U.S.C. 552a(e)(4). examined. In the event the requester is (C) Access granted by mail. For unable to meet the specified date and records to be accessed by mail, the time, alternative arrangements may be records manager shall, to the extent made with the official specified in possible, establish identity by a com- § 1665.2(b)(1); parison of signatures in situations (iii) A statement, when appropriate, where the data in the record is not so that examination in person will be the sensitive that unauthorized access sole means of granting access only could cause harm or embarrassment to when the records manager has deter- the individual to whom they pertain. mined that it would not unduly impede No identification documentation will the requester’s right of access; be required for the disclosure to the re- (iv) The amount of fees charged, if quester of information required to be any (see § 1665.6) (Fees are applicable made available to the public by 5 only to requests for copies); U.S.C. 552. When in the opinion of the (v) The name, title, and telephone records manager the granting of access number of the SSS official having oper- through the mail could reasonably be ational control over the record; and expected to result in harm or embar- (vi) The documentation required by rassment if disclosed to a person other SSS to verify the identity of the re- than the individual to whom the record quester. At a minimum, SSS’s pertains, a notarized statement of iden- verification standards include the fol- tity or some similar assurance of iden- lowing: tity will be required. (A) Current or former SSS employees. (D) Unavailability of identification doc- Current or former SSS employees re- umentation. If an individual is unable to questing access to a record pertaining produce adequate identification docu- to them in a system of records main- mentation the individual will be retained by SSS may, in addition to the quired to sign a statement asserting other requirements of this section, and identity and acknowledging that know- at the sole discretion of the official ingly or willfully seeking or obtaining having operational control over the access to a record about another person record, have his or her identity verified under false pretenses may result in a by visual observation. If the current or fine of up to $5,000. In addition, depend- former SSS employee cannot be so ing upon the sensitivity of the records identified by the official having oper- sought to be accessed, the official hav- ational control over the records, iden- ing operational control over the tification documentation will be re- records may require such further rea- quired. Employee identification cards, sonable assurances as may be consid- annuitant identification, drivers li- ered appropriate e.g., statements of censes, or the employee copy of any offi- other individuals who can attest to the cial personnel document in the record identity of the requester. No are examples of acceptable identifica- verification of identity will be required tion validation. of individuals seeking access to records (B) Other than current or former SSS which are otherwise available to any employees. Individuals other than cur- person under 5 U.S.C. 552, Freedom of rent or former SSS employees request- Information Act. ing access to a record pertaining to (E) Access by the parent of a minor, or them in a system of records main- legal guardian. A parent of a minor, tained by SSS must produce identifica- upon presenting suitable personal identi- tion documentation of the type de- fication, may access on behalf of the scribed herein, prior to being granted minor any record pertaining to the minor

360

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00370 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1665.4

maintained by SSS in a system of (B) Within any system of records per- records. A legal guardian may simi- taining to possible violations of the larly act on behalf of an individual de- Military Selective Service Act, the clared to be incompetent due to phys- identity of or any information per- ical or mental incapacity or age by a taining to any individual who provides court of competent jurisdiction. Absent information relating to a suspected vi- a court order or consent, a parent or olator will not be revealed to the sus- legal guardian has no absolute right to pected violator. This exemption is have access to a record about a child. made under the provision of 5 U.S.C. Minors are not precluded from exer- 552a(k)(2). cising on their own behalf rights given to them by the Privacy Act. § 1665.3 Access to the accounting of (F) Granting access when accompanied disclosures from records. by another individual. When an indi- Rules governing the granting of ac- vidual requesting access to his or her cess to the accounting of disclosure are record in a system of records main- the same as those for granting accesses tained by SSS wishes to be accom- to the records (including verification of panied by another individual during identity) outlined in § 1665.2. the course of the examination of the record, the individual making the re- § 1665.4 Requests to amend records. quest shall submit to the official hav- (a) Requirement for written requests. ing operational control of the record, a Individuals desiring to amend a record signed statement authorizing that per- that pertains to them in a system of son access to the record. records maintained by SSS must sub- (G) Denial of access for inadequate mit their request in writing in accord identification documentation. If the offi- with the procedures set forth herein. cial having operational control over Records not subject to the Privacy Act the records in a system of records of 1974 will not be amended in accord maintained by SSS determines that an with these provisions. However, indi- individual seeking access has not pro- viduals who believe that such records vided sufficient identification docu- are inaccurate may bring this to the mentation to permit access, the offi- attention of SSS. cial shall consult with the records (b) Procedures. (1)(i) The requests to manager prior to finally denying the amend a record in a system of records individual access. shall be addressed to the records man- (H) Review of decision to deny access. ager. Included in the request shall be Whenever the records manager deter- the name of the system and a brief de- mines, in accordance with the proce- scription of the record proposed for dures herein, that access cannot be amendment. In the event the request granted the response will also include a to amend the record is the result of the statement of the procedures to obtain a individual’s having gained access to review of the decision to deny in accord the record in accordance with the pro- with § 1665.5. visions concerning access to records as (vii) Exceptions. (A) Nothing in these set forth above, copies of previous cor- regulations shall be construed to enti- respondence between the requester and tle an individual the right to access to SSS will serve in lieu of a separate de- any information compiled in reason- scription of the record. able anticipation of a civil action or (ii) When the individual’s identity proceeding. The mere fact that records has been previously verified pursuant in a system of records are frequently to § 1665.2(b)(2)(vi), further verification the subject of litigation does not bring of identity is not required as long as those systems of records within the the communication does not suggest scope of this provision. This provision that a need for verification is present. is not intended to preclude access by If the individual’s identity has not an individual to the records which are been previously verified, SSS may re- available to that individual under the quire identification validation as de- other processes such as the Freedom of scribed in § 1665.2(b)(2)(vi). Individuals Information Act or the rules of civil desiring assistance in the preparation procedure. of a request to amend a record should

361

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00371 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1665.5 32 CFR Ch. XVI (7–1–05 Edition)

contact the records manager at the ad- (vi) A description of any other proce- dress cited above. dures which may be required of the in- (iii) The exact portion of the record dividual in order to process the appeal. the individual seeks to have amended (3) If the nature of the request for the should be clearly indicated. If possible, correction of the system of records pre- the proposed alternative language cludes a decision within 10 days, the in- should also be set forth, or at a min- dividual making the request will be in- imum, the facts which the individual formed within 10 days of the extended believes are not accurate, relevant, date for a decision. Such a decision will timely, or complete should be set forth be issued as soon as it is reasonably with such particularity as to permit possible, normally within 30 days from the receipt of the request (excluding SSS not only to understand the indi- Saturdays, Sundays, and legal Federal vidual’s basis for the request, but also holidays) unless unusual circumstances to make an appropriate amendment to preclude completing action within that the record. time. If the expected completion date (iv) The request must also set forth for the decision indicated cannot be the reasons why the individual believes met, the individual will be advised of his record is not accurate, relevant, the delay of a revised date when the de- timely, or complete. In order to avoid cision may be expected to be com- the retention by SSS of personal infor- pleted. mation merely to permit verification of records, the burden of persuading § 1665.5 Request for review. SSS to amend a record will be upon the (a) Individuals wishing to request a individual. The individual must furnish review of the decision by SSS with re- sufficient facts to persuade the official gard to any initial request to access or in charge of the system of the inaccu- amend a record in accord with the pro- racy, irrelevancy, timeliness or incom- visions of §§ 1665.2 and 1665.4, should pleteness of the record. submit the request for review in writ- (v) Incomplete or inaccurate requests ing and, to the extent possible, include will not be rejected categorically. The the information specified in § 1665.5(b). individual will be asked to clarify the Individuals desiring assistance in the request as needed. preparation of their request for review (2) SSS action on the request. To the should contact the records manager at extent possible, a decision, upon a re- the address provided herein. quest to amend a record will be made (b) The request for review should con- within 10 days, (excluding Saturdays, tain a brief description of the record Sundays, and legal Federal holidays). involved or in lieu thereof, copies of The response reflecting the decisions the correspondence from SSS in which upon a request for amendment will in- the request to access or to amend was clude the following: denied and also the reasons why the re- (i) The decision of the Selective Serv- quester believes that access should be ice System whether to grant in whole, granted or the disputed information or deny any part of the request to amended. The request for review should make reference to the information fur- amend the record. nished by the individual in support of (ii) The reasons for determination for his claim and the reasons as required any portion of the request which is de- by §§ 1665.2 and 1665.4 set forth by SSS nied. in its decision denying access or (iii) The name and address of the offi- amendment. Appeals filed without a cial with whom an appeal of the denial complete statement by the requester may be lodged. setting forth the reasons for review (iv) The name and address of the offi- will, of course, be processed. However, cial designated to assist, as necessary in order to make the appellate process and upon request of, the individual as meaningful as possible, the request- making the request in preparation of er’s disagreement should be set forth in the appeal. an understandable manner. In order to (v) A description of the review of the avoid the unnecessary retention of per- appeal with SSS (see § 1665.5). sonal information, SSS reserves the

362

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00372 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1665.6

right to dispose of the material con- ment, and if it chooses, SSS’s state- cerning the request to access or amend ment will be sent to any prior trans- a record if no request for review in ac- feree of the disputed information who cord with this section is received by is listed on the accounting required by SSS within 180 days of the mailing by 5 U.S.C. 552a(c). If the reviewing offi- SSS of its decision upon an initial re- cial determines that the record should quest. A request for review received be amended in accord with the individ- after the 180 day period may, at the ual’s request, SSS will promptly cor- discretion of the records manager, be rect the record, advise the individual, treated as an initial request to access and inform previous recipients if an ac- or amend a record. counting of the disclosure was made (c) The request for review should be pursuant to 5 U.S.C. 552a(c). The notifi- addressed to the Director of Selective cation of correction pertains to infor- Service. mation actually disclosed. (d) The Director of Selective Service will inform the requester in writing of § 1665.6 Schedule of fees. the decision on the request for review (a) Prohibitions against charging fees. within 20 days (excluding Saturdays, Individuals will not be charged for: Sundays, and legal federal holidays) (1) The search and review of the from the date of receipt by SSS of the record. individual’s request for review unless (2) Any copies of the record produced the Director extends the 20 days period as a necessary part of the process of for good cause. The extension and the making the record available for access, reasons therefor will be sent by SSS to or the requester within the initial 20 day (3) Any copies of the requested record period. Such extensions should not be when it has been determined that ac- routine and should not normally excess can only be accomplished by proceed an additional thirty days. If the viding a copy of the record through the decision does not grant in full the re- mail. quest for amendment, the notice of the (4) Where a registrant has been decision will provide a description of charged under the Military Selective the steps the individual may take to Service Act and must defend himself in obtain judicial review of such a deci- a criminal prosecution, or where a reg- sion, a statement that the individual istrant submits to induction and there- may file a concise statement with SSS after brings habeas corpus proceedings setting forth the individual’s reasons to test the validity of his induction, for his disagreement with the decision the Selective Service System will fur- and the procedures for filing such a nish to him, or to any person he may statement of disagreement. The Direc- designate, one copy of his Selective tor of Selective Service has the author- Service file free of charge. ity to determine the conciseness of the (b) Waiver. The Director of Selective statement, taking into account the Service may at no charge, provide cop- scope of the disagreement and the com- ies of a record if it is determined the plexity of the issues. Upon the filing of production of the copies is in the inter- a proper, concise statement by the in- est of the Government. dividual, any subsequent disclosure of (c) Fee schedule and method of pay- the information in dispute will be ment. Fees will be charged as provided clearly noted so that the fact that the below except as provided in paragraphs record is disputed is apparent, a copy (a) and (b) of this section. of the concise statement furnished and (1) Duplication of records. Records will a concise statement by SSS setting be duplicated at a rate of $.25 per page. forth its reasons for not making the re- (2) Fees should be paid in full prior to quested changes, if SSS chooses to file issuance of requested copies. In the such a statement. A notation of a dis- event the requester is in arrears for pute is required to be made only if an previous requests, copies will not be individual informs the agency of his provided for any subsequent request disagreement with SSS’s determina- until the arrears have been paid in full. tion in accord with § 1665.5(a), (b) and (3) Remittance shall be in the form of (c). A copy of the individual’s state- cash, a personal check or bank draft

363

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00373 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1665.7 32 CFR Ch. XVI (7–1–05 Edition)

drawn on a bank in the United States, PART 1697—SALARY OFFSET or postal money order. Remittances shall be made payable to the order of Sec. the Selective Service System and 1697.1 Purpose and scope. mailed or delivered to the records man- 1697.2 Definitions. ager, Selective Service System, Arling- 1697.3 Applicability. ton, VA 22209-2425. 1697.4 Notice requirements. (4) A receipt of fees paid will be given 1697.5 Hearing. 1697.6 Written decision. upon request. 1697.7 Coordinating offset with another Fed- [47 FR 7224, Feb. 18, 1982; 69 FR 1525, Jan. 9, eral agency. 2004] 1697.8 Procedures for salary offset. 1697.9 Refunds. § 1665.7 Information available to the 1697.10 Statute of Limitations. public or to former employers of 1697.11 Non-waiver of rights. registrants. 1697.12 Interest, penalties, and administrative costs. (a) Each area office maintains a clas- AUTHORITY: 5 U.S.C. 5514, and 5 CFR part sification record which contains the 550, subpart K. name, Selective Service number, and the current and past classifications for SOURCE: 54 FR 48098, Nov. 21, 1989, unless otherwise noted. each person assigned to that board. In- formation in this record may be in- § 1697.1 Purpose and scope. spected at the area office at which it is (a) This regulation provides proce- maintained. dures for the collection by administra- (b) Any compensated employee of the tive offset of a federal employee’s sal- Selective Service System may disclose ary without his/her consent to satisfy to the former employer of a registrant certain debts owed to the federal gov- who is serving in or who has been dis- ernment. These regulations apply to all charged from the Armed Forces wheth- federal employees who owe debts to the er the registrant has or has not been Selective Service System and to cur- discharged and, if discharged, the date rent employees of the Selective Service thereof, upon reasonable proof that the System who owe debts to other federal registrant left a position in the employ agencies. This regulation does not of the person requesting such informa- apply when the employee consents to tion in order to serve in the Armed recovery from his/her current pay ac- Forces. count. (c) Whenever an office referred to in (b) This regulation does not apply to this section is closed, the request for debts or claims arising under: information that otherwise would be (1) The Internal Revenue Code of 1954, submitted to it should be submitted to as amended, 26 U.S.C. 1 et seq.; the National Headquarters, Selective (2) The Social Security Act, 42 U.S.C. Service System, Arlington, VA 22209- 301 et seq.: 2425. (3) The tariff laws of the United States; or [47 FR 7224, Feb. 18, 1982; 69 FR 1525, Jan. 9, (4) Any case where a collection of a 2004] debt by salary offset is explicitly provided for or prohibited by another stat- § 1665.8 Systems of records exempted ute (e.g., travel advances in 5 U.S.C. from certain provisions of this act. 5705 and employee training expenses in Pursuant to 5 U.S.C. 552a(k)(2), the 5 U.S.C. 4108). Selective Service System will not re- (c) This regulation does not apply to veal to the suspected violator the in- any adjustment to pay arising out of formant’s name or other identifying in- an employee’s selection of coverage or formation relating to the informant. a change in coverage under a federal benefits program requiring periodic de- [47 FR 24543, June 7, 1982] ductions from pay if the amount to be recovered was accumulated over four PART 1690 [RESERVED] pay periods or less. 364

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00374 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1697.4

(d) This regulation does not preclude Disposable pay means the amount the compromise, suspension, or termi- that remains from an employee’s fed- nation of collection action where ap- eral pay after required deductions for propriate under the standards imple- social security, federal, state or local menting the Federal Claims Collection income tax, health insurance pre- Act 31 U.S.C. 3711 et seq. 4 CFR parts 101 miums, retirement contributions, life through 105 and 45 CFR part 1177. insurance premiums, federal employ- (e) This regulation does not preclude ment taxes, and any other deductions an employee from requesting waiver of that are required to be withheld by an overpayment under 5 U.S.C. 5584, 10 law. U.S.C. 2774 or 32 U.S.C. 716 or in any Employee means a current employee way questioning the amount or valid- of an agency, including a current mem- ity of the debt by submitting a subse- ber of the Armed Forces or a Reserve of quent claim to the General Accounting the Armed Forces (Reserves). Office. This regulation does not pre- Hearing official means an individual clude an employee from requesting a responsible for conducting any hearing waiver pursuant to other statutory with respect to the existence or provisions applicable to the particular amount of a debt claimed, and who ren- debt being collected. ders a decision on the basis of such (f) Matters not addressed in these hearing. A hearing official may not be regulations should be reviewed in ac- under the supervision or control of the cordance with the Federal Claims Col- Director of Selective Service. lection Standards at 4 CFR 101.1 et seq. Paying Agency means the agency that employs the individual who owes the § 1697.2 Definitions. debt and authorizes the payment of his/ For the purposes of the part the fol- her current pay. lowing definitions will apply: Salary offset means an administrative offset to collect a debt pursuant to 5 Agency means an executive agency as U.S.C. 5514 by deduction(s) at one or is defined at 5 U.S.C. 105 including the more officially established pay inter- U.S. Postal Service and the U.S. Postal vals from the current pay account of Rate Commission; a military depart- an employee without his/her consent. ment as defined in 5 U.S.C. 102; an agency or court in the judicial branch, Waiver means the cancellation, re- including a court as defined in section mission, forgiveness, or non-recovery 610 of title 28 U.S.C., the District Court of a debt allegedly owed by an em- for the Northern Mariana Islands, and ployee to an agency as permitted or re- the Judicial Panel on Multidistrict quired by 5 U.S.C. 5584, 10 U.S.C. 2774., Litigation; an agency of the legislative 32 U.S.C. 716, 5 U.S.C. 8346(b), or any branch including the U.S. Senate and other law. House of Representatives; and other § 1697.3 Applicability. independent establishments that are entities of the federal government. (a) These regulations are to be fol- Creditor agency means the agency to lowed when: which the debt is owed. (1) The Selective Service System is Debt means an amount owed to the owed a debt by an individual currently United States from sources which in- employed by another federal agency; clude loans insured or guaranteed by (2) The Selective Service System is the United States and all other owed a debt by an individual who is a amounts due the United States from current employee of the Selective fees, leases, rents, royalties, services, Service System; or sales of real or personal property, over- (3) The Selective Service System em- payments, penalties, damages, inter- ploys an individual who owes a debt to ests, fines, forfeitures (except those another federal agency. arising under the Uniform Code of Mili- tary Justice) and all other similar § 1697.4 Notice requirements. sources. (a) Deductions shall not be made un- Director means the Director of Selec- less the employee is provided with tive Service or his designee. written notice signed by the Director

365

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00375 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1697.5 32 CFR Ch. XVI (7–1–05 Edition)

of the debt at least 30 days before sal- erning the program for which the col- ary offset commences. lection is being made; and (b) The written notice shall contain: (13) Unless there are contractual or (1) A statement that the debt is owed statutory provisions to the contrary, a and an explanation of its nature and statement that amounts paid on or de- amount; ducted for the debt which are later (2) The agency’s intention to collect waived or found not owed to the United the debt by deducting from the employ- States will be promptly refunded to the ee’s current disposable pay account; employee. (3) The amount, frequency, proposed beginning date, and duration of the in- § 1697.5 Hearing. tended deduction(s); (a) Request for hearing. (1) An em- (4) An explanation of interest, pen- ployee must file a petition for a hear- alties, and administrative charges, in- ing in accordance with the instructions cluding a statement that such charges outlined in the agency’s notice to off- will be assessed unless excused in ac- set. cordance with the Federal Claims Col- (2) A hearing may be requested by fil- lection Standards at 4 CFR 101.1 et seq.; ing a written petition addressed to the (5) The employee’s right to inspect or Director of Selective Service stating request and receive a copy of govern- why the employee disputes the exist- ment records relating to the debt; ence or amount of the debt. The peti- (6) The opportunity to establish a tion for a hearing must be received by written schedule for the voluntary re- the Director no later than fifteen (15) payment of the debt; calendar days after the date of the no- (7) The right to a hearing conducted tice to offset unless the employee can by an impartial hearing official; show good cause for failing to meet the (8) The methods and time period for deadline date. petitioning for hearings; (b) Hearing procedures. (1) The hearing (9) A statement that the timely filing will be presided over by an impartial of a petition for a hearing will stay the hearing official. commencement of collection pro- (2) The hearing shall conform to proceedings; cedures contained in the Federal (10) A statement that a final decision Claims Collection Standards 4 CFR on the hearing will be issued not later 102.3(c). The burden shall be on the em- than 60 days after the filing of the peti- ployee to demonstrate that the exist- tion requesting the hearing unless the ence or the amount of the debt is in employee requests and the hearing offi- error. cial grants a delay in the proceedings; (11) A statement that any knowingly § 1697.6 Written decision. false or frivolous statements, represen- (a) The hearing official shall issue a tations, or evidence may subject the written opinion no later than 60 days employee to: after the hearing. (i) Disciplinary procedures appro- (b) The written opinion will include: priate under chapter 75 of title 5 a statement of the facts presented to U.S.C., part 752 of title 5, Code of Fed- demonstrate the nature and origin of eral Regulations, or any other applica- the alleged debt; the hearing official’s ble statutes or regulations; analysis, findings and conclusions; the (ii) Penalties under the False Claims amount and validity of the debt, and Act, sections 3729 through 3731 of title the repayment schedule, if applicable. 31 U.S.C., or any other applicable statutory authority; or § 1697.7 Coordinating offset with an- (iii) Criminal penalties under sec- other federal agency. tions 286, 287, 1001, and 1002 of title 18 (a) The Selective Service System as the U.S.C., or any other applicable statu- creditor agency. (1) When the Director tory authority. determines that an employee of a fed- (12) A statement of other rights and eral agency owes a delinquent debt to remedies available to the employee the Selective Service System, the Di- under statutes or regulations gov- rector shall as appropriate:

366

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00376 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1697.9

(i) Arrange for a hearing upon the pay interval. The employee must re- proper petitioning by the employee; ceive written notice that the Selective (ii) Certify in writing to the paying Service System has received a certified agency that the employee owes the debt claim from the creditor agency, debt, the amount and basis of the debt, the amount of the debt, the date salary the date on which payment is due, the offset will begin, and the amount of the date the government’s right to collect deduction(s). The Selective Service the debt accrued, and that Selective System shall not review the merits of Service System regulations for salary the creditor agency’s determination of offset have been approved by the Office the validity or the amount of the cer- of Personnel Management; tified claim. (iii) If collection must be made in in- (2) If the employee transfers to an- stallments, the Director must advise other agency after the creditor agency the paying agency of the amount or has submitted its debt claim to the Se- percentage of disposable pay to be collective Service System and before the lected in each installment; debt is collected completely, the Selec- (iv) Advise the paying agency of the tive Service System must certify the actions taken under 5 U.S.C. 5514(b) total amount collected. One copy of the and provide the dates on which action certification must be furnished to the was taken unless the employee has employee. A copy must be furnished consented to salary offset in writing or the creditor agency with notice of the signed a statement acknowledging re- employee’s transfer. ceipt of procedures required by law. The written consent or acknowledge- § 1697.8 Procedures for salary offset. ment must be sent to the paying agen- (a) Deductions to liquidate an em- cy; ployee’s debt will be by the method and (v) If the employee is in the process in the amount stated in the Director’s of separating, the Selective Service notice of intention to offset as provided System must submit its debt claim to in § 1697.4. Debts will be collected in the paying agency as provided in this one lump sum where possible. If the part. The paying agency must certify employee is financially unable to pay any amounts already collected, notify in one lum sum, collection must be the employee and send a copy of the made in installments. certification and notice of the employ- (b) Debts will be collected by deduc- ee’s separation to the creditor agency. tion at officially established pay inter- If the creditor agency is aware that the vals from an employee’s current pay employee is entitled to Civil Service account unless alternative arrange- Retirement and Disability Fund or ments for repayment are made with similar payments, it must certify to the approval of the Director. the agency responsible for making such (c) Installment deductions will be payments the amount of the debt and made over a period not greater than that the provisions of this part have the anticipated period of employment. been followed; and The size of installment deductions (vi) If the employee has already sepa- must bear a reasonable relationship to rated and all payments due from the the size of the debt and the employee’s paying agency have been paid, the Di- ability to pay. The deduction for the rector may request, unless otherwise pay intervals for any period must not prohibited, that money payable to the exceed 15% of disposable pay unless the employee from the Civil Service Re- employee has agreed in writing to a de- tirement and Disability Fund or other duction of a greater amount. similar funds be collected by adminis- (d) Unliquidated debts may be offset trative offset as provided under 5 CFR against any financial payment due to a 831.1801 or other provisions of law or separated employee including but not regulation. limited to final salary or leave pay- (b) The Selective Service System as the ment in accordance with 31 U.S.C. 3716. paying agency. (1) Upon receipt of a properly certified debt claim from an- § 1697.9 Refunds. other agency, deductions will be sched- (a) The Selective Service System will uled to begin at the next established refund promptly any amounts deducted

367

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00377 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1697.10 32 CFR Ch. XVI (7–1–05 Edition)

to satisfy debts owed to the Selective SOURCE: 52 FR 24460, July 1, 1987, unless Service System when the debt is otherwise noted. waived, found not owed to the Selec- tive Service System, or when directed § 1698.1 Purpose. by an administrative or judicial order. The provisions of this part prescribe (b) The creditor agency will promptly the procedures for requesting and proc- return any amounts deducted by the essing requests for advisory opinions Selective Service System to satisfy relative to a named individual’s liabil- debts owed to the creditor agency when ity for registration under the Military the debt is waived, found not owed, or Selective Service Act (MSSA), 50 when directed by an administrative or U.S.C. App. 451 et seq. judicial order. (c) Unless required by law, refunds § 1698.2 Requests for advisory opin- under this subsection shall not bear in- ions. terest. (a) Any male born after December 31, § 1697.10 Statute of Limitations. 1959 who has attained 18 years of age If a debt has been outstanding for may request an advisory opinion as to more than 10 years after the agency’s his liability to register under MSSA. A right to collect the debt first accrued, parent or guardian of such person who the agency may not collect by salary is unable to make a request for an ad- offset unless facts material to the gov- visory opinion may request an advisory ernment’s right to collect were not opinion for him. Any Federal, state or known and could not reasonably have municipal governmental agency may been known by the official or officials request an advisory opinion as to the who were charged with the responsi- liability of any male person born after bility for discovery and collection of December 31, 1959 who has attained 18 such debts. years of age to register under MSSA. § 1697.11 Non-waiver of rights. (b) Requests for advisory opinions shall be in writing and addressed to Di- An employee’s involuntary payment rector of Selective Service, ATTN: SIL, of all or any part of a debt collected P.O. Box 94638, Palatine, IL 60094–4638. under these regulations will not be With respect to the person concerning construed as a waiver of any rights that employee may have under 5 U.S.C. whom an advisory opinion is requested, 5514 or any other provision of contract the following should be furnished: full or law unless there are statutes or con- name, address, date of birth, Social Se- tract(s) to the contrary. curity Account Number, basis for the opinion that the registration require- § 1697.12 Interest, penalties, and ad- ment is inapplicable to him, and, if ap- ministrative costs. plicable, basis for his assertion that his Charges may be assessed for interest, failure to register ‘‘. . . was not a penalties, and administrative costs in knowing and willful failure to reg- accordance with the Federal Claims ister.’’ Collection Standards, 4 CFR 102.13 [52 FR 24460, July 1, 1987, as amended at 65 FR 47670, Aug. 3, 2000] PART 1698—ADVISORY OPINIONS § 1698.3 Requests for additional infor- Sec. mation. 1698.1 Purpose. 1698.2 Requests for advisory opinions. (a) The Director may request addi- 1698.3 Requests for additional information. tional appropriate information from 1698.4 Confidentiality of advisory opinions the requester for an advisory opinion. and requests for advisory opinions. (b) The Director will forward a copy 1698.5 Basis for advisory opinions. 1698.6 Issuance of advisory opinions. of the request by a Federal, state or 1698.7 Reconsideration of advisory opinion. municipal governmental agency for an 1698.8 Effect of advisory opinions. advisory opinion to the person to AUTHORITY: Military Selective Service Act, whom the request pertains and invite 50 U.S.C. 451 et seq.; E.O. 11623. his comments on it.

368

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00378 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1699.103

§ 1698.4 Confidentiality of advisory 1699.130 General prohibitions against dis- opinions and requests for advisory crimination. opinions. 1699.131–1699.139 [Reserved] 1699.140 Employment. Advisory opinions will be confiden- 1699.141–1699.148 [Reserved] tial except as provided in § 1698.6. Re- 1699.149 Program accessibility: discrimina- quests for advisory opinions will be tion prohibited. confidential except as provided in 1699.150 Program accessibility: existing fa- § 1698.3. cilities. 1699.151 Program accessibility: new con- § 1698.5 Basis of advisory opinions. struction and alterations. 1699.152–1699.159 [Reserved] Advisory opinions will be based on 1699.160 Communications. the request therefor, responses to re- 1699.161–1699.169 [Reserved] quests for information, and matters of 1699.170 Compliance procedure. which the Director can take official 1699.171–1699.999 [Reserved] notice. AUTHORITY: 9 U.S.C. 794.

SOURCE: 50 FR 35219, Aug. 30, 1985, unless § 1698.6 Issuance of advisory opinions. otherwise noted. A copy of the advisory opinion will be furnished, without charge, to the re- § 1699.101 Purpose. quester therefor and to the individual The purpose of this part is to effec- to whom it pertains. A copy of an advi- tuate section 119 of the Rehabilitation, sory opinion will be furnished, without Comprehensive Services, and Develop- charge, to any Federal, state, or mu- mental Disabilities Amendments of nicipal governmental agency upon re- 1978, which amended section 504 of the quest. Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap § 1698.7 Reconsideration of advisory in programs or activities conducted by opinions. Executive agencies or the United Whenever the Director has reason to States Postal Service. believe that there is substantial error in the information on which an advi- § 1699.102 Application. sory opinion is based, he may recon- This part applies to all programs or sider it and issue an appropriate re- activities conducted by the agency. vised opinion. § 1699.103 Definitions. § 1698.8 Effect of advisory opinion. For purposes of this part, the term— The Selective Service System will Agency means the Selective Service not take action with respect to any System. person concerning whom the Director Assistant Attorney General means the has issued an advisory opinion Assistant Attorney General, Civil insonsistent with that advisory opin- Rights Division, United States Depart- ion. ment of Justice. Auxiliary aids means services or de- PART 1699—ENFORCEMENT OF vices that enable persons with im- NONDISCRIMINATION ON THE paired sensory, manual, or speaking BASIS OF HANDICAP IN PRO- skills to have an equal opportunity to GRAMS OR ACTIVITIES CON- participate in, and enjoy the benefits of, programs or activities conducted by DUCTED BY SELECTIVE SERVICE the agency. For example, auxiliary aids SYSTEM useful for persons with impaired vision include readers, Brailled materials, Sec. audio recordings, telecommunications 1699.101 Purpose. devices and other similar services and 1699.102 Application. 1699.103 Definitions. devices. Auxiliary aids useful for per- 1699.104–1699.109 [Reserved] sons with impaired hearing include 1699.110 Self-evaluation. telephone handset amplifiers, tele- 1699.111 Notice. phones compatible with hearing aids, 1699.112–1699.129 [Reserved] telecommunication devices for deaf

369

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00379 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 §§ 1699.104–1699.109 32 CFR Ch. XVI (7–1–05 Edition)

persons (TDD’s), interpreters, misclassified as having, a mental or notetakers, written materials, and physical impairment that substantially other similar services and devices. limits one or more major life activi- Complete complaint means a written ties. statement that contains the complain- (4) Is regarded as having an impairment ant’s name and address and describes means— the agency’s alleged discriminatory ac- (i) Has a physical or mental impair- tion in sufficient detail to inform the ment that does not substantially limit agency of the nature and date of the al- major life activities but is treated by leged violation of section 504. It shall the agency as constituting such a limi- be signed by the complainant or by tation; someone authorized to do so on his or (ii) Has a physical or mental impair- her behalf. Complaints filed on behalf ment that substantially limits major of classes or third parties shall describe life activities only as a result of the at- or identify (by name, if possible) the titudes of others toward such impair- alleged victims of discrimination. ment; or Facility means all or any portion of (iii) Has none of the impairments de- buildings, structures, equipment, fined in paragraph (l) of this definition roads, walks, parking lots, rolling but is treated by the agency as having stock or other conveyances, or other such an impairment. real or personal property. Qualified handicapped person means— Handicapped person means any person (1) With respect to any agency pro- who has a physical or mental impair- gram or activity under which a person ment that substantially limits one or is required to perform services or to more major life activities, has a record achieve a level of accomplishment, a of such an impairment, or is regarded handicapped person who meets the es- as having such an impairment. sential eligibility requirements and As used in this definition, the phrase: who can achieve the purpose of the pro- (1) Physical or mental impairment in- gram or activity without modifications cludes— in the program or activity that the (i) Any physiological disorder or con- agency can demonstrate would result dition, cosmetic disfigurement, or ana- in a fundamental alteration in its na- tomical loss affecting one or more of ture; or the following body systems: Neuro- (2) With respect to any other pro- logical; musculoskeletal; special sense gram or activity, a handicapped person organs; respiratory, including speech who meets the essential eligibility re- organs; cardiovascular; reproductive; quirements for participation in, or re- digestive; genitourinary; hemic and ceipt of benefits from, that program or lymphatic; skin; and endocrine; or activity. (ii) Any mental or psychological dis- Section 504 means section 504 of the order, such as mental retardation, or- Rehabilitation Act of 1973 (Pub. L. 93– ganic brain syndrome, emotional or 112, 87 Stat. 394 (29 U.S.C. 794)), as mental illness, and specific learning amended by the Rehabilitation Act disabilities. The term physical or mental Amendments of 1974 (Pub. L. 93–516, 88 impairment includes, but is not limited Stat. 1617), and the Rehabilitation, to, such disease and conditions as or- Comprehensive Services, and Develop- thopedic, visual, speech, and hearing ment Disabilities Amendments of 1978 impairments, cerebral palsy, epilepsy, (Pub. L. 95–602, 92 Stat. 2955). As used muscular dystrophy, multiple sclerosis, in this part, section 504 applies only to cancer, heart disease, diabetes, mental programs or activities conducted by retardation, emotional illness, and Executive agencies and not to federally drug addition and alcoholism. assisted programs. (2) Major life activities includes functions such as caring for one’s self, per- §§ 1699.104–1699.109 [Reserved] forming manual tasks, walking, seeing, hearing, speaking, breathing, learning, § 1699.110 Self-evaluation. and working. (a) The agency shall, within one year (3) Has a record of such an impairment of the effective date of this part, evalu- means has a history of, or has been ate its current policies and practices,

370

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00380 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1699.130

and the effects thereof, that do not or (ii) Afford a qualified handicapped may not meet the requirements of this person an opportunity to participate in part, and, to the extent modification of or benefit from the aid, benefit, or any such policies and practices is re- service that is not equal to that af- quired, the agency shall proceed to forded others; make the necessary modifications. (iii) Provide a qualified handicapped (b) The agency shall provide an op- person with an aid, benefit, or service portunity to interested persons, includ- that is not as effective in affording ing handicapped persons or organiza- equal opportunity to obtain the same tions representing handicapped per- result, to gain the same benefit, or to sons, to participate in the self-evalua- reach the same level of achievement as tion process by submitting comments that provided to others; (both oral and written). (iv) Provide different or separate aid, (c) The agency shall, for at least benefits, or services to handicapped three years following completion of the persons or to any class of handicapped evaluation required under paragraph persons than is provided to others un- (a) of this section, maintain on file and less such action is necessary to provide make available for public inspection— qualified handicapped persons with (1) A description of areas examined aids, benefits, or services that are as and any problems identified; and effective as those provided to others; (v) Deny a qualified handicapped per- (2) A description of any modifications son the opportunity to participate as a made. member of planning or advisory boards; § 1699.111 Notice. or (vi) Otherwise limit a qualified The agency shall make available to handicapped person in the enjoyment employees, applicants, participants, of any right, privilege, advantage, or beneficiaries, and other interested per- opportunity enjoyed by others receiv- sons such information regarding the ing the aid, benefit, or service. provisions of this part and its applica- (2) The agency may not deny a quali- bility to the programs or activities fied handicapped person the oppor- conducted by the agency, and make tunity to participate in programs or such information available to them in activities that are not separate or dif- such manner as the agency head finds ferent, despite the existence of permis- necessary to apprise such persons of sibly separate or different programs or the protections against discrimination activities. assured them by section 504 and its reg- (3) The agency may not, directly or ulation. through contractual or other arrangements, utilize criteria or methods of §§ 1699.112–1699.129 [Reserved] administration the purpose or effect of which would— § 1699.130 General prohibitions (i) Subject qualified handicapped per- against discrimination. sons to discrimination on the basis of (a) No qualified handicapped person handicap; or shall, on the basis of handicap, be ex- (ii) Defeat or substantially impair ac- cluded from participation in, be denied complishment of the objectives of a the benefits of, or otherwise be sub- program or activity with respect to jected to discrimination under any pro- handicapped persons. gram or activity conducted by the (4) The agency may not, in deter- agency. mining the site or location of a facil- (b)(1) The agency, in providing any ity, make selections the purpose or ef- aid, benefit or service, may not, di- fect of which would— rectly or through contractual, licens- (i) Exclude handicapped persons ing, or other arrangements, on the from, deny them the benefits of, or oth- basis of handicap— erwise subject them to discrimination (i) Deny a qualified handicapped per- under, any program or activity con- son the opportunity to participate in ducted by the agency; or or benefit from the aid, benefit, or (ii) Defeat or substantially impair service; the accomplishment of the objectives

371

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00381 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 §§ 1699.131–1699.139 32 CFR Ch. XVI (7–1–05 Edition)

of a program or activity with respect benefits of, be excluded from participa- to handicapped persons. tion in, or otherwise be subject to dis- (5) The agency, in the selection of crimination under any program or ac- procurement contractors, may not use tivity conducted by the agency. criteria that subject qualified handicapped persons to discrimination on § 1699.150 Program accessibility: exist- the basis of handicap. ing facilities. (6) The agency may not administer a (a) General. The agency shall operate licensing or certification program in a each program or activity so that the manner that subjects qualified handi- program or activity, when viewed in its capped persons to discrimination on entirety, is readily accessible to and the basis of handicap, nor may the usable by handicapped persons. This agency establish requirements for the paragraph does not— programs or activities of licensees or (1) Necessarily require the agency to certified entities that subject qualified handicapped persons to discrimination make each of its existing facilities ac- on the basis of handicap. However, the cessible to and usable by handicapped programs or activities of entities that persons; are licensed or certified by the agency (2) Require the agency to take any are not, themselves, covered by this action that it can demonstrate would part. result in a fundamental alteration in (c) The exclusion of nonhandicapped the nature of a program or activity or persons from the benefits of a program in undue financial and administrative limited by Federal statute or Execu- burdens. In those circumstances where tive order to handicapped persons or agency personnel believe that the pro- the exclusion of a specific class of posed action would fundamentally handicapped persons from a program alter the program or activity or would limited by Federal statute or Execu- result in undue financial and adminis- tive order to a different class of handi- trative burdens, the agency has the capped person is not prohibited by this burden of proving that compliance with part. § 1699.150(a) would result in such alter- (d) The agency shall administer pro- ations or burdens. The decision that grams and activities in the most inte- compliance would result in such alter- grated setting appropriate to the needs ation or burdens must be made by the of qualified handicapped persons. agency head after considering all agency resources available for use in the §§ 1699.131–1699.139 [Reserved] funding and operation of the conducted § 1699.140 Employment. program or activity, and must be accompanied by a written statement of No qualified handicapped person the reasons for reaching that conclu- shall, on the basis of handicap, be sub- sion. If an action would result in such jected to discrimination in employ- an alteration or such burdens, the ment under any program or activity agency shall take any other action conducted by the agency. The defini- that would not result in such an alter- tions, requirements and procedures of ation or such burdens but would never- section 501 of the Rehabilitation Act of theless ensure that handicapped per- 1973 (29 U.S.C. 791), as established in 29 sons receive the benefits and services CFR part 1613, shall apply to employ- of the program or activity. ment in federally conducted programs or activities. (b) Methods. The agency may comply with the requirements of this section §§ 1699.141–1699.148 [Reserved] through such means as redesign of equipment, reassignment of services to § 1699.149 Program accessibility: dis- accessible buildings, assignment of crimination prohibited. aides to beneficiaries, home visits, de- Except as otherwise provided in livery of services at alternate acces- § 1699.150, no qualified handicapped per- sible sites, alteration of existing facili- sons shall, because the agency’s facilities and construction of new facilities, ties are inaccessible to or unusable by use of accessible rolling stock, or any handicapped persons, be denied the other methods that result in making

372

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00382 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Selective Service System § 1699.160

its programs or activities readily ac- (4) Indicate the officials responsible cessible to and usable by handicapped for implementation of the plan. persons. The agency is not required to make structural changes in existing fa- § 1699.151 Program accessibility: new cilities where other methods are effec- construction and alterations. tive in achieving compliance with this Each building or part of a building section. The agency, in making alter- that is constructed or altered by, on ations to existing buildings, shall meet behalf of, or for the use of the agency accessibility requirements to the ex- shall be designed, constructed, or al- tent compelled by the Architectural tered so as to be readily accessible to Barriers Act of 1968, as amended (42 and usable by handcapped persons. The U.S.C. 4141 through 4157), and any regu- definitions, requirements, and stand- lations implementing it. In choosing ards of the Architectural Barriers Act among available methods for meeting (42 U.S.C. 4151 through 4157), as estab- the requirements of this section, the lished in 41 CFR 101–19.600 to 14–19.607, agency shall give priority to those methods that offer programs and ac- apply to buildings covered by this sec- tivities to qualified handicapped per- tion. sons in the most integrated setting ap- §§ 1699.152–1699.159 [Reserved] propriate. (c) Time period for compliance. The § 1699.160 Communications. agency shall comply with the obligations established under this section (a) The agency shall take appropriate within sixty days of the effective date steps to ensure effective communica- of this part except that where struction with applicants, participants, per- tural changes in facilities are under- sonnel of other Federal entities, and taken, such changes shall be made members of the public. within three years of the effective date (1) The agency shall furnish appro- of this part, but in any event as expedi- priate auxiliary aid where necessary to tiously as possible. afford a handicapped person an equal (d) Transition plan. In the event that opportunity to participate in, and structural changes to facilities will be enjoy the benefits of, a program or ac- undertaken to achieve program acces- tivity conducted by the agency. sibility, the agency shall develop, with- (i) In determining what type of auxil- in six months of the effective date of iary aid is necessary, the agency shall this part, a transition plan setting give primary consideration to the re- forth the steps necessary to complete quests of the handicapped person. such changes. The agency shall provide (ii) The agency need not provide indian opportunity to interested persons, vidually prescribed devices, readers for including handicapped persons or orga- personal use or study, or other devices nizations representing handicapped of a personal nature. persons, to participate in the develop- (2) Where the agency communicates ment of the transition by submitting with applicants and beneficiaries by comments (both oral and written). A copy of the transition plan shall be telephone, telecommunications devices made available for public inspection. for deaf persons (TDD’s), or equally ef- The plan shall, at a minimum— fective telecommunication systems (1) Identify physical obstacles in the shall be used. agency’s facilities that limit the acces- (b) The agency shall ensure that in- sibility of its programs or activities to terested persons, including persons handicapped persons; with impaired vision or hearing, can (2) Describe in detail the methods obtain information as to the existence that will be used to make the facilities and location of accessible services, ac- accessible; tivities, and facilities. (3) Specify the schedule for taking (c) The agency shall provide signs at the steps necessary to achieve compli- a primary entrance to each of its inac- ance with this section and, at the time, cessible facilities, directing users to a identify steps that will be taken during location at which they can obtain in- each year of the transition period; and formation about accessible facilities.

373

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00383 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 §§ 1699.161–1699.169 32 CFR Ch. XVI (7–1–05 Edition)

The international symbol for accessi- days of the alleged act of discrimina- bility shall be used at each primary en- tion. The agency may extend this time trance of an accessible facility. period for good cause. (d) This section does not require the (e) If the agency receives a complaint agency to take any action that it can over which it does not have jurisdic- demonstrate would result in a funda- tion, it shall promptly notify the com- mental alteration in the nature of a plainant and shall make reasonable ef- program or activity or in undue finan- forts to refer the complaint to the ap- cial and administrative burdens. In propriate government entity. those circumstances where agency per- (f) The agency shall notify the Archi- sonnel believe that the proposed action tectural and Transportation Barriers would fundamentally alter the program Compliance Board upon receipt of any or activity or would result in undue fi- complaint alleging that a building or nancial and administrative burdens, facility that is subject to the Architec- the agency has the burden of proving tural Barriers Act of 1968, as amended that compliance with § 1699.160 would (42 U.S.C. 4151 through 4157), or section result in such alteration or burdens. 502 of the Rehabilitation Act of 1973, as The decision that compliance would re- amended (29 U.S.C. 792), is not readily sult in such alteration or burdens must accessible and usable to handicapped be made by the agency head after con- persons. sidering all agency resources available (g) Within 180 days of the receipt of a for use in the funding and operation of complete complaint for which it has ju- the conducted program or activity, and risdiction, the agency shall notify the must be accompanied by a written complainant of the results of the inves- statement of the reasons for reaching tigation in a letter containing— that conclusion. If an action required (1) Findings of fact and conclusion of to comply with this section would re- law; sult in such burdens, the agency shall (2) A description of a remedy of each take any other action that would not violation found; and result in such an alteration or such (3) A notice of the right to appeal. burdens but would nevertheless ensure (h) Appeals of the findings of fact and conclusions of law or remedies must be that, to the maximum extent possible, filed by the complainant within 90 days handicapped persons receive the bene- of receipt from the agency of the letter fits and services of the program or ac- required by § 1699.170(g). The agency tivity. may extend this time for good cause. §§ 1699.161–1699.169 [Reserved] (i) Timely appeals shall be accepted and processed by the Director of Selec- § 1699.170 Compliance procedure. tive Service. (j) The agency shall notify the com- (a) Except as provided in paragraph plainant of the results of the appeal (b) of this section, this section applies within 60 days of the receipt of the re- to all allegations of discrimination on quest. If the agency determines that it the basis of handicap in programs or needs additional information from the activities conducted by the agency. complainant, it shall have 60 days from (b) The agency shall process com- the date it receives the additional in- plaints alleging violations of section formation to make its determination 504 with respect to employment accord- on the appeal. ing to the procedures established in 29 (k) The time limits cited in para- CFR part 1613 pursuant to section 501 graphs (g) and (j) of this section may be of the Rehabilitation Act of 1973 (29 extended with the permission of the U.S.C. 791). Assistant Attorney General. (c) Responsibility for implementa- (l) The agency may delegate its au- tion and operation of this section shall thority for conducting complaint in- be vested in the Associate Director for vestigations to other Federal agencies, Administration. except that the authority for making (d) The agency shall accept and in- the final determination may not be vestigate all complete complaints for delegated. which it has jurisdiction. All complete complaints must be filed within 180 §§ 1699.171–1699.999 [Reserved] 374

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00384 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 CHAPTER XVIII—NATIONAL COUNTERINTELLIGENCE CENTER

Part Page 1800 Public access to NACIC records under the Freedom of Information Act (FOIA) ...... 377 1801 Public rights under the Privacy Act of 1974 ...... 386 1802 Challenges to classification of documents by authorized holders pusuant to section 1.9 of Execu- tive Order 12958 ...... 394 1803 Public requests for mandatory declassification review of classified information pusuant to section 3.6 of Executive Order 12958 ...... 397 1804 Access by historical researchers and former presidential appointees pusuant to section 4.5 of Exec- utive Order 12958 ...... 401 1805 Production of official records or disclosure of official information in proceedings before Federal, State or local Government entities of competent juridiction ...... 404 1806 Procedures governing acceptance of service of process ...... 406 1807 Enforcement of nondiscrimination on the basis of disability in programs or activities conducted by the National Counterintelligence Center ...... 407

375

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00385 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00386 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PART 1800—PUBLIC ACCESS TO amended (50 U.S.C. 403). It prescribes NACIC RECORDS UNDER THE procedures for: FREEDOM OF INFORMATION ACT (a) Requesting information on avail- (FOIA) able NACIC records, or NACIC administration of the FOIA, or estimates of fees that may become due as a result of Subpart A—General a request; Sec. (b) Requesting records pursuant to 1800.1 Authority and purpose. the FOIA; and 1800.2 Definitions. (c) Filing an administrative appeal of 1800.3 Contact for general information and an initial adverse decision under the requests. 1800.4 Suggestions and complaints. FOIA.

Subpart B—Filing of FOIA Requests § 1800.2 Definitions. For purposes of this part, the fol- 1800.11 Preliminary information. lowing terms have the meanings indi- 1800.12 Requirements as to form and content. cated: 1800.13 Fees for record services. NACIC means the United States Na- 1800.14 Fee estimates (pre-request option). tional Counterintelligence Center acting through the NACIC Information Subpart C—NACIC Action on FOIA and Privacy Coordinator; Requests Days means calendar days when 1800.21 Processing of requests for records. NACIC is operating and specifically ex- 1800.22 Action and determination(s) by cludes Saturdays, Sundays, and legal originator(s) or any interested party. public holidays. Three (3) days may be 1800.23 Payment of fees, notification of de- added to any time limit imposed on a cision, and right of appeal. requester by this part if responding by U.S. domestic mail; otherwise ten (10) Subpart D—Additional Administrative days may be added if responding by Matters international mail; 1800.31 Procedures for business information. Control means ownership or the au- 1800.32 Procedures for information con- thority of NACIC pursuant to federal cerning other persons. statute or privilege to regulate official 1800.33 Allocation of resources; agreed ex- or public access to records; tensions of time. Coordinator means the NACIC Infor- 1800.34 Requests for expedited processing. mation and Privacy Coordinator who Subpart E—NACIC Action on FOIA serves as the NACIC manager of the in- Administrative Appeals formation review and release program instituted under the Freedom of Infor- 1800.41 Appeal authority. mation Act; 1800.42 Right of appeal and appeal proce- Direct-costs means those expenditures dures. which an agency actually incurs in the 1800.43 Determination(s) by Office Chief(s). processing of a FOIA request; it does 1800.44 Action by appeals authority. 1800.45 Notification of decision and right of not include overhead factors such as judicial review. space; it does include: (1) Pages means paper copies of stand- AUTHORITY: 5 U.S.C. 552. ard office size or the dollar value SOURCE: 64 FR 49879, Sept. 14, 1999, unless equivalent in other media; otherwise noted. (2) Reproduction means generation of a copy of a requested record in a form Subpart A—General appropriate for release; (3) Review means all time expended in § 1800.1 Authority and purpose. examining a record to determine This part is issued under the author- whether any portion must be withheld ity of and in order to implement the pursuant to law and in effecting any Freedom of Information Act (FOIA), as required deletions but excludes per- amended (5 U.S.C. 552); and section 102 sonnel hours expended in resolving gen- of the National Security Act of 1947, as eral legal or policy issues; it also

377

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00387 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1800.2 32 CFR Ch. XVIII (7–1–05 Edition)

means personnel hours of professional means information which concerns cur- time; rent events, would be of current inter- (4) Search means all time expended in est to the general public, would en- looking for and retrieving material hance the public understanding of the that may be responsive to a request operations or activities of the U.S. utilizing available paper and electronic Government, and is in fact dissemi- indices and finding aids; it also means nated to a significant element of the personnel hours of professional time or public at minimal cost; freelance jour- the dollar value equivalent in com- nalists are included in this definition if puter searches; they can demonstrate a solid basis for Expression of interest means a written expecting publication through such an communication submitted by a mem- organization, even though not actually ber of the public requesting informa- employed by it; a publication contract tion on or concerning the FOIA pro- or prior publication record is relevant gram and/or the availability of docu- to such status; ments from NACIC; (4) means a request from an Federal agency means any executive All other department, military department, or individual not within categories (h)(1), other establishment or entity included (2), or (3) of this section; in the definition of agency in 5 U.S.C. Freedom of Information Act or ‘‘FOIA’’ 552(f); means the statutes as codified at 5 Fees means those direct costs which U.S.C. 552; may be assessed a requester consid- Interested party means any official in ering the categories established by the the executive, military, congressional, FOIA; requesters should submit infor- or judicial branches of government, mation to assist NACIC in determining United States or foreign, or U.S. Gov- the proper fee category and NACIC ernment contractor who, in the sole may draw reasonable inferences from discretion of NACIC, has a subject mat- the identity and activities of the re- ter or physical interest in the docu- quester in making such determina- ments or information at issue; tions; the fee categories include: Originator means the U.S. Govern- (1) Commercial means a request in ment official who originated the docu- which the disclosure sought is pri- ment at issue or successor in office or marily in the commercial interest of such official who has been delegated re- the requester and which furthers such lease or declassification authority pur- commercial, trade, income or profit in- suant to law; terests; Potential requester means a person, or- (2) Non-commercial educational or sci- ganization, or other entity who sub- means a request from entific institution mits an expression of interest; an accredited United States edu- Reasonably described records means a cational institution at any academic level or institution engaged in research description of a document (record) by concerning the social, biological, or unique identification number or de- physical sciences or an instructor or scriptive terms which permit a NACIC researcher or member of such institu- employee to locate documents with tions; it also means that the informa- reasonable effort given existing indices tion will be used in a specific scholarly and finding aids; or analytical work, will contribute to Records or agency records means all the advancement of public knowledge, documents, irrespective of physical or and will be disseminated to the general electronic form, made or received by public; NACIC in pursuance of federal law or in (3) Representative of the news media connection with the transaction of means a request from an individual ac- public business and appropriate for tively gathering news for an entity preservation by NACIC as evidence of that is organized and operated to pub- the organization, functions, policies, lish and broadcast news to the Amer- decisions, procedures, operations, or ican public and pursuant to their news other activities of NACIC or because of dissemination function and not their the informational value of the data commercial interests; the term news contained therein; it does not include:

378

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00388 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1800.13

(1) Books, newspapers, magazines, clearly delineate the communication journals, magnetic or printed tran- as a request under the Freedom of In- scripts of electronic broadcasts, or formation Act and this regulation. similar public sector materials ac- NACIC employees receiving a commu- quired generally and/or maintained for nication in the nature of a FOIA re- library or reference purposes; to the ex- quest shall expeditiously forward same tent that such materials are incor- to the Coordinator. Requests and ap- porated into any form of analysis or peals on requests, referrals, or coordi- otherwise distributed or published by nations received from members of the NACIC, they are fully subject to the public who owe outstanding fees for in- disclosure provisions of the FOIA; formation services at this or other fed- (2) Index, filing, or museum docu- eral agencies will not be accepted and ments made or acquired and preserved action on all pending requests shall be solely for reference, indexing, filing, or terminated in such circumstances. exhibition purposes; and (3) Routing and transmittal sheets § 1800.12 Requirements as to form and and notes and filing or destruction content. notes which do not also include infor- (a) No par- mation, comment, or statements of Required information. substance; ticular form is required. A request need Responsive records means those docu- only reasonably describe the records of ments (i.e., records) which NACIC has interest. This means that documents determined to be within the scope of a must be described sufficiently to en- FOIA request. able a professional employee familiar with the subject to locate the docu- § 1800.3 Contact for general informa- ments with a reasonable effort. Com- tion and requests. monly this equates to a requirement For general information on this part, that the documents must be locatable to inquire about the FOIA program at through the indexing of our various NACIC, or to file a FOIA request (or ex- systems. Extremely broad or vague re- pression of interest), please direct your quests or requests requiring research communication in writing to the Infor- do not satisfy this requirement. mation and Privacy Coordinator, Exec- (b) Additional information for fee deter- utive Secretariat Office, National mination. In addition, a requester Counterintelligence Center, 3W01 NHB, should provide sufficient personal iden- Washington, DC 20505. Such inquiries tifying information to allow us to de- will also be accepted by facsimile at termine the appropriate fee category. (703)874–5844. For general information A requester should also provide an or status information on pending cases agreement to pay all applicable fees or only, the telephone number is (703)874– fees not to exceed a certain amount or 4121. Collect calls cannot be accepted. request a fee waiver. (c) Otherwise. Communications which § 1800.4 Suggestions and complaints. do not meet these requirements will be NACIC welcomes suggestions or com- considered an expression of interest plaints with regard to its administra- and NACIC will work with, and offer tion of the Freedom of Information suggestions to, the potential requester Act. Letters of suggestion or complaint in order to define a request properly. should identify the specific purpose and the issues for consideration. NACIC § 1800.13 Fees for record services. will respond to all substantive commu- (a) In general. Search, review, and re- nications and take such actions as de- production fees will be charged in ac- termined feasible and appropriate. cordance with the provisions below relating to schedule, limitations, and Subpart B—Filing of FOIA Requests category of requester. Applicable fees will be due even if our search locates § 1800.11 Preliminary information. no responsive records or some or all of Members of the public shall address the responsive records must be denied all communications to the NACIC Co- under one or more of the exemptions of ordinator as specified at § 1800.03 and the Freedom of Information Act.

379

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00389 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1800.13 32 CFR Ch. XVIII (7–1–05 Edition)

(b) Fee waiver requests. Records will the completion of a case, and fee waiv- be furnished without charge or at a re- er appeals within forty-five (45) days of duced rate whenever NACIC deter- our initial decision subject to the fol- mines: lowing condition: if processing has (1) That, as a matter of administra- been initiated, then the requester must tive discretion, the interest of the agree to be responsible for costs in the United States Government would be event of an adverse administrative or served, or judicial decision. (2) That it is in the public interest (e) Agreement to pay fees. In order to because it is likely to contribute sig- protect requesters from large and/or nificantly to the public understanding unanticipated charges, NACIC will re- of the operations or activities of the quest specific commitment when it es- United States Government and is not timates that fees will exceed $100.00. primarily in the commercial interest of NACIC will hold in abeyance for forty- the requester; NACIC shall consider the five (45) days requests requiring such following factors when making this de- agreement and will thereafter deem termination: the request closed. This action, of (i) Whether the subject of the request course, would not prevent an individual concerns the operations or activities of from refiling his or her FOIA request the United States Government; and, if with a fee commitment at a subsequent so, date. (ii) Whether the disclosure of the re- (f) Deposits. NACIC may require an quested documents is likely to con- advance deposit of up to 100 percent of tribute to an understanding of United the estimated fees when fees may ex- States Government operations or ac- ceed $250.00 and the requester has no tivities; and, if so, history of payment, or when, for fees of (iii) Whether the disclosure of the re- any amount, there is evidence that the quested documents will contribute to requester may not pay the fees which public understanding of United States would be accrued by processing the re- Government operations or activities; quest. NACIC will hold in abeyance for and, if so, forty-five (45) days those requests (iv) Whether the disclosure of the re- where deposits have been requested. quested documents is likely to con- (g) Schedule of fees—(1) In general. The tribute significantly to public under- schedule of fees for services performed standing of United States Government in responding to requests for records is operations and activities; and established as follows: (v) Whether the requester has a com- (i) Personnel Search and Review mercial interest that would be Clerical/TechnicallQuarter hourl$ furthered by the requested disclosure; 5.00lProfessional/SupervisorylQuarter and, if so, hourl 10.00llManager/Senior (vi) Whether the disclosure is pri- ProfessionallQuarter hourl18.00 marily in the commercial interest of (ii) Computer Search and Production the requester. (c) Fee waiver appeals. Denials of re- Search (on-line)lFlat ratel10.00lSearch quests for fee waivers or reductions (off-line)lFlat ratel30.00lOther activity Per minute 10.00 Tapes (main- may be appealed to the Director, l l l frame cassette)lEachl9.00lTapes (main- NACIC via the Coordinator. A re- frame cartridge)lEachl9.00lTapes (main- quester is encouraged to provide any frame reel)lEachl20.00lTapes (PC explanation or argument as to how his 9mm)lEachl25.00lDiskette (3.5″) or her request satisfies the statutory lEachl4.00lCD (bulk re- requirement set forth in paragraph (b) corded)lEachl10.00lCD (record- of this section. able)lEachl20.00l Telecommunications (d) Time for fee waiver requests and ap- lPer minutel.50l Paper (mainframe printer)lPer pagel.10lPaper (PC b&w laser peals. It is suggested that such requests printer)lPer pagel.10lPaper (PC color and appeals be made and resolved prior printer)lPer pagel1.00 to the initiation of processing and the incurring of costs. However, fee waiver (iii) Paper Production requests will be accepted at any time Photocopy (standard or legal)lPer prior to the release of documents or pagel.10lMicrofichelPer framel.20lPre-

380

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00390 Fmt 8010 Sfmt 8003 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1800.21

printed (if available)lPer 100 (1) ‘‘Commercial use’’ requesters: pagesl5.00lPublished (if available)lPer Charges which recover the full direct itemlNTISl costs of searching for, reviewing, and (2) Application of schedule. Personnel duplicating responsive records (if any); search time includes time expended in (2) ‘‘Educational and non-commercial either manual paper records searches, scientific institution’’ requesters as indices searches, review of computer well as ‘‘representatives of the news search results for relevance, personal media’’ requesters: Only charges for re- computer system searches, and various production beyond the first 100 pages; reproduction services. In any event (3) ‘‘All other’’ requesters: Charges where the actual cost to NACIC of a which recover the full direct cost of particular item is less than the above searching for and reproducing respon- schedule (e.g., a large production run of sive records (if any) beyond the first a document resulted in a cost less than 100 pages of reproduction and the first $5.00 per hundred pages), then the ac- two hours of search time which will be tual lesser cost will be charged. furnished without charge. (3) Other services. For all other types (j) Associated requests. A requester or of output, production, or reproduction associated requesters may not file a se- (e.g., photographs, maps, or published ries of multiple requests, which are reports), actual cost or amounts au- merely discrete subdivisions of the in- thorized by statute. Determinations of formation actually sought for the pur- actual cost shall include the commer- pose of avoiding or reducing applicable cial cost of the media, the personnel fees. In such instances, NACIC may ag- time expended in making the item to gregate the requests and charge the ap- be released, and an allocated cost of plicable fees. the equipment used in making the item, or, if the production is effected § 1800.14 Fee estimates (pre-request by a commercial service, then that option). charge shall be deemed the actual cost In order to avoid unanticipated or po- for purposes of this part. tentially large fees, a requester may (h) Limitations on collection of fees—(1) submit a request for a fee estimate. In general. No fees will be charged if Pursuant to the Electronic Freedom of the cost of collecting the fee is equal to Information Act Amendments of 1996, or greater than the fee itself. That cost NACIC will endeavor within twenty (20) includes the administrative costs to days to provide an accurate estimate, NACIC of billing, receiving, recording, and, if a request is thereafter sub- and processing the fee for deposit to mitted, NACIC will not accrue or the Treasury Department and, as of the charge fees in excess of our estimate date of these regulations, is deemed to without the specific permission of the be $10.00. requester. (2) Requests for personal information. No fees will be charged for requesters seeking records about themselves Subpart C—NACIC Action On under the FOIA; such requests are FOIA Requests processed in accordance with both the FOIA and the Privacy Act in order to § 1800.21 Processing of requests for ensure the maximum disclosure with- records. out charge. (a) In general. Requests meeting the (i) Fee categories. There are four cat- requirements of §§ 1800.11 through egories of FOIA requesters for fee pur- 1800.13 shall be accepted as formal re- poses: ‘‘commercial use’’ requesters, quests and processed under the Free- ‘‘educational and non-commercial sci- dom of Information Act, 5 U.S.C. 552, entific institution’’ requesters, ‘‘rep- and these regulations. Pursuant to the resentatives of the news media’’ re- Electronic Freedom of Information Act questers, and ‘‘all other’’ requesters. Amendments of 1996, upon receipt, The categories are defined in § 1800.2, NACIC shall within twenty (20) days and applicable fees, which are the same record each request, acknowledge rein two of the categories, will be as- ceipt to the requester in writing, and sessed as follows: thereafter effect the necessary

381

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00391 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1800.22 32 CFR Ch. XVIII (7–1–05 Edition)

taskings to the NACIC components rea- § 1800.22 Action and determination(s) sonably believed to hold responsive by originator(s) or any interested records. party. (b) Database of ‘‘officially released in- (a) Initial action for access. (1) NACIC formation.’’ As an alternative to exten- components tasked pursuant to a FOIA sive tasking and as an accommodation request shall search all relevant record to many requesters, NACIC maintains systems within their cognizance. They a database of ‘‘officially released infor- shall: mation’’ which contains copies of docu- (i) Determine whether a record ex- ments released by NACIC. Searches of ists; this database can be accomplished ex- (ii) Determine whether and to what peditiously. Moreover, requests that extent any FOIA exemptions apply; (iii) Approve the disclosure of all are specific and well-focused will often non-exempt records or portions of incur minimal, if any, costs. Request- records for which they are the origi- ers interested in this means of access nator; and should so indicate in their correspond- (iv) Forward to the Coordinator all ence. Consistent with the mandate of records approved for release or nec- the Electronic Freedom of Information essary for coordination with or referral Act Amendments of 1996, on-line elec- to another originator or interested tronic access to these records is avail- party. able to the public. Detailed informa- (2) In making these decisions, the tion regarding such access is available NACIC component officers shall be from the point of contact specified in guided by the applicable law as well as § 1800.3. the procedures specified at § 1800.31 and (c) Effect of certain exemptions. In § 1800.32 regarding confidential com- processing a request, NACIC shall de- mercial information and personal in- cline to confirm or deny the existence formation (about persons other than or nonexistence of any responsive the requester). records whenever the fact of their ex- (b) Referrals and coordinations. As ap- istence or nonexistence is itself classi- plicable and within twenty (20) days, fied under Executive Order 12958 and pursuant to the Electronic Freedom of may jeopardize intelligence sources or Information Act Amendments of 1996, methods protected pursuant to section of receipt by the Coordinator, any NACIC records containing information 103(c)(6) of the National Security Act of originated by other NACIC components 1947. In such circumstances, NACIC, in shall be forwarded to those entities for the form of a final written response, action in accordance with paragraph shall so inform the requester and ad- (a) of this section and return. Records vise of his or her right to an adminis- originated by other federal agencies or trative appeal. NACIC records containing other federal (d) Time for response. Pursuant to the agency information shall be forwarded Electronic Freedom of Information Act to such agencies within twenty (20) Amendments of 1996, NACIC will utilize days of our completion of initial action every effort to determine within the in the case for action under their regu- statutory guideline of twenty (20) days lations and direct response to the re- after receipt of an initial request quester (for other agency records) or whether to comply with such a request. return to NACIC (for NACIC records). However, should the volume of requests require that NACIC seek additional § 1800.23 Payment of fees, notification of decision, and right of appeal. time from a requester pursuant to § 1800.33, NACIC will inform the re- (a) Fees in general. Fees collected quester in writing and further advise of under this part do not accrue to the his or her right to file an administra- National Counterintelligence Center tive appeal of any adverse determina- and shall be deposited immediately to the general account of the United tion. States Treasury. (b) Notification of decision. Upon completion of all required review and the

382

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00392 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1800.31

receipt of accrued fees (or promise to reasonably be expected to cause sub- pay such fees), NACIC will promptly in- stantial competitive harm; form the requester in writing of those Submitter means any person or entity records or portions of records which who provides confidential commercial may be released and which must be de- information to the United States Gov- nied. With respect to the former, ernment; it includes, but is not limited NACIC will provide copies; with respect to, corporations, businesses (however to the latter, NACIC shall explain the organized), state governments, and for- reasons for the denial, identify the per- eign governments; and son(s) responsible for such decisions by (b) Designation of confidential commer- name and title, and give notice of a cial information. A submitter of busi- right of administrative appeal. ness information will use good-faith ef- (c) Availability of reading room. As an forts to designate, by appropriate alternative to receiving records by markings, either at the time of submis- mail, a requester may arrange to in- sion or at a reasonable time thereafter, spect the records deemed releasable at any portions of its submission that it a NACIC ‘‘reading room’’ in the metro- considers to be confidential commer- politan Washington, DC area. Access cial information and hence protected will be granted after applicable and ac- from required disclosure pursuant to crued fees have been paid. Requests to exemption (b)(4). Such designations review or browse documents in our shall expire ten (10) years after the database of ‘‘officially released date of the submission unless the sub- records’’ will also be honored in this mitter requests, and provides justifica- manner to the extent that paper copies tion for, a longer designation period. or electronic copies in unclassified (c) Process in event of FOIA request.— computer systems exist. All such re- (1) Notice to submitters. NACIC shall pro- quests shall be in writing and ad- vide a submitter with prompt written dressed pursuant to § 1800.3. The records notice of receipt of a Freedom of Infor- will be available at such times as mu- mation Act request encompassing busi- tually agreed but not less than three ness information whenever: (3) days from our receipt of a request. (i) The submitter has in good faith The requester will be responsible for designated the information as con- reproduction charges for any copies of fidential commercial information, or records desired. (ii) NACIC believes that disclosure of the information could reasonably be Subpart D—Additional expected to cause substantial competi- Administrative Matters tive harm, and (iii) The information was submitted § 1800.31 Procedures for business in- within the last ten (10) years unless the formation. submitter requested and provided ac- (a) In general. Business information ceptable justification for a specific no- obtained by NACIC by a submitter tice period of greater duration. shall not be disclosed pursuant to a (2) Form of notice. This notice shall ei- Freedom of Information Act request ther describe the exact nature of the except in accordance with this section. confidential commercial information For purposes of this section, the fol- at issue or provide copies of the respon- lowing definitions apply: sive records containing such informa- Business information means commer- tion. cial or financial information in which a (3) Response by submitter. (i) Within legal entity has a recognized property seven (7) days of the above notice, all interest; claims of confidentiality by a sub- Confidential commercial information mitter must be supported by a detailed means such business information pro- statement of any objection to disclo- vided to the United States Government sure. Such statement shall: by a submitter which is reasonably be- (A) Specify that the information has lieved to contain information exempt not been disclosed to the public; from release under exemption (b)(4) of (B) Explain why the information is the Freedom of Information Act, 5 contended to be a trade secret or con- U.S.C. 552, because disclosure could fidential commercial information;

383

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00393 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1800.32 32 CFR Ch. XVIII (7–1–05 Edition)

(C) Explain how the information is (iii) The disclosure of the informa- capable of competitive damage if dis- tion is otherwise required by law or closed; federal regulation; or (D) State that the submitter will pro- (iv) The designation made by the sub- vide NACIC and the Department of Jus- mitter under this section appears frivo- tice with such litigation defense as re- lous, except that, in such a case, quested; and NACIC will, within a reasonable time (E) Be certified by an officer author- prior to the specified disclosure date, ized to legally bind the corporation or give the submitter written notice of similar entity. any final decision to disclose the infor- (ii) It should be noted that informa- mation. tion provided by a submitter pursuant [64 FR 49879, Sept. 14, 1999; 64 FR 53769, Oct. to this provision may itself be subject 4, 1999] to disclosure under the FOIA. (4) Decision and notice of intent to dis- § 1800.32 Procedures for information close. (i) NACIC shall consider carefully concerning other persons. a submitter’s objections and specific (a) In general. Personal information grounds for nondisclosure prior to its concerning individuals other than the final determination. If NACIC decides requester shall not be disclosed under to disclose a document over the objec- the Freedom of Information Act if the tion of a submitter, NACIC shall pro- proposed release would constitute a vide the submitter a written notice clearly unwarranted invasion of per- which shall include: sonal privacy. See 5 U.S.C. 552(b)(6). (A) A statement of the reasons for For purposes of this section, the fol- which the submitter’s disclosure objec- lowing definitions apply: tions were not sustained; Personal information means any infor- (B) A description of the information mation about an individual that is not to be disclosed; and a matter of public record, or easily dis- (C) A specified disclosure date which cernible to the public, or protected is seven (7) days after the date of the from disclosure because of the implica- instant notice. tions that arise from Government possession of such information. (ii) When notice is given to a submitter under this section, NACIC shall Public interest means the public inter- also notify the requester and, if NACIC est in understanding the operations notifies a submitter that it intends to and activities of the United States Government and not simply any mat- disclose information, then the re- ter which might be of general interest quester shall be notified also and given to the requester or members of the the proposed date for disclosure. public. (5) Notice of FOIA lawsuit. If a re- (b) Determination to be made. In mak- quester initiates a civil action seeking ing the required determination under to compel disclosure of information as- this section and pursuant to exemption serted to be within the scope of this (b)(6) of the FOIA, NACIC will balance section, NACIC shall promptly notify the privacy interests that would be the submitter. The submitter, as speci- compromised by disclosure against the fied above, shall provide such litigation public interest in release of the re- assistance as required by NACIC and quested information. the Department of Justice. (c) Otherwise. A requester seeking in- (6) Exceptions to notice requirement. formation on a third person is encour- The notice requirements of this section aged to provide a signed affidavit or shall not apply if NACIC determines declaration from the third person that: waiving all or some of their privacy (i) The information should not be dis- rights. However, all such waivers shall closed in light of other FOIA exemp- be narrowly construed and the Coordi- tions; nator, in the exercise of his discretion (ii) The information has been pub- and administrative authority, may lished lawfully or has been officially seek clarification from the third party made available to the public; prior to any or all releases.

384

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00394 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1800.41

§ 1800.33 Allocation of resources; an administrative appeal or judicial re- agreed extensions of time. view as appropriate. (a) In general. NACIC components § 1800.34 Requests for expedited proc- shall devote such personnel and other essing. resources to the responsibilities imposed by the Freedom of Information (a) In general. All requests will be Act as may be appropriate and reason- handled in the order received on a able considering: strictly ‘‘first-in, first-out’’ basis. Ex- (1) The totality of resources available ceptions to this section will only be to the component, made in accordance with the following (2) The business demands imposed on procedures. In all circumstances, how- the component by the Director of ever, and consistent with established NACIC or otherwise by law, judicial precedent, requests more prop- (3) The information review and re- erly the scope of requests under the lease demands imposed by the Congress Federal Rules of Civil or Criminal Pro- or other governmental authority, and cedure (or other federal, state, or for- (4) The rights of all members of the eign judicial or quasi-judicial rules) public under the various information will not be granted expedited proc- review and disclosure laws. essing under this or related (e.g., Pri- (b) Discharge of FOIA responsibilities. vacy Act) provisions unless expressly Components shall exercise due dili- ordered by a federal court of competent gence in their responsibilities under jurisdiction. the FOIA and must allocate a reason- (b) Procedure. Requests for expedited able level of resources to requests processing will be approved only when under the Act in a strictly ‘‘first-in, a compelling need is established to the first-out’’ basis and utilizing two or satisfaction of NACIC. A requester may more processing queues to ensure that make such a request with a certifi- smaller as well as larger (i.e., project) cation of ‘‘compelling need’’ and, with- cases receive equitable attention. The in ten (10) days of receipt, NACIC will Information and Privacy Coordinator decide whether to grant expedited proc- is responsible for management of the essing and will notify the requester of NACIC-wide program defined by this its decision. The certification shall set part and for establishing priorities for forth with specificity the relevant facts cases consistent with established law. upon which the requester relies and it The Director, NACIC shall provide pol- appears to NACIC that substantive icy and resource direction as necessary records relevant to the stated needs and render decisions on administrative may exist and be deemed releasable. A appeals. ‘‘compelling need’’ is deemed to exist: (c) Requests for extension of time. When (1) When the matter involves an im- NACIC is unable to meet the statutory minent threat to the life or physical time requirements of the FOIA, it will safety of an individual; or inform the requester that the request (2) When the request is made by a cannot be processed within the statu- person primarily engaged in dissemi- tory time limits, provide an oppor- nating information and the informa- tunity for the requester to limit the tion is relevant to a subject of public scope of the request so that it can be urgency concerning an actual or al- processed within the statutory time leged Federal government activity. limits, or arrange with the requester an agreed upon time frame for proc- Subpart E—NACIC Action On essing the request, or determine that FOIA Administrative Appeals exceptional circumstances mandate additional time in accordance with the § 1800.41 Appeal authority. definition of ‘‘exceptional cir- The Director, NACIC will make final cumstances’’ per section 552(a)(6)(C) of NACIC decisions from appeals of initial the Freedom of Information Act, as adverse decisions under the Freedom of amended, effective October 2, 1997. In Information Act and such other infor- such instances NACIC will, however, mation release decisions made under inform a requester of his or her right parts 1801, 1802, and 1803 of this chap- to decline our request and proceed with ter. Matters decided by the Director,

385

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00395 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1800.42 32 CFR Ch. XVIII (7–1–05 Edition)

NACIC will be deemed a final decision § 1800.43 Determination(s) by Office by NACIC. Chief(s). Each Office Chief in charge of an of- § 1800.42 Right of appeal and appeal fice which originated or has an interest procedures. in any of the records subject to the ap- (a) Right of Appeal. A right of admin- peal, or designee, is a required party to istrative appeal exists whenever access any appeal; other interested parties to any requested record or any portion may become involved through the re- thereof is denied, no records are lo- quest of the Coordinator when it is de- cated in response to a request, or a re- termined that some or all of the infor- quest for a fee waiver is denied. NACIC mation is also within their official cog- will apprise all requesters in writing of nizance. These parties shall respond in their right to appeal such decisions to writing to the Coordinator with a find- the Director, NACIC through the Coor- ing as to the exempt status of the in- dinator. formation. This response shall be pro- (b) Requirements as to time and form. vided expeditiously on a ‘‘first-in, first- Appeals of decisions must be received out’’ basis taking into account the by the Coordinator within forty-five business requirements of the parties and consistent with the information (45) days of the date of NACIC’s initial rights of members of the general public decision. NACIC may, for good cause under the various information review and as a matter of administrative dis- and release laws. cretion, permit an additional thirty (30) days for the submission of an ap- § 1800.44 Action by appeals authority. peal. All appeals shall be in writing and (a) The Coordi- addressed as specified in § 1800.3. All ap- Preparation of docket. nator shall provide a summation peals must identify the documents or memorandum for consideration of the portions of documents at issue with Director, NACIC; the complete record specificity and may present such infor- of the request consisting of the re- mation, data, and argument in support quest, the document(s) (sanitized and as the requester may desire. full text) at issue, and the findings of (c) Exceptions. No appeal shall be ac- concerned Office Chiefs or designee(s). cepted if the requester has outstanding (b) Decision by the Director, NACIC. fees for information services at this or The Director, NACIC shall personally another federal agency. In addition, no decide each case; no personal appear- appeal shall be accepted if the informa- ances shall be permitted without the tion in question has been the subject of express permission of the Director, a review within the previous two (2) NACIC. years or is the subject of pending litigation in the federal courts. § 1800.45 Notification of decision and (d) Receipt, recording, and tasking. right of judicial review. NACIC shall promptly record each re- The Coordinator shall promptly pre- quest received under this part, ac- pare and communicate the decision of knowledge receipt to the requester in the Director, NACIC to the requester. writing, and thereafter effect the nec- With respect to any decision to deny essary taskings to the office(s) which information, that correspondence shall originated or has an interest in the state the reasons for the decision, iden- record(s) subject to the appeal. tify the officer responsible, and include (e) Time for response. NACIC shall at- a notice of a right to judicial review. tempt to complete action on an appeal within twenty (20) days of the date of PART 1801—PUBLIC RIGHTS UNDER receipt. The volume of requests, how- THE PRIVACY ACT OF 1974 ever, may require that NACIC request additional time from the requester pur- Subpart A—General suant to § 1800.33. In such event, NACIC Sec. will inform the requester of the right 1801.1 Authority and purpose. to judicial review. 1801.2 Definitions.

386

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00396 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1801.2

1801.3 Contact for general information and (b) Purpose in general. This part pre- requests. scribes procedures for a requester, as 1801.4 Suggestions and complaints. defined herein: (1) To request notification of whether Subpart B—Filing Of Privacy Act Requests the National Counterintellingence Cen- 1801.11 Preliminary information. ter (NACIC) maintains a record con- 1801.12 Requirements as to form. cerning them in any non-exempt por- 1801.13 Requirements as to identification of tion of a system of records or any non- requester. exempt system of records; 1801.14 Fees. (2) To request a copy of all non-exempt records or portions of records; Subpart C—Action On Privacy Act (3) To request that any such record Requests be amended or augmented; and 1801.21 Processing requests for access to or (4) To file an administrative appeal amendment of records. to any initial adverse determination to 1801.22 Action and determination(s) by deny access to or amend a record. originator(s) or any interested party. (c) Other purposes. This part also sets 1801.23 Notification of decision and right of forth detailed limitations on how and appeal. to whom NACIC may disclose personal information and gives notice that cer- Subpart D—Additional Administrative tain actions by officers or employees of Matters the United States Government or mem- 1801.31 Special procedures for medical and bers of the public could constitute psychological records. criminal offenses. 1801.32 Requests for expedited processing. 1801.33 Allocation of resources; agreed ex- § 1801.2 Definitions. tensions of time. For purposes of this part, the following terms have the meanings indi- Subpart E—Action On Privacy Act cated: Administrative Appeals NACIC means the United States Na- tional Counterintelligence Center act- 1801.41 Appeal authority. 1801.42 Right of appeal and appeal proce- ing through the NACIC Information dures. and Privacy Coordinator; 1801.43 Determination(s) by Office Chief(s). Days means calendar days when 1801.44 Action by appeals authority. NACIC is operating and specifically ex- 1801.45 Notification of decision and right of cludes Saturdays, Sundays, and legal judicial review. public holidays. Three (3) days may be added to any time limit imposed on a Subpart F—Prohibitions requester by this part if responding by U.S. domestic mail; ten (10) days may 1801.51 Limitations on disclosure. 1801.52 Criminal penalties. be added if responding by international mail; Subpart G—Exemptions Control means ownership or the authority of NACIC pursuant to federal 1801.63 Specific exemptions. statute or privilege to regulate official AUTHORITY: 5 U.S.C. 552a. or public access to records; Coordinator means the NACIC Infor- SOURCE: 64 FR 49884, Sept. 14, 1999, unless mation and Privacy Coordinator who otherwise noted. serves as the NACIC manager of the information review and release program Subpart A—General instituted under the Privacy Act; Federal agency means any executive § 1801.1 Authority and purpose. department, military department, or (a) Authority. This part is issued other establishment or entity included under the authority of and in order to in the definition of agency in 5 U.S.C. implement the Privacy Act of 1974 (5 552(f); U.S.C. 552a) and section 102 of the Na- Interested party means any official in tional Security Act of 1947, as amended the executive, military, congressional, (50 U.S.C. 403). or judicial branches of government,

387

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00397 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1801.3 32 CFR Ch. XVIII (7–1–05 Edition)

United States or foreign, or U.S. Gov- § 1801.4 Suggestions and complaints. ernment contractor who, in the sole NACIC welcomes suggestions or com- discretion of NACIC, has a subject matter or physical interest in the docu- plaints with regard to its administra- ments or information at issue; tion of the Privacy Act. Letters of sug- Maintain means maintain, collect, gestion or complaint should identify use, or disseminate; the specific purpose and the issues for Originator means the U.S. Govern- consideration. NACIC will respond to ment official who originated the docu- all substantive communications and ment at issue or successor in office or take such actions as determined fea- such official who has been delegated re- sible and appropriate. lease or declassification authority pursuant to law; Subpart B—Filing Of Privacy Act Privacy Act or PA means the statute Requests as codified at 5 U.S.C. 552a; Record means an item, collection, or § 1801.11 Preliminary information. grouping of information about an indi- Members of the public shall address vidual that is maintained by NACIC in a system of records; all communications to the contact Requester or individual means a cit- specified at § 1801.3 and clearly delin- izen of the United States or an alien eate the communication as a request lawfully admitted for permanent resi- under the Privacy Act and this regula- dence who is a living being and to tion. Requests and administrative ap- whom a record might pertain; peals on requests, referrals, and coordi- Responsive record means those docu- nations received from members of the ments (records) which NACIC has de- public who owe outstanding fees for in- termined to be within the scope of a formation services at this or other fed- Privacy Act request; eral agencies will not be accepted and Routine use means, with respect to action on existing requests and appeals the disclosure of a record, the use of will be terminated in such cir- such record for a purpose which is com- cumstances. patible with the purpose for which the record is maintained; § 1801.12 Requirements as to form. System of records means a group of (a) In general. No particular form is any records under the control of NACIC required. All requests must contain the from which records are retrieved by the identification information required at name of an individual or by some iden- § 1801.13. tifying number, symbol, or other iden- (b) For access. For requests seeking tifying particular assigned to that indi- access, a requester should, to the ex- vidual. tent possible, describe the nature of § 1801.3 Contact for general informa- the record sought and the record sys- tion and requests. tem(s) in which it is thought to be in- For general information on this part, cluded. Requesters may find assistance to inquire about the Privacy Act pro- from information described in the Pri- gram at NACIC, or to file a Privacy vacy Act Issuances Compilation which Act request, please direct your commu- is published biennially by the FEDERAL nication in writing to the Information REGISTER. In lieu of this, a requester and Privacy Coordinator, Executive may simply describe why and under Secretariat Office, National Counter- what circumstances it is believed that intelligence Center, 3W01 NHB, Wash- NACIC maintains responsive records; ington, DC 20505. Requests with the re- NACIC will undertake the appropriate quired identification statement pursu- searches. ant to § 1801.13 must be filed in original (c) For amendment. For requests seek- form by mail. Subsequent communica- ing amendment, a requester should tions and any inquiries will be accepted identify the particular record or por- by mail or facsimile at (703) 874–5844 or tion subject to the request, state a jus- by telephone at (703) 874–4121. Collect tification for such amendment, and calls cannot be accepted. provide the desired amending language.

388

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00398 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1801.21

§ 1801.13 Requirements as to identi- Subpart C—Action On Privacy Act fication of requester. Requests (a) In general. Individuals seeking access to or amendment of records con- § 1801.21 Processing requests for ac- cerning themselves shall provide their cess to or amendment of records. full (legal) name, address, date and (a) In general. Requests meeting the place of birth, and current citizenship requirements of § 1801.11 through status together with a statement that § 1801.13 shall be processed under both such information is true under penalty the Freedom of Information Act, 5 of perjury or a notarized statement U.S.C. 552, and the Privacy Act, 5 swearing to or affirming identity. If U.S.C. 552a, and the applicable regula- NACIC determines that this informa- tions, unless the requester demands tion is not sufficient, NACIC may re- otherwise in writing. Such requests quest additional or clarifying informa- will be processed under both Acts re- tion. gardless of whether the requester cites (b) Requirement for aliens. Only aliens one Act in the request, both, or nei- lawfully admitted for permanent resi- ther. This action is taken in order to dence (PRAs) may file a request pursu- ensure the maximum possible disclo- ant to the Privacy Act and this part. sure to the requester. Such individuals shall provide, in addi- (b) Receipt, recording and tasking. tion to the information required under Upon receipt of a request meeting the paragraph (a) of this section, their requirements of §§ 1801.11 through Alien Registration Number and the 1801.13, NACIC shall within ten (10) date that status was acquired. days record each request, acknowledge (c) Requirement for representatives. The receipt to the requester, and thereafter parent or guardian of a minor indi- effect the necessary taskings to the of- vidual, the guardian of an individual fice(s) reasonably believed to hold re- under judicial disability, or an attor- sponsive records. ney retained to represent an individual (c) Effect of certain exemptions. In shall provide, in addition to estab- processing a request, NACIC shall de- lishing the identity of the minor or in- cline to confirm or deny the existence dividual represented as required in or nonexistence of any responsive paragraph (a) or (b) of this section, evi- records whenever the fact of their ex- dence of such representation by sub- istence or nonexistence is itself classi- mission of a certified copy of the mi- fied under Executive Order 12958 and nor’s birth certificate, court order, or that confirmation of the existence of a representational agreement which es- record may jeopardize intelligence tablishes the relationship and the resources and methods protected pursu- quester’s identity. ant to section 103(c)(6) of the National (d) Procedure otherwise. If a requester Security Act of 1947. In such cir- or representative fails to provide the cumstances, NACIC, in the form of a information in paragraph (a), (b), or (c) final written response, shall so inform of this section within forty-five (45) the requester and advise of his or her days of the date of our request, NACIC right to an administrative appeal. will deem the request closed. This ac- (d) Time for response. Although the tion, of course, would not prevent an Privacy Act does not mandate a time individual from refiling his or her Pri- for response, our joint treatment of re- vacy Act request at a subsequent date quests under both the Privacy Act and with the required information. the FOIA means that the NACIC should provide a response within the FOIA § 1801.14 Fees. statutory guideline of ten (10) days on No fees will be charged for any action initial requests and twenty (20) days on under the authority of the Privacy Act, administrative appeals. However, the 5 U.S.C. 552a, irrespective of the fact volume of requests may require that that a request is or may be processed NACIC seek additional time from a re- under the authority of both the Pri- quester pursuant to § 1801.33. In such vacy Act and the Freedom of Informa- event, NACIC will inform the requester tion Act. in writing and further advise of his or

389

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00399 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1801.22 32 CFR Ch. XVIII (7–1–05 Edition)

her right to file an administrative ap- forwarded to those entities for action peal. in accordance with paragraphs (a), (b), or (c) of this section and return. § 1801.22 Action and determination(s) Records originated by other federal by originator(s) or any interested agencies or NACIC records containing party. other federal information shall be for- (a) Initial action for access. NACIC of- warded to such agencies within ten (10) fices tasked pursuant to a Privacy Act days of our completion of initial action access request shall search all relevant in the case for action under their regu- record systems within their cog- lations and direct response to the re- nizance. They shall: quester (for other NACIC records) or (1) Determine whether responsive return to NACIC (for NACIC records). records exist; (e) Effect of certain exemptions. This (2) Determine whether access must be section shall not be construed to allow denied in whole or part and on what access to systems of records exempted legal basis under both Acts in each by the Director, NACIC pursuant to such case; subsections (j) and (k) of the Privacy (3) Approve the disclosure of records Act or where those exemptions require for which they are the originator; and that NACIC can neither confirm nor (4) Forward to the Coordinator all deny the existence or nonexistence of records approved for release or nec- responsive records. essary for coordination with or referral to another originator or interested § 1801.23 Notification of decision and party as well as the specific determina- right of appeal. tions with respect to denials (if any). (b) Initial action for amendment. Within ten (10) days of receipt of re- NACIC offices tasked pursuant to a sponses to all initial taskings and sub- Privacy Act amendment request shall sequent coordinations (if any), and dis- review the official records alleged to be patch of referrals (if any), NACIC will inaccurate and the proposed amend- provide disclosable records to the re- ment submitted by the requester. If quester. If a determination has been they determine that NACIC’s records made not to provide access to re- are not accurate, relevant, timely or quested records (in light of specific ex- complete, they shall promptly: emptions) or that no records are found, (1) Make the amendment as re- NACIC shall so inform the requester, quested; identify the denying official, and ad- (2) Write to all other identified pervise of the right to administrative ap- sons or agencies to whom the record peal. has been disclosed (if an accounting of the disclosure was made) and inform of Subpart D—Additional the amendment; and Administrative Matters (3) Inform the Coordinator of such decisions. § 1801.31 Special procedures for med- (c) Action otherwise on amendment re- ical and psychological records. quest. If the NACIC office records manager declines to make the requested (a) In general. When a request for ac- amendment (or declines to make the cess or amendment involves medical or requested amendment) but agrees to psychological records and when the augment the official records, that man- originator determines that such ager shall promptly: records are not exempt from disclosure, (1) Set forth the reasons for refusal; NACIC will, after consultation with the and Director of Medical Services, CIA, de- (2) Inform the Coordinator of such determine: cision and the reasons therefore. (1) Which records may be sent di- (d) Referrals and coordinations. As ap- rectly to the requester and plicable and within ten (10) days of re- (2) Which records should not be sent ceipt by the Coordinator, any NACIC directly to the requester because of records containing information origi- possible medical or psychological harm nated by other NACIC offices shall be to the requester or another person.

390

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00400 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1801.33

(b) Procedure for records to be sent to process considerations involving pos- physician. In the event that NACIC de- sible deprivation of life or liberty cre- termines, in accordance with para- ate circumstances of exceptional ur- graph (a)(2) of this section, that gency and extraordinary need. In ac- records should not be sent directly to cordance with established judicial the requester, NACIC will notify the precedent, requests more properly the requester in writing and advise that scope of requests under the Federal the records at issue can be made avail- Rules of Civil or Criminal Procedure able only to a physician of the request- (or equivalent state rules) will not be er’s designation. Upon receipt of such granted expedited processing under designation, verification of the iden- this or related (e.g., Freedom of Infor- tity of the physician, and agreement by mation Act) provisions unless ex- the physician: pressly ordered by a federal court of (1) To review the documents with the competent jurisdiction. requesting individual, (2) To explain the meaning of the § 1801.33 Allocation of resources; documents, and agreed extensions of time. (3) To offer counseling designed to (a) In general. NACIC components temper any adverse reaction, NACIC shall devote such personnel and other will forward such records to the des- resources to the responsibilities im- ignated physician. posed by the Privacy Act as may be ap- (c) Procedure if physician option not propriate and reasonable considering: available. If within sixty (60) days of (1) The totality of resources available paragraph (a)(2) of this section, the re- to the component, quester has failed to respond or des- (2) The business demands imposed on ignate a physician, or the physician the component by the Director, NACIC fails to agree to the release conditions, or otherwise by law, NACIC will hold the documents in (3) The information review and re- abeyance and advise the requester that lease demands imposed by the Congress this action may be construed as a tech- or other governmental authority, and nical denial. NACIC will also advise the (4) The rights of all members of the requester of the responsible official and public under the various information of his or her rights to administrative review and disclosure laws. appeal and thereafter judicial review. (b) Discharge of Privacy Act responsibilities. Offices shall exercise due dili- § 1801.32 Requests for expedited proc- gence in their responsibilities under essing. the Privacy Act and must allocate a (a) All requests will be handled in the reasonable level of resources to re- order received on a strictly ‘‘first-in, quests under the Act in a strictly first-out’’ basis. Exceptions to this rule ‘‘first-in, first-out’’ basis and utilizing will only be made in circumstances two or more processing queues to en- that NACIC deems to be exceptional. In sure that smaller as well as larger (i.e., making this determination, NACIC project) cases receive equitable atten- shall consider and must decide in the tion. The Information and Privacy Co- affirmative on all of the following fac- ordinator is responsible for manage- tors: ment of the NACIC-wide program de- (1) That there is a genuine need for fined by this part and for establishing the records; and priorities for cases consistent with es- (2) That the personal need is excep- tablished law. The Director, NACIC tional; and shall provide policy and resource direc- (3) That there are no alternative fo- tion as necessary and shall render deci- rums for the records sought; and sions on administrative appeals. (4) That it is reasonably believed that (c) Requests for extension of time. substantive records relevant to the While the Privacy Act does not specify stated needs may exist and be deemed time requirements, our joint treatment releasable. of requests under the FOIA means that (b) In sum, requests shall be consid- when NACIC is unable to meet the ered for expedited processing only statutory time requirements of the when health, humanitarian, or due FOIA, NACIC may request additional

391

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00401 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1801.41 32 CFR Ch. XVIII (7–1–05 Edition)

time from a requester. In such in- of pending litigation in the federal stances NACIC will inform a requester courts. of his or her right to decline our re- (d) Receipt, recording, and tasking. quest and proceed with an administra- NACIC shall promptly record each ad- tive appeal or judicial review as appro- ministrative appeal, acknowledge re- priate. ceipt to the requester in writing, and thereafter effect the necessary Subpart E—Action On Privacy Act taskings to the office chief in charge of Administrative Appeals the office(s) which originated or has an interest in the record(s) subject to the § 1801.41 Appeal authority. appeal. The Director, NACIC will make final NACIC decisions from appeals of initial § 1801.43 Determination(s) by Office adverse decisions under the Privacy Chiefs. Act and such other information release Each Office Chief in charge of an of- decisions made under 32 CFR parts fice which originated or has an interest 1800, 1802, and 1803 of this chapter. Mat- in any of the records subject to the ap- ters decided by the Director, NACIC will be deemed a final decision by peal, or designee, is a required party to NACIC. any appeal; other interested parties may become involved through the re- § 1801.42 Right of appeal and appeal quest of the Coordinator when it is de- procedures. termined that some or all of the infor- (a) Right of Appeal. A right of admin- mation is also within their official cog- istrative appeal exists whenever access nizance. These parties shall respond in to any requested record or any portion writing to the Coordinator with a find- thereof is denied, no records are lo- ing as to the exempt or non-exempt cated in response to a request, or a re- status of the information including ci- quest for amendment is denied. NACIC tations to the applicable exemption will apprise all requesters in writing of and/or their agreement or disagree- their right to appeal such decisions to ment as to the requested amendment the Director, NACIC through the Coor- and the reasons therefore. Each re- dinator. sponse shall be provided expeditiously (b) Requirements as to time and form. on a ‘‘first-in, first-out’’ basis taking Appeals of decisions must be received into account the business requirements by the Coordinator within forty-five (45) days of the date of NACIC’s initial of the parties and consistent with the decision. NACIC may, for good cause information rights of members of the and as a matter of administrative dis- general public under the various infor- cretion, permit an additional thirty mation review and release laws. (30) days for the submission of an appeal. All appeals to the Director, § 1801.44 Action by appeals authority. NACIC shall be in writing and ad- (a) Preparation of docket. The Coordi- dressed as specified in § 1801.3. All ap- nator shall provide a summation peals must identify the documents or memorandum for consideration of the portions of documents at issue with Director, NACIC; the complete record specificity, provide the desired amend- of the request consisting of the re- ing language (if applicable), and may quest, the document(s) (sanitized and present such information, data, and ar- full text) at issue, and the findings of gument in support as the requester any concerned office chiefs or des- may desire. ignee(s). (c) Exceptions. No appeal shall be ac- (b) Decision by the Director, NACIC. cepted if the requester has outstanding The Director, NACIC shall personally fees for information services at this or decide each case; no personal appear- another federal agency. In addition, no appeal shall be accepted if the informa- ances shall be permitted without the tion in question has been the subject of express permission of the Director, an administrative review within the NACIC. previous two (2) years or is the subject

392

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00402 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1801.52

§ 1801.45 Notification of decision and assurance that the record will be used right of judicial review. solely as a statistical research or re- (a) In general. The Coordinator shall porting record, and the record is to be promptly prepare and communicate the transferred in a form that is not indi- decision of the Director, NACIC to the vidually identifiable; requester. With respect to any decision (f) To the National Archives and to deny information or deny amend- Records Administration as a record ment, that correspondence shall state which has sufficient historical or other the reasons for the decision, identify value to warrant its continued preser- the officer responsible, and include a vation by the United States Govern- notice of the right to judicial review. ment, or for evaluation by the Archi- (b) For amendment requests. With fur- vist of the United States or designee to ther respect to any decision to deny an determine whether the record has such amendment, that correspondence shall value; also inform the requester of the right (g) To another agency or to an in- to submit within forty-five (45) days a strumentality of any governmental ju- statement of his or her choice which risdiction within or under the control shall be included in the official records of the United States for a civil or of NACIC. In such cases, the applicable criminal law enforcement activity if record system manager shall clearly the activity is authorized by law, and if note any portion of the official record the head of that agency or instrumen- which is disputed, append the request- tality has made a written request to er’s statement, and provide copies of NACIC specifying the particular infor- the statement to previous recipients (if mation desired and the law enforce- any are known) and to any future re- ment activity for which the record is cipients when and if the disputed infor- sought; mation is disseminated in accordance (h) To a person pursuant to a showing with a routine use. of compelling circumstances affecting the health or safety of an individual if Subpart F—Prohibitions upon such disclosure notification is transmitted to the last known address § 1801.51 Limitations on disclosure. of such individual; No record which is within a system of (i) To either House of Congress, or, to records shall be disclosed by any means the extent of matter within its juris- of communication to any individual or diction, any committee or sub- to another agency, except pursuant to committee thereof, any joint com- a written request by, or with the prior mittee of Congress or subcommittee of written consent of, the individual to any such joint committee; whom the record pertains, unless dis- (j) To the Comptroller General or any closure of the record would be: of his authorized representatives in the (a) To those officers and employees of course of the performance of the duties NACIC which maintains the record who of the General Accounting Office; or have a need for the record in the per- (k) To any agency, government in- formance of their duties; strumentality, or other person or enti- (b) Required under the Freedom of ty pursuant to the order of a court of Information Act, 5 U.S.C. 552; competent jurisdiction of the United (c) For a routine use as defined in States or constituent states. § 1801.02(m), as contained in the Privacy Act Issuances Compilation which is § 1801.52 Criminal penalties. published biennially in the FEDERAL (a) Unauthorized disclosure. Criminal REGISTER, and as described in sections penalties may be imposed against any (a)(7) and (e)(4)(D) of the Act; officer or employee of NACIC who, by (d) To the Bureau of the Census for virtue of employment, has possession purposes of planning or carrying out a of or access to NACIC records which census or survey or related activity contain information identifiable with pursuant to the provisions of U.S.C. an individual, the disclosure of which Title 13; is prohibited by the Privacy Act or by (e) To a recipient who has provided these rules, and who, knowing that dis- NACIC with advance adequate written closure of the specific material is so

393

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00403 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1801.63 32 CFR Ch. XVIII (7–1–05 Edition)

prohibited, willfully discloses the ma- President of the United States or other terial in any manner to any person or individuals pursuant to 18 U.S.C. 3056; agency not entitled to receive same. (d) Required by statute to be main- (b) Unauthorized maintenance. Crimi- tained and used solely as statistical nal penalties may be imposed against records; any officer or employee of NACIC who (e) Investigatory in nature and com- willfully maintains a system of records piled solely for the purpose of deter- without meeting the requirements of mining suitability, eligibility, or quali- section (e)(4) of the Privacy Act, 5 fications for federal civilian employ- U.S.C. 552a. The Coordinator and the ment, military service, federal con- Director of NACIC are authorized inde- tracts, or access to classified informa- pendently to conduct such surveys and tion, but only to the extent that the inspect such records as necessary from disclosure of such material would re- time to time to ensure that these reveal the identity of a source who fur- quirements are met. nished information to the United (c) Unauthorized requests. Criminal States Government under an express penalties may be imposed upon any promise of confidentiality, or, prior to person who knowingly and willfully re- the effective date of this section, under quests or obtains any record con- an implied promise of confidentiality; cerning an individual from NACIC (f) Testing or examination material under false pretenses. used solely to determine individual qualifications for appointment or pro- Subpart G—Exemptions motion in the federal service the disclosure of which would compromise the § 1801.63 Specific exemptions. objectivity or fairness of the testing or examination process; or Pursuant to authority granted in section (k) of the Privacy Act, the Direc- (g) Evaluation material used to de- tor, NACIC has determined to exempt termine potential for promotion in the from section (d) of the Privacy Act armed services, but only to the extent those portions and only those portions that the disclosure of such material of all systems of records maintained by would reveal the identity of a source NACIC that would consist of, pertain who furnished information to the to, or otherwise reveal information United States Government under an that is: express promise of confidentiality, or, prior to the effective date of this sec- (a) Classified pursuant to Executive tion, under an implied promise of con- Order 12958 (or successor or prior fidentiality. Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1) and 5 U.S.C. 552a(k)(1); PART 1802—CHALLENGES TO (b) Investigatory in nature and com- CLASSIFICATION OF DOCU- piled for law enforcement purposes, MENTS BY AUTHORIZED HOLDERS other than material within the scope of PURSUANT TO SECTION 1.9 OF section (j)(2) of the Act; provided how- EXECUTIVE ORDER 12958 ever, that if an individual is denied any right, privilege, or benefit to which Subpart A—General they are otherwise eligible, as a result of the maintenance of such material, Sec. then such material shall be provided to 1802.1 Authority and purpose. that individual except to the extent 1802.2 Definitions. that the disclosure would reveal the 1802.3 Contact for general information and identity of a source who furnished the requests. information to the United States Gov- 1802.4 Suggestions and complaints. ernment under an express promise of confidentiality, or, prior to the effec- Subpart B—Filing of Challenges tive date of this section, under an im- 1802.11 Prerequisites. plied promise of confidentiality; 1802.12 Requirements as to form. (c) Maintained in connection with 1802.13 Identification of material at issue. providing protective services to the 1802.14 Transmission.

394

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00404 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1802.3

Subpart C—Action on Challenges classified information, or otherwise has Constitutional authority pursuant to 1802.21 Receipt, recording, and tasking. 1802.22 Challenges barred by res judicata. their office; 1802.23 Determination by originator(s) and/ Days means calendar days when or any interested party. NACIC is operating and specifically ex- 1802.24 Designation of authority to hear cludes Saturdays, Sundays, and legal challenges. public holidays. Three (3) days may be 1802.25 Action on challenge. added to any requirement of this part 1802.26 Notification of decision and prohibi- if responding by U.S. domestic mail; tion on adverse action. ten (10) days may be added if respond- Subpart D—Right of Appeal ing by international mail; Challenge means a request in the in- 1802.31 Right of Appeal. dividual’s official, not personal, capac- AUTHORITY: Executive Order 12958, 60 FR ity and in furtherance of the interests 19825, 3 CFR 1996 Comp., p. 333–356 (or suc- of the United States; cessor Orders). Control means ownership or the au- SOURCE: 64 FR 49889, Sept. 14, 1999, unless thority of NACIC pursuant to federal otherwise noted. statute or privilege to regulate official or public access to records; Subpart A—General Coordinator means the NACIC Infor- mation and Privacy Coordinator acting § 1802.1 Authority and purpose. in the capacity of the Director of (a) Authority. This part is issued NACIC; under the authority of and in order to Information means any knowledge implement § 1.9 of Executive Order that can be communicated or documen- (E.O.) 12958 and section 102 of the Na- tary material, regardless of its phys- tional Security Act of 1947. ical form, that is: (b) Purpose. This part prescribes pro- (1) Owned by, produced by or for, or cedures for authorized holders of infor- under the control of the United States mation classified under the various Government, and provisions of E.O. 12958, or predecessor (2) Lawfully and actually in the pos- Orders, to seek a review or otherwise session of an authorized holder and for challenge the classified status of infor- which ownership and control has not mation to further the interests of the been relinquished by NACIC; United States Government. This part Interested party means any official in and § 1.9 of E.O. 12958 confer no rights the executive, military, congressional, upon members of the general public, or or judicial branches of government, authorized holders acting in their per- United States or foreign, or U.S. Gov- sonal capacity, both of whom shall con- ernment contractor who, in the sole tinue to request reviews of classifica- discretion of NACIC, has a subject mat- tion under the mandatory declassifica- ter or physical interest in the docu- tion review provisions set forth at § 3.6 ments or information at issue; of E.O. 12958. Originator means the NACIC officer who originated the information at § 1802.2 Definitions. issue, or successor in office, or a NACIC For purposes of this part, the fol- officer who has been delegated declas- lowing terms have the meanings as in- sification authority for the informa- dicated: tion at issue in accordance with the NACIC means the United States Na- provisions of this Order; tional Counterintelligence Center act- This Order means Executive Order ing through the NACIC Information 12958 of April 17, 1995, or successor Or- and Privacy Coordinator; ders. Authorized holders means any member of any United States executive depart- § 1802.3 Contact for general informa- ment, military department, the Con- tion and requests. gress, or the judiciary (Article III) who For information on this part or to holds a security clearance from or has file a challenge under this part, please been specifically authorized by NACIC direct your inquiry to the Director, Na- to possess and use on official business tional Counterintelligence Center,

395

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00405 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1802.4 32 CFR Ch. XVIII (7–1–05 Edition)

Washington, DC 20505. The commercial form is in issue, the challenge shall (non-secure) telephone is (703) 874–4117; state so clearly and present or other- the classified (secure) telephone for wise refer with specificity to that in- voice and facsimile is (703) 874–5829. formation in the body of the challenge.

§ 1802.4 Suggestions and complaints. § 1802.14 Transmission. NACIC welcomes suggestions or com- Authorized holders must direct chal- plaints with regard to its administra- lenge requests to NACIC as specified in tion of the Executive Order. Letters of § 1802.3. The classified nature of the suggestion or complaint should iden- challenge, as well as the appended doc- tify the specific purpose and the issues uments, require that the holder trans- for consideration. NACIC will respond mit same in full accordance with estab- to all substantive communications and lished security procedures. In general, take such actions as determined fea- registered U.S. mail is approved for SE- sible and appropriate. CRET, non-compartmented material; higher classifications require use of ap- Subpart B—Filing Of Challenges proved Top Secret facsimile machines or NACIC-approved couriers. Further § 1802.11 Prerequisites. information is available from NACIC as Prior to reliance on this part, au- well as corporate or other federal agen- thorized holders are required to first cy security departments. exhaust such established administrative procedures for the review of classi- Subpart C—Action On Challenges fied information. Further information on these procedures is available from § 1802.21 Receipt, recording, and the point of contact, § 1802.3. tasking. The Coordinator shall within ten (10) § 1802.12 Requirements as to form. days record each challenge received The challenge shall include identi- under this part, acknowledge receipt to fication of the challenger by full name the authorized holder, and task the and title of position, verification of se- originator and other interested parties. curity clearance or other basis of au- Additional taskings, as required during thority, and an identification of the the review process, shall be accom- documents or portions of documents or plished within five (5) days of notifica- information at issue. The challenge tion. shall also, in detailed and factual terms, identify and describe the rea- § 1802.22 Challenges barred by res ju- sons why it is believed that the infor- dicata. mation is not protected by one or more The Coordinator shall respond on be- of the § 1.5 provisions, that the release half of the Director, NACIC and deny of the information would not cause any challenge where the information in damage to the national security, or question has been the subject of a clas- that the information should be declassification review within the previous sified due to the passage of time. The two (2) years or is the subject of pend- challenge must be properly classified; ing litigation in the federal courts. in this regard, until the challenge is decided, the authorized holder must § 1802.23 Response by originator(s) treat the challenge, the information and/or any interested party. being challenged, and any related or (a) In general. The originator of the explanatory information as classified classified information (document) is a at the same level as the current classi- required party to any challenge; other fication of the information in dispute. interested parties may become involved through the request of the Di- § 1802.13 Identification of material at rector, NACIC or the originator when issue. it is determined that some or all of the Authorized holders shall append the information is also within their official documents at issue and clearly mark cognizance. those portions subject to the challenge. (b) Determination. These parties shall If information not in documentary respond in writing to the Director,

396

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00406 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center Pt. 1803

NACIC with a mandatory unclassified notice that no adverse action or ret- finding, to the greatest extent possible, ribution can be taken in regard to the and an optional classified addendum. challenge and that an appeal of the de- This finding shall agree to a declas- cision may be made to the Interagency sification or, in specific and factual Security Classification Appeals Panel terms, explain the basis for continued (ISCAP) established pursuant to § 5.4 of classification including identification this Order. of the category of information, the harm to national security which could Subpart D—Right of Appeal be expected to result from disclosure, and, if older than ten (10) years, the § 1802.31 Right of appeal. basis for the extension of classification A right of appeal is available to the time under §§ 1.6 and 3.4 of this Order. ISCAP established pursuant to § 5.4 of These parties shall also provide a this Order. Action by that body will be statement as to whether or not there is the subject of rules to be promulgated any other statutory, common law, or by the Information Security Oversight Constitutional basis for withholding as Office (ISOO). required by § 6.1(c) of this Order. (c) Time. The determination(s) shall be provided on a first in, first out basis PART 1803—PUBLIC REQUESTS FOR with respect to all challenges pending MANDATORY DECLASSIFICATION under this section and shall be accom- REVIEW OF CLASSIFIED INFOR- plished expeditiously taking into ac- MATION PURSUANT TO SECTION count the requirements of the author- 3.6 OF EXECUTIVE ORDER 12958 ized holder as well as the business requirements of the originator including Subpart A—General their responsibilities under the Free- dom of Information Act, the Privacy Sec. Act, or the mandatory declassification 1803.1 Authority and purpose. review provisions of this Order. 1803.2 Definitions. 1803.3 Contact for general information and § 1802.24 Designation of authority to requests. hear challenges. 1803.4 Suggestions and complaints. The Director, NACIC is the NACIC authority to hear and decide challenges Subpart B—Filing of Mandatory under this part. Declassification Review (MDR) Requests 1803.11 Preliminary information. § 1802.25 Action on challenge. 1803.12 Requirements as to form. Action by Coordinator. The Coordi- 1803.13 Fees. nator shall provide a summation memorandum for consideration of the Subpart C—NACIC Action on MDR Director, NACIC; the complete package Requests consisting of the challenge, the infor- 1803.21 Receipt, recording, and tasking. mation at issue, and the findings of the 1803.22 Requests barred by res judicata. originator and interested parties shall 1803.23 Determination by originator or in- also be provided. The Director, NACIC terested party. shall personally decide each case; no 1803.24 Notification of decision and right of personal appearances shall be per- appeal. mitted without the express permission of the Director, NACIC. Subpart D—NACIC Action on MDR Appeals § 1802.26 Notification of decision and prohibition on adverse action. 1803.31 Requirements as to time and form. 1803.32 Receipt, recording, and tasking. The Coordinator shall communicate 1803.33 Determination by NACIC Office the decision of NACIC to the author- Chiefs ized holder, the originator, and other 1803.34 Appeal authority. interested parties within ten (10) days 1803.35 Action by appeals authority. of the decision by the Coordinator. 1803.36 Notification of decision and right of That correspondence shall include a further appeal.

397

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00407 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1803.1 32 CFR Ch. XVIII (7–1–05 Edition)

Subpart E—Further Appeals Federal agency means any executive department, military department, or 1803.41 Right of further appeal. other establishment or entity included AUTHORITY: Section 3.6 of Executive Order in the definition of agency in 5 U.S.C. 12958 (or successor Orders) and Section 102 of 552(f); the National Security Act, as amended (50 Information means any knowledge U.S.C. 403). that can be communicated or documen- SOURCE: 64 FR 49890, Sept. 14, 1999, unless tary material, regardless of its phys- otherwise noted. ical form that is owned by, produced by or for, or under the control of the Subpart A—General United States Government; it does not include information originated by the § 1803.1 Authority and purpose. incumbent President, White House (a) Authority. This part is issued Staff, appointed committees, commis- under the authority of and in order to sions or boards, or any entities within implement § 3.6 of Executive Order the Executive Office that solely advise (E.O.) 12958 (or successor Orders); and and assist the incumbent President; Section 102 of the National Security Interested party means any official in Act of 1947, as amended (50 U.S.C. 403). the executive, military, congressional, (b) Purpose. This part prescribes pro- or judicial branches of government, cedures, subject to limitations set United States or foreign, or U.S. Gov- forth below, for members of the public ernment contractor who, in the sole to request a declassification review of discretion of NACIC, has a subject mat- information classified under the var- ter or physical interest in the docu- ious provisions of this or predecessor ments or information at issue; Orders. Section 3.6 of E.O. 12958 and NARA means the National Archives these regulations do not create any and Records Administration; right or benefit, substantive or proce- Originator means the NACIC officer dural, enforceable at law by a party who originated the information at against the United States, its agencies, issue, or successor in office, or a NACIC officers, or employees. officer who has been delegated declassification authority for the informa- § 1803.2 Definitions. tion at issue in accordance with the For purposes of this part, the fol- provisions of this Order; lowing terms have the meanings as in- Presidential libraries means the librar- dicated: ies or collection authorities estab- NACIC means the United States Na- lished by statute to house the papers of tional Counterintelligence Center act- former Presidents Hoover, Roosevelt, ing through the NACIC Information Truman, Eisenhower, Kennedy, John- and Privacy Coordinator; son, Nixon, Ford, Carter, Reagan, Bush Days means calendar days when and similar institutions or authorities NACIC is operating and specifically ex- as may be established in the future; cludes Saturdays, Sundays, and legal Referral means coordination with or public holidays. Three (3) days may be transfer of action to an interested added to any requirement of this part party; if responding by U.S. domestic mail; This Order means Executive Order ten (10) days may be added if respond- 12958 of April 17, 1995 or successor Or- ing by international mail; ders; Control means ownership or the authority of NACIC pursuant to federal § 1803.3 Contact for general informa- statute or privilege to regulate official tion and requests. or public access to records; For general information on this part Coordinator means the NACIC Infor- or to request a declassification review, mation and Privacy Coordinator who please direct your communication to serves as the NACIC manager of the in- the Information and Privacy Coordi- formation review and release program nator, National Counterintelligence instituted under the mandatory declas- Center, 3W01 NHB, Washington, DC sification review provisions of Execu- 20505. Such inquiries will also be active Order 12958; cepted by facsimile at (703) 874–5844.

398

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00408 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1803.23

For general or status information only, § 1803.13 Fees. the telephone number is (703) 874–4121. Requests submitted via NARA or the Collect calls cannot be accepted. various Presidential libraries shall be responsible for reproduction costs re- § 1803.4 Suggestions and complaints. quired by statute or regulation. Re- NACIC welcomes suggestions or com- quests made directly to NACIC will be plaints with regard to its administra- liable for costs in the same amount and tion of the mandatory declassification under the same conditions as specified review program established under Ex- in part 1800 of this chapter. ecutive Order 12958. Letters of suggestion or complaint should identify the Subpart C—NACIC Action on MDR specific purpose and the issues for con- Requests sideration. NACIC will respond to all substantive communications and take § 1803.21 Receipt, recording, and such actions as determined feasible and tasking. appropriate. The Information and Privacy Coordi- nator shall within ten (10) days record Subpart B—Filing of Mandatory each mandatory declassification review Declassification Review (MDR) request received under this part, acknowledge receipt to the requester in Requests writing (if received directly from a requester), and shall thereafter task the § 1803.11 Preliminary information. originator and other interested parties. Members of the public shall address Additional taskings, as required during all communications to the point of the review process, shall be accom- contact specified above and clearly de- plished within ten (10) days of notifica- lineate the communication as a request tion. under this part. Requests and appeals on requests received from members of § 1803.22 Requests barred by res judi- the public who owe outstanding fees for cata. information services under this Order The Coordinator shall respond to the or the Freedom of Information Act at requester and deny any request where this or another federal agency will not the information in question has been be accepted until such debts are re- the subject of a classification review solved. within the previous two (2) years or is the subject of pending litigation in the § 1803.12 Requirements as to form. federal courts. The request shall identify the docu- § 1803.23 Determination by originator ment(s) or material(s) with sufficient or interested party. specificity (e.g., National Archives and (a) In general. The originator of the Records Administration (NARA) Docu- classified information (document) is a ment Accession Number or other appli- required party to any mandatory de- cable, unique document identifying classification review request; other in- number) to enable NACIC to locate it terested parties may become involved with reasonable effort. Broad or topical through a referral by the Coordinator requests for records on a particular when it is determined that some or all subject may not be accepted under this of the information is also within their provision. A request for documents official cognizance. contained in the various Presidential (b) Required determinations. These par- libraries shall be effected through the ties shall respond in writing to the Co- staff of such institutions who shall for- ordinator with a finding as to the clas- ward the document(s) in question for sified status of the information includ- NACIC review. The requester shall also ing the category of protected informa- provide sufficient personal identifying tion as set forth in § 1.5 of this Order, information when required by NACIC and, if older than ten (10) years, the to satisfy requirements of this part. basis for the extension of classification time under §§ 1.6 and 3.4 of this Order.

399

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00409 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1803.24 32 CFR Ch. XVIII (7–1–05 Edition)

These parties shall also provide a the request of the Coordinator when it statement as to whether or not there is is determined that some or all of the any other statutory, common law, or information is also within their official Constitutional basis for withholding as cognizance. These parties shall respond required by § 6.1(c) of this Order. in writing to the Coordinator with a (c) Time. This response shall be pro- finding as to the classified status of the vided expeditiously on a first-in, first- information including the category of out basis taking into account the busi- protected information as set forth in ness requirements of the originator or § 1.5 of this Order, and, if older than ten interested parties and consistent with (10) years, the basis for continued clas- the information rights of members of sification under §§ 1.6 and 3.4 of this the general public under the Freedom Order. These parties shall also provide of Information Act and the Privacy a statement as to whether or not there Act. is any other statutory, common law, or Constitutional basis for withholding as § 1803.24 Notification of decision and right of appeal. required by § 6.1(c) of this Order. This response shall be provided expedi- The Coordinator shall communicate tiously on a ‘‘first-in, first-out’’ basis the decision of NACIC to the requester taking into account the business re- within ten (10) days of completion of quirements of the parties and con- all review action. That correspondence sistent with the information rights of shall include a notice of a right of ad- members of the general public under ministrative appeal to the Director, the Freedom of Information Act and NACIC pursuant to § 3.6(d) of this the Privacy Act. Order. § 1803.34 Appeal authority. Subpart D—NACIC Action on MDR The Director, NACIC will make final Appeals NACIC decisions from appeals of initial § 1803.31 Requirements as to time and denial decisions under E.O. 12958. Mat- form. ters decided by the Director, NACIC will be deemed a final decision by Appeals of decisions must be received NACIC. by the Coordinator within forty-five (45) days of the date of mailing of § 1803.35 Action by appeals authority. NACIC’s initial decision. It shall identify with specificity the documents or Action by the Director, NACIC. The information to be considered on appeal Coordinator shall provide a summation and it may, but need not, provide a fac- memorandum for consideration of the tual or legal basis for the appeal. Director, NACIC; the complete record of the request consisting of the re- § 1803.32 Receipt, recording, and quest, the document(s) (sanitized and tasking. full text) at issue, and the findings of The Coordinator shall promptly the originator and interested parties. record each appeal received under this The Director, NACIC shall personally part, acknowledge receipt to the re- decide each case; no personal appear- quester, and task the originator and ances shall be permitted without the other interested parties. Additional express permission of the Director, taskings, as required during the review NACIC. process, shall be accomplished within ten (10) days of notification. § 1803.36 Notification of decision and right of further appeal. § 1803.33 Determination by NACIC Of- The Coordinator shall communicate fice Chiefs. the decision of the Director, NACIC to Each NACIC Office Chief in charge of the requester, NARA, or the particular an office which originated or has an in- Presidential Library within ten (10) terest in any of the records subject to days of such decision. That correspond- the appeal, or designee, is a required ence shall include a notice that an ap- party to any appeal; other interested peal of the decision may be made to the parties may become involved through Interagency Security Classification

400

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00410 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1804.2

Appeals Panel (ISCAP) established pur- (i) Requesting access to NACIC suant to § 5.4 of this Order. records for purposes of historical research, or Subpart E—Further Appeals (ii) Requesting access to NACIC records as a former Presidential ap- § 1803.41 Right of further appeal. pointee. A right of further appeal is available (2) Section 4.5 of Executive Order to the ISCAP established pursuant to 12958 and this part do not create any § 5.4 of this Order. Action by that Panel right or benefit, substantive or proce- will be the subject of rules to be pro- dural, enforceable at law by a party mulgated by the Information Security against the United States, its agencies, Oversight Office (ISOO). officers, or employees.

PART 1804—ACCESS BY HISTOR- § 1804.2 Definitions. ICAL RESEARCHERS AND For purposes of this part, the fol- FORMER PRESIDENTIAL AP- lowing terms have the meanings indi- POINTEES PURSUANT TO SECTION cated: 4.5 OF EXECUTIVE ORDER 12958 NACIC means the United States Na- tional Counterintelligence Center act- Subpart A—General ing through the NACIC Information and Privacy Coordinator; Sec. Days means calendar days when 1804.01 Authority and purpose. NACIC is operating and specifically ex- 1804.02 Definitions. cludes Saturdays, Sundays, and legal 1804.03 Contact for general information and public holidays. Three (3) days may be requests. 1804.04 Suggestions and complaints. added to any requirement of this part if responding by U.S. domestic mail; Subpart B—Requests for Historical Access ten (10) days may be added if responding by international mail; 1804.11 Requirements as to who may apply. Control means ownership or the au- 1804.12 Designations of authority to hear re- thority of NACIC pursuant to federal quests. 1804.13 Receipt, recording, and tasking. statute or privilege to regulate official 1804.14 Determinations by tasked officials. or public access to records; 1804.15 Action by hearing authority. Coordinator means the NACIC Infor- 1804.16 Action by appeal authority. mation and Privacy Coordinator who 1804.17 Notification of decision. serves as the NACIC manager of the 1804.18 Termination of access. historical access program established AUTHORITY: Section 4.5 of Executive Order pursuant to Section 4.5 of this Order; 12958 (or successor Orders) and Presidential Federal agency means any executive Decision Directive/NSC 24 ‘‘U.S. Counter- department, military department, or intelligence Effectiveness,’’ dated May 3, other establishment or entity included 1994. in the definition of agency in 5 U.S.C. SOURCE: 64 FR 49892, Sept. 14, 1999, unless 552(f); otherwise noted. Former Presidential appointee means any person who has previously occu- Subpart A—General pied a policy-making position in the executive branch of the United States § 1804.1 Authority and purpose. Government to which they were ap- (a) Authority. This part is issued pointed by the current or former Presi- under the authority of and in order to dent and confirmed by the United implement § 4.5 of Executive Order States Senate; 12958 (or successor Orders); and Presi- Historian or historical researcher dential Decision Directive/NSC 24, U.S. means any individual with professional Counterintelligence Effectiveness, training in the academic field of his- dated May 3, 1994. tory (or related fields such as jour- (b) Purpose. (1) This part prescribes nalism) engaged in a research project procedures for: leading to publication (or any similar

401

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00411 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1804.3 32 CFR Ch. XVIII (7–1–05 Edition)

activity such as academic course devel- Subpart B—Requests for Historical opment) reasonably intended to in- Access crease the understanding of the Amer- ican public into the operations and ac- § 1804.11 Requirements as to who may tivities of the United States govern- apply. ment; (a) Historical researchers:—(1) In gen- Information means any knowledge eral. Any historian engaged in a histor- that can be communicated or documen- ical research project as defined above tary material, regardless of its phys- may submit a request in writing to the ical form that is owned by, produced by Coordinator to be given access to clas- or for, or is under the control of the sified information for purposes of that United States Government; research. Any such request shall indi- Interested party means any official in cate the nature, purpose, and scope of the executive, military, congressional, the research project. or judicial branches of government, (2) Additional considerations. In light United States or foreign, or U.S. Gov- of the very limited resources for ernment contractor who, in the sole NACIC’s various historical programs, it discretion of NACIC, has a subject mat- is the policy of NACIC to consider ap- ter or physical interest in the docu- plications for historical research privi- ments or information at issue; leges only in those instances where the Originator means the NACIC officer researcher’s needs cannot be satisfied who originated the information at through requests for access to reason- issue, or successor in office, or a NACIC ably described records under the Free- officer who has been delegated declas- dom of Information Act or the manda- sification authority for the informa- tory declassification review provisions tion at issue in accordance with the of Executive Order 12958 and where provisions of this Order; issues of internal resource availability This Order means Executive Order and fairness to all members of the his- 12958 of April 17, 1995 or successor Or- torical research community militate in ders. favor of a particular grant. (b) Former Presidential appointees. Any § 1804.3 Contact for general informa- former Presidential appointee as de- tion and requests. fined herein may also submit a request For general information on this part, to be given access to any classified to inquire about historical access to records which they originated, re- NACIC records, or to make a formal reviewed, signed, or received while serv- quest for such access, please direct ing in that capacity. Such appointees your communication in writing to the may also request approval for a re- Information and Privacy Coordinator, search associate but there is no entitle- Executive Secretariat, 3W01 NHB, Na- ment to such enlargement of access tional Counterintelligence Center, and the decision in this regard shall be Washington, DC 20505. Inquiries will in the sole discretion of NACIC. Re- also be accepted by facsimile at (703) quests from appointees shall be in writ- 874–5844. For general information only, ing to the Coordinator and shall iden- the telephone number is (703) 874–4121. tify the records of interest. Collect calls cannot be accepted. § 1804.12 Designations of authority to § 1804.4 Suggestions and complaints. hear requests. NACIC welcomes suggestions or com- The Director, NACIC has designated plaints with regard to its administra- the Coordinator, as the NACIC author- tion of the historical access program ity to decide requests for historical and established pursuant to Executive former Presidential appointee access Order 12958. Letters of suggestion or under Executive Order 12958 (or suc- complaint should identify the specific cessor Orders) and this part. purpose and the issues for consideration. NACIC will respond to all sub- § 1804.13 Receipt, recording, and stantive communications and take tasking. such actions as determined feasible and The Information and Privacy Coordi- appropriate. nator shall within ten (10) days record

402

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00412 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1804.16

each request for historical access re- and release and/or publication (by the ceived under this part, acknowledge re- Deputy Director of NACIC and the ceipt to the requester in writing and originator); take the following action: (7) That sufficient resources are (a) Compliance with general require- available for the administrative sup- ments. The Coordinator shall review port of the researcher given current each request under this part and deter- mission requirements (by the Deputy mine whether it meets the general re- Director of NACIC and the originator); quirements as set forth in § 1804.11; if it and, does not, the Coordinator shall so no- (8) That the request cannot be satis- tify the requester and explain the legal fied to the same extent through re- basis for this decision. quests for access to reasonably de- (b) Action on requests meeting general scribed records under the Freedom of requirements. For requests which meet Information Act or the mandatory de- the requirements of § 1804.11, the Coor- classification review provisions of Ex- dinator shall thereafter task the origi- ecutive Order 12958 (by the Coordi- nator(s) of the materials for which ac- nator, the Deputy Director of NACIC cess is sought and other interested par- and the originator). ties. Additional taskings, as required (b) Time. These responses shall be during the review process, shall be ac- provided expeditiously on a first-in, complished within ten (10) days of noti- first-out basis taking into account the fication. business requirements of the tasked offices and consistent with the informa- § 1804.14 Determinations by tasked of- tion rights of members of the general ficials. public under the Freedom of Informa- (a) Required determinations. The tion Act and the Privacy Act. NACIC tasked parties as specified below shall will utilize its best efforts to complete respond in writing to the Coordinator action on requests under this part with recommended findings to the fol- within thirty (30) days of date of re- lowing issues: ceipt. (1)That a serious professional or scholarly research project by the re- § 1804.15 Action by hearing authority. quester is contemplated; Action by Coordinator. The Coordi- (2) That such access is clearly con- nator shall provide a summation sistent with the interests of national memorandum for consideration of the security (by originator and interested Director, NACIC, the complete record party, if any); of the request consisting of the request (3) That a non-disclosure agreement and the findings of the tasked parties. has been or will be executed by the re- The Director, NACIC shall decide requester (or research associate, if any) quests on the basis of the eight factors and other appropriate steps have been enumerated at § 1804.14(a). The Direc- taken to assure that classified informa- tor, NACIC shall personally decide each tion will not be disclosed or otherwise case; no personal appearances shall be compromised; permitted without the express permis- (4) That a pre-publication agreement sion of the Director, NACIC. has been or will be executed by the requester (or research associate, if any) § 1804.16 Action by appeal authority. which provides for a review of notes The record compiled (the request, the and any resulting manuscript by the memoranda filed by the originator and Deputy Director of NACIC; interested parties, and the previous de- (5) That the information requested is cision(s)) as well as any memorandum reasonably accessible and can be lo- of law or policy the referent desires to cated and compiled with a reasonable be considered, shall be certified by the effort (by the Deputy Director of Coordinator and shall constitute the NACIC and the originator); official record of the proceedings and (6) That it is reasonably expected must be included in any subsequent fil- that substantial and substantive gov- ings. In such cases, the factors to be ernment documents and/or information determined as specified in § 1804.14(a) will be amenable to declassification will be considered by the Director,

403

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00413 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1804.17 32 CFR Ch. XVIII (7–1–05 Edition)

NACIC de novo and that decision shall of that person’s association with be final. NACIC.

§ 1804.17 Notification of decision. § 1805.2 Definitions. The Coordinator shall inform the re- For the purpose of this part: quester of the decision of the Director, NACIC means the National Counter- NACIC within ten (10) days of the deci- intelligence Center and includes all sion and, if favorable, shall manage the staff elements of the NACIC. access for such period as deemed re- Demand means any subpoena, order quired but in no event for more than or other legal summons (except gar- two (2) years unless renewed by the Di- nishment orders) that is issued by a rector, NACIC in accordance with the federal, state or local government enti- requirements of § 1804.14(a). ty of competent jurisdiction with the § 1804.18 Termination of access. authority to require a response on a particular matter, or a request for ap- The Coordinator shall cancel any au- pearance of an individual where a de- thorization whenever the security mand could issue. clearance of a requester (or research Employee means any officer, any associate, if any) has been canceled or staff, contract or other employee of whenever the Director, NACIC deter- NACIC, any person including inde- mines that continued access would not pendent contractors associated with or be in compliance with one or more of acting on behalf of NACIC; and any the requirements of § 1804.14(a). person formerly having such relationships with NACIC. PART 1805—PRODUCTION OF OFFI- Production or produce means the dis- CIAL RECORDS OR DISCLOSURE closure of: OF OFFICIAL INFORMATION IN (1) Any material contained in the PROCEEDINGS BEFORE FEDERAL, files of NACIC; or STATE OR LOCAL GOVERNMENT (2) Any information relating to mate- ENTITIES OF COMPETENT JURIS- rial contained in the files of NACIC, in- DICTION cluding but not limited to summaries of such information or material, or Sec. opinions based on such information or 1805.1 Scope and purpose. material; or 1805.2 Definitions. (3) Any information acquired by per- 1805.3 General. sons while such persons were employ- 1805.4 Procedures for production. ees of NACIC as a part of the perform- AUTHORITY: 5 U.S.C. 104; Presidential Deci- ance of their official duties or because sion Directive/NSC 24 ‘‘U.S. Counterintel- of their official status or association ligence Effectiveness, dated May 3, 1994; 50 with NACIC; in response to a demand U.S.C. 403g; United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); E.O. 12333; E.O. upon an employee of NACIC. 12356; U.S. v. Snepp 444 U.S. 507 (1980). NACIC Counsel is the NACIC employee designated to manage legal SOURCE: 64 FR 49894, Sept. 14, 1999, unless otherwise noted. matters and regulatory compliance.

§ 1805.1 Scope and purpose. § 1805.3 General. This part sets forth the policy and (a) No employee shall produce any procedures with respect to the produc- materials or information in response to tion or disclosure of: a demand without prior authorization (a) Material contained in the files of as set forth in this part. This part also NACIC, applies to former employees to the ex- (b) Information relating to or based tent consistent with applicable non- upon material contained in the files of disclosure agreements. NACIC, (b) This part is intended only to pro- (c) Information acquired by any per- vide procedures for responding to de- son while such person is an employee of mands for production of documents or NACIC as part of the performance of information, and is not intended to, that person’s official duties or because does not, and may not be relied upon

404

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00414 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1805.4

to, create any right or benefit, sub- the testimony or by the party’s attor- stantive or procedural, enforceable by ney must be furnished to the NACIC any party against the United States. Counsel. (e) The NACIC Counsel shall be re- § 1805.4 Procedure for production. sponsible for notifying the appropriate (a) Whenever a demand for produc- employees and other persons of all de- tion is made upon an employee, the cisions regarding responses to demands employee shall immediately notify and providing advice and counsel as to NACIC Counsel, who will follow the the implementation of such decisions. procedures set forth in this section. (f) If response to a demand is required (b) NACIC Counsel and the Office before a decision is made whether to Chiefs with responsibility for the infor- provide the documents or information mation sought in the demand shall de- sought by the demand, NACIC Counsel, termine whether any information or materials may properly be produced in after consultation with the Depart- response to the demand, except that ment of Justice, shall appear before NACIC Counsel may assert any and all and furnish the court or other com- legal defenses and objections to the de- petent authority with a copy of this mand available to NACIC prior to the part and state that the demand has start of any search for information re- been or is being, as the case may be, responsive to the demand. NACIC may, in ferred for the prompt consideration of its sole discretion, decline to begin any the appropriate NACIC officials, and search for information responsive to shall respectfully request the court or the demand until a final and non-ap- other authority to stay the demand pealable disposition of any such depending receipt of the required instruc- fenses and objections raised by NACIC tions. has been made by the entity or person (g) If the court or any other author- that issued the demand. ity declines to stay the demand pend- (c) NACIC officials shall consider the ing receipt of instructions in response following factors, among others, in to a request made in accordance with reaching a decision: § 1805.4(g) or rules that the demand (1) Whether production is appropriate must be complied with regardless of in- in light of any relevant privilege; structions rendered in accordance with (2) Whether production is appropriate this Part not to produce the material under the applicable rules of discovery or disclose the information sought, the or the procedures governing the case or matter in which the demand arose; and employee upon whom the demand has (3) Whether any of the following cir- been made shall, if so directed by cumstances apply: NACIC Counsel, respectfully decline to (i) Disclosure would violate a statute, comply with the demand under the au- including but not limited to the Pri- thority of United States ex. rel. Touhy v. vacy Act of 1974, as amended, 5 U.S.C. Ragen, 340 U.S. 462 (1951), and this part. 552a; (h) With respect to any function (ii) Disclosure would reveal classified granted to NACIC officials in this part, information; such officials are authorized to dele- (iii) Disclosure would improperly re- gate in writing their authority in any veal trade secrets or proprietary con- case or matter or category thereof to fidential information without the own- subordinate officials. er’s consent; or (i) Any non-employee who receives a (iv) Disclosure would interfere with demand for the production or disclo- the orderly conduct of NACIC’s func- sure of NACIC information acquired be- tions. cause of that person’s association or (d) If oral or written testimony is contacts with NACIC should notify sought by a demand in a case or matter NACIC Counsel, (703) 874–4121, for guid- in which the NACIC is not a party, a ance and assistance. In such cases, the reasonably detailed description of the testimony sought, in the form of an af- provisions of this part shall be applica- fidavit or, if that is not feasible, a writ- ble. ten statement, by the party seeking

405

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00415 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1806 32 CFR Ch. XVIII (7–1–05 Edition)

PART 1806—PROCEDURES GOV- § 1806.3 Procedures governing accept- ERNING ACCEPTANCE OF SERV- ance of service of process. ICE OF PROCESS (a) Service of Process Upon the NACIC or a NACIC Employee in an Official Ca- Sec. pacity.—(1) Personal Service. Unless oth- 1806.1 Scope and Purpose. erwise expressly authorized by NACIC 1806.2 Definitions. Counsel, or designee, personal service 1806.3 Procedures governing acceptance of of process may be accepted only by service of process. NACIC Counsel, Director, NACIC, or 1806.4 Notification to NACIC Counsel. Deputy Director, NACIC, located at 1806.5 Authority of NACIC Counsel. Central Intelligence Agency Head- quarters, Langley, Virginia. AUTHORITY: 5 U.S.C. 104; Presidential Deci- (2) Mail Service. Where service of sion Directive/NSC 24 ‘‘U.S. Counterintel- process by registered or certified mail ligence Effectiveness’’, dated May 3, 1994; 50 is authorized by law, unless expressly U.S.C. 403g; E.O. 12333. directed otherwise by the NACIC Coun- SOURCE: 64 FR 49895, Sept. 14, 1999, unless sel or designee, personal service of otherwise noted. process may be accepted only by NACIC Counsel, Director, NACIC, or § 1806.1 Scope and purpose. Deputy Director, NACIC. Process by (a) This part sets forth the authority mail should be addressed as follows: of NACIC personnel to accept service of NACIC Counsel, National Counterintel- process on behalf of the NACIC or any ligence Center, Washington, DC 20505. NACIC employee. (b) Service of Process Upon a NACIC Employee Solely in An Individual Capac- (b) This part is intended to ensure ity.—(1) General. NACIC will not pro- the orderly execution of the NACIC’s vide the name or address of any cur- affairs and not to impede any legal pro- rent or former NACIC employee to in- ceeding. dividuals or entities seeking to serve (c) NACIC regulations concerning process upon such employee solely in employee responses to demands for pro- his or her individual capacity, even duction of official information before when the matter is related to NACIC federal, state or local government enti- activities. ties are set out in part 1805 of this (2) Personal Service. Subject to the chapter. sole discretion of appropriate officials of the CIA, where NACIC is physically § 1806.2 Definitions. located, process servers generally will NACIC means the National Counter- not be allowed to enter CIA Head- intelligence Center and include all quarters for the purpose of serving staff elements of NACIC. process upon any NACIC employee Process means a summons complaint, solely in his or her individual capacity. subpoena, or other official paper (ex- Subject to the sole discretion of the Di- cept garnishment orders) issued in con- rector, NACIC, process servers will gen- junction with a proceeding or hearing erally not be permitted to enter NACIC being conducted by a federal, state, or office space for the purpose of serving process upon a NACIC employee solely local government entity of competent in his or her individual capacity. The jurisdiction. NACIC Counsel, the Director, NACIC, Employee means any NACIC officer, and the Deputy Director, NACIC are any staff, contract, or other employee not permitted to accept service of proc- of NACIC, any person including inde- ess on behalf of a NACIC employee in pendent contractors associated with or his or her individual capacity. acting for or on behalf of NACIC, and (3) Mail Service. Unless otherwise ex- any person formerly having such a re- pressly authorized by the NACIC Coun- lationship with NACIC. sel, or designee, NACIC personnel are NACIC Counsel refers to the NACIC not authorized to accept or forward employee designated by NACIC to man- mailed service of process directed to age legal issues and regulatory compli- any NACIC employee in his or her indi- ance. vidual capacity. Any such process will

406

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00416 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1807.103

be returned to the sender via appro- 1807.103 Definitions. priate postal channels. 1807.104–1807.110 [Reserved] (c) Service of Process Upon a NACIC 1807.111 Notice. Employee in a Combined Official and In- 1807.112–1807.129 [Reserved] dividual Capacity.—Unless expressly di- 1807.130 General prohibitions against discrimination. rected otherwise by the NACIC Coun- 1807.131–1807.139 [Reserved] sel, or designee, any process to be 1807.140 Employment. served upon a NACIC employee in his 1807.141–1807.148 [Reserved] or her combined official and individual 1807.149 Program accessibility: discrimina- capacity, in person or by mail, can be tion prohibited. accepted only by NACIC Counsel, Di- 1807.150 Program accessibility: existing fa- rector, NACIC, or Deputy Director, cilities. NACIC, National Counterintelligence 1807.151 Program accessibility: new con- Center, Langley, Virginia. struction and alterations. (d) Service of Process Upon a NACIC 1807.152–1807.159 [Reserved] Counsel. The documents for which serv- 1807.160 Communications. 1807.161–1807.169 [Reserved] ice is accepted in official capacity only 1807.170 Compliance procedures. shall be stamped ‘‘Service Accepted in Official Capacity Only.’’ Acceptance of AUTHORITY: 5 U.S.C. 104, Presidential Deci- Service of Process shall not constitute sion Directive/NSC 24 U.S. Counterintel- an admission or waiver with respect to ligence Effectiveness, dated May 3, 1994, 29 U.S.C. 794. jurisdiction, propriety of service, improper venue, or any other defense in SOURCE: 64 FR 49896, Sept. 14, 1999, unless law or equity available under the laws otherwise noted. or rules applicable to the service of process. § 1807.101 Purpose. The purpose of this part is to effec- § 1806.4 Notification to NACIC Coun- tuate section 119 of the Rehabilitation, sel. Comprehensive Services, and Develop- A NACIC employee who receives or mental Disabilities Amendments of has reason to expect to receive service 1978, which amended section 504 of the of process in an individual, official, or Rehabilitation Act of 1973 to prohibit combined individual and official capac- discrimination on the basis of dis- ity, in a matter that may involve or ability in programs or activities con- the furnishing of documents and that ducted by Executive agencies or the could reasonably be expected to in- United States Postal Service. volve NACIC interests, shall promptly notify the NACIC Counsel. Such notifi- § 1807.102 Application. cation should be given prior to pro- This part applies to all programs or viding the requestor, personal counsel activities conducted by the NACIC. or any other representative, any NACIC information and prior to the ac- § 1807.103 Definitions. ceptance of service of process. For purposes of this part, the fol- § 1806.5 Authority of NACIC Counsel. lowing terms means— Assistant Attorney General means the Any questions concerning interpreta- Assistant Attorney General, Civil tion of this part shall be referred to the Rights Division, United States Depart- NACIC Counsel for resolution ment of Justice. Auxiliary aids means services or de- PART 1807—ENFORCEMENT OF vices that enable persons with im- NONDISCRIMINATION ON THE paired sensory, manual, or speaking BASIS OF DISABILITY IN PRO- skills to have an equal opportunity to GRAMS OR ACTIVITIES CON- participate in, and enjoy the benefits DUCTED BY THE NATIONAL of, programs or activities conducted by COUNTERINTELLIGENCE CENTER the NACIC. For example, auxiliary aids useful for persons with impaired vision Sec. include readers, materials in Braille, 1807.101 Purpose. audio recordings, and other similar 1807.102 Application. services and devices. Auxiliary aids

407

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00417 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1807.103 32 CFR Ch. XVIII (7–1–05 Edition)

useful for persons with impaired hear- ganic brain syndrome, emotional or ing include telephone handset ampli- mental illness, and specific learning fiers, telephones compatible with hear- disabilities. The term physical or men- ing aids, telecommunication devices tal impairment includes, but is not for deaf persons (TDD’s), interpreters, limited to, such diseases and condi- notetakers, written materials, and tions as orthopedic, visual, speech, and other similar services and devices. The hearing impairments, cerebral palsy, CIA, where NACIC is physically lo- epilepsy, muscular dystrophy, multiple cated, may prohibit from any of its fa- sclerosis, cancer, heart disease, diabe- cilities any auxiliary aid, or category tes, mental retardation, emotional ill- of auxiliary aid that the Center for CIA ness, drug addiction, and alcoholism. Security (CCS) determines creates a se- (2) Major life activities includes func- curity risk or potential security risk. tions such as caring for one’s self, per- CCS reserves the right to examine any forming manual tasks, walking, seeing, auxiliary aid brought into the NACIC hearing, speaking, breathing, learning, facilities at CIA Headquarters. and working; Complete complaint means a written (3) Has a record of such an impair- statement that contains the complain- ment means has a history of, or has ant’s name and address and describes been misclassified as having a mental the NACIC’s alleged discriminatory ac- or physical impairment that substan- tion in sufficient detail to inform the tially limits one or more major life ac- NACIC of the nature and date of the al- tivities. leged violation of section 504. It must (4) Is regarded as having an impair- be signed by the complainant or by ment means— someone authorized to do so on his or her behalf. Complaints filed on behalf (i) Has a physical or mental impair- of classes or third parties must de- ment that does not substantially limit scribe or identify (by name, if possible) major life activities but is treated by the alleged victims of discrimination. the NACIC as constituting such a limitation; Director means the Director of NACIC or an official or employee of the NACIC (ii) Has a physical or mental impair- acting for the Director under a delega- ment that substantially limits major tion of authority. life activities only as a result of the at- Facility means all or any portion of titudes of others toward the impair- buildings, structures, equipment, ment; or roads, walks, parking lots, rolling (iii) Has none of the impairments de- stock or other conveyances or other fined in paragraph (1) of this definition real or personal property. but is treated by the NACIC as having Individual with disabilities means any such an impairment. person who has a physical or mental Qualified individual with disabilities impairment that substantially limits means— one or more major life activities, has a (1) With respect to any NACIC pro- record of such an impairment, or is re- gram or activity under which a person garded as having such an impairment. is required to perform services or to As used in this definition, the phrase— achieve a level of accomplishment, an (1) Physical or mental impairment individual with a handicap who meets includes— the essential eligibility requirements (i) Any physiological disorder or con- and who can achieve the purpose of the dition, cosmetic disfigurement, or ana- program or activity without modifica- tomical loss affecting one or more of tions in the program or activity that the following body systems: Cardio- the NACIC can demonstrate would re- vascular; Neurological; musculo- sult in a fundamental alteration in its skeletal; special sense organs; res- nature; piratory, including speech organs; re- (2) With respect to any other NACIC productive; digestive; genitourinary; program or activity, an individual with hemic and lymphatic; skin; and endo- disabilities who meets the essential eli- crine; or gibility requirements for participation (ii) Any mental or psychological dis- in, or receipt of benefits from, that pro- order, such as mental retardation, or- gram or activity; and

408

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00418 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1807.130

(3) Qualified individual with a dis- the same result, to gain the same ben- ability as that term is defined for pur- efit, to reach the same level of achieve- poses of employment in 29 CFR ment as that provided to others; 1614.203(a)(6), which is made applicable (iii) Provide a qualified individual to this part by § 1807.140. with disabilities with an aid, benefit, Section 504 means section 504 of the or service that is not as effective in af- Rehabilitation Act of 1973 (Pub. L. 93– fording equal opportunity to obtain the 112, 87 Stat. 394 (29 U.S.C. 794), as same result, to gain the same benefit, amended by the Rehabilitation Act or to reach the same level of achieve- Amendments of 1974 (Pub. L. 93–516, 88 ment as that provided to others; Stat. 1617); the Rehabilitation, Com- (iv) Provide different or separate aid, prehensive Services, and Develop- benefits, or services to individuals with mental Disabilities Amendments of disabilities or to any class of individ- 1978 (Pub. L. 95–002, 92 Stat. 2955); and uals with disabilities than is provided the Rehabilitation Act Amendments of to others unless that action is nec- 1986 (Pub. L. 99–506, 100 Stat. 1810). As essary to provide qualified individuals used in this part, section 504 applies with disabilities with aid, benefits, or only to programs or activities con- services that are as effective as those ducted by the NACIC and not to feder- provided to others; ally assisted programs. (v) Deny a qualified individual with §§ 1807.104–1807.110 [Reserved] disabilities the opportunity to participate as a member of planning or advi- § 1807.111 Notice. sory boards; or The NACIC shall make available to (vi) Otherwise limit a qualified indi- employees, applicants, participants, vidual with disabilities in the enjoy- beneficiaries, and other interested per- ment of any right, privilege, advan- sons, such information regarding the tage, or opportunity enjoyed by others provisions of this part and its applica- receiving the aid, benefit, or service. bility to the programs or activities (2) The NACIC may not deny a quali- conducted by the NACIC, and make fied individual with disabilities the op- that information available to them in portunity to participate in programs or such manner as the Director finds nec- activities that are not separate or dif- essary to apprise those persons of the ferent, despite the existence of permis- protections against discrimination as- sibly separate or different programs or sured them by section 504 and the regu- activities. lations in this part. (3) The NACIC may not, directly or through contractual or other arrange- §§ 1807.112–1807.129 [Reserved] ments, utilize criteria or methods of administration the purpose or effect of § 1807.130 General prohibitions against discrimination. which would: (i) Subject qualified individuals with (a) No qualified individual with dis- disabilities to discrimination on the abilities shall, on the basis of dis- basis of disability; or ability, be excluded from participation in, be denied the benefits of, or other- (ii) Defeat or substantially impair ac- wise be subjected to discrimination complishment of the objectives of a under, any program or activity con- program or activity with respect to inducted by the NACIC. dividuals with disabilities. (b)(1) The NACIC, in providing any (4) The NACIC may not, in deter- aid, benefit, or service, may not, di- mining the site or location of a facil- rectly or through contractual, licens- ity, make selections the purpose or ef- ing, or other arrangements, on the fect of which would: basis of disability: (i) Exclude individuals with disabil- (i) Deny a qualified individual with ities from, deny them the benefits of, disabilities the opportunity to partici- or otherwise subject them to discrimi- pate in or benefit from the aid, benefit, nation under, any program or activity or service; conducted by the NACIC; or (ii) Deny a qualified individual with (ii) Defeat or substantially impair disabilities an opportunity to obtain the accomplishment of the objectives

409

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00419 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 §§ 1807.131–1807.139 32 CFR Ch. XVIII (7–1–05 Edition)

of a program or activity with respect disabilities shall, because the NACIC’s to individuals with disabilities. facilities are inaccessible to or unus- (5) The NACIC, in the selection of able by individuals with disabilities, be procurement contractors, may not use denied the benefits of, be excluded from criteria that subject qualified individ- participation in, or otherwise be sub- uals with disabilities to discrimination jected to discrimination under any pro- on the basis of disability. gram or activity conducted by the (6) The NACIC may not administer a NACIC. licensing or certification program in a manner that subjects qualified individ- § 1807.150 Program accessibility: exist- uals with disabilities to discrimination ing facilities. on the basis of disability, nor may the NACIC establish requirements for the (a) General. The NACIC shall operate programs or activities of licensees or each program or activity so that the certified entities that subject qualified program or activity, viewed in its en- individuals with disabilities to dis- tirety, is readily accessible to and usa- crimination on the basis of disability. ble by individuals with disabilities. However, the programs or activities of This program does not: entities that are licensed or certified (1) Necessarily require the NACIC to by the NACIC are not, themselves, cov- make each of its existing facilities ac- ered by this part. cessible to and usable by individuals (c) The exclusion of persons without with disabilities; disabilities from the benefits of a pro- (2)(i) Require the NACIC to take any gram limited by Federal statute or Ex- action that it can demonstrate would ecutive Order to individuals with dis- result in a fundamental alteration in abilities or the exclusion of a specific the nature of a program or activity or class of individuals with disabilities in undue financial and administrative from a program limited by Federal burdens. statute or Executive Order to a dif- (ii) The NACIC has the burden of ferent class of individuals with disabil- proving that compliance with ities is not prohibited by this part. (d) The NACIC shall administer pro- § 1807.150(a) would result in that alter- grams and activities in the most inte- ation or those burdens. grated setting appropriate to the needs (iii) The decision that compliance of qualified individuals with disabil- would result in that alteration of those ities. burdens must be made by the Director after considering all of the NACIC’s re- §§ 1807.131–1807.139 [Reserved] sources available for use in the funding and operation of the conducted pro- § 1807.140 Employment. gram or activity, and must be accom- No qualified individual with disabil- panied by a written statement of the ities shall, solely on the basis of dis- reasons for reaching that conclusion. ability, be subjected to discrimination (iv) If an action would result in that in employment under any program or alteration or those burdens, the NACIC activity conducted by the NACIC. The shall take any other action that would definitions, requirements, and proce- not result in the alteration of burdens dures of section 501 of the Rehabilita- but would nevertheless ensure that in- tion Act of 1979 (29 U.S.C. 791), as estab- dividuals with disabilities receive the lished by the Equal Employment Op- benefits and services of the program or portunity Commission in 29 CFR part activity. 1614, shall apply to employment in fed- (b) Methods. (1) The NACIC may com- erally conducted programs or activities. ply with the requirements of this section through such means as redesign of §§ 1807.141–1807.148 [Reserved] equipment, delivery of services at alternate accessible sites, alteration of § 1807.149 Program accessibility: dis- existing facilities, or any other meth- crimination prohibited. ods that result in making its programs Except as otherwise provided in or activities readily accessible to and § 1807.150, no qualified individual with usable by individuals with disabilities.

410

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00420 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Counterintelligence Center § 1807.170

(2) The NACIC is not required to (c) This section does not require the make structural changes in existing fa- NACIC to take any action that it can cilities if other methods are effective demonstrate would result in a funda- in achieving compliance with this sec- mental alteration in the nature of a tion. program or activity or in undue finan- (3) In choosing among available cial and administrative burdens. In methods for meeting the requirements those circumstances where NACIC per- of this section, the NACIC shall give sonnel believe that the proposed action priority to those methods that offer would fundamentally alter the program programs and activities to qualified in- or activity or would result in undue fi- dividuals with disabilities in the most nancial and administrative burdens, integrated setting appropriate. the NACIC has the burden of proving that compliance with § 1807.160 would § 1807.151 Program accessibility: new result in such alteration or burdens. construction and alterations. The decision that compliance would re- Each building or part of a building sult in such alteration or burdens must that is constructed or altered by, on be made by the NACIC head or his or behalf of, or for the use of, the NACIC her designee after considering all shall be designed, constructed, or al- NACIC resources available for use in tered so as to be readily accessible to the funding and operation of the con- and usable by individuals with disabil- ducted program or activity and must ities in compliance with the defini- be accompanied by a written statement tions, requirements, and standards of of the reasons for reaching that conclu- the Americans with Disabilities Act sion. If an action required to comply Accessibility Guidelines, 36 CFR part with this section would result in such 1191. an alteration or such burdens, the NACIC shall take any other action that §§ 1807.152–1807.159 [Reserved] would not result in such an alteration or such burdens but would nevertheless § 1807.160 Communications. ensure that, to the maximum extent (a) The NACIC shall take appropriate possible, individuals with disabilities steps to ensure effective communica- receive the benefits and services of the tion with applicants, participants, per- program or activity. sonnel of other Federal entities, and members of the public as follows: §§ 1807.161–1807.169 [Reserved] (1)(i) The NACIC shall furnish appropriate auxiliary aids if necessary to af- § 1807.170 Compliance procedures. ford an individual with disabilities an (a) Except as provided in paragraph equal opportunity to participate in, (b) of this section, this section applies and enjoy the benefits of, a program or to all allegations of discrimination on activity conducted by the NACIC. the basis of disability in programs and (ii) In determining what type of aux- activities conducted by the NACIC. iliary aid is necessary, the NACIC shall (b) The NACIC shall process com- give primary consideration to the re- plaints alleging violations of section quests of the individual with disabil- 504 with respect to employment accord- ities. ing to the procedures established by (2) Where the NACIC communicates the Equal Employment Opportunity with applicants and beneficiaries by Commission in 29 CFR part 1614 pursu- telephone, telecommunication devices ant to section 501 of the Rehabilitation for deaf persons (TDD’s) or equally ef- Act of 1973 (29 U.S.C. 791). fective telecommunication systems (c) The Director, Office of Equal Em- shall be used to communicate with per- ployment Opportunity, is responsible sons with impaired hearing. for coordinating implementation of (b) The NACIC shall ensure that in- this section. Complaints may be sent terested persons, including persons to NACIC, Director, Washington, DC with impaired vision or hearing, can 20505. obtain information as to the existence (d) The NACIC shall accept and inves- and location of accessible services, ac- tigate all complete complaints for tivities, and facilities. which it has jurisdiction. All complete

411

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00421 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1807.170 32 CFR Ch. XVIII (7–1–05 Edition)

complaints must be filed within 180 (h) Appeals of the findings of fact and days of the alleged act of discrimina- conclusions of law or remedies must be tion. The NACIC may extend this time filed by the complainant within 90 days period for good cause. of receipt from the NACIC of the letter (e) If the NACIC receives a complaint required by paragraph (g) of this sec- over which it does not have jurisdiction. The NACIC may extend this time tion, it shall promptly notify the com- for good cause. plainant and shall make reasonable ef- (i) Timely appeals shall be accepted forts to refer the complaint to the ap- and processed by the Director. propriate government entity. (j) The NACIC shall notify the com- (f) The NACIC shall notify the Archi- plainant of the results of the appeal tectural and Transportation Barriers within 60 days of the receipt of the re- Compliance Board upon receipt of any quest. If the NACIC determines that it complaint alleging that a building or needs additional information from the facility that is subject to the Ameri- cans with Disabilities Act Accessibility complainant, it shall have 60 days from Guidelines is not readily accessible to the date it receives the additional in- and usable by individuals with disabil- formation to make its determination ities. on the appeal. (g) Within 180 days of the receipt of a (k) The time limits cited in para- complete complaint for which it has ju- graphs (g) and (j) of this section may be risdiction, The NACIC shall notify the extended with the permission of the complainant of the results of the inves- Assistant Attorney General. tigation in a letter containing: (l) The Director may delegate the au- (1) Findings of fact and conclusions thority for conducting complaint in- of law; vestigations to other Federal agencies, (2) A description of a remedy for each except that the authority for making violation found; and the final determination may not be (3) A notice of the right to appeal. delegated.

412

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00422 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 CHAPTER XIX—CENTRAL INTELLIGENCE AGENCY

Part Page 1900 Public access to CIA records under the Freedom of Information Act (FOIA) ...... 415 1901 Public rights under the Privacy Act of 1974 ...... 426 1902 Information security regulations ...... 436 1903 Conduct on Agency Installations ...... 437 1904 Procedures governing acceptance of service of process ...... 443 1905 Production of official records or disclosure of official information in proceedings before Federal, state or local governmental entities of competent jurisdiction ...... 444 1906 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Central Intelligence Agency ...... 446 1907 Challenges to classification of documents by authorized holders pursuant to § 1.9 of Executive Order 12958 ...... 452 1908 Public requests for mandatory declassification review of classified information pursuant to § 3.6 of Executive Order 12958 ...... 455 1909 Access by historical researchers and former presidentail appointees pursuant to § 4.5 of Exec- utive Order 12958 ...... 460 1910 Debarment and suspension procedures ...... 463

413

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00423 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00424 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PART 1900—PUBLIC ACCESS TO mation Act of 1984 (50 U.S.C. 431); sec. CIA RECORDS UNDER THE FREE- 102 of the National Security Act of DOM OF INFORMATION ACT 1947, as amended (50 U.S.C. 403); and sec. 6 of the Central Intelligence Agen- (FOIA) cy Act of 1949, as amended (50 U.S.C. 403g). It prescribes procedures for: GENERAL (a) Requesting information on avail- Sec. able CIA records, or the CIA adminis- 1900.01 Authority and purpose. tration of the FOIA, or estimates of 1900.02 Definitions. fees that may become due as a result of 1900.03 Contact for general information and requests. a request; 1900.04 Suggestions and complaints. (b) Requesting records pursuant to the FOIA; and FILING OF FOIA REQUESTS (c) Filing an administrative appeal of 1900.11 Preliminary information. an initial adverse decision under the 1900.12 Requirements as to form and con- FOIA. tent. 1900.13 Fees for record services. § 1900.02 Definitions. 1900.14 Fee estimates (pre-request option). For purposes of this part, the fol- CIA ACTION ON FOIA REQUESTS lowing terms have the meanings indicated: 1900.21 Processing of requests for records. 1900.22 Action and determination(s) by (a) Agency or CIA means the United originator(s) or any interested party. States Central Intelligence Agency 1900.23 Payment of fees, notification of de- acting through the CIA Information cision, and right of appeal. and Privacy Coordinator; (b) Days means calendar days when ADDITIONAL ADMINISTRATIVE MATTERS the Agency is operating and specifi- 1900.31 Procedures for business information. cally excludes Saturdays, Sundays, and 1900.32 Procedures for information con- legal public holidays. Three (3) days cerning other persons. may be added to any time limit im- 1900.33 Allocation of resources; agreed ex- posed on a requester by this part if re- tensions of time. 1900.34 Requests for expedited processing. sponding by U.S. domestic mail; ten (10) days may be added if responding by CIA ACTION ON FOIA ADMINISTRATIVE international mail; APPEALS (c) Control means ownership or the 1900.41 Establishment of appeals structure. authority of the CIA pursuant to fed- 1900.42 Right of appeal and appeal proce- eral statute or privilege to regulate of- dures. ficial or public access to records; 1900.43 Determination(s) by Deputy Direc- (d) Coordinator means the CIA Infor- tor(s). mation and Privacy Coordinator who 1900.44 Action by appeals authority. 1900.45 Notification of decision and right of serves as the Agency manager of the judicial review. information review and release program instituted under the Freedom of AUTHORITY: National Security Act of 1947, Information Act; as amended; Central Intelligence Agency Act of 1949, as amended; Freedom of Information (e) Direct costs means those expendi- Act, as amended; CIA Information Act of tures which an agency actually incurs 1984; and Executive Order 12958 , 60 FR 19825, in the processing of a FOIA request; it 3 CFR 1996 Comp., p. 333–356 (or successor Or- does not include overhead factors such ders). as space; it does include: SOURCE: 62 FR 32481, June 16, 1997, unless (1) Pages means paper copies of stand- otherwise noted. ard office size or the dollar value equivalent in other media; GENERAL (2) Reproduction means generation of a copy of a requested record in a form § 1900.01 Authority and purpose. appropriate for release; This part is issued under the author- (3) Review means all time expended in ity of and in order to implement the examining a record to determine Freedom of Information Act (FOIA), as whether any portion must be withheld amended (5 U.S.C. 552); the CIA Infor- pursuant to law and in effecting any

415

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00425 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1900.02 32 CFR Ch. XIX (7–1–05 Edition)

required deletions but excludes per- ican public and pursuant to their news sonnel hours expended in resolving gen- dissemination function and not their eral legal or policy issues; it also commercial interests; the term news means personnel hours of professional means information which concerns cur- time; rent events, would be of current inter- (4) Search means all time expended in est to the general public, would en- looking for and retrieving material hance the public understanding of the that may be responsive to a request operations or activities of the U.S. utilizing available paper and electronic Government, and is in fact dissemi- indices and finding aids; it also means nated to a significant element of the personnel hours of professional time or public at minimal cost; freelance jour- the dollar value equivalent in com- nalists are included in this definition if puter searches; they can demonstrate a solid basis for (f) Expression of interest means a writ- expecting publication through such an ten communication submitted by a organization, even though not actually member of the public requesting infor- employed by it; a publication contract mation on or concerning the FOIA pro- or prior publication record is relevant gram and/or the availability of docu- to such status; ments from the CIA; (4) All other means a request from an (g) Federal agency means any execu- individual not within paragraph (h)(1), tive department, military department, (2), or (3) of this section; or other establishment or entity in- (i) Freedom of Information Act or cluded in the definition of agency in 5 ‘‘FOIA’’ means the statutes as codified U.S.C. 552(f); at 5 U.S.C. 552; (h) Fees means those direct costs (j) Interested party means any official which may be assessed a requester con- in the executive, military, congres- sidering the categories established by sional, or judicial branches of govern- the FOIA; requesters should submit in- ment, United States or foreign, or U.S. formation to assist the Agency in de- Government contractor who, in the termining the proper fee category and the Agency may draw reasonable infer- sole discretion of the CIA, has a subject ences from the identity and activities matter or physical interest in the doc- of the requester in making such deter- uments or information at issue; minations; the fee categories include: (k) Originator means the U.S. Govern- (1) Commercial means a request in ment official who originated the docu- which the disclosure sought is pri- ment at issue or successor in office or marily in the commercial interest of such official who has been delegated re- the requester and which furthers such lease or declassification authority pur- commercial, trade, income or profit in- suant to law; terests; (l) Potential requester means a person, (2) Non-commercial educational or sci- organization, or other entity who sub- entific institution means a request from mits an expression of interest; an accredited United States edu- (m) Reasonably described records cational institution at any academic means a description of a document level or institution engaged in research (record) by unique identification num- concerning the social, biological, or ber or descriptive terms which permit physical sciences or an instructor or an Agency employee to locate docu- researcher or member of such institu- ments with reasonable effort given ex- tions; it also means that the informa- isting indices and finding aids; tion will be used in a specific scholarly (n) Records or agency records means or analytical work, will contribute to all documents, irrespective of physical the advancement of public knowledge, or electronic form, made or received by and will be disseminated to the general the CIA in pursuance of federal law or public; in connection with the transaction of (3) Representative of the news media public business and appropriate for means a request from an individual ac- preservation by the CIA as evidence of tively gathering news for an entity the organization, functions, policies, that is organized and operated to pub- decisions, procedures, operations, or lish and broadcast news to the Amer- other activities of the CIA or because

416

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00426 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1900.13

of the informational value of the data FILING OF FOIA REQUESTS contained therein; it does not include: (1) Books, newspapers, magazines, jour- § 1900.11 Preliminary Information. nals, magnetic or printed transcripts of Members of the public shall address electronic broadcasts, or similar public all communications to the CIA Coordi- sector materials acquired generally and/ nator as specified at 32 CFR 1900.03 and or maintained for library or reference clearly delineate the communication purposes; to the extent that such mate- as a request under the Freedom of In- rials are incorporated into any form of formation Act and this regulation. CIA analysis or otherwise distributed or employees receiving a communication in the nature of a FOIA request shall published by the Agency, they are fully expeditiously forward same to the Co- subject to the disclosure provisions of ordinator. Requests and appeals on re- the FOIA; quests, referrals, or coordinations re- (2) Index, filing, or museum documents ceived from members of the public who made or acquired and preserved solely owe outstanding fees for information for reference, indexing, filing, or exhi- services at this or other federal agen- bition purposes; and cies will not be accepted and action on (3) Routing and transmittal sheets and all pending requests shall be termi- notes and filing or destruction notes nated in such circumstances. which do not also include information, comment, or statements of substance; § 1900.12 Requirements as to form and (o) Responsive records means those content. documents (i.e., records) which the (a) Required information. No par- Agency has determined to be within ticular form is required. A request need the scope of a FOIA request. only reasonably describe the records of interest. This means that documents § 1900.03 Contact for general informa- must be described sufficiently to en- tion and requests. able a professional employee familiar with the subject to locate the docu- For general information on this part, ments with a reasonable effort. Com- to inquire about the FOIA program at monly this equates to a requirement CIA, or to file a FOIA request (or ex- that the documents must be locatable pression of interest), please direct your through the indexing of our various communication in writing to the Infor- systems. Extremely broad or vague re- mation and Privacy Coordinator, Cen- quests or requests requiring research tral Intelligence Agency, Washington, do not satisfy this requirement. DC 20505. Such inquiries will also be ac- (b) Additional information for fee deter- cepted by facsimile at (703) 613–3007. mination. In addition, a requester For general information or status in- should provide sufficient personal iden- formation on pending cases only, the tifying information to allow us to de- telephone number is (703) 613–1287. Col- termine the appropriate fee category. lect calls cannot be accepted. A requester should also provide an agreement to pay all applicable fees or § 1900.04 Suggestions and complaints. fees not to exceed a certain amount or The Agency welcomes suggestions or request a fee waiver. complaints with regard to its adminis- (c) Otherwise. Communications which tration of the Freedom of Information do not meet these requirements will be considered an expression of interest Act. Many requesters will receive pre- and the Agency will work with, and paid, customer satisfaction survey offer suggestions to, the potential re- cards. Letters of suggestion or com- quester in order to define a request plaint should identify the specific pur- properly. pose and the issues for consideration. The Agency will respond to all sub- § 1900.13 Fees for record services. stantive communications and take (a) In general. Search, review, and re- such actions as determined feasible and production fees will be charged in ac- appropriate. cordance with the provisions below relating to schedule, limitations, and

417

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00427 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1900.13 32 CFR Ch. XIX (7–1–05 Edition)

category of requester. Applicable fees (d) Time for fee waiver requests and ap- will be due even if our search locates peals. It is suggested that such requests no responsive records or some or all of and appeals be made and resolved prior the responsive records must be denied to the initiation of processing and the under one or more of the exemptions of incurring of costs. However, fee waiver the Freedom of Information Act. requests will be accepted at any time (b) Fee waiver requests. Records will prior to the release of documents or be furnished without charge or at a re- the completion of a case, and fee waiv- duced rate whenever the Agency deter- er appeals within forty-five (45) days of mines: our initial decision subject to the fol- (1) That, as a matter of administra- lowing condition: If processing has tive discretion, the interest of the been initiated, then the requester must United States Government would be agree to be responsible for costs in the served, or event of an adverse administrative or judicial decision. (2) That it is in the public interest (e) Agreement to pay fees. In order to because it is likely to contribute sig- protect requesters from large and/or nificantly to the public understanding unanticipated charges, the Agency will of the operations or activities of the request specific commitment when it United States Government and is not estimates that fees will exceed $100.00. primarily in the commercial interest of The Agency will hold in abeyance for the requester; the Agency shall con- forty-five (45) days requests requiring sider the following factors when mak- such agreement and will thereafter ing this determination: deem the request closed. This action, of (i) Whether the subject of the request course, would not prevent an individual concerns the operations or activities of from refiling his or her FOIA request the United States Government; and, if with a fee commitment at a subsequent so, date. (ii) Whether the disclosure of the re- (f) Deposits. The Agency may require quested documents is likely to con- an advance deposit of up to 100 percent tribute to an understanding of United of the estimated fees when fees may ex- States Government operations or ac- ceed $250.00 and the requester has no tivities; and, if so, history of payment, or when, for fees of (iii) Whether the disclosure of the re- any amount, there is evidence that the quested documents will contribute to requester may not pay the fees which public understanding of United States would be accrued by processing the re- Government operations or activities; quest. The Agency will hold in abey- and, if so, ance for forty-five (45) days those re- (iv) Whether the disclosure of the requests where deposits have been requested documents is likely to con- quested. tribute significantly to public under- (g) Schedule of fees—(1) In general. The standing of United States Government schedule of fees for services performed operations and activities; and in responding to requests for records is (v) Whether the requester has a com- established as follows: mercial interest that would be furthered by the requested disclosure; Personnel Search and Review and, if so, Clerical/Technical ...... Quarter hour $5.00 (vi) Whether the disclosure is pri- Professional/Supervisory ...... Quarter hour 10.00 marily in the commercial interest of Manager/Senior Professional ...... Quarter hour 18.00 the requester. Computer Search and Production (c) Fee waiver appeals. Denials of re- Search (on-line) ...... Flat rate ...... 10.00 quests for fee waivers or reductions Search (off-line) ...... Flat rate ...... 30.00 may be appealed to the Chair of the Other activity ...... Per minute .... 10.00 Agency Release Panel via the Coordi- Tapes (mainframe cassette) ...... Each ...... 9.00 Tapes (mainframe cartridge) ...... Each ...... 9.00 nator. A requester is encouraged to Tapes (mainframe reel) ...... Each ...... 20.00 provide any explanation or argument Tapes (PC 9mm) ...... Each ...... 25.00 as to how his or her request satisfies Diskette (3.5″) ...... Each ...... 4.00 CD (bulk recorded) ...... Each ...... 10.00 the statutory requirement set forth CD (recordable) ...... Each ...... 20.00 above. Telecommunications ...... Per minute .... .50

418

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00428 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1900.14

Paper (mainframe printer) ...... Per page ...... 10 ensure the maximum disclosure with- Paper (PC b&w laser printer) ...... Per page ...... 10 out charge. Paper (PC color printer) ...... Per page ...... 1.00 (i) Fee categories. There are four cat- Paper Production egories of FOIA requesters for fee purposes: Commercial use requesters, edu- Photocopy (standard or legal) ...... Per page ...... 10 cational and non-commercial scientific in- Microfiche ...... Per frame ...... 20 stitution requesters, representatives of Pre-printed (if available) ...... Per 100 5.00 pages. the news media requesters, and all other Published (if available) ...... Per item ...... NTIS requesters. The categories are defined in § 1900.02, and applicable fees, which (2) Application of schedule. Personnel are the same in two of the categories, search time includes time expended in will be assessed as follows: either manual paper records searches, (1) Commercial use requesters: Charges indices searches, review of computer which recover the full direct costs of search results for relevance, personal searching for, reviewing, and dupli- computer system searches, and various cating responsive records (if any); reproduction services. In any event (2) Educational and non-commercial sci- where the actual cost to the Agency of entific institution requesters as well as a particular item is less than the above ‘‘representatives of the news media’’ reschedule (e.g., a large production run of questers: Only charges for reproduction a document resulted in a cost less than beyond the first 100 pages; $5.00 per hundred pages), then the ac- (3) requesters: Charges tual lesser cost will be charged. Items All other published and available at the National which recover the full direct cost of Technical Information Service (NTIS) searching for and reproducing respon- are also available from CIA pursuant to sive records (if any) beyond the first this part at the NTIS price as author- 100 pages of reproduction and the first ized by statute. two hours of search time which will be (3) Other services. For all other types furnished without charge. of output, production, or reproduction (j) Associated requests. A requester or (e.g., photographs, maps, or published associated requesters may not file a se- reports), actual cost or amounts au- ries of multiple requests, which are thorized by statute. Determinations of merely discrete subdivisions of the in- actual cost shall include the commer- formation actually sought for the pur- cial cost of the media, the personnel pose of avoiding or reducing applicable time expended in making the item to fees. In such instances, the Agency be released, and an allocated cost of may aggregate the requests and charge the equipment used in making the the applicable fees. item, or, if the production is effected by a commercial service, then that § 1900.14 Fee estimates (pre-request charge shall be deemed the actual cost option). for purposes of this part. In order to avoid unanticipated or po- (h) Limitations on collection of fees—(1) tentially large fees, a requester may In general. No fees will be charged if submit a request for a fee estimate. the cost of collecting the fee is equal to The Agency will endeavor within ten or greater than the fee itself. That cost (10) days to provide an accurate esti- includes the administrative costs to mate, and, if a request is thereafter the Agency of billing, receiving, resubmitted, the Agency will not accrue cording, and processing the fee for de- or charge fees in excess of our estimate posit to the Treasury Department and, without the specific permission of the as of the date of these regulations, is deemed to be $10.00. requester. Effective October 2, 1997, the ten (10) day provision is modified to (2) Requests for personal information. No fees will be charged for requesters twenty (20) days pursuant to the Elec- seeking records about themselves tronic Freedom of Information Act under the FOIA; such requests are Amendments of 1996. processed in accordance with both the FOIA and the Privacy Act in order to

419

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00429 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1900.21 32 CFR Ch. XIX (7–1–05 Edition)

CIA ACTION ON FOIA REQUESTS and advise of his or her right to an administrative appeal. § 1900.21 Processing of requests for (d) Time for response. The Agency will records. utilize every effort to determine within (a) In general. Requests meeting the the statutory guideline of ten (10) days requirements of §§ 1900.11 through after receipt of an initial request 1900.13 shall be accepted as formal re- whether to comply with such a request. quests and processed under the Free- However, the current volume of re- dom of Information Act, 5 U.S.C. 552, quests require that the Agency seek and these regulations. Upon receipt, additional time from a requester pursu- the Agency shall within ten (10) days ant to 32 CFR 1900.33. In such event, record each request, acknowledge re- the Agency will inform the requester in ceipt to the requester in writing, and writing and further advise of his or her thereafter effect the necessary right to file an administrative appeal taskings to the CIA components rea- of any adverse determination. Effective sonably believed to hold responsive October 2, 1997, the ten (10) day provi- records. Effective October 2, 1997, the sion is modified to twenty (20) days ten (10) day provision is modified to pursuant to the Electronic Freedom of twenty (20) days pursuant to the Elec- Information Act Amendments of 1996. tronic Freedom of Information Act § 1900.22 Action and determination(s) Amendments of 1996. by originator(s) or any interested (b) Database of ‘‘officially released in- party. formation.’’ As an alternative to exten- (a) Initial action for access. CIA com- sive tasking and as an accommodation ponents tasked pursuant to a FOIA re- to many requesters, the Agency main- quest shall search all relevant record tains a database of ‘‘officially released systems within their cognizance which information’’ which contains copies of have not been excepted from search by documents released by this Agency. the provisions of the CIA Information Searches of this database, containing Act of 1984. They shall: currently in excess of 500,000 pages, can (1) Determine whether a record ex- be accomplished expeditiously. More- ists; over, requests that are specific and (2) Determine whether and to what well-focused will often incur minimal, extent any FOIA exemptions apply; if any, costs. Requesters interested in (3) Approve the disclosure of all non- this means of access should so indicate exempt records or portions of records in their correspondence. Effective No- for which they are the originator; and vember 1, 1997 and consistent with the (4) Forward to the Coordinator all mandate of the Electronic Freedom of records approved for release or nec- Information Act Amendments of 1996, essary for coordination with or referral on-the public. Detailed information re- to another originator or interested garding such access will line electronic party. In making these decisions, the access to these records will be avail- CIA component officers shall be guided able to be available at that time from by the applicable law as well as the the point of contact specified in procedures specified at 32 CFR 1900.31 § 1900.03. and 32 CFR 1900.32 regarding confiden- (c) Effect of certain exemptions. In tial commercial information and per- processing a request, the Agency shall sonal information (about persons other decline to confirm or deny the exist- than the requester). ence or nonexistence of any responsive (b) Referrals and coordinations. As ap- records whenever the fact of their ex- plicable and within ten (10) days of re- istence or nonexistence is itself classi- ceipt by the Coordinator, any CIA fied under Executive Order 12958 or re- records containing information origi- vealing of intelligence sources and nated by other CIA components shall methods protected pursuant to section be forwarded to those entities for ac- 103(c)(5) of the National Security Act of tion in accordance with paragraph (a) 1947. In such circumstances, the Agen- of this section and return. Records cy, in the form of a final written re- originated by other federal agencies or sponse, shall so inform the requester CIA records containing other federal

420

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00430 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1900.31

agency information shall be forwarded ADDITIONAL ADMINISTRATIVE MATTERS to such agencies within ten (10) days of our completion of initial action in the § 1900.31 Procedures for business in- case for action under their regulations formation. and direct response to the requester (a) In general. Business information (for other agency records) or return to obtained by the Central Intelligence the CIA (for CIA records). Effective Oc- Agency by a submitter shall not be dis- tober 2, 1997, the ten (10) day provision closed pursuant to a Freedom of Infor- is modified to twenty (20) days pursu- mation Act request except in accord- ant to the Electronic Freedom of Infor- ance with this section. For purposes of mation Act Amendments of 1996. this section, the following definitions apply: § 1900.23 Payment of fees, notification (1) Business information means com- of decision, and right of appeal. mercial or financial information in (a) Fees in general. Fees collected which a legal entity has a recognized under this part do not accrue to the property interest; Central Intelligence Agency and shall (2) Confidential commercial information be deposited immediately to the gen- means such business information pro- eral account of the United States vided to the United States Government Treasury. by a submitter which is reasonably be- (b) Notification of decision. Upon com- lieved to contain information exempt pletion of all required review and the from release under exemption (b)(4) of receipt of accrued fees (or promise to the Freedom of Information Act, 5 pay such fees), the Agency will prompt- U.S.C. 552, because disclosure could ly inform the requester in writing of reasonably be expected to cause sub- those records or portions of records stantial competitive harm; which may be released and which must (3) Submitter means any person or en- be denied. With respect to the former, tity who provides confidential commer- the Agency will provide copies; with re- cial information to the United States spect to the latter, the Agency shall Government; it includes, but is not explain the reasons for the denial, iden- limited to, corporations, businesses tify the person(s) responsible for such (however organized), state govern- decisions by name and title, and give ments, and foreign governments; and notice of a right of administrative ap- (b) Designation of confidential commer- peal. cial information. A submitter of busi- (c) Availability of reading room. As an ness information will use good-faith ef- alternative to receiving records by forts to designate, by appropriate mail, a requester may arrange to in- markings, either at the time of submis- spect the records deemed releasable at sion or at a reasonable time thereafter, a CIA ‘‘reading room’’ in the metro- any portions of its submission that it politan Washington, DC area. Access considers to be confidential commer- will be granted after applicable and ac- cial information and hence protected crued fees have been paid. Requests to from required disclosure pursuant to review or browse documents in our exemption (b)(4). Such designations database of ‘‘officially released shall expire ten (10) years after the records’’ will also be honored in this date of the submission unless the sub- manner to the extent that paper copies mitter requests, and provides justifica- or electronic copies in unclassified tion for, a longer designation period. computer systems exist. All such re- (c) Process in event of FOIA request— quests shall be in writing and ad- (1) Notice to submitters. The Agency dressed pursuant to 32 CFR 1900.03. The shall provide a submitter with prompt records will be available at such times written notice of receipt of a Freedom as mutually agreed but not less than of Information Act request encom- three (3) days from our receipt of a re- passing business information whenever: quest. The requester will be responsible (i) The submitter has in good faith for reproduction charges for any copies designated the information as con- of records desired. fidential commercial information, or

421

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00431 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1900.32 32 CFR Ch. XIX (7–1–05 Edition)

(ii) The Agency believes that disclo- shall also notify the requester and, if sure of the information could reason- the Agency notifies a submitter that it ably be expected to cause substantial intends to disclose information, then competitive harm, and the requester shall be notified also and (iii) The information was submitted given the proposed date for disclosure. within the last ten (10) years unless the (5) Notice of FOIA lawsuit. If a re- submitter requested and provided ac- quester initiates a civil action seeking ceptable justification for a specific no- to compel disclosure of information as- tice period of greater duration. serted to be within the scope of this (2) Form of notice. This notice shall ei- section, the Agency shall promptly no- ther describe the exact nature of the tify the submitter. The submitter, as confidential commercial information specified above, shall provide such liti- at issue or provide copies of the respon- gation assistance as required by the sive records containing such informa- Agency and the Department of Justice. tion. (6) Exceptions to notice requirement. (3) Response by submitter. (i) Within The notice requirements of this section seven (7) days of the above notice, all shall not apply if the Agency deter- claims of confidentiality by a sub- mines that: mitter must be supported by a detailed (i) The information should not be dis- statement of any objection to disclo- closed in light of other FOIA exemp- sure. Such statement shall: tions; (A) Specify that the information has (ii) The information has been pub- not been disclosed to the public; lished lawfully or has been officially (B) Explain why the information is made available to the public; contended to be a trade secret or con- (iii) The disclosure of the informa- fidential commercial information; tion is otherwise required by law or (C) Explain how the information is federal regulation; or capable of competitive damage if dis- (iv) The designation made by the sub- closed; mitter under this section appears frivo- (D) State that the submitter will pro- lous, except that, in such a case, the vide the Agency and the Department of Agency will, within a reasonable time Justice with such litigation defense as prior to the specified disclosure date, requested; and give the submitter written notice of (E) Be certified by an officer author- any final decision to disclose the infor- ized to legally bind the corporation or mation. similar entity. (ii) It should be noted that informa- § 1900.32 Procedures for information tion provided by a submitter pursuant concerning other persons. to this provision may itself be subject (a) In general. Personal information to disclosure under the FOIA. concerning individuals other than the (4) Decision and notice of intent to dis- requester shall not be disclosed under close. (i) The Agency shall consider the Freedom of Information Act if the carefully a submitter’s objections and proposed release would constitute a specific grounds for nondisclosure prior clearly unwarranted invasion of per- to its final determination. If the Agen- sonal privacy. See 5 U.S.C. 552(b)(6). cy decides to disclose a document over For purposes of this section, the fol- the objection of a submitter, the Agen- lowing definitions apply: cy shall provide the submitter a writ- (1) Personal information means any inten notice which shall include: formation about an individual that is (A) A statement of the reasons for not a matter of public record, or easily which the submitter’s disclosure objec- discernible to the public, or protected tions were not sustained; from disclosure because of the implica- (B) A description of the information tions that arise from Government pos- to be disclosed; and session of such information. (C) A specified disclosure date which (2) Public interest means the public in- is seven (7) days after the date of the terest in understanding the operations instant notice. and activities of the United States (ii) When notice is given to a sub- Government and not simply any mat- mitter under this section, the Agency ter which might be of general interest

422

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00432 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1900.34

to the requester or members of the direction as necessary and render deci- public. sions on administrative appeals. (b) Determination to be made. In mak- (c) Requests for extension of time. When ing the required determination under the Agency is unable to meet the stat- this section and pursuant to exemption utory time requirements of the FOIA, (b)(6) of the FOIA, the Agency will bal- it will inform the requester that the re- ance the privacy interests that would quest cannot be processed within the be compromised by disclosure against statutory time limits, provide an op- the public interest in release of the re- portunity for the requester to limit the quested information. scope of the request so that it can be (c) Otherwise. A requester seeking in- processed within the statutory time formation on a third person is encour- limits, or arrange with the requester aged to provide a signed affidavit or an agreed upon time frame for proc- declaration from the third person essing the request, or determine that waiving all or some of their privacy exceptional circumstances mandate ad- rights. However, all such waivers shall ditional time. In such instances the be narrowly construed and the Coordi- Agency will, however, inform a re- nator, in the exercise of his discretion quester of his or her right to decline and administrative authority, may our request and proceed with an admin- seek clarification from the third party istrative appeal or judicial review as prior to any or all releases. appropriate. Effective October 2 1997, the definition of exceptional cir- § 1900.33 Allocation of resources; cumstances is modified per section agreed extensions of time. 552(a)(6)(C) of the Freedom of Informa- (a) In general. Agency components tion Act, as amended. shall devote such personnel and other resources to the responsibilities im- § 1900.34 Requests for expedited proc- posed by the Freedom of Information essing. Act as may be appropriate and reason- (a) In general. All requests will be able considering: handled in the order received on a (1) The totality of resources available strictly ‘‘first-in, first-out’’ basis. Ex- to the component, ceptions to this rule will only be made (2) The business demands imposed on in accordance with the following proce- the component by the Director of Cen- dures. In all circumstances, however, tral Intelligence or otherwise by law, and consistent with established judi- (3) The information review and re- cial precedent, requests more properly lease demands imposed by the Congress the scope of requests under the Federal or other governmental authority, and Rules of Civil or Criminal Procedure (4) The rights of all members of the (or other federal, state, or foreign judi- public under the various information cial or quasi-judicial rules) will not be review and disclosure laws. granted expedited processing under (b) Discharge of FOIA responsibilities. this or related (e.g., Privacy Act) pro- Components shall exercise due dili- visions unless expressly ordered by a gence in their responsibilities under federal court of competent jurisdiction. the FOIA and must allocate a reason- (b) Procedure prior to October 2, 1997. able level of resources to requests Requests for expedited processing shall under the Act in a strictly ‘‘first-in, be granted only in circumstances that first-out’’ basis and utilizing two or the Agency deems to be exceptional. In more processing queues to ensure that making this determination, the Agency smaller as well as larger (i.e., project) shall consider and must decide in the cases receive equitable attention. The affirmative on all of the following fac- Information and Privacy Coordinator tors: is responsible for management of the (i) That there is a genuine need for Agency-wide program defined by this the specific requested records; and part and for establishing priorities for (ii) That the personal need is excep- cases consistent with established law. tional; and The Director, Information Manage- (iii) That there are no alternative fo- ment through the Agency Release rums for the records or information Panel shall provide policy and resource sought; and

423

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00433 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1900.41 32 CFR Ch. XIX (7–1–05 Edition)

(iv) That it is reasonably believed serves as its Chair, the Deputy Direc- that substantive records relevant to tor for Administration, the Deputy Di- the stated needs may exist and be rector for Intelligence, the Deputy Di- deemed releasable. rector for Operations, the Deputy Di- (2) In sum, requests shall be consid- rector for Science and Technology, the ered for expedited processing only General Counsel, the Director of Con- when health, humanitarian, or due gressional Affairs, the Director of the process considerations involving pos- Public Affairs Staff, the Director, Cen- sible deprivation of life or liberty cre- ter for the Study of Intelligence, and ate circumstances of exceptional ur- the Associate Deputy Director for Ad- gency and extraordinary need. ministration/Information Services, or (c) Procedure on or after October 2, their designees. 1997. Requests for expedited processing (2) Authorities and activities. The will be approved only when a compel- HRPB, by majority vote, may delegate ling need is established to the satisfac- to one or more of its members the au- tion of the Agency. A requester may thority to act on any appeal or other make such a request with a certifi- matter or authorize the Chair to dele- cation of ‘‘compelling need’’ and, with- gate such authority, as long as such in ten (10) days of receipt, the Agency delegation is not to the same indi- will decide whether to grant expedited vidual or body who made the initial de- processing and will notify the re- nial. The Executive Secretary of the quester of its decision. The certifi- HRPB is the Director, Information cation shall set forth with specificity Management. The Chair may request the relevant facts upon which the re- interested parties to participate when quester relies and it appears to the special equities or expertise are in- Agency that substantive records rel- volved. evant to the stated needs may exist (c) Agency Release Panel (‘‘ARP’’ or and be deemed releasable. A ‘‘compel- ‘‘Panel’’). The HRPB, pursuant to its ling need’’ is deemed to exist: delegation of authority, has estab- (1) When the matter involves an im- lished a subordinate Agency Release minent threat to the life or physical Panel. safety of an individual; or (1) Membership. The ARP is composed (2) When the request is made by a of the Director, Information Manage- person primarily engaged in dissemi- ment, who serves as its Chair; the In- nating information and the information is relevant to a subject of public formation Review Officers from the Di- urgency concerning an actual or al- rectorates of Administration, Intel- leged Federal government activity. ligence, Operations, Science and Tech- nology, and the Director of Central In- CIA ACTION ON FOIA ADMINISTRATIVE telligence Area; the CIA Information APPEALS and Privacy Coordinator; the Chief, Historical Review Group; the Chair, § 1900.41 Establishment of appeals Publications Review Board; the Chief, structure. Records Declassification Program; and (a) In general. Two administrative en- representatives from the Office of Gen- tities have been established by the Di- eral Counsel, the Office of Congres- rector of Central Intelligence to facili- sional Affairs, and the Public Affairs tate the processing of administrative Staff. appeals under the Freedom of Informa- (2) Authorities and activities. The tion Act. Their membership, authority, Panel shall meet on a regular schedule and rules of procedure are as follows. and may take action when a simple (b) Historical Records Policy Board majority of the total membership is (‘‘HRPB’’ or ‘‘Board’’). This Board, the present. The Panel shall advise and as- successor to the CIA Information Re- sist the HRPB on all information review Committee, acts as the senior cor- lease issues, monitor the adequacy and porate board in the CIA on all matters timeliness of Agency releases, set com- of information review and release. ponent search and review priorities, re- (1) Membership. The HRPB is com- view adequacy of resources available to posed of the Executive Director, who and planning for all Agency release

424

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00434 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1900.44

programs, and perform such other func- a review within the previous two (2) tions as deemed necessary by the years or is the subject of pending liti- Board. The Information and Privacy gation in the federal courts. Coordinator also serves as Executive (d) Receipt, recording, and tasking. The Secretary of the Panel. The Chair may Agency shall promptly record each re- request interested parties to partici- quest received under this part, ac- pate when special equities or expertise knowledge receipt to the requester in are involved. The Panel, functioning as writing, and thereafter effect the nec- a committee of the whole or through essary taskings to the Deputy Direc- individual members, will make final tor(s) in charge of the directorate(s) Agency decisions from appeals of ini- which originated or has an interest in tial adverse decisions under the Free- the record(s) subject to the appeal. As dom of Information Act and such other information release decisions made used herein, the term Deputy Director under 32 CFR parts 1901, 1907, and 1908. includes an equivalent senior official in Issues shall be decided by a majority of the DCI-area as well as a designee members present; in all cases of a di- known as the Information Review Offi- vided vote, any member of the ARP cer for a directorate or area. then present may refer such matter to (e) Time for response. The Agency the HRPB by written memorandum to shall attempt to complete action on an the Executive Secretary of the HRPB. appeal within twenty (20) days of the Matters decided by the Panel or Board date of receipt. The current volume of will be deemed a final decision by the requests, however, often requires that Agency. the Agency request additional time from the requester pursuant to 32 CFR § 1900.42 Right of appeal and appeal 1900.33. In such event, the Agency will procedures. inform the requester of the right to ju- (a) Right of Appeal. A right of admin- dicial review. istrative appeal exists whenever access to any requested record or any portion § 1900.43 Determination(s) by Deputy thereof is denied, no records are lo- Director(s). cated in response to a request, or a re- Each Deputy Director in charge of a quest for a fee waiver is denied. The directorate which originated or has an Agency will apprise all requesters in interest in any of the records subject writing of their right to appeal such decisions to the CIA Agency Release to the appeal, or designee, is a required Panel through the Coordinator. party to any appeal; other interested (b) Requirements as to time and form. parties may become involved through Appeals of decisions must be received the request of the Coordinator when it by the Coordinator within forty-five is determined that some or all of the (45) days of the date of the Agency’s information is also within their official initial decision. The Agency may, for cognizance. These parties shall respond good cause and as a matter of adminis- in writing to the Coordinator with a trative discretion, permit an additional finding as to the exempt status of the thirty (30) days for the submission of information. This response shall be an appeal. All appeals shall be in writ- provided expeditiously on a ‘‘first-in, ing and addressed as specified in 32 first-out’’ basis taking into account CFR 1900.03. All appeals must identify the business requirements of the par- the documents or portions of docu- ties and consistent with the informa- ments at issue with specificity and tion rights of members of the general may present such information, data, public under the various information and argument in support as the re- review and release laws. quester may desire. (c) Exceptions. No appeal shall be ac- § 1900.44 Action by appeals authority. cepted if the requester has outstanding fees for information services at this or (a) Preparation of docket. The Coordi- another federal agency. In addition, no nator, acting in the capacity of Execu- appeal shall be accepted if the informa- tive Secretary of the Agency Release tion in question has been the subject of

425

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00435 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1900.45 32 CFR Ch. XIX (7–1–05 Edition)

Panel, shall place administrative ap- 1901.02 Definitions. peals of FOIA requests ready for adju- 1901.03 Contact for general information and dication on the agenda at the next oc- requests. curring meeting of that Panel. The Ex- 1901.04 Suggestions and complaints. ecutive Secretary shall provide a sum- FILING OF PRIVACY ACT REQUESTS mation memorandum for consideration of the members; the complete record of 1901.11 Preliminary information. the request consisting of the request, 1901.12 Requirements as to form. 1901.13 Requirements as to identification of the document(s) (sanitized and full requester. text) at issue, and the findings of the 1901.14 Fees. concerned Deputy Director(s) or designee(s). ACTION ON PRIVACY ACT REQUESTS (b) Decision by the Agency Release 1901.21 Processing requests for access to or Panel. The Agency Release Panel shall amendment of records. meet and decide requests sitting as a 1901.22 Action and determination(s) by committee of the whole. Decisions are originator(s) or any interested party. by majority vote of those present at a 1901.23 Notification of decision and right of meeting and shall be based on the writ- appeal. ten record and their deliberations; no ADDITIONAL ADMINISTRATIVE MATTERS personal appearances shall be permitted without the express permission 1901.31 Special procedures for medical and of the Panel. psychological records. (c) Decision by the Historical Records 1901.32 Requests for expedited processing. Policy Board. In any cases of divided 1901.33 Allocation of resources; agreed extensions of time. vote by the ARP, any member of that body is authorized to refer the request ACTION ON PRIVACY ACT ADMINISTRATIVE to the CIA Historical Records Policy APPEALS Board which acts as the senior cor- 1901.41 Establishment of appeals structure. porate board for the Agency. The 1901.42 Right of appeal and appeal proce- record compiled (the request, the dures. memoranda filed by the originator and 1901.43 Determination(s) by Deputy Direc- interested parties, and the previous de- tor(s). cision(s)) as well as any memorandum 1901.44 Action by appeals authority. of law or policy the referent desires to 1901.45 Notification of decision and right of be considered, shall be certified by the judicial review. Executive Secretary of the Agency Re- PROHIBITIONS lease Panel and shall constitute the official record of the proceedings and 1901.51 Limitations on disclosure. must be included in any subsequent fil- 1901.52 Criminal penalties. ings. EXEMPTIONS § 1900.45 Notification of decision and 1901.61 Purpose and authority. right of judicial review. 1901.62 General exemptions. 1901.63 Specific exemptions. The Executive Secretary of the Agen- cy Release Panel shall promptly pre- AUTHORITY: National Security Act of 1947, pare and communicate the decision of as amended; Central Intelligence Agency Act of 1949, as amended; Privacy Act, as amend- the Panel or Board to the requester. ed; and Executive Order 12958 (or successor With respect to any decision to deny Orders). information, that correspondence shall state the reasons for the decision, iden- SOURCE: 62 FR 32488, June 16, 1997, unless otherwise noted. tify the officer responsible, and include a notice of a right to judicial review. GENERAL PART 1901—PUBLIC RIGHTS UNDER § 1901.01 Authority and purpose. THE PRIVACY ACT OF 1974 (a) Authority. This part is issued under the authority of and in order to GENERAL implement the Privacy Act of 1974 (5 Sec. U.S.C. 552a); sec. 102 of the National Se- 1901.01 Authority and purpose. curity Act of 1947, as amended (50

426

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00436 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1901.03

U.S.C. 403); and sec. 6 of the Central In- (f) Interested party means any official telligence Agency Act of 1949, as in the executive, military, congres- amended (50 U.S.C. 403g). sional, or judicial branches of govern- (b) Purpose in general. This part pre- ment, United States or foreign, or U.S. scribes procedures for a requester, as Government contractor who, in the defined herein: sole discretion of the CIA, has a subject (1) To request notification of whether matter or physical interest in the doc- the Central Intelligence Agency main- uments or information at issue; tains a record concerning them in any (g) Maintain means maintain, collect, non-exempt portion of a system of use, or disseminate; records or any non-exempt system of (h) Originator means the U.S. Govern- records; ment official who originated the docu- (2) To request a copy of all non-ex- ment at issue or successor in office or empt records or portions of records; such official who has been delegated re- (3) To request that any such record lease or declassification authority pur- be amended or augmented; and suant to law; (4) To file an administrative appeal (i) Privacy Act or PA means the stat- to any initial adverse determination to ute as codified at 5 U.S.C. 552a; deny access to or amend a record. (j) Record means an item, collection, (c) Other purposes. This part also sets or grouping of information about an in- forth detailed limitations on how and dividual that is maintained by the Cen- to whom the Agency may disclose per- tral Intelligence Agency in a system of sonal information and gives notice that records; certain actions by officers or employ- (k) Requester or individual means a ees of the United States Government or citizen of the United States or an alien members of the public could constitute lawfully admitted for permanent resi- criminal offenses. dence who is a living being and to whom a record might pertain; § 1901.02 Definitions. (l) Responsive record means those doc- For purposes of this part, the fol- uments (records) which the Agency has lowing terms have the meanings indi- determined to be within the scope of a cated: Privacy Act request; (a) Agency or CIA means the United (m) Routine use means, with respect States Central Intelligence Agency to the disclosure of a record, the use of acting through the CIA Information such record for a purpose which is com- and Privacy Coordinator; patible with the purpose for which the (b) Days means calendar days when record is maintained; the Agency is operating and specifi- (n) System of records means a group of cally excludes Saturdays, Sundays, and any records under the control of the legal public holidays. Three (3) days Central Intelligence Agency from may be added to any time limit im- which records are retrieved by the posed on a requester by this part if re- name of an individual or by some iden- sponding by U.S. domestic mail; ten tifying number, symbol, or other iden- (10) days may be added if responding by tifying particular assigned to that indi- international mail; vidual. (c) Control means ownership or the authority of the CIA pursuant to fed- § 1901.03 Contact for general informa- eral statute or privilege to regulate of- tion and requests. ficial or public access to records; For general information on this part, (d) Coordinator means the CIA Infor- to inquire about the Privacy Act pro- mation and Privacy Coordinator who gram at CIA, or to file a Privacy Act serves as the Agency manager of the request, please direct your communica- information review and release pro- tion in writing to the Information and gram instituted under the Privacy Act; Privacy Coordinator, Central Intel- (e) Federal agency means any execu- ligence Agency, Washington, DC. 20505. tive department, military department, Requests with the required identifica- or other establishment or entity in- tion statement pursuant to 32 CFR cluded in the definition of agency in 5 1901.13 must be filed in original form by U.S.C. 552(f); mail. Subsequent communications and

427

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00437 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1901.04 32 CFR Ch. XIX (7–1–05 Edition)

any inquiries will be accepted by mail tion subject to the request, state a jus- or facsimile at (703) 613–3007 or by tele- tification for such amendment, and phone at (703) 613–1287. Collect calls provide the desired amending language. cannot be accepted. § 1901.13 Requirements as to identi- § 1901.04 Suggestions and complaints. fication of requester. The Agency welcomes suggestions or (a) In general. Individuals seeking ac- complaints with regard to its adminis- cess to or amendment of records con- tration of the Privacy Act. Many re- cerning themselves shall provide their questers will receive pre-paid, cus- full (legal) name, address, date and tomer satisfaction survey cards. Let- place of birth, and current citizenship ters of suggestion or complaint should status together with a statement that identify the specific purpose and the such information is true under penalty issues for consideration. The Agency of perjury or a notarized statement will respond to all substantive commu- swearing to or affirming identity. If nications and take such actions as de- the Agency determines that this infor- termined feasible and appropriate. mation is not sufficient, the Agency may request additional or clarifying FILING OF PRIVACY ACT REQUESTS information. (b) Requirement for aliens. Only aliens § 1901.11 Preliminary information. lawfully admitted for permanent resi- Members of the public shall address dence (PRAs) may file a request pursu- all communications to the contact ant to the Privacy Act and this part. specified at § 1901.03 and clearly delin- Such individuals shall provide, in addi- eate the communication as a request tion to the information required under under the Privacy Act and this regula- paragraph (a) of this section, their tion. Requests and administrative ap- Alien Registration Number and the peals on requests, referrals, and coordi- date that status was acquired. nations received from members of the (c) Requirement for representatives. The public who owe outstanding fees for in- parent or guardian of a minor indi- formation services at this or other fed- vidual, the guardian of an individual eral agencies will not be accepted and under judicial disability, or an attor- action on existing requests and appeals ney retained to represent an individual will be terminated in such cir- shall provide, in addition to estab- cumstances. lishing the identity of the minor or individual represented as required in § 1901.12 Requirements as to form. paragraph (a) or (b) of this section, evi- (a) In general. No particular form is dence of such representation by sub- required. All requests must contain the mission of a certified copy of the mi- identification information required at nor’s birth certificate, court order, or § 1901.13. representational agreement which es- (b) For access. For requests seeking tablishes the relationship and the re- access, a requester should, to the ex- quester’s identity. tent possible, describe the nature of (d) Procedure otherwise. If a requester the record sought and the record sys- or representative fails to provide the tem(s) in which it is thought to be in- information in paragraph (a), (b), or (c) cluded. Requesters may find assistance of this section within forty-five (45) from information described in the Pri- days of the date of our request, the vacy Act Issuances Compilation which Agency will deem the request closed. is published biannually by the FEDERAL This action, of course, would not pre- REGISTER. In lieu of this, a requester vent an individual from refiling his or may simply describe why and under her Privacy Act request at a subse- what circumstances it is believed that quent date with the required informa- this Agency maintains responsive tion. records; the Agency will undertake the appropriate searches. § 1901.14 Fees. (c) For amendment. For requests seek- No fees will be charged for any action ing amendment, a requester should under the authority of the Privacy Act, identify the particular record or por- 5 U.S.C. 552a, irrespective of the fact

428

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00438 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1901.22

that a request is or may be processed to 32 CFR 1901.33. In such event, the under the authority of both the Pri- Agency will inform the requester in vacy Act and the Freedom of Informa- writing and further advise of his or her tion Act. right to file an administrative appeal.

ACTION ON PRIVACY ACT REQUESTS § 1901.22 Action and determination(s) by originator(s) or any interested § 1901.21 Processing requests for ac- party. cess to or amendment of records. (a) Initial action for access. CIA com- (a) In general. Requests meeting the ponents tasked pursuant to a Privacy requirements of 32 CFR 1901.11 through Act access request shall search all rel- 1901.13 shall be processed under both evant record systems within their cog- the Freedom of Information Act, 5 nizance. They shall: U.S.C. 552, and the Privacy Act, 5 (1) Determine whether responsive U.S.C. 552a, and the applicable regula- records exist; tions, unless the requester demands otherwise in writing. Such requests (2) Determine whether access must be will be processed under both Acts re- denied in whole or part and on what gardless of whether the requester cites legal basis under both Acts in each one Act in the request, both, or nei- such case; ther. This action is taken in order to (3) Approve the disclosure of records ensure the maximum possible disclo- for which they are the originator; and sure to the requester. (4) Forward to the Coordinator all (b) Receipt, recording and tasking. records approved for release or nec- Upon receipt of a request meeting the essary for coordination with or referral requirements of §§ 1901.11 through to another originator or interested 1901.13, the Agency shall within ten (10) party as well as the specific determina- days record each request, acknowledge tions with respect to denials (if any). receipt to the requester, and thereafter (b) Initial action for amendment. CIA effect the necessary taskings to the components tasked pursuant to a Pri- components reasonably believed to vacy Act amendment request shall re- hold responsive records. view the official records alleged to be (c) Effect of certain exemptions. In inaccurate and the proposed amend- processing a request, the Agency shall ment submitted by the requester. If decline to confirm or deny the exist- they determine that the Agency’s ence or nonexistence of any responsive records are not accurate, relevant, records whenever the fact of their ex- timely or complete, they shall prompt- istence or nonexistence is itself classi- ly: fied under Executive Order 12958 or re- (1) Make the amendment as revealing of intelligence sources and quested; methods protected pursuant to section (2) Write to all other identified per- 103(c)(5) of the National Security Act of sons or agencies to whom the record 1947. In such circumstances, the Agen- has been disclosed (if an accounting of cy, in the form of a final written re- the disclosure was made) and inform of sponse, shall so inform the requester the amendment; and and advise of his or her right to an administrative appeal. (3) Inform the Coordinator of such decisions. (d) Time for response. Although the Privacy Act does not mandate a time (c) Action otherwise on amendment re- for response, our joint treatment of request. If the CIA component records quests under both the Privacy Act and manager declines to make the re- the FOIA means that the Agency quested amendment or declines to should provide a response within the make the requested amendment but FOIA statutory guideline of ten (10) agrees to augment the official records, days on initial requests and twenty (20) that manager shall promptly: days on administrative appeals. How- (1) Set forth the reasons for refusal; ever, the current volume of requests re- and quire that the Agency often seek addi- (2) Inform the Coordinator of such de- tional time from a requester pursuant cision and the reasons therefore.

429

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00439 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1901.23 32 CFR Ch. XIX (7–1–05 Edition)

(d) Referrals and coordinations. As ap- (2) Which records should not be sent plicable and within ten (10) days of re- directly to the requester because of ceipt by the Coordinator, any CIA possible medical or psychological harm records containing information origi- to the requester or another person. nated by other CIA components shall (b) Procedure for records to be sent to be forwarded to those entities for ac- physician. In the event that the Agency tion in accordance with paragraphs (a), determines, in accordance with para- (b), or (c) of this section and return. graph (a)(2) of this section, that Records originated by other federal records should not be sent directly to agencies or CIA records containing the requester, the Agency will notify other federal agency information shall the requester in writing and advise be forwarded to such agencies within that the records at issue can be made ten (10) days of our completion of ini- available only to a physician of the re- tial action in the case for action under quester’s designation. Upon receipt of their regulations and direct response to such designation, verification of the the requester (for other agency identity of the physician, and agree- records) or return to the CIA (for CIA ment by the physician: records). (1) To review the documents with the (e) Effect of certain exemptions. This requesting individual, section shall not be construed to allow (2) To explain the meaning of the access to systems of records exempted documents, and by the Director of Central Intelligence (3) To offer counseling designed to pursuant to subsections (j) and (k) of temper any adverse reaction, the Agen- the Privacy Act or where those exemp- cy will forward such records to the des- tions require that the CIA can neither ignated physician. confirm nor deny the existence or non- (c) Procedure if physician option not If within sixty (60) days of existence of responsive records. available. the paragraph (a)(2) of this section, the § 1901.23 Notification of decision and requester has failed to respond or des- right of appeal. ignate a physician, or the physician fails to agree to the release conditions, Within ten (10) days of receipt of re- the Agency will hold the documents in sponses to all initial taskings and sub- abeyance and advise the requester that sequent coordinations (if any), and dis- this action may be construed as a tech- patch of referrals (if any), the Agency nical denial. The Agency will also ad- will provide disclosable records to the vise the requester of the responsible of- requester. If a determination has been ficial and of his or her rights to admin- made not to provide access to re- istrative appeal and thereafter judicial quested records (in light of specific ex- review. emptions) or that no records are found, the Agency shall so inform the re- § 1901.32 Requests for expedited proc- quester, identify the denying official, essing. and advise of the right to administra- (a) All requests will be handled in the tive appeal. order received on a strictly ‘‘first-in, first-out’’ basis. Exceptions to this rule ADDITIONAL ADMINISTRATIVE MATTERS will only be made in circumstances that the Agency deems to be excep- § 1901.31 Special procedures for med- tional. In making this determination, ical and psychological records. the Agency shall consider and must de- (a) In general. When a request for ac- cide in the affirmative on all of the fol- cess or amendment involves medical or lowing factors: psychological records and when the (1) That there is a genuine need for originator determines that such the records; and records are not exempt from disclosure, (2) That the personal need is excep- the Agency will, after consultation tional; and with the Director of Medical Services, (3) That there are no alternative fo- determine: rums for the records sought; and (1) Which records may be sent di- (4) That it is reasonably believed that rectly to the requester and substantive records relevant to the

430

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00440 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1901.41

stated needs may exist and be deemed (c) Requests for extension of time. releasable. While the Privacy Act does not specify (b) In sum, requests shall be consid- time requirements, our joint treatment ered for expedited processing only of requests under the FOIA means that when health, humanitarian, or due when the Agency is unable to meet the process considerations involving pos- statutory time requirements of the sible deprivation of life or liberty cre- FOIA, the Agency may request addi- ate circumstances of exceptional ur- tional time from a requester. In such gency and extraordinary need. In ac- instances the Agency will inform a re- cordance with established judicial quester of his or her right to decline precedent, requests more properly the our request and proceed with an admin- scope of requests under the Federal istrative appeal or judicial review as Rules of Civil or Criminal Procedure appropriate. (or equivalent state rules) will not be granted expedited processing under ACTION ON PRIVACY ACT this or related (e.g., Freedom of Infor- ADMINISTRATIVE APPEALS mation Act) provisions unless expressly ordered by a federal court of § 1901.41 Establishment of appeals competent jurisdiction. structure. (a) In general. Two administrative en- § 1901.33 Allocation of resources; agreed extensions of time. tities have been established by the Di- rector of Central Intelligence to facili- (a) In general. Agency components tate the processing of administrative shall devote such personnel and other appeals under the Freedom of Informa- resources to the responsibilities im- tion Act. Their membership, authority, posed by the Privacy Act as may be ap- and rules of procedure are as follows. propriate and reasonable considering: (b) Historical Records Policy Board (1) The totality of resources available (‘‘HRPB’’ or ‘‘Board’’). This Board, the to the component, successor to the CIA Information Re- (2) The business demands imposed on view Committee, acts as the senior cor- the component by the Director of Cen- porate board in the CIA on all matters tral Intelligence or otherwise by law, (3) The information review and re- of information review and release. lease demands imposed by the Congress (1) Membership. The HRPB is com- or other governmental authority, and posed of the Executive Director, who (4) The rights of all members of the serves as its Chair, the Deputy Direc- public under the various information tor for Administration, the Deputy Di- review and disclosure laws. rector for Intelligence, the Deputy Di- (b) Discharge of Privacy Act respon- rector for Operations, the Deputy Di- sibilities. Components shall exercise due rector for Science and Technology, the diligence in their responsibilities under General Counsel, the Director of Con- the Privacy Act and must allocate a gressional Affairs, the Director of the reasonable level of resources to re- Public Affairs Staff, the Director, Cen- quests under the Act in a strictly ter for the Study of Intelligence, and ‘‘first-in, first-out’’ basis and utilizing the Associate Deputy Director for Ad- two or more processing queues to en- ministration/Information Services, or sure that smaller as well as larger (i.e., their designees. project) cases receive equitable atten- (2) Authorities and activities. The tion. The Information and Privacy Co- HRPB, by majority vote, may delegate ordinator is responsible for manage- to one or more of its members the au- ment of the Agency-wide program de- thority to act on any appeal or other fined by this Part and for establishing matter or authorize the Chair to dele- priorities for cases consistent with es- gate such authority, as long as such tablished law. The Director, Informa- delegation is not to the same indi- tion Management through the Agency vidual or body who made the initial de- Release Panel shall provide policy and nial. The Executive Secretary of the resource direction as necessary and HRPB is the Director, Information shall make determinations on adminis- Management. The Chair may request trative appeals. interested parties to participate when

431

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00441 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1901.42 32 CFR Ch. XIX (7–1–05 Edition)

special equities or expertise are in- § 1901.42 Right of appeal and appeal volved. procedures. (c) Agency Release Panel (‘‘ARP’’ or (a) Right of Appeal. A right of admin- ‘‘Panel’’). The HRPB, pursuant to its istrative appeal exists whenever access delegation of authority, has estab- to any requested record or any portion lished a subordinate Agency Release thereof is denied, no records are lo- Panel. cated in response to a request, or a re- (1) Membership. The ARP is composed quest for amendment is denied. The of the Director, Information Manage- Agency will apprise all requesters in ment, who serves as its Chair; the In- writing of their right to appeal such formation Review Officers from the Di- decisions to the CIA Agency Release rectorates of Administration, Intel- Panel through the Coordinator. ligence, Operations, Science and Tech- (b) Requirements as to time and form. nology, and the Director of Central In- Appeals of decisions must be received telligence Area; the CIA Information by the Coordinator within forty-five and Privacy Coordinator; the Chief, (45) days of the date of the Agency’s Historical Review Group; the Chair, initial decision. The Agency may, for Publications Review Board; the Chief, good cause and as a matter of adminis- Records Declassification Program; and trative discretion, permit an additional representatives from the Office of Gen- thirty (30) days for the submission of eral Counsel, the Office of Congres- an appeal. All appeals to the Panel sional Affairs, and the Public Affairs shall be in writing and addressed as Staff. specified in 32 CFR 1901.03. All appeals must identify the documents or por- (2) Authorities and activities. The tions of documents at issue with speci- Panel shall meet on a regular schedule ficity, provide the desired amending and may take action when a simple language (if applicable), and may majority of the total membership is present such information, data, and ar- present. The Panel shall advise and as- gument in support as the requester sist the HRPB on all information re- may desire. lease issues, monitor the adequacy and (c) Exceptions. No appeal shall be ac- timeliness of Agency releases, set com- cepted if the requester has outstanding ponent search and review priorities, re- fees for information services at this or view adequacy of resources available to another federal agency. In addition, no and planning for all Agency release appeal shall be accepted if the informa- programs, and perform such other function in question has been the subject of tions as deemed necessary by the an administrative review within the Board. The Information and Privacy previous two (2) years or is the subject Coordinator also serves as Executive of pending litigation in the federal Secretary of the Panel. The Chair may courts. request interested parties to partici- (d) Receipt, recording, and tasking. The pate when special equities or expertise Agency shall promptly record each ad- are involved. The Panel, functioning as ministrative appeal, acknowledge re- a committee of the whole or through ceipt to the requester in writing, and individual members, will make final thereafter effect the necessary Agency decisions from appeals of ini- taskings to the Deputy Director(s) in tial adverse decisions under the Free- charge of the directorate(s) which dom of Information Act and such other originated or has an interest in the information release decisions made record(s) subject to the appeal. As used under 32 CFR parts 1901, 1907, and 1908. herein, the term Deputy Director in- Issues shall be decided by a majority of cludes an equivalent senior official members present; in all cases of a di- within the DCI-area as well as a des- vided vote, any member of the ARP ignee known as the Information Re- then present may refer such matter to view Officer for a directorate or area. the HRPB by written memorandum to the Executive Secretary of the HRPB. § 1901.43 Determination(s) by Deputy Matters decided by the Panel or Board Director(s). will be deemed a final decision by the Each Deputy Director in charge of a Agency. directorate which originated or has an

432

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00442 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1901.51

interest in any of the records subject cision(s)) as well as any memorandum to the appeal, or designee, is a required of law or policy the referent desires to party to any appeal; other interested be considered, shall be certified by the parties may become involved through Executive Secretary of the Agency Re- the request of the Coordinator when it lease Panel and shall constitute the of- is determined that some or all of the ficial record of the proceedings and information is also within their official must be included in any subsequent fil- cognizance. These parties shall respond ings. in writing to the Coordinator with a finding as to the exempt or non-exempt § 1901.45 Notification of decision and status of the information including ci- right of judicial review. tations to the applicable exemption (a) In general. The Executive Sec- and/or their agreement or disagree- retary of the Agency Release Panel ment as to the requested amendment shall promptly prepare and commu- and the reasons therefore. Each re- nicate the decision of the Panel or sponse shall be provided expeditiously Board to the requester. With respect to on a ‘‘first-in, first-out’’ basis taking any decision to deny information or into account the business requirements deny amendment, that correspondence of the parties and consistent with the shall state the reasons for the decision, information rights of members of the identify the officer responsible, and in- general public under the various infor- clude a notice of the right to judicial mation review and release laws. review. (b) For amendment requests. With fur- § 1901.44 Action by appeals authority. ther respect to any decision to deny an (a) Preparation of docket. The Coordi- amendment, that correspondence shall nator, acting as the Executive Sec- also inform the requester of the right retary of the Agency Release Panel, to submit within forty-five (45) days a shall place administrative appeals of statement of his or her choice which Privacy Act requests ready for adju- shall be included in the official records dication on the agenda at the next oc- of the CIA. In such cases, the applica- curring meeting of that Panel. The Ex- ble record system manager shall clear- ecutive Secretary shall provide a sum- ly note any portion of the official mation memorandum for consideration record which is disputed, append the of the members; the complete record of requester’s statement, and provide cop- the request consisting of the request, ies of the statement to previous recipi- the document(s) (sanitized and full ents (if any are known) and to any fu- text) at issue, and the findings of the ture recipients when and if the dis- concerned Deputy Director(s) or des- puted information is disseminated in ignee(s). accordance with a routine use. (b) Decision by the Agency Release Panel. The Agency Release Panel shall PROHIBITIONS meet and decide requests sitting as a committee of the whole. Decisions are § 1901.51 Limitations on disclosure. by majority vote of those present at a No record which is within a system of meeting and shall be based on the writ- records shall be disclosed by any means ten record and their deliberations; no of communication to any individual or personal appearances shall be per- to another agency, except pursuant to mitted without the express permission a written request by, or with the prior of the Panel. written consent of, the individual to (c) Decision by the Historical Records whom the record pertains, unless dis- Policy Board. In any cases of divided closure of the record would be: vote by the ARP, any member of that (a) To those officers and employees of body is authorized to refer the request this Agency which maintains the to the CIA Historical Records Policy record who have a need for the record Board which acts as the senior cor- in the performance of their duties; porate board for the Agency. The (b) Required under the Freedom of record compiled (the request, the Information Act, 5 U.S.C. 552; memoranda filed by the originator and (c) For a routine use as defined in interested parties, and the previous de- § 1901.02(m), as contained in the Privacy

433

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00443 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1901.52 32 CFR Ch. XIX (7–1–05 Edition)

Act Issuances Compilation which is § 1901.52 Criminal penalties. published biennially in the FEDERAL (a) Unauthorized disclosure. Criminal REGISTER, and as described in §§ (a)(7) penalties may be imposed against any and (e)(4)(D) of the Act; officer or employee of the CIA who, by (d) To the Bureau of the Census for virtue of employment, has possession purposes of planning or carrying out a of or access to Agency records which census or survey or related activity contain information identifiable with pursuant to the provisions of U.S.C. an individual, the disclosure of which Title 13; is prohibited by the Privacy Act or by (e) To a recipient who has provided these rules, and who, knowing that dis- the Agency with advance adequate closure of the specific material is so written assurance that the record will prohibited, willfully discloses the ma- be used solely as a statistical research terial in any manner to any person or or reporting record, and the record is agency not entitled to receive same. to be transferred in a form that is not (b) Unauthorized maintenance. Crimi- individually identifiable; nal penalties may be imposed against (f) To the National Archives and any officer or employee of the CIA who Records Administration as a record willfully maintains a system of records which has sufficient historical or other without meeting the requirements of value to warrant its continued preser- section (e)(4) of the Privacy Act, 5 vation by the United States Govern- U.S.C.552a. The Coordinator and the In- ment, or for evaluation by the Archi- spector General are authorized inde- vist of the United States or designee to pendently to conduct such surveys and determine whether the record has such inspect such records as necessary from value; time to time to ensure that these re- (g) To another agency or to an in- quirements are met. strumentality of any governmental ju- (c) Unauthorized requests. Criminal risdiction within or under the control penalties may be imposed upon any of the United States for a civil or person who knowingly and willfully re- criminal law enforcement activity if quests or obtains any record con- the activity is authorized by law, and if cerning an individual from the CIA the head of that agency or instrumen- under false pretenses. tality has made a written request to the CIA specifying the particular infor- EXEMPTIONS mation desired and the law enforcement activity for which the record is § 1901.61 Purpose and authority. sought; Purpose of exemptions. This Part sets (h) To a person pursuant to a showing forth those systems of records or por- of compelling circumstances affecting tions of systems of records which the the health or safety of an individual if Director of Central Intelligence has de- upon such disclosure notification is termined to exempt from the proce- transmitted to the last known address dures established by this regulation of such individual; and from certain provisions of the Pri- (i) To either House of Congress, or, to vacy Act: the extent of matter within its juris- (a) The purpose of the following spec- diction, any committee or sub- ified general exemption of polygraph committee thereof, any joint com- records is to prevent access and review mittee of Congress or subcommittee of of records which intimately reveal CIA any such joint committee; operational methods. The purpose of (j) To the Comptroller General or any the general exemption from the provi- of his authorized representatives in the sions of sections (c)(3) and (e)(3) (A)–(D) course of the performance of the duties of the Privacy Act is to avoid disclo- of the General Accounting Office; or sures that may adversely affect ongo- (k) To any agency, government in- ing operational relationships with strumentality, or other person or enti- other intelligence and related organi- ty pursuant to the order of a court of zations and thus reveal or jeopardize competent jurisdiction of the United intelligence sources and methods or States or constituent states. risk exposure of intelligence sources

434

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00444 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1901.62

and methods in the processing of cov- grant of confidentiality in the case of ert employment applications. law enforcement or employment and (b) The purpose of the general exemp- security suitability investigations (or tion from sections (d), (e)(4)(G), (f)(1), promotion material in the case of the and (g) of the Privacy Act is to protect armed services); protect information only those portions of systems of used in connection with protective records which if revealed would risk services under 18 U.S.C. 3056; protect exposure of intelligence sources and the efficacy of testing materials; and methods or hamper the ability of the protect information which is required CIA to effectively use information re- by statute to be maintained and used ceived from other agencies or foreign solely as statistical records. governments. (c) It should be noted that by sub- § 1901.62 General exemptions. jecting information which would consist of, reveal, or pertain to intel- (a) Pursuant to authority granted in ligence sources and methods to sepa- section (j) of the Privacy Act, the Di- rate determinations by the Director of rector of Central Intelligence has de- Central Intelligence under the provi- termined to exempt from all sections sion entitled ‘‘General exemptions,’’ 32 of the Act—except sections 552a(b); (c) CFR 1901.62 regarding access and no- (1) and (2); (e) (1), (4) (A)–(F), (5), (6), (7), tice, an intent is established to apply (9), (10), and (11); and (i)—the following the exemption from access and notice systems of records or portions of only in those cases where notice in records in a system of record: itself would constitute a revelation of (1) Polygraph records. intelligence sources and methods; in (2) [Reserved] all cases where only access to informa- (b) Pursuant to authority granted in tion would reveal such source or meth- section (j) of the Privacy Act, the Di- od, notice will be given upon request. rector of Central Intelligence has de- (d) The purpose of the general exemp- termined to exempt from sections (c)(3) tion for records that consist of, pertain and (e)(3) (A)–(D) of the Act all systems to, or would otherwise reveal the iden- of records maintained by this Agency. tities of employees who provide infor- (c) Pursuant to authority granted in mation to the Office of the Inspector section (j) of the Privacy Act, the Di- General is to implement section 17 of rector of Central Intelligence has de- the CIA Act of 1949, as amended, 50 termined to exempt from notification U.S.C. 403q(e)(3), and to ensure that no under sections (e)(4)(G) and (f)(1) those action constituting a reprisal or threat portions of each and all systems of of reprisal is taken because an em- records which have been exempted ployee has cooperated with the Office from individual access under section (j) of Inspector General. in those cases where the Coordinator (e) The purpose of the specific exemptions provided for under section (k) of determines after advice by the respon- the Privacy Act is to exempt only sible components that confirmation of those portions of systems of records the existence of a record may jeop- which would consist of, reveal, or per- ardize intelligence sources and meth- tain to that information which is enu- ods. In such cases the Agency must nei- merated in that section of the Act. ther confirm nor deny the existence of (f) In each case, the Director of Cen- the record and will advise a requester tral Intelligence currently or then in that there is no record which is avail- office has determined that the enumer- able pursuant to the Privacy Act of ated classes of information should be 1974. exempt in order to comply with dealing (d) Pursuant to authority granted in with the proper classification of na- section (j) of the Privacy Act, the Di- tional defense or foreign policy infor- rector of Central Intelligence has de- mation; protect the identification of termined to exempt from access by in- persons who provide information to the dividuals under section (d) of the Act CIA Inspector General; protect the pri- those portions and only those portions vacy of other persons who supplied in- of all systems of records maintained by formation under an implied or express the CIA that:

435

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00445 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1901.63 32 CFR Ch. XIX (7–1–05 Edition)

(1) Consist of, pertain to, or would section (j)(2) of the Act; provided how- otherwise reveal intelligence sources ever, that if an individual is denied any and methods; right, privilege, or benefit to which (2) Consist of documents or informa- they are otherwise eligible, as a result tion provided by any foreign govern- of the maintenance of such material, ment entity, international organiza- then such material shall be provided to tion, or, any United States federal, that individual except to the extent state, or other public agency or author- that the disclosure would reveal the ity; and identity of a source who furnished the (3) Consist of information which information to the United States Gov- would reveal the identification of per- ernment under an express promise of sons who provide information to the confidentiality, or, prior to the effec- CIA Inspector General. tive date of this section, under an im- (e) Pursuant to authority granted in plied promise of confidentiality; section (j) of the Privacy Act, the Di- (c) Maintained in connection with rector of Central Intelligence has de- providing protective services to the termined to exempt from judicial re- President of the United States or other view under section (g) of the Act all de- individuals pursuant to 18 U.S.C. 3056; terminations to deny access under sec- (d) Required by statute to be main- tion (d) of the Act and all decisions to tained and used solely as statistical deny notice under sections (e)(4)(G) and records; (f)(1) of the Act pursuant to determina- (e) Investigatory in nature and com- tion made under paragraph (c) of this piled solely for the purpose of deter- section when it has been determined by mining suitability, eligibility, or quali- an appropriate official of the CIA that fications for federal civilian employ- such access would disclose information ment, military service, federal con- which would: tracts, or access to classified informa- (1) Consist of, pertain to, or other- tion, but only to the extent that the wise reveal intelligence sources and disclosure of such material would re- methods; veal the identity of a source who fur- (2) Consist of documents or informa- nished information to the United tion provided by any foreign govern- States Government under an express ment entity, international organiza- promise of confidentiality, or, prior to tion, or, any United States federal, the effective date of this section, under state, or other public agency or author- an implied promise of confidentiality; ity; and (f) Testing or examination material (3) Consist of information which used solely to determine individual would reveal the identification of per- qualifications for appointment or pro- sons who provide information to the motion in the federal service the dis- CIA Inspector General. closure of which would compromise the objectivity or fairness of the testing or § 1901.63 Specific exemptions. examination process; or Pursuant to authority granted in sec- (g) Evaluation material used to de- tion (k) of the Privacy Act, the Direc- termine potential for promotion in the tor of Central Intelligence has deter- armed services, but only to the extent mined to exempt from section (d) of that the disclosure of such material the Privacy Act those portions and would reveal the identity of a source only those portions of all systems of who furnished information to the records maintained by the CIA that United States Government under an would consist of, pertain to, or other- express promise of confidentiality, or, wise reveal information that is: prior to the effective date of this sec- (a) Classified pursuant to Executive tion, under an implied promise of con- Order 12958 (or successor or prior fidentiality. Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1) and 5 U.S.C. 552a(k)(1); PART 1902—INFORMATION (b) Investigatory in nature and com- SECURITY REGULATIONS piled for law enforcement purposes, other than material within the scope of Subparts A–E [Reserved] 436

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00446 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1903.1

Subpart F—Declassification and ommendation for decision to the appro- Downgrading priate Deputy Director or Head of Inde- pendent Office. If those officials believe disclosure may be warranted, they, in AUTHORITY: Sec. 5–402 of Executive Order 12065. coordination with OGC, as appropriate, shall refer the matter and a rec- § 1902.13 Declassification and down- ommendation to the DDCI. If the DDCI grading policy. determines that the public interest in (a)–(b) [Reserved] disclosure of the information out- (c) The Executive Order provides that weighs any damage to national secu- in some cases the need to protect prop- rity that might reasonably be expected erly classified information ‘‘may be to result from disclosure, the informa- outweighed by the public interest in tion shall be declassified. disclosure of the information,’’ and [45 FR 64175, Sept. 29, 1980] that ‘‘when such questions arise’’ the competing interests in protection and PART 1903—CONDUCT ON disclosure are to be balanced. The Order further provides that the infor- AGENCY INSTALLATIONS mation is to be declassified in such cases if the balance is struck in favor Sec. of disclosure. The drafters of the Order 1903.1 Definitions. 1903.2 Applicability. recognized that such cases would be 1903.3 State law applicable. rare and that declassification decisions 1903.4 Vehicles and traffic safety. in such cases would remain the respon- 1903.5 Enforcement of parking regulations. sibility of the Executive Branch. For 1903.6 Admission on to an Agency installa- purposes of these provisions, a question tion. as to whether the public interest favor- 1903.7 Trespassing. ing the continued protection of prop- 1903.8 Interfering with Agency functions. erly classified information is out- 1903.9 Explosives. weighed by a public interest in the dis- 1903.10 Weapons. 1903.11 Restrictions on photographic, trans- closure of that information will be mitting, and recording equipment. deemed to exist only in circumstances 1903.12 Alcoholic beverages and controlled where, in the judgment of the agency, substances. nondisclosure could reasonably be ex- 1903.13 Intoxicated on an Agency installa- pected to: tion. (1) Place a person’s life in jeopardy. 1903.14 Disorderly conduct. (2) Adversely affect the public health 1903.15 Preservation of property. and safety. 1903.16 Restrictions on animals. (3) Impede legitimate law enforce- 1903.17 Soliciting, vending, and debt collection. ment functions. 1903.18 Distribution of materials. (4) Impede the investigative or over- 1903.19 Gambling. sight functions of the Congress. 1903.20 Penalties and effects on other laws. (5) Obstruct the fair administration of justice. AUTHORITY: 50 U.S.C. 403o. (6) Deprive the public of information SOURCE: 63 FR 44786, Aug. 21, 1998, unless indispensable to public decisions on otherwise noted. issues of critical national importance (effective for declassification reviews § 1903.1 Definitions. conducted on or after 1 February 1980). As used in this part: (d) When a case arises that requires a Agency installation. For the purposes balancing of interests under paragraph of this part, the term Agency installa- (c) above, the reviewing official shall tion means the property within the refer the matter to an Agency official Agency Headquarters Compound and having Top Secret classification au- the property controlled and occupied thority, who shall balance. If it appears by the Federal Highway Administra- that the public interest in disclosure of tion located immediately adjacent to the information may outweigh any such Compound, and property within continuing need for its protection, the any other Agency installation and pro- case shall be referred with a rec- tected property (i.e., property owned,

437

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00447 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1903.2 32 CFR Ch. XIX (7–1–05 Edition)

leased, or otherwise controlled by the required to be licensed in any State or Central Intelligence Agency). otherwise. Authorized person. An officer of the Weapons. Any firearms or any other Security Protective Service, or any loaded or unloaded pistol, rifle, shot- other Central Intelligence Agency em- gun, or other weapon which is designed ployee who has been authorized by the to, or may be readily converted to Director of Central Intelligence pursu- expel a projectile by ignition of a pro- ant to section 15 of the Central Intel- pellant, by compressed gas, or which is ligence Agency Act of 1949 to enforce spring-powered. Any bow and arrow, the provisions of this part. crossbow, blowgun, spear gun, hand- Blasting agents. The term is defined thrown spear, sling-shot, irritant gas for the purposes of this part as it is de- device, explosive device, or any other fined in Title 18 U.S.C. 841. implement designed to discharge mis- siles; or a weapon, device, instrument, Controlled Substance. Any drug or material, or substance, animate or in- other substance, or immediate pre- animate, that is used for or is readily cursor that has been defined as a con- capable of, causing death or serious trolled substance in the Controlled bodily injury, including any weapon Substances Act (Title 21 U.S.C. 801 et the possession of which is prohibited seq.). under the laws of the State in which Explosives/Explosive Materials. The the Agency installation or portion term is defined for the purposes of this thereof is located; except that such part as it is defined in Title 18 U.S.C. term does not include a closing pocket 841. knife with a blade of less than 21⁄2 Operator. A person who operates, inches in length. drives, controls, or otherwise has charge of, or is in actual physical con- § 1903.2 Applicability. trol of a mechanical mode of transpor- The provisions of this part apply to tation or any other mechanical equip- all Agency installations, and to all per- ment. sons entering on to or when on an Permit. A written authorization to Agency installation. They supplement engage in uses or activities that are the provisions of Title 18, United otherwise prohibited, restricted, or reg- States Code, relating to crimes and ulated. criminal procedures, and those provi- Possession. Exercising direct physical sions of State law that are federal control or dominion, with or without criminal offenses by virtue of the As- ownership, over the property. similative Crimes Act, 18 U.S.C. 13. The State law. The applicable and non- Director of Central Intelligence, at his conflicting laws, statutes, regulations, discretion, may suspend the applica- ordinances, and codes of the State(s) bility of this part, or a portion thereof, and other political subdivision(s) with- on any Agency installation, or any por- in whose exterior boundaries an Agen- tion of the installation, covered under cy installation or a portion thereof is this part. Where necessary and when located. consistent with national security re- Traffic. Pedestrians, ridden or herded quirements notices will be posted on animals, vehicles, and other convey- the affected Agency installation to in- ances, either singly or together, while dicate that the applicability of this using any road, path, street, or other part or a portion thereof has been sus- thoroughfare for the purpose of travel. pended. Vehicles. Any vehicle that is self-propelled or designed for self-propulsion, § 1903.3 State law applicable. any motorized vehicle, and any vehicle (a) Unless specifically addressed by drawn by or designed to be drawn by a the regulations in this part, traffic motor vehicle, including any device in, safety and the permissible use and op- upon, or by which any person or prop- eration of vehicles within an Agency erty is or can be transported or drawn installation are governed by State law. upon a roadway, highway, hallway, or State law that is now or may later be pathway; to include any device moved in effect is adopted and made a part of by human or animal power. Whether the regulations in this part.

438

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00448 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1903.4

(b) Violating a provision of State law (2) The provisions or paragraph (b)(1) is prohibited. of this section shall also apply to an operator who is or has been legally en- § 1903.4 Vehicles and traffic safety. titled to use alcohol or another drug. (a) Open container of alcoholic bev- (3) Test. (i) At the request or direc- erage. (1) Each person within the vehi- tion of an authorized person who has cle is responsible for complying with probable cause to believe that an oper- the provisions of this section that per- ator of a vehicle within an Agency in- tain to carrying an open container. The stallation has violated a provision of operator of the vehicle is the person re- paragraph (b)(1) of this section, the op- sponsible for complying with the provi- erator shall submit to one or more sions of this section that pertain to the tests of blood, breath, saliva, or urine storage of an open container. for the purpose of determining blood (2) Carrying or storing a bottle, can, alcohol, drug, and controlled substance or other receptacle containing an alco- content. holic beverage that is open or has been (ii) Refusal by an operator to submit opened, or whose seal is broken, or the to a test is prohibited and may result contents of which have been partially in detention and citation by an author- removed, within a vehicle on an Agen- ized person. Proof of refusal many be cy installation is prohibited. admissible in any related judicial pro- (3) This section does not apply to: ceeding. (i) An open container stored in the (iii) Any test or tests for the presence trunk of a vehicle or, if a vehicle is not of alcohol, drugs, and controlled sub- equipped with a trunk, to an open container stored in some other portion of stances shall be determined by and ad- the vehicle designated for the storage ministered at the direction of an offi- of luggage and not normally occupied cer of the Security Protective Service. by or readily accessible to the operator (iv) Any test shall be conducted by or passenger; or using accepted scientific methods and (ii) An open container stored in the equipment of proven accuracy and reli- living quarters of a motor home or ability and operated by personnel cer- camper. tified in its use. (4) For the purpose of paragraph (4) Presumptive levels. (i) The results (a)(3)(i) of this section, a utility com- of chemical or other quantitative tests partment or glove compartment is are intended to supplement the ele- deemed to be readily accessible to the ments of probable cause used as the operator and passengers of a vehicle. basis for the arrest of an operator (b) Operating under the influence of al- charged with a violation of this sec- cohol, drugs, or controlled substances. (1) tion. If the alcohol concentration in Operating or being in actual physical the operator’s blood or breath at the control of a vehicle is prohibited while. time of the testing is less than the al- (i) Under the influence of alcohol, cohol concentration specified in para- drug or drugs, a controlled substance, graph (b)(1)(ii) of this section this fact or any combination thereof, to a degree does not give rise to any presumption that renders the operator incapable of that the operator is or is not under the safe operation; or influence of alcohol. (ii) The alcohol concentration in the (ii) The provisions of paragraph operator’s blood is 0.08 grams or more (b)(4)(i) of this section are not intended of alcohol per 100 milliliters of blood or to limit the introduction of any other 0.08 grams or more alcohol per 210 li- competent evidence bearing upon the ters of breath. Provided, however, that question of whether the operator, at if the applicable State law that applies the time of the alleged violation, was to operating a vehicle while under the under the influence of alcohol, a drug influence of alcohol establishes more or drugs, or a controlled substance, or restrictive limits of alcohol concentra- any combination thereof. tion in the operator’s blood or breath, those limits supersede the limits speci- [63 FR 44786, Aug. 21, 1998; 64 FR 27041, May fied in this section. 18, 1999]

439

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00449 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1903.5 32 CFR Ch. XIX (7–1–05 Edition)

§ 1903.5 Enforcement of parking regu- (c) All personal property, including lations. but not limited to any packages, brief- (a) A vehicle parked in any location cases, other containers or vehicles without authorization, pursuant to a brought on to, on, or being removed fraudulent, fabricated, copied or al- from an Agency installation are sub- tered parking permit, or parked con- ject to inspection and search by au- trary to the directions of posted signs thorized persons. or markings, shall be subject to any (d) A full search of a person may ac- penalties imposed by this section and company an investigative stop or an the vehicle may be removal from the arrest. Agency installation a the owner’s risk (e) Persons entering on to an Agency and expense. The Central Intelligence installation or into a restricted area Agency assumes no responsibility for who refuse to permit an inspection and the payment of any fees or costs research will be denied further entry and lated to the removal and/or storage of will be ordered to leave the Agency in- the vehicle which may be charged to stallation or restricted area pursuant the owner of the vehicle by the towing to § 1903.7(a) of this part. (f) All persons entering on to or when organization. on any Agency installation shall com- (b) The use, attempted use or posses- ply with all official signs of a prohibi- sion of a fraudulent, fabricated, copied tory, regulatory, or directory nature at or altered parking permit is prohibited. all times while on the Agency installa- (c) The blocking of entrances, drive- tion. ways, sidewalks, paths, loading plat- (g) All persons entering on to or forms, or fire hydrants on an Agency when on any Agency installation shall installation is prohibited. comply with the instructions or direc- (d) This section may be supplemented tions of authorized persons. or the applicability suspended from time to time by the Director of the § 1903.7 Trespassing. Center for CIA Security, or by his or (a) Entering, or remaining on any her designee, by the issuance and post- Agency installation without proper au- ing of such parking directives as may thorization is prohibited. Failure to be required, and when so issued and obey an order to leave given under this posted, such directives shall the same section by an authorized person, or re- force and effects as if made a part entry or attempted reentry onto the thereof. Agency installation after being ordered (e) Proof that a vehicle was parked in to leave or after being instructed not violation of the regulations of this sec- to reenter by an authorized person tion or directives may be taken as under this section is also prohibited. prima facie evidence that the registered (b) Any person who violates the pro- owner was responsible for the viola- visions of this part may be ordered to tion. leave the Agency installation by an authorized person. A violator’s reentry § 1903.6 Admission on to an Agency in- may also be prohibited. stallation. (a) Access on to any Agency installa- § 1903.8 Interfering with Agency function shall be controlled and restricted tions. to ensure the orderly and secure con- The following are prohibited: duct of Agency business. Admission on (a) Interference. Threatening, resist- to an Agency installation or into a re- ing, intimidating, or intentionally stricted area on an Agency installation interfering with a government em- shall be limited to Agency employees ployee or agent engaged in an official and other persons with proper author- duty, or on account of the performance ization. of an official duty. (b) All persons entering on to or (b) Violation of a lawful order. Vio- when on an Agency installation shall, lating the lawful order of an authorized when required and/or requested, person to maintain order and control, produce and display proper identifica- public access and movement during fire tion to authorized persons. fighting operations, law enforcement

440

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00450 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1903.11

actions, and emergency operations that purposes as determined by the Director involve a threat to public safety or of the Center for CIA Security; government resources, or other activi- (3) To the lawful performance of offi- ties where the control of public move- cial duties by an officer, agent, or em- ment and activities is necessary to ployee of the United States, a State, or maintain order and public health or a political subdivision thereof, who is safety. authorized by law to engage in or su- (c) False information. Knowingly giv- pervise the prevention, detection, in- ing false information: vestigation, or prosecution of any vio- (1) To an authorized person inves- lation of law; or tigating an accident or violation of law (4) To the possession of a weapon by or regulation; or a Federal official or a member of the (2) On an application for a permit. Armed Forces if such possession is au- (d) False report. Knowingly giving a thorized by law. false report for the purpose of mis- leading an authorized person in the § 1903.11 Restrictions on photographic, conduct of official duties, or making a transmitting, and recording equip- false report that causes a response by ment. the government to a fictitious event. (a) Except as otherwise authorized § 1903.9 Explosives. under this section, the following are prohibited on Agency installations: (a) Using, possessing, storing, or (1) Possessing a camera, other visual transporting explosives, blasting or audio recording devices, or elec- agents, ammunition or explosive materials is prohibited on any Agency in- tronic transmitting equipment of any stallation, except as authorized by the kind. Director of the Center for CIA Secu- (2) Carrying a camera, other visual or rity. When permitted, the use, posses- audio recording devices, or electronic sion, storage, and transportation shall transmitting equipment of any kind. be in accordance with applicable Fed- (3) Using a camera, other visual or eral and State laws, and shall also be audio recording devices, or electronic in accordance with applicable Central transmitting equipment of any kind. Intelligence Agency rules and/or regu- (b) This section does not apply to any lations. person using, possessing or storing a (b) Using, possessing, storing, or government or privately owned cel- transporting items intended to be used lular telephone or pager while on any to fabricate an explosive or incendiary Agency installation. The Central Intel- device, either openly or concealed, ex- ligence Agency may regulate or other- cept for official purposes is prohibited. wise administratively control cellular telephones and pagers outside the pro- § 1903.10 Weapons. visions of this part. (a) Except as provided in paragraph (c) This section does not apply to any (c) of this section, knowingly pos- officer, agent, or employee of the sessing or causing to be present a United States, a State, or a political weapon on an Agency installation, or subdivision thereof, who may enter on attempting to do so is prohibited. to an Agency installation to engage in (b) Knowingly possessing or causing or supervise the prevention, detection, to be present a weapon on an Agency investigation, or prosecution of any installation, incident to hunting or violation of law. other lawful purposes is prohibited. (d) This section does not apply to any (c) This section does not apply— person who has received approval from (1) Where Title 18 U.S.C. 930 applies; the Director of the Center for CIA Se- (2) To any person who has received curity, or from his or her designee to authorization from the Director of the Center for CIA Security, or from his or carry, transport, or use a camera, her designee to possess, carry, trans- other visual or audio recording devices, port, or use a weapon in support of the or electronic transmitting equipment Agency’s mission or for other lawful while on an Agency installation.

441

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00451 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1903.12 32 CFR Ch. XIX (7–1–05 Edition)

§ 1903.12 Alcoholic beverages and con- time of day or night, and other factors trolled substance. that would govern the conduct of a rea- (a) Alcoholic beverages. The posses- sonable prudent person under the cir- sion, transportation of alcoholic bev- cumstances. erages in closed containers and their (d) Uses obscene language, an utter- consumption on an Agency installation ance, or gesture, or engages in a dis- will be administratively controlled by play or act that is obscene. the Agency outside the provisions of (e) Impedes or threatens the security this part. of persons or property, or disrupts the (b) Controlled substances. The fol- performance of official duties by em- lowing are prohibited on an Agency in- ployees, officers, contractors or visi- stallation: tors on an Agency installation or ob- (1) The delivery of a controlled sub- structs the use of areas on an Agency stance, except when distribution is installation such as entrances, foyers, made by a licensed physician or phar- lobbies, corridors, concourses, offices, macist in accordance with applicable elevators, stairways, roadways, drive- Federal or State law, or as otherwise ways, walkways, or parking lots. permitted by Federal or State law. For the purpose of this paragraph, delivery § 1903.15 Preservation of property. means the actual, attempt, or con- structive transfer of a controlled sub- The following are prohibited: stance. (a) Property Damage. Destroying or (2) The possession of a controlled sub- damaging private property. stance, unless such substance was ob- (b) Theft. The theft of private prop- tained by the possessor directly from, erty, except where Title 18 U.S.C. 661 or pursuant to a valid prescription or applies. ordered by, a licensed physician or (c) Creation of hazard. The creation of pharmacist, or as otherwise allowed by hazard to persons or things, the throw- Federal or State law. ing of articles of any kind from or at buildings, vehicles, or persons while on § 1903.13 Intoxicated on an Agency in- an Agency installation. stallation. (d) Improper disposal. The improper Presence on an Agency installation disposal of trash or rubbish while on an when under the influence of alcohol, a Agency installation. drug, or a controlled substance or a combination thereof to a degree that § 1903.16 Restriction on animals. interferes with, impedes or hinders the Animals, except for those animals performance of the official duties of any government employee, or damages used for the assistance of persons with government or personal property is disabilities, or animals under the prohibited. charge and control of the Central Intel- ligence Agency, shall not be brought § 1903.14 Disorderly conduct. onto an Agency installation for other than official purposes. A person commits disorderly conduct when, with intent to cause public § 1903.17 Soliciting, vending, and debt alarm, nuisance, jeopardy, or violence, collection. or knowingly or recklessly creating a risk thereof, such person commits any Commercial or political soliciting, of the following prohibited acts: vending of all kinds, displaying or dis- (a) Engages in fighting or threat- tributing commercial advertising, col- ening, or in violent behavior. lecting private debts or soliciting alms (b) Acts in a manner that is phys- on any Agency installation is prohib- ically threatening or menacing, or acts ited. This does not apply to: in a manner that is likely to inflict in- (a) National or local drives for funds jury or incite an immediate breach of for welfare, health, or other purposes peace. as authorized by Title 5 CFR parts 110 (c) Makes noises that are unreason- and 950 as amended and sponsored or able considering the nature and pur- approved by the Director of Central In- pose of the actor’s conduct, location, telligence, or by his or her designee.

442

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00452 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1904.3

(b) Personal notices posted on au- SOURCE: 56 FR 41458, Aug. 21, 1991, unless thorized bulletin boards and in compli- otherwise noted. ance with Central Intelligence Agency rules governing the use of such author- § 1904.1 Scope and purpose. ized bulletin boards advertising to sell (a) This part sets forth the limits of or rent property of Central Intelligence authority of CIA personnel to accept Agency employees or their immediate service of process on behalf of the CIA families. or any CIA employee. (b) This part is intended to ensure § 1903.18 Distribution of materials. the orderly execution of the Agency’s Distributing, posting, or affixing ma- affairs and not to impede any legal pro- terials, such as pamphlets, handbills, ceeding. or flyers, on any Agency installation is (c) CIA regulations concerning em- prohibited except as authorized by ployee responses to demands for pro- § 1903.17(b), or by other authorization duction of official information in pro- from the Director of the Center for CIA ceedings before federal, state, or local Security, or from his or her designee. government entities are set out in part 1905 of this chapter. § 1903.19 Gambling. § 1904.2 Definitions. Gambling in any form, or the operation of gambling devices, is prohib- (a) Agency or CIA means the Central ited. This prohibition shall not apply Intelligence Agency and include all to the vending or exchange of chances staff elements of the Director of Cen- by licensed blind operators of vending tral Intelligence. facilities for any lottery set forth in a (b) Process means a summons, com- State law and authorized by the provi- plaint, subpoena, or other official paper sions of the Randolph-Sheppard Act (except garnishment orders) issued in (Title 20 U.S.C. 107 et seq.). conjunction with a proceeding or hearing being conducted by a federal, state, § 1903.20 Penalties and effects on or local governmental entity of com- other laws. petent jurisdiction. (a) Whoever shall be found guilty of (c) Employee means any CIA officer, violating any rule or regulation enu- any staff, contract, or other employee merated in this part is subject to the of CIA, any person including inde- penalties imposed by Federal law for pendent contractors associated with or the commission of a Class B mis- acting for or on behalf of CIA, and any demeanor offense. person formerly having such a relation- (b) Nothing in this part shall be con- ship with CIA. strued to abrogate or supersede any (d) General Counsel includes the Dep- other Federal law or any non-con- uty General Counsel or Acting General flicting State or local law, ordinance Counsel. or regulation applicable to any location where the Agency installation is § 1904.3 Procedures governing accept- situated. ance of service of process. (a) Service of Process Upon the CIA or PART 1904—PROCEDURES GOV- a CIA Employee in An Official Capacity— ERNING ACCEPTANCE OF SERV- (1) Personal service. Unless otherwise expressly authorized by the General ICE OF PROCESS Counsel, or designee, personal service of process may be accepted only by at- Sec. torneys of the Office of General Coun- 1904.1 Scope and purpose. 1904.2 Definitions. sel at CIA Headquarters in Langley, 1904.3 Procedures governing acceptance of Virginia. service of process. (2) Mail service. Where service of proc- 1904.4 Notification to CIA Office of General ess by registered or certified mail is Counsel. authorized by law, unless expressly di- 1904.5 Authority of General Counsel. rected otherwise by the General Coun- AUTHORITY: 50 U.S.C. 403g; 50 U.S.C. sel or designee, such process may only 403(d)(3); E.O. 12333 sections 1.8(h), 1.8(i), 3.2. be accepted by attorneys of the Office

443

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00453 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1904.4 32 CFR Ch. XIX (7–1–05 Edition)

of General Counsel. Process by mail or rules applicable to the service of should be addressed as follows: Litiga- process. tion Division, Office of General Coun- sel, Central Intelligence Agency, Wash- § 1904.4 Notification to CIA Office of ington, DC 20505. General Counsel. (b) Service of Process Upon a CIA Em- A CIA employee who receives or has ployee Solely in An Individual Capacity— reason to expect service of process in (1) General. Consistent with section 6 of an individual, official, or combined in- the CIA Act of 1949, as amended, 50 dividual and official capacity, in a U.S.C. 403g, CIA will not provide the matter that may involve testimony or name or address of any current or the furnishing of documents and that former employee of CIA to individuals could reasonably be expected to in- or entities seeking to serve process volve Agency interests, shall promptly upon such employee solely in his or her notify the Litigation Division, Office of individual capacity, even where the General Counsel (703–874–3118). Such matter is related to CIA activities. notification should be given prior to (2) Personal Service. Subject to the providing the requestor, counsel or sole discretion of appropriate officials other representative any Agency infor- of the CIA, process servers generally mation, and prior to accepting service will not be allowed to enter CIA facili- of process. ties or premises for the purpose of serv- § 1904.5 Authority of General Counsel. ing process upon any CIA employee solely in his or her individual capacity. Any questions concerning interpreta- The Office of General Counsel is not tion of this regulation shall be referred authorized to accept service of process to the Office of General Counsel for res- on behalf of a CIA employee—except olution. the Director and Deputy Director of Central Intelligence—in his or her indi- PART 1905—PRODUCTION OF OFFI- vidual capacity. CIAL RECORDS OR DISCLOSURE (3) Mail Service. Unless otherwise ex- OF OFFICIAL INFORMATION IN pressly authorized by the General PROCEEDINGS BEFORE FEDERAL, Counsel, or designee, CIA personnel are STATE OR LOCAL GOVERN- not authorized to accept or forward MENTAL ENTITIES OF COMPETENT mailed service of process directed to any CIA employee in his or her indi- JURISDICTION vidual capacity. Any such process will Sec. be returned to the sender via appro- 1905.1 Scope and purpose. priate postal channels. 1905.2 Definitions. (c) Service of Process Upon a CIA Em- 1905.3 General. ployee in A Combined Official and Indi- 1905.4 Procedure for production. vidual Capacity. Unless expressly di- AUTHORITY: 5 U.S.C. 403(d)(3); 50 U.S.C. rected otherwise by the General Coun- 403g; United States ex rel. Touhy v. Ragen, sel, or designee, any process to be 340 U.S. 462 (1951); E.O. 12333 §§ 1.8(i), 1.5(h), served upon a CIA employee in his or 3.2; E.O. 12356; U.S. v. Snepp, 444 U.S. 507 her combined official and individual (1980). capacity, in person or by mail, can be SOURCE: 56 FR 41459, Aug. 21, 1991, unless accepted only by attorneys of the Of- otherwise noted. fice of General Counsel at CIA Head- quarters in Langley, Virginia. § 1905.1 Scope and purpose. (d) The documents for which service This part sets forth the policy and is accepted in official capacity only procedures with respect to the produc- shall be stamped ‘‘Service Accepted in tion or disclosure of (a) material con- Official Capacity Only.’’ Acceptance of tained in the files of CIA, (b) informa- service of process shall not constitute tion relating to or based upon material an admission or waiver with respect to contained in the files of CIA, and (c) in- jurisdiction, propriety of service, im- formation acquired by any person proper venue, or any other defense in while such person was an employee of law or equity available under the laws CIA as part of the performance of that

444

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00454 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1905.4

person’s official duties or because of does not, and may not be relied upon that person’s association with CIA. to, create any right or benefit, substantive or procedural, enforceable by § 1905.2 Definitions. any party against the United States. For the purpose of this part: (a) CIA or Agency means the Central § 1905.4 Procedure for production. Intelligence Agency and includes all (a) Whenever a demand for produc- staff elements of the Director of Cen- tion is made upon an employee, the tral Intelligence. employee shall immediately notify the (b) Demand means any subpoena, Litigation Division, Office of General order, or other legal summons (except Counsel, Central Intelligence Agency, garnishment orders) that is issued by a Washington, DC 20505 (703/874–3118), federal, state, or local governmental which shall follow the procedures set entity of competent jurisdiction with the authority to require a response on forth in this section. a particular matter, or a request for (b) The General Counsel of CIA and appearance of an individual where a de- Deputy Directors or Heads of Inde- mand could issue. pendent Offices with responsibility for (c) Employee means any officer, any the information sought in the demand, staff, contract, or other employee of or their designees, shall determine CIA; any person including independent whether any information or materials contractors associated with or acting may properly be produced in response on behalf of CIA; and any person for- to the demand, except that the Office merly having such a relationship with of General Counsel may assert any and CIA. all legal defenses and objections to the (d) Production or produce means the demand available to CIA prior to the disclosure of: start of any search for information re- (1) Any material contained in the sponsive to the demand. CIA may, in files of CIA; or its sole discretion, decline to begin any (2) Any information relating to mate- search for information responsive to rial contained in the files of CIA, in- the demand until a final and non-ap- cluding but not limited to summaries pealable disposition of any such de- of such information or material, or fenses and objections raised by CIA has opinions based on such information or been made by the entity or person that material; or issued the demand. (3) Any information acquired by per- (c) CIA officials shall consider the sons while such persons were employ- following factors, among others, in ees of CIA as a part of the performance reaching a decision: of their official duties or because of (1) Whether production is appropriate their official status or association with in light of any relevant privilege; CIA; (2) Whether production is appropriate in response to a demand upon an em- under the applicable rules of discovery ployee of CIA. or the procedures governing the case or (e) General Counsel includes the Dep- matter in which the demand arose; and uty General Counsel or Acting General (3) Whether any of the following cir- Counsel. cumstances apply: § 1905.3 General. (i) Disclosure would violate a statute, (a) No employee shall produce any including but not limited to the Pri- materials or information in response to vacy Act of 1974, as amended, 5 U.S.C. a demand without prior authorization 552a; as set forth in this part. This part ap- (ii) Disclosure would be inconsistent plies to former employees to the extent with the statutory responsibility of the consistent with applicable nondisclo- Director of Central Intelligence to pro- sure agreements. tect intelligence sources and methods; (b) This part is intended only to pro- (iii) Disclosure would violate a spe- vide procedures for responding to de- cific CIA regulation or directive; mands for production of documents or (iv) Disclosure would reveal classified information, and is not intended to, information;

445

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00455 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1906 32 CFR Ch. XIX (7–1–05 Edition)

(v) Disclosure would improperly re- such officials are authorized to dele- veal trade secrets or proprietary con- gate in writing their authority in any fidential information without the own- case or matter or category thereof to er’s consent; or subordinate officials. (vi) Disclosure would unduly inter- (i) Any nonemployee who receives a fere with the orderly conduct of CIA’s demand for the production or disclo- functions. sure of CIA information acquired be- (d) If oral or written testimony is cause of that person’s association or sought by a demand in a case or matter contacts with CIA should notify CIA’s in which the CIA is not a party, a rea- Office of General Counsel, Litigation sonably detailed description of the tes- Division (703/874–3118) for guidance and timony sought, in the form of an affi- assistance. In such cases the provisions davit or, if that is not feasible, a writ- of this regulation shall be applicable. ten statement, by the party seeking the testimony or by the party’s attor- PART 1906—ENFORCEMENT OF ney must be furnished to the CIA Office NONDISCRIMINATION ON THE of General Counsel. (e) The Office of General Counsel BASIS OF HANDICAP IN PRO- shall be responsible for notifying the GRAMS OR ACTIVITIES CON- appropriate employees and other per- DUCTED BY THE CENTRAL INTEL- sons of all decisions regarding re- LIGENCE AGENCY sponses to demands and providing advice and counsel as to the implementa- Sec. tion of such decisions. 1906.101 Purpose. (f) If response to a demand is required 1906.102 Application. before a decision is made whether to 1906.103 Definitions. provide the documents or information 1906.104–1906.109 [Reserved] sought by the demand, an attorney 1906.110 Self-evaluation. 1906.111 Notice. from the Office of General Counsel, 1906.112–1906.129 [Reserved] after consultation with the Depart- 1906.130 General prohibitions against dis- ment of Justice, shall appear before crimination. and furnish the court or other com- 1906.131–1906.139 [Reserved] petent authority with a copy of this 1906.140 Employment. Regulation and state that the demand 1906.141–1906.148 [Reserved] has been or is being, as the case may 1906.149 Program accessibility: Discrimina- be, referred for the prompt consider- tion prohibited. ation of the appropriate CIA officials, 1906.150 Program accessibility: Existing fa- and shall respectfully request the court cilities. or other authority to stay the demand 1906.151 Program accessibility: New construction and alterations. pending receipt of the requested in- 1906.152–1906.159 [Reserved] structions. 1906.160 Communications. (g) If the court or other authority de- 1906.161–1906.169 [Reserved] clines to stay the demand pending re- 1906.170 Compliance procedures. ceipt of instructions in response to a request made in accordance with AUTHORITY: 19 U.S.C. 794. § 1905.4(g), or rules that the demand SOURCE: 57 FR 39610, Sept. 1, 1992, unless must be complied with irrespective of otherwise noted. instructions rendered in accordance with this part not to produce the mate- § 1906.101 Purpose. rial or disclose the information sought, The purpose of this part is to effec- the employee upon whom the demand tuate section 119 of the Rehabilitation, has been made shall, if so directed by Comprehensive Services, and Develop- the General Counsel of CIA, or des- mental Disabilities Amendments of ignee, respectfully decline to comply 1978, which amended section 504 of the with the demand under the authority Rehabilitation Act of 1973 to prohibit of United States ex rel. Touhy v. Ragen, discrimination on the basis of handicap 340 U.S. 462 (1951), and this Regulation. in programs or activities conducted by (h) With respect to any function Executive agencies or the United granted to CIA officials in this part, States Postal Service.

446

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00456 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1906.103

§ 1906.102 Application. scribe or identify (by name, if possible) This part applies to all programs or the alleged victims of discrimination. activities conducted by the Agency ex- Director means the Director of Cen- cept for programs or activities con- tral Intelligence or an official or em- ducted outside the United States that ployee of the Agency acting for the Di- do not involve handicapped persons in rector under a delegation of authority. the United States. This regulation will Facility means all or any portion of apply to the Agency only to the extent buildings, structures, equipment, consistent with the National Security roads, walks, parking lots, rolling Act of 1947 (50 U.S.C. 402 et seq.), as stock or other conveyances or other amended; the Central Intelligence real or personal property. Agency Act of 1949 (50 U.S.C. 403a et Individual with handicaps means any seq.), as amended; and other applicable person who has a physical or mental law. impairment that substantially limits one or more major life activities, has a § 1906.103 Definitions. record of such an impairment, or is re- For purposes of this part, the fol- garded as having such an impairment. lowing terms means— As used in this definition, the phrase— Assistant Attorney General means the (1) Physical or mental impairment in- Assistant Attorney General, Civil cludes— Rights Division, United States Depart- (i) Any physiological disorder or con- ment of Justice. dition, cosmetic disfigurement, or ana- Auxiliary aids means services or de- tomical loss affecting one or more of vices that enable persons with im- the following body systems: Cardio- paired sensory, manual, or speaking vascular; Neurological; musculo- skills to have an equal opportunity to skeletal; special sense organs; res- participate in, and enjoy the benefits piratory, including speech organs; re- of, programs or activities conducted by productive; digestive; genitourinary; the Agency. For example, auxiliary hemic and lymphatic; skin; and endo- aids useful for persons with impaired crine; or vision include readers, materials in (ii) Any mental or psychological dis- braille, audio recordings, and other order, such as mental retardation, or- similar services and devices. Auxiliary ganic brain syndrome, emotional or aids useful for persons with impaired mental illness, and specific learning hearing include telephone handset am- disabilities. The term ‘‘physical or plifiers, telephones compatible with mental impairment’’ includes, but is hearing aids, telecommunication de- not limited to, such diseases and condi- vices for deaf persons (TDD’s), inter- tions as orthopedic, visual, speech, and preters, notetakers, written materials, hearing impairments, cerebral palsy, and other similar services and devices. epilepsy, muscular dystrophy, multiple The Central Intelligence Agency may sclerosis, cancer, heart disease, diabe- prohibit from any of its facilities any tes, mental retardation, emotional ill- auxiliary aid, or category of auxiliary ness, drug addiction, and alcoholism. aid, that the Office of Security (OS) de- (2) Major life activities includes func- termines creates a security risk or po- tions such as caring for one’s self, per- tential security risk. OS reserves the forming manual tasks, walking, seeing, right to examine any auxiliary aid hearing, speaking, breathing, learning, brought into an Agency facility. and working; Complete complaint means a written (3) Has a record of such an impairment statement that contains the complain- means has a history of, or has been ant’s name and address and describes misclassified as having a mental or the Agency’s alleged discriminatory physical impairment that substantially action in sufficient detail to inform the limits one or more major life activi- Agency of the nature and date of the ties. alleged violation of section 504. It must (4) Is regarded as having an impairment be signed by the complainant or by means— someone authorized to do so on his or (i) Has a physical or mental impair- her behalf. Complaints filed on behalf ment that does not substantially limit of classes or third parties must de- major life activities but is treated by

447

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00457 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 §§ 1906.104–1906.109 32 CFR Ch. XIX (7–1–05 Edition)

the Agency as constituting such a limi- may not meet the requirements of this tation; part, and to the extent modification of (ii) Has a physical or mental impair- any of those policies and practices is ment that substantially limits major required, the Agency shall proceed to life activities only as a result of the at- make the necessary modifications. titudes of others toward the impair- (b) The Agency shall provide an opment; or portunity to interested persons, includ- (iii) Has none of the impairments de- ing individuals with handicaps or orga- fined in paragraph (1) of this definition nizations representing individuals with but is treated by the Agency as having handicaps to participate in the self- such an impairment. evaluation process by submitting com- Qualified individual with handicaps ments (both oral and written). means— (c) The Agency shall, for at least 3 (1) With respect to any Agency pro- years following completion of the self- gram or activity under which a person evaluation, maintain on file, and make is required to perform services or to available for public inspection— achieve a level of accomplishment, an (1) A description of areas examined individual with handicaps who meets and any problems identified; and the essential eligibility requirements (2) A description of any modifications and who can achieve the purpose of the made. program or activity without modifications in the program or activity that § 1906.111 Notice. the Agency can demonstrate would re- The Agency shall make available, to sult in a fundamental alteration in its employees, applicants, participants, nature; beneficiaries, and other interested per- (2) With respect to any other Agency sons, such information regarding the program or activity, an individual with provisions of this part and its applica- handicaps who meets the essential eli- bility to the programs or activities gibility requirements for participation conducted by the Agency, and make in, or receipt of benefits from, that pro- that information available to them in gram or activity; and such manner as the Director finds nec- (3) Qualified handicapped person as essary to apprise those persons of the that term is defined for purposes of em- protections against discrimination as- ployment in 29 CFR 1613.702(f), which is sured them by section 504 and the regu- made applicable to this part by lations in this part. § 1906.140. Section 504 means section 504 of the §§ 1906.112–1906.129 [Reserved] Rehabilitation Act of 1973 (Pub. L. 93– 112, 87 Stat. 394 (29 U.S.C. 794)), as § 1906.130 General prohibitions amended by the Rehabilitation Act against discrimination. Amendments of 1974 (Pub. L. 93–516, 88 (a) No qualified individual with Stat. 1617); the Rehabilitation, Com- handicaps shall, on the basis of handi- prehensive Services, and Develop- cap, be excluded from participation in, mental Disabilities Amendments of be denied the benefits of, or otherwise 1978 (Pub. L. 95–002, 92 Stat. 2955); and be subjected to discrimination under, the Rehabilitation Act Amendments of any program or activity conducted by 1986 (Pub. L. 99–506, 100 Stat. 1810). As the Agency. used in this part, section 504 applies (b)(1) The Agency, in providing any only to programs or activities con- aid, benefit, or service, may not, di- ducted by the Agency and not to feder- rectly or through contractual, licens- ally assisted programs. ing, or other arrangements, on the basis of handicap: §§ 1906.104–1906.109 [Reserved] (i) Deny a qualified individual with handicap the opportunity to partici- § 1906.110 Self-evaluation. pate in or benefit from the aid, benefit, (a) The Agency shall, within one year or service; of the effective date of this part, evalu- (ii) Deny a qualified individual with ate its current policies and practices, handicaps an opportunity to obtain the and the effect thereof, that do not or same result, to gain the same benefit,

448

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00458 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1906.149

to reach the same level of achievement (5) The Agency, in the selection of as that provided to others; procurement contractors, may not use (iii) Provide a qualified individual criteria that subject qualified individ- with handicaps with an aid, benefit, or uals with handicaps to discrimination service that is not as effective in af- on the basis of handicap. fording equal opportunity to obtain the (6) The Agency may not administer a same result, to gain the same benefit, licensing or certification program in a or to reach the same level of achieve- manner that subjects qualified individ- ment as that provided to others; uals with handicaps to discrimination (iv) Provide different or separate aid, on the basis of handicap, nor may the benefits, or services to individuals with Agency establish requirements for the handicaps or to any class of individuals programs or activities of licensees or with handicaps than is provided to oth- certified entities that subject qualified ers unless that action is necessary to individuals with handicaps to discrimi- provide qualified individuals with nation on the basis on handicap. How- handicaps with aid, benefits, or serv- ever, the programs or activities of enti- ices that are as effective as those pro- ties that are licensed or certified by vided to others; the Agency are not, themselves, cov- (v) Deny a qualified individual with ered by this part. handicaps the opportunity to partici- (c) The exclusion of nonhandicapped pate as a member of planning or advi- persons from the benefits or a program sory boards; or limited by Federal statute or Execu- (vi) Otherwise limit a qualified indi- tive Order to individuals with handi- vidual with handicaps in the enjoy- caps or the exclusion of a specific class ment of any right, privilege, advan- of individuals with handicaps from a tage, or opportunity enjoyed by others program limited by Federal statute or receiving the aid, benefit, or service. Executive Order to a different class of (2) The Agency may not deny a quali- individuals with handicaps is not pro- fied individual with handicaps the op- hibited by this part. portunity to participate in programs or (d) The Agency shall administer pro- activities that are not separate or dif- grams and activities in the most inte- ferent, despite the existence of permis- grated setting appropriate to the needs sibly separate or different programs or of qualified individuals with handicaps. activities. §§ 1906.131–1906.139 [Reserved] (3) The Agency may not, directly or through contractual or other arrange- § 1906.140 Employment. ments, utilize criteria or methods of No qualified individual with handi- administration the purpose or effect of caps shall, solely on the basis of handi- which would— cap, be subjected to discrimination in (i) Subject qualified individuals with employment under any program or ac- handicaps to discrimination on the tivity conducted by the Agency. The basis of handicap; or definitions, requirements, and proce- (ii) Defeat or substantially impair ac- dures of section 501 of the Rehabilita- complishment of the objectives of a tion Act of 1979 (29 U.S.C. 791), as estab- program or activity with respect to in- lished by the Equal Employment Op- dividuals with handicaps. portunity Commission in 29 CFR part (4) The Agency may not, in deter- 1613, shall apply to employment in fed- mining the site or location of a facil- erally conducted programs or activi- ity, make selections the purpose or ef- ties. fect of which would— (i) Exclude individuals with handi- §§ 1906.141–1906.148 [Reserved] caps from, deny them the benefits of, or otherwise subject them to discrimi- § 1906.149 Program accessibility: Dis- nation under, any program or activity crimination prohibited. conducted by the Agency; or Except as otherwise provided in (ii) Defeat or substantially impair § 1906.150, no qualified individual with the accomplishment of the objectives handicaps shall, because the Agency’s of a program or activity with respect facilities are inaccessible to or unus- to individuals with handicaps. able by individuals with handicaps, be

449

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00459 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1906.150 32 CFR Ch. XIX (7–1–05 Edition)

denied the benefits of, be excluded from (2) The Agency is not required to participation in, or otherwise be sub- make structural changes in existing fa- jected to discrimination under any pro- cilities if other methods are effective gram or activity conducted by the in achieving compliance with this sec- Agency. tion. (3) The Agency, in making alter- § 1906.150 Program accessibility: Exist- ations to existing buildings, shall meet ing facilities. accessibility requirements to the ex- (a) General. The Agency shall operate tent compelled by the Architectural each program or activity so that the Barriers Act of 1968, as amended (42 program or activity, viewed in its en- U.S.C. 4151–4157), and any regulations tirety, is readily accessible to and usa- implementing that Act. ble by individuals with handicaps. This (4) In choosing among available program does not— methods for meeting the requirements (1) Necessarily require the Agency to of this section, the Agency shall give make each of its existing facilities ac- priority to those methods that offer cessible to and usable by individuals programs and activities to qualified in- with handicaps; dividuals with handicaps in the most (2)(i) Require the Agency to take any integrated setting appropriate. action that it can demonstrate would (c) Time period for compliance. The result in a fundamental alteration in Agency shall comply with the obliga- the nature of a program or activity or tions established under this section in undue financial and administrative within 60 days of the effective date of burdens. this part except that if structural (ii) The Agency has the burden of changes in facilities are undertaken, proving that compliance with the changes shall be made within 3 § 1906.150(a) would result in that alter- years of the effective date of this part, ation or those burdens. but in any event as expeditiously as (iii) The decision that compliance possible. would result in that alteration or those (d) Transition plan. (1) In the event burdens must be made by the Director that structural changes to facilities after considering all of the Agency’s re- will be undertaken to achieve program sources available for use in the funding accessibility, the Agency shall develop, and operation of the conducted pro- within 6 months of the effective date of gram or activity, and must be accom- this part, a transition plan setting panied by a written statement of the forth the steps necessary to complete reasons for reaching that conclusion. those changes. (iv) If an action would result in that (2) The Agency shall provide an op- alteration or those burdens, the Agen- portunity to interested persons, includ- cy shall take any other action that ing individuals with handicaps or orga- would not result in the alteration or nizations representing individuals with burdens but would nevertheless ensure handicaps, to participate in the devel- that individuals with handicaps receive opment of the transition plan by sub- the benefits and services of the pro- mitting comments (both oral and writ- gram or activity. ten). A copy of the transition plan (b) Methods. (1) The Agency may com- must be made available for public in- ply with the requirements of this sec- spection. tion through such means as redesign of (3) The plan must, at a minimum— equipment, reassignment of services to (i) Identify physical obstacles in the accessible buildings, assignment of Agency’s facilities that limit the ac- aides to beneficiaries, home visits, de- cessibility of its programs or activities livery of services at alternate acces- to individuals with handicaps; sible sites, alteration of existing facili- (ii) Describe in detail the methods ties and construction of new facilities, that will be used to make the facilities use of accessible rolling stock, or any accessible; other methods that result in making (iii) Specify the schedule for taking its programs or activities readily ac- the steps necessary to achieve compli- cessible to and usable by individuals ance with this section and, if the time with handicaps. period of the transition plan is longer

450

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00460 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1906.170

than one year, identify steps that will bility shall be used at each primary en- be taken during each year of the tran- trance of an accessible facility. sition period; and (d) This section does not require the (iv) Indicate the official responsible Agency to take any action that it can for implementation of the plan. demonstrate would result in a fundamental alteration in the nature of a § 1906.151 Program accessibility: New program or activity or in undue finan- construction and alterations. cial and administrative burdens. In Each building or part of a building those circumstances where Agency per- that is constructed or altered by, on sonnel believe that the proposed action behalf of, or for the use of, the Agency would fundamentally alter the program shall be designed, constructed, or al- or activity or would result in undue fi- tered so as to be readily accessible to nancial and administrative burdens, and usable by individuals with handi- the Agency has the burden of proving caps. The definitions, requirements, that compliance with § 1906.160 would and standards of the Architectural Bar- result in such alteration or burdens. riers Act of 1968 (42 U.S.C. 4151–4175), as The decision that compliance would re- established in 41 CFR 101–19.600 to 101– sult in such alteration or burdens must 19–607, apply to buildings covered by be made by the Agency head or his or this section. her designee after considering all Agency resources available for use in §§ 1906.152–1906.159 [Reserved] the funding and operation of the conducted program or activity and must § 1906.160 Communications. be accompanied by a written statement (a) The Agency shall take appro- of the reasons for reaching that conclu- priate steps to ensure effective commu- sion. If an action required to comply nication with applicants, participants, with this section would result in such personnel of other Federal entities, and an alteration or such burdens, the members of the public as follows: Agency shall take any other action (1)(i) The Agency shall furnish appro- that would not result in such an alter- priate auxiliary aids if necessary to af- ation or such burdens but would never- ford an individual with handicaps an theless ensure that, to the maximum equal opportunity to participate in, extent possible, individuals with handi- and enjoy the benefits of, a program or caps receive the benefits and services activity conducted by the Agency. of the program or activity. (ii) In determining what type of auxiliary aid is necessary, the Agency §§ 1906.161–1906.169 [Reserved] shall give primary consideration to the requests of the individual with handi- § 1906.170 Compliance procedures. caps. (a) Except as provided in paragraph (2) Where the Agency communicates (b) of this section, this section applies with applicants and beneficiaries by to all allegations of discrimination on telephone, telecommunication devices the basis of handicap in programs and for deaf persons (TDD’s) or equally ef- activities conducted by the Agency. fective telecommunication systems (b) The Agency shall process com- shall be used to communicate with per- plaints alleging violations of section sons with impaired hearing. 504 with respect to employment accord- (b) The Agency shall ensure that in- ing to the procedures established by terested persons, including persons the Equal Employment Opportunity with impaired vision or hearing, can Commission in 29 CFR part 1613 pursu- obtain information as to the existence ant to section 501 of the Rehabilitation and location of accessible services, ac- Act of 1973 (29 U.S.C. 791). tivities, and facilities. (c) The Director, Office of Equal Em- (c) The Agency shall provide signage ployment Opportunity, is responsible at a primary entrance to each of its infor coordinating implementation of accessible facilities, directing users to this section. Complaints may be sent a location at which they can obtain in- to Central Intelligence Agency, Direc- formation about accessible facilities. tor, Office of Equal Employment Op- The international symbol for accessi- portunity, Washington, DC 20505.

451

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00461 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1907 32 CFR Ch. XIX (7–1–05 Edition)

(d) The Agency shall accept and in- PART 1907—CHALLENGES TO vestigate all complete complaints for CLASSIFICATION OF DOCU- which it has jurisdiction. All complete MENTS BY AUTHORIZED HOLDERS complaints must be filed within 180 days of the alleged act of discrimina- PURSUANT TO § 1.9 OF EXECU- tion. The Agency may extend this time TIVE ORDER 12958 period for good cause. (e) If the Agency receives a com- GENERAL plaint over which it does not have ju- Sec. risdiction, it shall promptly notify the 1907.01 Authority and purpose. complainant and shall make reason- 1907.02 Definitions. able efforts to refer the complaint to 1907.03 Contact for general information and the appropriate government entity. requests. (f) The Agency shall notify the Archi- 1907.04 Suggestions and complaints. tectural and Transportation Barriers Compliance Board upon receipt of any FILING OF CHALLENGES complaint alleging that a building or 1907.11 Prerequisites. facility that is subject to the Architec- 1907.12 Requirements as to form. tural Barriers Act of 1968, as amended 1907.13 Identification of material at issue. (42 U.S.C. 4151–4157) is not readily ac- 1907.14 Transmission. cessible to and usable by individuals ACTION ON CHALLENGES with handicaps. (g) Within 180 days of the receipt of a 1907.21 Receipt, recording, and tasking. complete complaint for which it has ju- 1907.22 Challenges barred by res judicata. risdiction, The Agency shall notify the 1907.23 Response by originator(s) and/or any complainant of the results of the inves- interested party. tigation in a letter containing— 1907.24 Designation of authority to hear (1) Findings of fact and conclusions challenges. 1907.25 Action on challenge. of law; 1907.26 Notification of decision and prohibi- (2) A description of a remedy for each tion on adverse action. violation found; and (3) A notice of the right to appeal. RIGHT OF APPEAL (h) Appeals of the findings of fact and 1907.31 Right of appeal. conclusions of law or remedies must be filed by the complainant within 90 days AUTHORITY: Executive Order 12958, 60 FR of receipt from the Agency of the letter 19825, 3 CFR 1996 Comp., P. 333–356 (or suc- required by § 1906.170(g). The Agency cessor orders). may extend this time for good cause. SOURCE: 62 FR 32494, June 16, 1997, unless (i) Timely appeals shall be accepted otherwise noted. and processed by the Director. (j) The Agency shall notify the com- GENERAL plainant of the results of the appeal within 60 days of the receipt of the re- § 1907.01 Authority and purpose. quest. If the Agency determines that it (a) Authority. This Part is issued needs additional information from the under the authority of and in order to complainant, it shall have 60 days from implement § 1.9 of Executive Order the date it receives the additional in- (E.O.) 12958, sec. 102 of the National Se- formation to make its determination curity Act of 1947, and sec. 6 of the CIA on the appeal. Act of 1949. (k) The time limits cited in para- (b) Purpose. This part prescribes pro- graphs (g) and (j) of this section may be cedures for authorized holders of infor- extended with the permission of the mation classified under the various Assistant Attorney General. provisions of E.O. 12958, or predecessor (l) The Director may delegate the au- Orders, to seek a review or otherwise thority for conducting complaint in- challenge the classified status of infor- vestigations to other Federal agencies, mation to further the interests of the except that the authority for making United States Government. This part the final determination may not be and § 1.9 of E.O. 12958 confer no rights delegated. upon members of the general public, or

452

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00462 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1907.12

authorized holders acting in their per- (h) Interested party means any official sonal capacity, both of whom shall con- in the executive, military, congres- tinue to request reviews of classifica- sional, or judicial branches of govern- tion under the mandatory declassifica- ment, United States or foreign, or U.S. tion review provisions set forth at § 3.6 Government contractor who, in the of E.O. 12958. sole discretion of the CIA, has a subject matter or physical interest in the doc- § 1907.02 Definitions. uments or information at issue; For purposes of this part, the fol- (i) Originator means the CIA officer lowing terms have the meanings as in- who originated the information at dicated: issue, or successor in office, or a CIA (a) Agency or CIA means the United officer who has been delegated declas- States Central Intelligence Agency sification authority for the informa- acting through the CIA Information tion at issue in accordance with the and Privacy Coordinator; provisions of this Order; (j) This Order means Executive Order (b) Authorized holders means any 12958 of April 17, 1995 and published at member of any United States executive 60 FR 19825–19843 (or successor Orders). department, military department, the Congress, or the judiciary (Article III) § 1907.03 Contact for general informa- who holds a security clearance from or tion and requests. has been specifically authorized by the For information on this part or to Central Intelligence Agency to possess file a challenge under this part, please and use on official business classified direct your inquiry to the Executive information, or otherwise has Con- Secretary, Agency Release Panel, Cen- stitutional authority pursuant to their tral Intelligence Agency, Washington, office; DC 20505. The commercial (non-secure) (c) Ddays means calendar days when telephone is (703) 613–1287; the classified the Agency is operating and specifi- (secure) telephone for voice and fac- cally excludes Saturdays, Sundays, and simile is (703) 613–3007. legal public holidays. Three (3) days may be added to any time limit im- § 1907.04 Suggestions and complaints. posed on a requester by this CFR Part The Agency welcomes suggestions or if responding by U.S. domestic mail; complaints with regard to its adminis- ten (10) days may be added if respond- tration of the Executive Order. Letters ing by international mail; of suggestion or complaint should iden- (d) Challenge means a request in the tify the specific purpose and the issues individual’s official, not personal, ca- for consideration. The Agency will re- pacity and in furtherance of the inter- spond to all substantive communica- ests of the United States; tions and take such actions as deter- (e) Control means ownership or the mined feasible and appropriate. authority of the CIA pursuant to federal statute or privilege to regulate of- FILING OF CHALLENGES ficial or public access to records; (f) Coordinator means the CIA Infor- § 1907.11 Prerequisites. mation and Privacy Coordinator acting The Central Intelligence Agency has in the capacity of Executive Secretary established liaison and procedures with of the Agency Release Panel; many agencies for declassification (g) Information means any knowledge issues. Prior to reliance on this Part, that can be communicated or documen- authorized holders are required to first tary material, regardless of its phys- exhaust such established administra- ical form, that is: tive procedures for the review of classi- (1) Owned by, produced by or for, or fied information. Further information under the control of the United States on these procedures is available from Government, and the point of contact, see 32 CFR 1907.03. (2) Lawfully and actually in the possession of an authorized holder and for § 1907.12 Requirements as to form. which ownership and control has not The challenge shall include identi- been relinquished by the CIA; fication of the challenger by full name

453

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00463 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1907.13 32 CFR Ch. XIX (7–1–05 Edition)

and title of position, verification of se- to the authorized holder, and task the curity clearance or other basis of au- originator and other interested parties. thority, and an identification of the Additional taskings, as required during documents or portions of documents or the review process, shall be accom- information at issue. The challenge plished within five (5) days of notifica- shall also, in detailed and factual tion. terms, identify and describe the reasons why it is believed that the infor- § 1907.22 Challenges barred by res ju- mation is not protected by one or more dicata. of the § 1.5 provisions, that the release The Executive Secretary of the Agen- of the information would not cause cy Release Panel shall respond on be- damage to the national security, or half of the Panel and deny any chal- that the information should be declas- lenge where the information in ques- sified due to the passage of time. The tion has been the subject of a classi- challenge must be properly classified; fication review within the previous two in this regard, until the challenge is (2) years or is the subject of pending decided, the authorized holder must litigation in the federal courts. treat the challenge, the information being challenged, and any related or § 1907.23 Response by originator(s) explanatory information as classified and/or any interested party. at the same level as the current classi- (a) In general. The originator of the fication of the information in dispute. classified information (document) is a required party to any challenge; other § 1907.13 Identification of material at interested parties may become in- issue. volved through the request of the Exec- Authorized holders shall append the utive Secretary or the originator when documents at issue and clearly mark it is determined that some or all of the those portions subject to the challenge. information is also within their official If information not in documentary cognizance. form is in issue, the challenge shall (b) Determination. These parties shall state so clearly and present or other- respond in writing to the Executive wise refer with specificity to that in- Secretary of the Agency Release Panel formation in the body of the challenge. with a mandatory unclassified finding, to the greatest extent possible, and an § 1907.14 Transmission. optional classified addendum. This Authorized holders must direct chal- finding shall agree to a declassification lenge requests to the CIA as specified or, in specific and factual terms, ex- in § 1907.03. The classified nature of the plain the basis for continued classifica- challenge, as well as the appended doc- tion including identification of the cat- uments, require that the holder trans- egory of information, the harm to na- mit same in full accordance with estab- tional security which could be expected lished security procedures. In general, to result from disclosure, and, if older registered U.S. mail is approved for SE- than ten (10) years, the basis for the ex- CRET, non-compartmented material; tension of classification time under higher classifications require use of ap- §§ 1.6 and 3.4 of this Order. These par- proved Top Secret facsimile machines ties shall also provide a statement as or CIA-approved couriers. Further in- to whether or not there is any other formation is available from the CIA as statutory, common law, or Constitu- well as corporate or other federal agen- tional basis for withholding as required cy security departments. by § 6.1(c) of this Order. (c) Time. The determination(s) shall ACTION ON CHALLENGES be provided on a ‘‘first-in, first-out’’ basis with respect to all challenges § 1907.21 Receipt, recording, and pending under this section and shall be tasking. accomplished expeditiously taking into The Executive Secretary of the Agen- account the requirements of the au- cy Release Panel shall within ten (10) thorized holder as well as the business days record each challenge received requirements of the originator includ- under this Part, acknowledge receipt ing their responsibilities under the

454

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00464 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency Pt. 1908

Freedom of Information Act, the Pri- the decision of the Agency to the au- vacy Act, or the mandatory declas- thorized holder, the originator, and sification review provisions of this other interested parties within ten (10) Order. days of the decision by the Panel or Board. That correspondence shall in- § 1907.24 Designation of authority to clude a notice that no adverse action hear challenges. or retribution can be taken in regard The Deputy Director for Administra- to the challenge and that an appeal of tion has designated the Agency Release the decision may be made to the Inter- Panel and the Historical Records Pol- agency Security Classification Appeals icy Board, established pursuant to 32 Panel (ISCAP) established pursuant to CFR 1900.41, as the Agency authority to § 5.4 of this Order. hear and decide challenges under these regulations. RIGHT OF APPEAL

§ 1907.25 Action on challenge. § 1907.31 Right of appeal. (a) Action by Agency Release Panel. A right of appeal is available to the The Executive Secretary shall place ISCAP established pursuant to § 5.4 of challenges ready for adjudication on this Order. Action by that body will be the agenda at the next occurring meet- the subject of rules to be promulgated ing of the Agency Release Panel. The by the Information Security Oversight Executive Secretary shall provide a Office (ISOO). summation memorandum for consideration of the members; the complete PART 1908—PUBLIC REQUESTS FOR package consisting of the challenge, MANDATORY DECLASSIFICATION the information at issue, and the find- REVIEW OF CLASSIFIED INFOR- ings of the originator and interested parties shall also be provided. The MATION PURSUANT TO § 3.6 OF Agency Release Panel shall meet and EXECUTIVE ORDER 12958 decide challenges sitting as a committee of the whole. Decisions are by GENERAL majority vote of those present at a Sec. meeting and shall be based on the writ- 1908.01 Authority and purpose. ten record and their deliberations; no 1908.02 Definitions. personal appearances shall be per- 1908.03 Contact for general information and mitted without the express permission requests. of the Panel. 1908.04 Suggestions and complaints. (b) Action by Historical Records Policy FILING OF MANDATORY DECLASSIFICATION Board. In any cases of divided vote by REVIEW (MDR) REQUESTS the ARP, any member of that body is 1908.11 Preliminary information. authorized to refer the request to the 1908.12 Requirements as to form. CIA Historical Records Policy Board 1908.13 Fees. which acts as the senior corporate board for the Agency. The record com- AGENCY ACTION ON MDR REQUESTS piled (the request, the memoranda filed 1908.21 Receipt, recording, and tasking. by the originator and interested par- 1908.22 Requests barred by res judicata. ties, and the previous decision(s)) as 1908.23 Determination by originator or in- well as any memorandum of law or pol- terested party. icy the referent desires to be consid- 1908.24 Notification of decision and right of ered, shall be certified by the Execu- appeal. tive Secretary of the Agency Release AGENCY ACTION ON MDR APPEALS Panel and shall constitute the official record of the proceedings and must be 1908.31 Requirements as to time and form. included in any subsequent filings. 1908.32 Receipt, recording, and tasking. 1908.33 Determination by Deputy Direc- § 1907.26 Notification of decision and tor(s). prohibition on adverse action. 1908.34 Establishment of appeals structure. 1908.35 Action by appeals authority. The Executive Secretary of the Agen- 1908.36 Notification of decision and right of cy Release Panel shall communicate further appeal.

455

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00465 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1908.01 32 CFR Ch. XIX (7–1–05 Edition)

FURTHER APPEALS declassification review provisions of 1908.41 Right of further appeal. Executive Order 12958; (e) Federal agency means any execu- AUTHORITY: Executive Orders 12958, 60 FR 19825, 3 CFR 1996 Comp., p. 333–356 (or suc- tive department, military department, cessor Orders). or other establishment or entity included in the definition of agency in 5 SOURCE: 62 FR 32495, June 16, 1997, unless U.S.C. 552(f); otherwise noted. (f) Information means any knowledge GENERAL that can be communicated or documentary material, regardless of its phys- § 1908.01 Authority and purpose. ical form that is owned by, produced by (a) Authority. This part is issued or for, or under the control of the under the authority of and in order to United States Government; it does not implement § 3.6 of Executive Order include: (E.O.) 12958 (or successor Orders); the (1) Information within the scope of CIA Information Act of 1984 (50 U.S.C. the CIA Information Act, or 431); sec. 102 of the National Security (2) Information originated by the in- Act of 1947, as amended (50 U.S.C. 403); cumbent President, White House Staff, and sec. 6 of the CIA Act of 1949, as appointed committees, commissions or amended (5 U.S.C. 403g). boards, or any entities within the Ex- (b) Purpose. This part prescribes pro- ecutive Office that solely advise and cedures, subject to limitations set assist the incumbent President; forth below, for members of the public (g) Interested party means any official to request a declassification review of in the executive, military, congres- information classified under the var- sional, or judicial branches of govern- ious provisions of this or predecessor ment, United States or foreign, or U.S. Orders. Section 3.6 of E.O. 12958 and Government contractor who, in the these regulations do not create any sole discretion of the CIA, has a subject right or benefit, substantive or proce- matter or physical interest in the doc- dural, enforceable at law by a party uments or information at issue; against the United States, its agencies, (h) NARA means the National Ar- officers, or employees. chives and Records Administration; (i) Originator means the CIA officer § 1908.02 Definitions. who originated the information at For purposes of this part, the fol- issue, or successor in office, or a CIA lowing terms have the meanings as in- officer who has been delegated declas- dicated: sification authority for the informa- (a) Agency or CIA means the United tion at issue in accordance with the States Central Intelligence Agency provisions of this Order; acting through the CIA Information (j) Presidential libraries means the li- and Privacy Coordinator; braries or collection authorities estab- (b) Days means calendar days when lished by statute to house the papers of the Agency is operating and specifi- former Presidents Hoover, Roosevelt, cally excludes Saturdays, Sundays, and Truman, Eisenhower, Kennedy, Nixon, legal public holidays. Three (3) days Ford, Carter, Reagan, Bush and similar may be added to any time limit im- institutions or authorities as may be posed on a requester by this part if re- established in the future; sponding by U.S. domestic mail; ten (k) Referral means coordination with (10) days may be added if responding by or transfer of action to an interested international mail; party; (c) Control means ownership or the (l) This Order means Executive Order authority of the CIA pursuant to Fed- 12958 of April 17, 1995 and published at eral statute or privilege to regulate of- 60 FR 19825–19843 (or successor Orders); ficial or public access to records; (d) Coordinator means the CIA Infor- § 1908.03 Contact for general informa- mation and Privacy Coordinator who tion and requests. serves as the Agency manager of the For general information on this Part information review and release pro- or to request a declassification review, gram instituted under the mandatory please direct your communication to

456

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00466 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1908.23

the Information and Privacy Coordi- fying information when required by the nator, Central Intelligence Agency, Agency to satisfy requirements of this Washington, DC 20505. Such inquiries part. will also be accepted by facsimile at (703) 613–3007. For general or status in- § 1908.13 Fees. formation only, the telephone number Requests submitted via NARA or the is (703) 613–1287. Collect calls cannot be various Presidential libraries shall be accepted. responsible for reproduction costs required by statute or regulation. Re- § 1908.04 Suggestions and complaints. quests made directly to this Agency The Agency welcomes suggestions or will be liable for costs in the same complaints with regard to its adminis- amount and under the same conditions tration of the mandatory declassifica- as specified in 32 CFR part 1900. tion review program established under Executive Order 12958. Many requesters AGENCY ACTION ON MDR REQUESTS will receive pre-paid, customer satisfaction survey cards. Letters of sugges- § 1908.21 Receipt, recording, and tion or complaint should identify the tasking. specific purpose and the issues for con- The Information and Privacy Coordi- sideration. The Agency will respond to nator shall within ten (10) days record all substantive communications and each mandatory declassification review take such actions as determined fea- request received under this part, ac- sible and appropriate. knowledge receipt to the requester in writing (if received directly from a re- FILING OF MANDATORY DECLASSIFICA- quester), and shall thereafter task the TION REVIEW (MDR) REQUESTS originator and other interested parties. Additional taskings, as required during § 1908.11 Preliminary information. the review process, shall be accom- Members of the public shall address plished within ten (10) days of notifica- all communications to the point of tion. contact specified above and clearly delineate the communication as a request § 1908.22 Requests barred by res judi- under this regulation. Requests and ap- cata. peals on requests received from mem- The Coordinator shall respond to the bers of the public who owe outstanding requester and deny any request where fees for information services under this the information in question has been Order or the Freedom of Information the subject of a classification review Act at this or another federal agency within the previous two (2) years or is will not be accepted until such debts the subject of pending litigation in the are resolved. federal courts.

§ 1908.12 Requirements as to form. § 1908.23 Determination by originator The request shall identify the docu- or interested party. ment(s) or material(s) with sufficient (a) In general. The originator of the specificity (e.g., National Archives and classified information (document) is a Records Administration (NARA) Docu- required party to any mandatory de- ment Accession Number or other appli- classification review request; other in- cable, unique document identifying terested parties may become involved number) to enable the Agency to locate through a referral by the Coordinator it with reasonable effort. Broad or top- when it is determined that some or all ical requests for records on a particular of the information is also within their subject may not be accepted under this official cognizance. provision. A request for documents (b) Required determinations. These par- contained in the various Presidential ties shall respond in writing to the Co- libraries shall be effected through the ordinator with a finding as to the clas- staff of such institutions who shall for- sified status of the information includ- ward the document(s) in question for ing the category of protected informa- Agency review. The requester shall tion as set forth in § 1.5 of this Order, also provide sufficient personal identi- and, if older than ten (10) years, the

457

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00467 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1908.24 32 CFR Ch. XIX (7–1–05 Edition)

basis for the extension of classification parties may become involved through time under §§ 1.6 and 3.4 of this Order. the request of the Coordinator when it These parties shall also provide a is determined that some or all of the statement as to whether or not there is information is also within their official any other statutory, common law, or cognizance. These parties shall respond Constitutional basis for withholding as in writing to the Coordinator with a required by § 6.1(c) of this Order. finding as to the classified status of the (c) Time. This response shall be pro- information including the category of vided expeditiously on a ‘‘first-in, first- protected information as set forth in out’’ basis taking into account the § 1.5 of this Order, and, if older than ten business requirements of the originator (10) years, the basis for continued clas- or interested parties and consistent sification under §§ 1.6 and 3.4 of this with the information rights of mem- Order. These parties shall also provide bers of the general public under the a statement as to whether or not there Freedom of Information Act and the is any other statutory, common law, or Privacy Act. Constitutional basis for withholding as § 1908.24 Notification of decision and required by § 6.1(c) of this Order. This right of appeal. response shall be provided expeditiously on a ‘‘first-in, first-out’’ basis The Coordinator shall communicate the decision of the Agency to the re- taking into account the business requester within ten (10) days of comple- quirements of the parties and con- tion of all review action. That cor- sistent with the information rights of respondence shall include a notice of a members of the general public under right of administrative appeal to the the Freedom of Information Act and Agency Release Panel pursuant to the Privacy Act. § 3.6(d) of this Order. § 1908.34 Establishment of appeals AGENCY ACTION ON MDR APPEALS structure. (a) In general. Two administrative en- § 1908.31 Requirements as to time and tities have been established by the Di- form. rector of Central Intelligence to facili- Appeals of decisions must be received tate the processing of administrative by the Coordinator within forty-five appeals under the mandatory declas- (45) days of the date of mailing of the sification review provisions of this Agency’s initial decision. It shall iden- Order. Their membership, authority, tify with specificity the documents or and rules of procedure are as follows. information to be considered on appeal (b) Historical Records Policy Board and it may, but need not, provide a fac- (‘‘HRPB’’ or ‘‘Board’’). This Board, the tual or legal basis for the appeal. successor to the CIA Information Re- § 1908.32 Receipt, recording, and view Committee, acts as the senior cor- tasking. porate board in the CIA on all matters of information review and release. It is The Coordinator shall promptly record each appeal received under this composed of the Executive Director, part, acknowledge receipt to the re- who serves as its Chair, the Deputy Di- quester, and task the originator and rector for Administration, the Deputy other interested parties. Additional Director for Intelligence, the Deputy taskings, as required during the review Director for Operations, the Deputy Di- process, shall be accomplished within rector for Science and Technology, the ten (10) days of notification. General Counsel, the Director of Con- gressional Affairs, the Director of the § 1908.33 Determination by Deputy Di- Public Affairs Staff, the Director, Cen- rector(s). ter for the Study of Intelligence, and Each Deputy Director in charge of a the Associate Deputy Director for Ad- directorate which originated or has an ministration/Information Services, or interest in any of the records subject their designees. The Board, by major- to the appeal, or designee, is a required ity vote, may delegate to one or more party to any appeal; other interested of its members the authority to act on

458

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00468 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1908.41

any appeal or other matter or author- mandatory declassification review re- ize the Chair to delegate such author- quests ready for adjudication on the ity, as long as such delegation is not to agenda at the next occurring meeting the same individual or body who made of the Agency Release Panel. The Exec- the initial denial. The Executive Sec- utive Secretary shall provide a summa- retary of the HRPB is the Director, In- tion memorandum for consideration of formation Management. The Chair may the members, the complete record of request interested parties to partici- the request consisting of the request, pate when special equities or expertise the document(s) (sanitized and full are involved. text) at issue, and the findings of the (c) Agency Release Panel (‘‘ARP’’ or originator and interested parties. The ‘‘Panel’’). The HRPB, pursuant to its Panel shall meet and decide requests delegation of authority, has estab- sitting as a committee of the whole. lished a subordinate Agency Release Decisions are by majority vote of those Panel. This Panel is composed of the present at a meeting and shall be based Director, Information Management, on the written record and their delib- who serves as its Chair; the Informa- erations; no personal appearances shall tion Review Officers from the Direc- be permitted without the express per- torates of Administration, Intel- mission of the Panel. ligence, Operations, Science and Tech- (b) Action by Historical Records Policy nology, and the Director of Central In- Board. In any cases of divided vote by telligence Area; the CIA Information the ARP, any member of that body is and Privacy Coordinator; the Chief, authorized to refer the request to the Historical Review Group; the Chair, CIA Historical Records Policy Board Publications Review Board; the Chief, which acts as the senior corporate Records Declassification Program; and board for the Agency. The record com- representatives from the Offices of piled (the request, the memoranda filed General Counsel and Congressional Af- by the originator and interested par- fairs, and the Public Affairs Staff. The ties, and the previous decision(s)) as Information and Privacy Coordinator well as any memorandum of law or pol- also serves as the Executive Secretary icy the referent desires to be consid- of the Panel. The Panel advises and as- ered, shall be certified by the Execu- sists the HRPB on all information re- tive Secretary of the Agency Release lease issues, monitors the adequacy Panel and shall constitute the official and timeliness of Agency releases, sets record of the proceedings and must be component search and review prior- included in any subsequent filings. ities, reviews adequacy of resources available to and planning for all Agen- § 1908.36 Notification of decision and cy release programs, and performs such right of further appeal. other functions as deemed necessary by The Coordinator shall communicate the Board. The Chair may request in- the decision of the Panel or Board to terested parties to participate when the requester, NARA, or the particular special equities or expertise are in- Presidential Library within ten (10) volved. The Panel, functioning as a days of such decision. That correspond- committee of the whole or through in- ence shall include a notice that an ap- dividual members, will make final peal of the decision may be made to the Agency decisions from appeals of ini- Interagency Security Classification tial denial decisions under E.O. 12958. Appeals Panel (ISCAP) established pur- Issues not resolved by the Panel will be suant to § 5.4 of this Order. referred by the Panel to the HRPB. Matters decided by the Panel or Board FURTHER APPEALS will be deemed a final decision by the Agency. § 1908.41 Right of further appeal. A right of further appeal is available § 1908.35 Action by appeals authority. to the ISCAP established pursuant to (a) Action by Agency Release Panel. § 5.4 of this Order. Action by that Panel The Coordinator, in his or her capacity will be the subject of rules to be pro- as Executive Secretary of the Agency mulgated by the Information Security Release Panel, shall place appeals of Oversight Office (ISOO).

459

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00469 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Pt. 1909 32 CFR Ch. XIX (7–1–05 Edition)

PART 1909—ACCESS BY HISTOR- (a) Agency or CIA means the United ICAL RESEARCHERS AND States Central Intelligence Agency FORMER PRESIDENTIAL AP- acting through the CIA Information POINTEES PURSUANT TO § 4.5 OF and Privacy Coordinator; EXECUTIVE ORDER 12958 (b) Agency Release Panel or Panel or ARP means the CIA Agency Release

GENERAL Panel established pursuant to 32 CFR 1900.41; Sec. 1909.01 Authority and purpose. (c) Days means calendar days when 1909.02 Definitions. the Agency is operating and specifi- 1909.03 Contact for general information and cally excludes Saturdays, Sundays, and requests. legal public holidays. Three (3) days 1909.04 Suggestions and complaints. may be added to any time limit im- REQUESTS FOR HISTORICAL ACCESS posed on a requester by this part if responding by U.S. domestic mail; ten 1909.11 Requirements as to who may apply. 1909.12 Designations of authority to hear re- (10) days may be added if responding by quests. international mail; 1909.13 Receipt, recording, and tasking. (d) Control means ownership or the 1909.14 Determinations by tasked officials. authority of the CIA pursuant to fed- 1909.15 Action by hearing authority. eral statute or privilege to regulate of- 1909.16 Action by appeal authority. 1909.17 Notification of decision. ficial or public access to records; 1909.18 Termination of access. (e) Coordinator means the CIA Infor- mation and Privacy Coordinator who AUTHORITY: Executive Order 12958, 60 FR 19825. 3 CFR 1996 Comp., p. 333–356 (or suc- serves as the Agency manager of the cessor Orders). historical access program established pursuant to § 4.5 of this Order; SOURCE: 62 FR 32498, June 16, 1997, unless otherwise noted. (f) Director, Center for the Study of In- telligence or ‘‘D/CSI’’ means the Agency GENERAL official responsible for the management of the CIA’s various historical § 1909.01 Authority and purpose. programs including the management of (a) AUTHORITY. This part is issued access granted under this section; under the authority of and in order to (g) Director of Personnel Security implement § 4.5 of Executive Order means the Agency official responsible 12958 (or successor Orders); the CIA In- for making all security and access ap- formation Act of 1984 (50 U.S.C. 431); provals and for effecting the necessary sec. 102 of the National Security Act of non-disclosure and/or pre-publication 1947, as amended (50 U.S.C. 403); and agreements as may be required; sec. 6 of the Central Intelligence Agen- (h) Federal agency means any execu- cy Act of 1949, as amended (50 U.S.C. tive department, military department, 403g). or other establishment or entity in- (b) Purpose. (1) This part prescribes cluded in the definition of agency in 5 procedures for: (i) Requesting access to CIA records U.S.C. 552(f); for purposes of historical research, or (i) Former Presidential appointee (ii) Requesting access to CIA records means any person who has previously as a former Presidential appointee. occupied a policy-making position in (2) Section 4.5 of Executive Order the executive branch of the United 12958 and these regulations do not cre- States Government to which they were ate any right or benefit, substantive or appointed by the current or former procedural, enforceable at law by a President and confirmed by the United party against the United States, its States Senate; agencies, officers, or employees. (j) Historian or historical researcher means any individual with professional § 1909.02 Definitions. training in the academic field of his- For purposes of this part, the fol- tory (or related fields such as jour- lowing terms have the meanings indi- nalism) engaged in a research project cated: leading to publication (or any similar

460

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00470 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1909.12

activity such as academic course devel- REQUESTS FOR HISTORICAL ACCESS opment) reasonably intended to increase the understanding of the Amer- § 1909.11 Requirements as to who may ican public into the operations and ac- apply. tivities of the United States govern- (a) Historical researchers—(1) In gen- ment; eral. Any historian engaged in a histor- (k) Information means any knowledge ical research project as defined above that can be communicated or documen- may submit a request in writing to the tary material, regardless of its phys- Coordinator to be given access to clas- ical form that is owned by, produced by sified information for purposes of that or for, or is under the control of the research. Any such request shall indi- United States Government; cate the nature, purpose, and scope of (l) Interested party means any official the research project. in the executive, military, congres- (2) Additional considerations. In light sional, or judicial branches of govern- of the very limited resources for the ment, United States or foreign, or U.S. Agency’s various historical programs, Government contractor who, in the it is the policy of the Agency to con- sole discretion of the CIA, has a subject sider applications for historical re- matter or physical interest in the doc- search privileges only in those in- uments or information at issue; stances where the researcher’s needs (m) Originator means the CIA officer cannot be satisfied through requests who originated the information at for access to reasonably described issue, or successor in office, or a CIA records under the Freedom of Informa- officer who has been delegated declas- tion Act or the mandatory declassifica- sification authority for the information review provisions of Executive tion at issue in accordance with the Order 12958 and where issues of internal provisions of this Order; resource availability and fairness to all (n) This Order means Executive Order members of the historical research 12958 of April 17 1995 and published at 60 community militate in favor of a par- FR 19825-19843 (or successor Orders). ticular grant. (b) Former Presidential appointees. Any § 1909.03 Contact for general informa- former Presidential appointee as de- tion and requests. fined herein may also submit a request For general information on this Part, to be given access to any classified to inquire about historical access to records which they originated, re- CIA records, or to make a formal reviewed, signed, or received while serv- quest for such access, please direct ing in that capacity. Such appointees your communication in writing to the may also request approval for a re- Information and Privacy Coordinator, search associate but there is no entitle- Central Intelligence Agency, Wash- ment to such enlargement of access ington, DC. 20505. Inquiries will also be and the decision in this regard shall be accepted by facsimile at (703) 613–3007. in the sole discretion of the Agency. For general information only, the tele- Requests from appointees shall be in phone number is (703) 613–1287. Collect writing to the Coordinator and shall calls cannot be accepted. identify the records of interest.

§ 1909.04 Suggestions and complaints. § 1909.12 Designations of authority to The Agency welcomes suggestions or hear requests. complaints with regard to its adminis- The Deputy Director for Administra- tration of the historical access pro- tion has designated the Coordinator, gram established pursuant to Execu- the Agency Release Panel, and the His- tive Order 12958. Letters of suggestion torical Records Policy Board, estab- or complaint should identify the spe- lished pursuant to 32 CFR 1900.41, as cific purpose and the issues for consid- the Agency authorities to decide re- eration. The Agency will respond to all quests for historical and former Presi- substantive communications and take dential appointee access under Execu- such actions as determined feasible and tive Order 12958 (or successor Orders) appropriate. and these regulations.

461

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00471 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 1909.13 32 CFR Ch. XIX (7–1–05 Edition)

§ 1909.13 Receipt, recording, and (5) That the information requested is tasking. reasonably accessible and can be lo- The Information and Privacy Coordi- cated and compiled with a reasonable nator shall within ten (10) days record effort (by D/CSI and originator); each request for historical access re- (6) That it is reasonably expected ceived under this Part, acknowledge re- that substantial and substantive gov- ceipt to the requester in writing and ernment documents and/or information take the following action: will be amenable to declassification and release and/or publication (by D/ (a) Compliance with general require- CSI and originator); ments. The Coordinator shall review (7) That sufficient resources are each request under this part and deter- available for the administrative sup- mine whether it meets the general report of the researcher given current quirements as set forth in 32 CFR mission requirements (by D/CSI and 1909.11; if it does not, the Coordinator originator); and, shall so notify the requester and ex- (8) That the request cannot be satis- plain the legal basis for this decision. fied to the same extent through re- (b) Action on requests meeting general quests for access to reasonably de- requirements. For requests which meet scribed records under the Freedom of the requirements of 32 CFR 1909.11, the Information Act or the mandatory de- Coordinator shall thereafter task the classification review provisions of Ex- D/CSI, the originator(s) of the mate- ecutive Order 12958 (by Coordinator, D/ rials for which access is sought, and CSI and originator). other interested parties. Additional (b) Time. These responses shall be taskings, as required during the review provided expeditiously on a ‘‘first-in, process, shall be accomplished within first-out’’ basis taking into account ten (10) days of notification. the business requirements of the tasked offices and consistent with the § 1909.14 Determinations by tasked of- information rights of members of the ficials. general public under the Freedom of (a) Required determinations. The Information Act and the Privacy Act. tasked parties as specified below shall The Agency will utilize its best efforts respond in writing to the Coordinator to complete action on requests under with recommended findings to the fol- this part within thirty (30) days of date lowing issues: of receipt. (1) That a serious professional or scholarly research project by the re- § 1909.15 Action by hearing authority. quester is contemplated (by D/CSI); Action by Agency Release Panel. The (2) That such access is clearly con- Coordinator, in his or her capacity as sistent with the interests of national Executive Secretary of the Agency Re- security (by originator and interested lease Panel, shall place historical ac- party, if any); cess requests ready for adjudication on (3) That a non-disclosure agreement the agenda at the next occurring meet- has been or will be executed by the re- ing of the Agency Release Panel. The quester (or research associate, if any) Executive Secretary shall provide a and other appropriate steps have been summation memorandum for consider- taken to assure that classified informa- ation of the members, the complete tion will not be disclosed or otherwise record of the request consisting of the compromised (by Director of Personnel request and the findings of the tasked Security and representative of the Of- parties. The Panel shall meet and de- fice of General Counsel); cide requests sitting as a committee of (4) That a pre-publication agreement the whole on the basis of the eight fac- has been or will be executed by the re- tors enumerated at 32 CFR 1909.14(a). quester (or research associate, if any) Decisions are by majority vote of those which provides for a review of notes present at a meeting and shall be based and any resulting manuscript (by Di- on the written record and their delib- rector of Personnel Security and rep- erations; no personal appearances shall resentative of the Office of General be permitted without the express per- Counsel); mission of the Panel.

462

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00472 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Central Intelligence Agency § 1910.1

§ 1909.16 Action by appeal authority. Personnel Security cancels the secu- In any cases of divided vote by the rity clearance of a requester (or re- ARP, any member of that body is au- search associate, if any) or whenever thorized to refer the request to the CIA the Agency Release Panel determines Historical Records Policy Board which that continued access would not be in acts as the senior corporate board for compliance with one or more of the re- the Agency. The record compiled (the quirements of 32 CFR 1909.14(a). request, the memoranda filed by the originator and interested parties, and PART 1910—DEBARMENT AND the previous decision(s)) as well as any SUSPENSION PROCEDURES memorandum of law or policy the referent desires to be considered, shall be certified by the Executive Secretary of Sec. 1910.1 General. the Agency Release Panel and shall constitute the official record of the AUTHORITY: 50 U.S.C. 401–442; 50 U.S.C. proceedings and must be included in 403a–403u; 48 CFR ch. 1, subpart 9.4. any subsequent filings. In such cases, the factors to be determined as speci- § 1910.1 General. fied in 32 CFR 1909.14(a) will be consid- The Central Intelligence Agency ered by the Board de novo and that de- (CIA), in accordance with its authori- cision shall be final. ties under the Central Intelligence § 1909.17 Notification of decision. Agency Act of 1949, as amended, and the National Security Act of 1947, as The Coordinator shall inform the re- amended, has an established debarment quester of the decision of the Agency and suspension process in accordance Release Panel or the Historical with subpart 9.402(d) of the Federal Ac- Records Policy Board within ten (10) days of the decision and, if favorable, quisition Regulation (FAR). This proc- shall manage the access for such period ess and the causes for debarment and as deemed required but in no event for suspension are consistent with those more than two (2) years unless renewed found in FAR 9.406 and 9.407. The rights by the Panel or Board in accordance of CIA contractors in all matters in- with the requirements of 32 CFR volving debarment and suspension are 1909.14(a). hereby governed by the provisions of subpart 9.4 of the FAR. § 1909.18 Termination of access. [69 FR 63064, Oct. 29, 2004] The Coordinator shall cancel any authorization whenever the Director of

463

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00473 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00474 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 CHAPTER XX—INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Part Page 2000 Administrative procedures [Reserved] 2001 Classified national security information ...... 467 2002 General guidelines for systematic declassification review of foreign government information ...... 502 2003 National security information—standard forms ..... 507 2004 [Reserved]

465

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00475 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00476 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PART 2000—ADMINISTRATIVE Subpart G—Reporting and Definitions PROCEDURES [RESERVED] 2001.80 Statistical reporting [5.2(b)(4)]. 2001.81 Accounting for costs [5.4(d)(8)]. PART 2001—CLASSIFIED NATIONAL 2001.82 Definitions [6.1]. SECURITY INFORMATION 2001.83 Effective date [6.3]. APPENDIX A TO PART 2001—INTERAGENCY SE- CURITY CLASSIFICATION APPEALS PANEL Subpart A—Classification BYLAWS Sec. AUTHORITY: Section 5.1 (a) and (b), and sec- 2001.10 Classification standards [1.1, 1.5]. tion 5.3, E.O. 12958, 60 FR 19825, 3 CFR Comp., 2001.11 Classification authority [1.3]. p. 333 as amended by E.O. 13292, 68 FR 15315, 2001.12 Duration of classification [1.5]. March 28, 2003. 2001.13 Classification prohibitions and limitations [1.7]. SOURCE: 68 FR 55168, Sept. 22, 2003, unless 2001.14 Classification challenges [1.8]. otherwise noted. 2001.15 Classification guides [2.2]. Subpart A—Classification Subpart B—Identification and Markings § 2001.10 Classification standards [1.1, 2001.20 General [1.6]. 1.5].1 2001.21 Original classification [1.6(a)]. 2001.22 Derivative classification [2.1]. (a) ‘‘An original classification authority 2001.23 Additional requirements [1.6]. with jurisdiction over the information’’ 2001.24 Declassification markings [1.5, 1.6, includes: 3.3]. (1) The official who authorized the Subpart C—Declassification original classification, if that official is still serving in the same position; 2001.30 Automatic declassification [3.3]. (2) The originator’s current successor 2001.31 Systematic declassification review in function; [3.4]. (3) A supervisory official of either; or 2001.32 Declassification guides [3.3]. (4) The senior agency official under 2001.33 Mandatory review for declassifica- Executive Order 12958, as amended tion [3.5, 3.6]. 2001.34 Referrals [3.3, 3.6]. (‘‘the Order’’). (b) ‘‘Permanently valuable informa- Subpart D—Safeguarding tion’’ or ‘‘permanent historical value’’ refers to information contained in: 2001.40 General [4.1]. (1) Records that have been 2001.41 Responsibilities of holders [4.1]. 2001.42 Standards for security equipment accessioned into the National Archives [4.1]. of the United States; 2001.43 Storage [4.1]. (2) Records that have been scheduled 2001.44 Information controls [4.1, 4.2]. as permanent under a records disposi- 2001.45 Transmission [4.1, 4.2]. tion schedule approved by the National 2001.46 Destruction [4.1, 4.2]. Archives and Records Administration 2001.47 Loss, possible compromise or unau- (NARA); and thorized disclosure [4.1, 4.2]. (3) Presidential historical materials, 2001.48 Special access programs [4.3]. 2001.49 Telecommunications, automated in- presidential records or donated histor- formation systems and network security ical materials located in the National [4.1, 4.2]. Archives of the United States, a presi- 2001.50 Technical security [4.1]. dential library, or any other approved 2001.51 Emergency authority [4.2]. repository. 2001.52 Open storage areas [4.1]. (c) Identifying or describing damage to 2001.53 Foreign government information the national security. Section 1.1(a) of [4.1]. the Order sets forth the conditions for Subpart E—Self-Inspections classifying information in the first instance. One of these conditions, the 2001.60 General [5.4]. ability to identify or describe the dam- 2001.61 Coverage [5.4(d)(4)]. age to the national security, is critical Subpart F—Security Education and Training 1 Bracketed references pertain to related 2001.70 General [5.4]. sections of Executive Order 12958, as amend- 2001.71 Coverage [5.4(d)(3)]. ed by E.O. 13292.

467

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00477 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.11 32 CFR Ch. XX (7–1–05 Edition)

to the process of making an original the date of original classification and classification decision. There is no re- which coincides with the lapse of the quirement, at the time of the decision, information’s national security sensi- for the original classification author- tivity, and shall assign such date or ity to prepare a written description of event as the declassification instruc- such damage. However, the original tion. classification authority must be able (ii) If unable to determine a date or to support the decision in writing, in- event of less than 10 years, the original cluding identifying or describing the classification authority shall ordi- damage, should the classification deci- narily assign a declassification date sion become the subject of a challenge that is 10 years from the date of the or access demand. original classification decision. (d) Declassification without proper au- (iii) If unable to determine a date or thority. Classified information that has event of 10 years, the original classi- been declassified without proper au- fication authority shall assign a de- thority remains classified. Administra- classification date not to exceed 25 tive action shall be taken to restore years from the date of the original markings and controls, as appropriate. classification decision. § 2001.11 Classification authority [1.3]. (2) Extending duration of classification for information originally classified under (a) General. Agencies with original the Order. Extensions of classification classification authority shall establish are not automatic. If an original classi- a training program for original classification authority with jurisdiction fiers in accordance with subpart F of over the information does not extend this part. the classification of information as- (b) Requests for original classification signed a date or event for declassifica- authority. Agencies not possessing such tion, the information is automatically authority shall forward requests to the declassified upon the occurrence of the Director of the Information Security date or event. If an original classifica- Oversight Office (ISOO). The agency tion authority has assigned a date or head must make the request and shall event for declassification that is less provide a specific justification of the than 25 years from the date of classi- need for this authority. The Director of fication, an original classification au- ISOO shall forward the request, along with the Director’s recommendation, thority with jurisdiction over the in- to the President through the Assistant formation may extend the classifica- to the President for National Security tion duration of such information for a Affairs within 30 days. Agencies wish- period not to exceed 25 years from the ing to increase their assigned level of date of origination. original classification authority shall (i) For information in records deter- forward requests in accordance with mined to have permanent historical the procedures of this section. value, successive extensions may not exceed a total of 25 years from the date § 2001.12 Duration of classification of the information’s origin. Continued [1.5]. classification of this information be- (a) Determining duration of classifica- yond 25 years is governed by section 3.3 tion for information originally classified of the Order. under the Order. (ii) For information in a file series of (1) Establishing duration of classifica- records determined not to have perma- tion. When determining the duration of nent historical value, the duration of classification for information origi- classification beyond 25 years shall be nally classified under this Order, an the same as the disposition of those original classification authority shall records (destruction date) in each agen- follow the sequence listed in para- cy Records Control Schedule or Gen- graphs (a)(1)(i), (ii), and (iii) of this sec- eral Records Schedule approved by the tion. National Archives and Records Admin- (i) The original classification author- istration, although the duration of ity shall attempt to determine a date classification may be extended if a or event that is less than 10 years from record has been retained for business

468

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00478 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.12

reasons beyond its scheduled destruc- States to be permanently valuable tion date. shall remain classified for 25 years (iii) For currently unscheduled from the date of its origin, at which records, the duration of classification time it will be subject to section 3.3 of beyond 25 years shall be determined in the Order. accordance with the provisions of (c) Changing the classification level of (a)(2)(i) (for permanently valuable information originally classified under the records) or (a)(2)(ii) (for temporary Order. An original classification au- records) when the records are sched- thority with jurisdiction over the in- uled. formation may change the level of (3) Conditions for extending classifica- classification of information. Docu- tion. When extending the duration of ments shall be remarked with the new classification, the original classification authority must: classification level, the date of the ac- (i) Be an original classification au- tion, and the authority for the change. thority with jurisdiction over the in- Changing the classification level may formation; also require changing portion markings (ii) Ensure that the information con- for information contained within a doc- tinues to meet the standards for classi- ument. Additionally, the original clas- fication under the Order; and sification authority shall update appro- (iii) Make reasonable attempts to no- priate security classification guides. tify all known holders of the informa- (d) Reclassifying specific information. tion. An original classification authority (b) Information classified under prior with jurisdiction over the information orders. (1) Specific date or event. Unless may reclassify information that has declassified earlier, information been declassified or marked as unclas- marked with a specific date or event sified in cases involving specific infor- for declassification under a prior order mation that has not been publicly re- is automatically declassified upon that leased under proper authority and has date or event. However, if the informa- not been subject to a Freedom of Infor- tion is contained in records determined mation Act, Privacy Act, or Mandatory by the Archivist of the United States Declassification Review request. (If the to be permanently valuable, and the information has been publicly released prescribed date or event will take place under proper authority, see section more than 25 years from the informa- 1.7(c) of the Order and § 2001.13; if the tion’s origin, the declassification of the information will instead be subject to information has not been publicly re- section 3.3 of the Order. leased but has been the subject of an (2) Indefinite duration of classification. access demand, see section 1.7(d) of the For information marked ‘‘Originating Order.). Agency’s Determination Required,’’ its (1) When taking this action, an origi- acronym ‘‘OADR,’’ or with some other nal classification authority must in- marking indicating an indefinite dura- clude the following markings on the in- tion of classification under a prior formation: order: (i) The level of classification; (i) A declassification authority, as (ii) The identity, by name or personal defined in section 6.1 of the Order, may identifier and position, of the original declassify it; classification authority; (ii) An authorized original classifica- (iii) declassification instructions; tion authority with jurisdiction over (iv) a concise reason for classifica- the information may re-mark the in- tion; and formation to establish a duration of (v) the date the action was taken. classification consistent with the requirements for information originally (2) The original classification author- classified under the Order, as provided ity shall notify all known authorized in paragraph (a) of this section; or holders of this action. (iii) Unless declassified earlier, such (e) Exemption categories from 10-year information contained in records deter- declassification. The markings for ex- mined by the Archivist of the United emption categories X1 through X8 can

469

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00479 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.13 32 CFR Ch. XX (7–1–05 Edition)

no longer be used. When these mark- ten years after the derivatively classified ings appear on information dated be- document was created. fore September 22, 2003, the informa- Example 2. An agency classification guide issued on October 20, 1995, states that the tion shall be declassified 25 years from maximum velocity of any fighter aircraft the date of the original decision, unless shall be classified at the ‘‘Secret’’ level for a it has been properly exempted under period of ten years. The agency first records section 3.3 of the Order. the specific maximum velocity of the new F– (f) Foreign government information. 88 aircraft on July 10, 1999. The document The declassifying agency is the agency should be marked for declassification on that initially received or classified the July 10, 2009, ten years after the specific information is first recorded, and not on Octo- information. When foreign government ber 20, 2005, ten years after the date of the information is being considered for de- guide’s generic instruction. Subsequent doc- classification or appears to be subject uments containing this information would be to automatic declassification, the de- marked for declassification 10 years from the classifying agency shall determine date of the document. whether the information is subject to a treaty or international agreement that § 2001.13 Classification prohibitions and limitations [1.7]. would prevent its declassification at that time. Depending on the age of the (a) In making the decision to reclas- information and whether it is con- sify information that has been declas- tained in permanently valuable sified and released to the public under records, the declassifying agency shall proper authority, the agency head or also determine if another exemption deputy agency head must determine in under section 3.3 (b) of the Order, such writing that reclassification of the in- as the exemption that pertains to formation is necessary in the interest United States foreign relations, may of the national security. apply to the information. If the declas- (1) In addition, the agency must deem sifying agency believes such an exemp- the information to be reasonably re- tion may apply, it should consult with coverable which means that: any other concerned agencies in mak- (i) Most individual recipients or holding its declassification determination. ers are known and can be contacted The declassifying agency or the De- and all forms of the information to be partment of State, as appropriate, may reclassified can be retrieved from them consult with the foreign government(s) and prior to declassification. (ii) If the information has been made available to the public via means such (g) Determining when information is as Government archives or reading subject to automatic declassification. The rooms, it is withdrawn from public ac- ‘‘date of the information’s origin’’ or cess. ‘‘the information’s origin,’’ as used in (2) The declassification and release of the Order and this part, pertains to the information under proper authority date that specific information, which is means that the agency originating the contemporaneously or subsequently information authorized the declas- classified, is first recorded in an agen- sification and release of the informa- cy’s records, or in presidential histor- tion. ical materials, presidential records or (b) Once the reclassification action donated historical materials. The fol- has occurred, it must be reported to lowing examples illustrate this process: ISOO within 30 days. The notification Example 1. An agency first issues a classi- must include how the ‘‘reasonably re- fication guide on the F–99 aircraft on Octo- coverable’’ decision was made, includ- ber 20, 1995. The guide states that the fact ing the number of recipients or holders, that the F–99 aircraft has a maximum veloc- how the information was retrieved and ity of 500 m.p.h. shall be classified at the how the recipients or holders were ‘‘Secret’’ level for a period of ten years. A briefed. document dated July 10, 1999, is classified be- (c) Any recipients or holders of the cause it includes the maximum velocity of the F–99. The document should be marked reclassified information who have cur- for declassification on October 20, 2005, ten rent security clearances shall be appro- years after the specific information was first priately briefed about their continuing recorded in the guide, not on July 10, 2009, legal obligations and responsibilities to

470

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00480 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.15

protect this information from unau- days, the agency must acknowledge the thorized disclosure. The recipients or challenge in writing, and provide a holders who do not have security clear- date by which the agency will respond. ances shall, to the extent practicable, The acknowledgment must include a be appropriately briefed about the re- statement that if no agency response is classification of the information that received within 120 days, the challenger they have had access to, their obliga- has the right to forward the challenge tion not to disclose the information, to the Interagency Security Classifica- and be requested to sign an acknowl- tion Appeals Panel (ISCAP) for a deci- edgement of this briefing. sion. The challenger may also forward (d) The reclassified information must the challenge to the ISCAP if an agen- be appropriately marked and safe- cy has not responded to an internal ap- guarded. The markings should include peal within 90 days of the agency’s re- the reclassification authority and the ceipt of the appeal. Agency responses date of the action. Apply other mark- to those challenges it denies shall in- ings as provided in subpart B of this clude the challenger’s appeal rights to part. the ISCAP. (4) Whenever an agency receives a § 2001.14 Classification challenges classification challenge to information [1.8]. that has been the subject of a challenge (a) Challenging classification. Author- within the past two years, or that is ized holders wishing to challenge the the subject of pending litigation, the classification status of information agency is not required to process the shall present such challenges to an challenge beyond informing the chal- original classification authority with lenger of this fact and of the chal- jurisdiction over the information. An lenger’s appeal rights, if any. authorized holder is any individual, in- (c) Additional considerations. (1) Chal- cluding an individual external to the lengers and agencies shall attempt to agency, who has been granted access to keep all challenges, appeals and re- specific classified information in ac- sponses unclassified. However, classi- cordance with the provisions of the fied information contained in a chal- Order to include the special conditions lenge, an agency response, or an appeal set forth in section 4.1(h) of the Order. shall be handled and protected in ac- A formal challenge under this provi- cordance with the Order and its imple- sion must be in writing, but need not menting directives. Information being be any more specific than to question challenged for classification shall re- why information is or is not classified, main classified unless and until a final or is classified at a certain level. decision is made to declassify it. (b) Agency procedures. (1) Because the (2) The classification challenge provi- Order encourages authorized holders to sion is not intended to prevent an au- challenge classification as a means for thorized holder from informally ques- promoting proper and thoughtful clas- tioning the classification status of par- sification actions, agencies shall en- ticular information. Such informal insure that no retribution is taken quiries should be encouraged as a against any authorized holders bring- means of holding down the number of ing such a challenge in good faith. formal challenges. (2) Agencies shall establish a system for processing, tracking and recording § 2001.15 Classification guides [2.2]. formal classification challenges made (a) Preparation of classification guides. by authorized holders. Agencies shall Originators of classification guides are consider classification challenges sepa- encouraged to consult users of guides rately from Freedom of Information for input when developing or updating Act or other access requests, and shall guides. When possible, originators of not process such challenges in turn classification guides are encouraged to with pending access requests. communicate within their agencies and (3) The agency shall provide an ini- with other agencies that are developing tial written response to a challenge guidelines for similar activities to en- within 60 days. If the agency is unable sure the consistency and uniformity of to respond to the challenge within 60 classification decisions. Each agency

471

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00481 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.20 32 CFR Ch. XX (7–1–05 Edition)

shall maintain a list of its classifica- Subpart B—Identification and tion guides in use. Markings (b) General content of classification guides. Classification guides shall, at a § 2001.20 General [1.6]. minimum: (1) Identify the subject matter of the A uniform security classification sys- classification guide; tem requires that standard markings (2) Identify the original classification be applied to classified information. authority by name or personal identi- Except in extraordinary circumstances, fier, and position; or as approved by the Director of ISOO, (3) Identify an agency point-of-con- the marking of classified information tact or points-of-contact for questions created after September 22, 2003, shall regarding the classification guide; not deviate from the following pre- (4) Provide the date of issuance or scribed formats. If markings cannot be last review; affixed to specific classified informa- (5) State precisely the elements of in- tion or materials, the originator shall formation to be protected; provide holders or recipients of the in- (6) State which classification level formation with written instructions for applies to each element of information, protecting the information. Markings and, when useful, specify the elements shall be uniformly and conspicuously of information that are unclassified; applied to leave no doubt about the (7) State, when applicable, special classified status of the information, handling caveats; the level of protection required, and (8) Prescribe declassification instruc- the duration of classification. tions or the exemption category from automatic declassification at 25 years, § 2001.21 Original classification as approved by the ISCAP under sec- [1.6(a)]. tion 3.3(d) of the Order and listed in (a) Primary markings. On the face of § 2001.21(e) of subpart B, for each ele- each originally classified document, re- ment of information; and gardless of the media, the original clas- (9) State a concise reason for classi- sification authority shall apply the fol- fication which, at a minimum, cites lowing markings. the applicable classification category (1) Classification authority. The name or categories in section 1.4 of the or personal identifier, and position Order. title of the original classification au- (c) Dissemination of classification thority shall appear on the ‘‘Classified guides. Classification guides shall be By’’ line. An example might appear as: disseminated as widely as necessary to ensure the proper and uniform deriva- Classified By: David Smith, Chief, Division 5, tive classification of information. Department of Good Works, Office of Ad- ministration (d) Reviewing and updating classification guides. (1) Classification guides, in- or cluding guides created under prior or- Classified By: ID#IMNO1, Chief, Division 5, ders, shall be reviewed and updated as Department of Good Works, Office of Ad- circumstances require, but, in any ministration event, at least once every five years. (2) Agency and office of origin. If not Updated instructions for guides first otherwise evident, the agency and of- created under prior orders shall comply fice of origin shall be identified and fol- with the requirements of the Order and low the name on the ‘‘Classified By’’ this part. line. An example might appear as: (2) Originators of classification guides are encouraged to consult the Classified By: David Smith, Chief, Division 5 users of guides for input when review- Department of Good Works, Office of Ad- ministration. ing or updating guides. Also, users of classification guides are encouraged to (3) Reason for classification. The origi- notify the originator of the guide when nal classification authority shall iden- they acquire information that suggests tify the reason(s) for the decision to the need for change in the instructions classify. The original classification au- contained in the guide. thority shall include, at a minimum, a

472

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00482 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.21

brief reference to the pertinent classi- classification to a specific date or fication category(ies), or the number event, mark that date or event as: 1.4 plus the letter(s) that corresponds Classified By: David Smith, Chief, Division 5, to that classification category in sec- Department of Good Works, Office of Ad- tion 1.4 of the Order. ministration (i) These categories, as they appear Reason: 1.4(g) in the Order, are as follows: Declassify On: October 14, 2004 (A) Military plans, weapons systems, or operations; or (B) Foreign government information; Declassify On: Completion of Operation (C) Intelligence activities (including (ii) When a specific date or event special activities), intelligence sources within 10 years cannot be established, or methods, or cryptology; the original classification authority (D) Foreign relations or foreign ac- will apply the date that is 10 years tivities of the United States, including from the date of the original decision. confidential sources; For example, on a document that con- (E) Scientific, technological, or eco- tains information classified on October nomic matters relating to the national 14, 2003, mark the ‘‘Declassify On’’ line security, which includes defense as: against transnational terrorism; Classified By: David Smith, Chief, Division 5, (F) United States Government pro- Department of Good Works, Office of Ad- grams for safeguarding nuclear mate- ministration rials or facilities; Reason: 1.4(g) (G) Vulnerabilities or capabilities of Declassify On: October 14, 2013 systems, installations, infrastructures, projects, plans, or protection services (iii) Upon the determination that the relating to the national security, information must remain classified be- which includes defense against yond 10 years, the original classifica- transnational terrorism; or tion authority will apply a date not to (H) Weapons of mass destruction. exceed 25 years from the date of the (ii) An example might appear as: original decision. For example, on a document that contains information Classified By: David Smith, Chief, Division 5, classified on October 10, 2003, mark the Department of Good Works, Office of Ad- ministration ‘‘Declassify On’’ line as: Reason: Vulnerabilities or capabilities of Classified By: David Smith, Chief, Division 5, plans relating to the national security Department of Good Works, Office of Ad- or ministration Reason: 1.4(g) Reason: 1.4(g) (iii) When the reason for classifica- Declassify On: October 10, 2028 tion is not apparent from the content (b) Overall marking. The highest of the information, e.g., classification level of classified information con- by compilation, the original classifica- tained in a document shall appear in a tion authority shall provide a more de- way that will distinguish it clearly tailed explanation of the reason for from the informational text. classification. (1) Conspicuously place the overall (4) Declassification instructions. The classification at the top and bottom of duration of the original classification the outside of the front cover (if any), decision shall be placed on the ‘‘De- on the title page (if any), on the first classify On’’ line. The original classi- page, and on the outside of the back fication authority will apply one of the cover (if any). following instructions: (2) For documents containing infor- (i) The original classification author- mation classified at more than one ity will apply a date or event for de- level, the overall marking shall be the classification that corresponds to the highest level. For example, if a docu- lapse of the information’s national se- ment contains some information curity sensitivity, that is less than 10 marked ‘‘Secret’’ and other informa- years from the date of the original de- tion marked ‘‘Confidential,’’ the over- cision. When linking the duration of all marking would be ‘‘Secret.’’

473

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00483 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.21 32 CFR Ch. XX (7–1–05 Edition)

(3) Each interior page of a classified 1, 2003 with a declassification date of document shall be marked at the top December 1, 2015: and bottom either with the highest Classified By: David Smith, Chief, Division 5, level of classification of information Department of Good Works, Office of Ad- contained on that page, including the ministration designation ‘‘Unclassified’’ when it is Reason: 1.4(g) applicable, or with the highest overall Declassify On: Classification extended on De- classification of the document. cember 1, 2005, until December 1, 2028, by (c) Portion marking. Each portion of a David Jones, Chief, Division 5 document, ordinarily a paragraph, but (e) Marking information exempted from including subjects, titles, graphics and automatic declassification at 25 years. (1) the like, shall be marked to indicate When an agency head or senior agency its classification level by placing a par- official exempts permanently valuable enthetical symbol immediately pre- information from automatic declas- ceding or following the portion to sification at 25 years, the ‘‘Declassify which it applies. On’’ line shall be revised to include the (1) To indicate the appropriate classi- symbol ‘‘25X’’ plus a brief reference to fication level, the symbols ‘‘(TS)’’ for the pertinent exemption category(ies) Top Secret, ‘‘(S)’’ for Secret, ‘‘(C)’’ for or the number(s) that corresponds to Confidential, and ‘‘(U)’’ for Unclassi- that category(ies) in section 3.3(b) of fied shall be used. the Order. Other than when the exemp- (2) Each classified portion of a docu- tion pertains to the identity of a con- ment marked exempt from automatic fidential human source, or a human in- declassification shall be exempted un- telligence source, the revised ‘‘Declas- less the original classification author- sify On’’ line shall also include the new ity indicates otherwise on the docu- date or event for declassification. The ment. marking for an exemption for the iden- (3) An agency head or senior agency tity of a confidential human source or official may request a waiver from the a human intelligence source shall be portion marking requirement for a spe- ‘‘25X1-human.’’ This marking denotes cific category of information. Such a that this specific information is not request shall be submitted to the Di- subject to automatic declassification. rector of ISOO and should include the (2) The pertinent exemptions, using reasons that the benefits of portion the language of section 3.3(b) of the marking are outweighed by other fac- Order, are: tors. Statements citing administrative burden alone will ordinarily not be 25X1: reveal the identity of a confidential viewed as sufficient grounds to support human source, or a human intelligence a waiver. source, or reveal information about the ap- (d) Classification extensions. (1) An plication of an intelligence source or method; original classification authority may 25X2: reveal information that would assist extend the duration of classification in the development or use of weapons of for up to 25 years from the date of the mass destruction; information’s origin for information 25X3: reveal information that would impair contained in records determined to be U.S. cryptologic systems or activities; permanently valuable. 25X4: reveal information that would impair (2) The ‘‘Declassify On’’ line shall be the application of state-of-the-art technology within a U.S. weapon system; revised to include the new declassifica- 25X5: reveal actual U.S. military war plans tion instructions, and shall include the that remain in effect; identity of the person authorizing the 25X6: reveal information, including foreign extension and the date of the action. government information, that would seri- (3) The office of origin shall make ously and demonstrably impair relations be- reasonable attempts to notify all hold- tween the United States and a foreign gov- ers of such information. Classification ernment, or seriously and demonstrably un- guides shall be updated to reflect such dermine ongoing diplomatic activities of the United States; revisions. 25X7: reveal information that would clear- (4) An example of an extended dura- ly and demonstrably impair the current abil- tion of classification may appear as ity of United States Government officials to follows for a document dated December protect the President, Vice President, and

474

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00484 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.22

other protectees for whom protection serv- Derived From: Memo, ‘‘Funding Problems,’’ ices, in the interest of the national security, October 20, 2003, Office of Administration, are authorized; Department of Good Works 25X8: reveal information that would seri- or ously and demonstrably impair current na- Derived From: CG No. 1, Department of Good tional security emergency preparedness Works, dated October 20, 2003 plans or reveal current vulnerabilities of systems, installations, infrastructures, or (i) When a document is classified de- projects relating to the national security; or rivatively on the basis of more than 25X9: violate a statute, treaty, or inter- one source document or classification national agreement. guide, the ‘‘Derived From’’ line shall (3) The pertinent portion of the appear as: Derived From: Multiple marking would appear as: Sources (ii) The derivative classifier shall Declassify On: 25X-State-of-the-art tech- maintain the identification of each nology within a U.S. weapon system, Octo- source with the file or record copy of ber 1, 2020 the derivatively classified document. or When practicable, this list should be Declassify On: 25X4, October 1, 2020 included in or with all copies of the derivatively classified document. (4) Documents should not be marked (2) A document derivatively classi- with a ‘‘25X’’ marking until the agency fied on the basis of a source document has been informed that the President that is itself marked ‘‘Multiple or the Interagency Security Classifica- Sources’’ shall cite the source docu- tion Appeals Panel concurs with the ment on its ‘‘Derived From’’ line rath- proposed exemption. Agencies that er than the term ‘‘Multiple Sources.’’ have submitted proposed exemptions or An example might appear as: a declassification guide to the ISCAP may mark documents with ‘‘25X’’ cat- Derived From: Report entitled, ‘‘New Weap- ons,’’ dated October 20, 2003, Department of egories, while waiting for ISCAP con- Good Works, Office of Administration currence, unless otherwise notified by the Panel’s Executive Secretary. (c) Reason for classification. The rea- (5) Agencies need not apply a ‘‘25X’’ son for the original classification deci- marking to individual documents con- sion, as reflected in the source docu- tained in a file series exempted from ment(s) or classification guide, is not automatic declassification under sec- required to be transferred in a deriva- tion 3.3(c) of the Order until the indi- tive classification action. If included, however, it shall conform to the stand- vidual document is removed from the ards in § 2001.21(a)(3). file. (d) Declassification instructions. (1) § 2001.22 Derivative classification [2.1]. The derivative classifier shall carry forward the instructions on the ‘‘De- (a) General. Information classified declassify On’’ line from the source docu- rivatively on the basis of source document to the derivative document, or ments or classification guides shall the duration instruction from the clas- bear all markings prescribed in § 2001.20 sification or declassification guide. and § 2001.21, except as provided in this (2) When a document is classified de- section. Information for these mark- rivatively on the basis of more than ings shall be carried forward from the one source document or more than one source document or taken from in- element of a classification guide, the structions in the appropriate classi- ‘‘Declassify On’’ line shall reflect the fication guide. longest duration of any of its sources. (b) Source of derivative classification. (i) When a document is classified de- (1) The derivative classifier shall con- rivatively either from a source docu- cisely identify the source document or ment(s) or a classification guide that the classification guide on the ‘‘De- contains the declassification instruc- rived From’’ line, including the agency tion, ‘‘Originating Agency’s Deter- and, where available, the office of ori- mination Required,’’ or ‘‘OADR,’’ or gin, and the date of the source or from a source document(s) or a classi- guide. An example might appear as: fication guide that contains any of the

475

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00485 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.23 32 CFR Ch. XX (7–1–05 Edition)

exemption markings X1 through X8. cial shall provide the Director of ISOO Unless otherwise instructed by the with a written explanation for the use original classifier, the derivative clas- of agency special markings. sifier shall carry forward: (c) Transmittal documents. A trans- (A) The fact that the source docu- mittal document shall indicate on its ment(s) was marked with this instruc- face the highest classification level of tion; and any classified information attached or (B) The date of origin of the most re- enclosed. The transmittal shall also in- cent source document(s), classification clude conspicuously on its face the fol- guides, or specific information, as ap- lowing or similar instructions, as appropriate to the circumstances. propriate: (ii) Examples might appear as: Unclassified When Classified Enclosure Re- Declassify On: Source Marked ‘‘OADR’’, Date moved of source: October 20, 1990 or or Upon Removal of Attachments, This Docu- Declassify On: Source Marked ‘‘X1’’, Date of ment is (Classification Level) source: October 20, 2000 (iii) Either of these markings will (d) Foreign government information. permit the determination of when the Documents that contain foreign gov- classified information is 25 years old ernment information shall include the and, if permanently valuable, subject marking, ‘‘This Document Contains to automatic declassification under (indicate country of origin) Informa- section 3.3 of the Order. tion.’’ The portions of the document (e) Overall marking. The derivative that contain the foreign government classifier shall conspicuously mark the information shall be marked to indi- classified document with the highest cate the government and classification level of classification of information level, using accepted country code included in the document, as provided standards, e.g., ‘‘(Country code—C).’’ If in § 2001.21(b). the identity of the specific government (f) Portion marking. Each portion of a must be concealed, the document shall derivatively classified document shall be marked, ‘‘This Document Contains be marked in accordance with its Foreign Government Information,’’ and source, and as provided in § 2001.21(c). pertinent portions shall be marked ‘‘FGI’’ together with the classification § 2001.23 Additional requirements level, e.g., ‘‘(FGI-C).’’ In such cases, a [1.6]. separate record that identifies the for- (a) Marking prohibitions. Markings eign government shall be maintained other than ‘‘Top Secret,’’ ‘‘Secret,’’ in order to facilitate subsequent de- and ‘‘Confidential,’’ such as ‘‘For Offi- classification actions. When classified cial Use Only,’’ ‘‘Sensitive But Unclas- records are transferred to the National sified,’’ ‘‘Limited Official Use,’’ or Archives and Records Administration ‘‘Sensitive Security Information’’ shall for storage or archival purposes, the not be used to identify classified na- accompanying documentation shall, at tional security information. No other a minimum, identify the boxes that term or phrase shall be used in con- contain foreign government informa- junction with these markings, such as tion. If the fact that information is for- ‘‘Secret Sensitive’’ or ‘‘Agency Con- eign government information must be fidential,’’ to identify classified na- concealed, the markings described in tional security information. The terms this paragraph shall not be used and ‘‘Top Secret,’’ ‘‘Secret,’’ and ‘‘Con- the document shall be marked as if it fidential’’ should not be used to iden- were wholly of U.S. origin. tify non-classified executive branch in- (e) Working papers. A working paper formation. is defined as documents or materials, (b) Agency prescribed special markings. regardless of the media, which are ex- Agencies shall refrain from the use of pected to be revised prior to the prepa- special markings when they merely re- ration of a finished product for dis- state or emphasize the principles and semination or retention. Working pa- standards of the Order and this part. pers containing classified information Upon request, the senior agency offi- shall be dated when created, marked

476

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00486 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.30

with the highest classification of any status of the information and who au- information contained in them, pro- thorized the declassification. tected at that level, and if otherwise (b) The following markings shall be appropriate, destroyed when no longer applied to records, or copies of records, needed. When any of the following con- regardless of media: ditions applies, working papers shall be (1) The word, ‘‘Declassified;’’ controlled and marked in the same (2) The name or personal identifier, manner prescribed for a finished docu- and position title of the declassifica- ment at the same classification level: tion authority or declassification (1) Released by the originator outside guide; the originating activity; (3) The date of declassification; and (2) Retained more than 180 days from (4) The overall classification mark- the date of origin; or ings that appear on the cover page or (3) Filed permanently. first page shall be lined with an ‘‘X’’ or (f) Other material. Bulky material, straight line. An example might appear equipment and facilities, etc. shall be clearly identified in a manner that as: leaves no doubt about the classifica- SECRET tion status of the material, the level of Declassified by David Smith, Chief, Division protection required, and the duration 5, August 17, 2005 of classification. Upon a finding that identification would itself reveal classified information, such identification Subpart C—Declassification is not required. Supporting documenta- § 2001.30 Automatic declassification tion for such a finding must be main- [3.3]. tained in the appropriate security facility. (a) General. All departments and (g) Unmarked materials. Information agencies that have original classifica- contained in unmarked records, or tion authority, or previously had origi- presidential or related materials, and nal classification authority, and main- which pertains to the national defense tain records appraised as having per- or foreign relations of the United manent historical value that contain States and has been maintained and information classified by that agency protected as classified information shall comply with the automatic de- under prior orders shall continue to be classification provisions of the Order. treated as classified information under All agencies with original classifica- the Order, and is subject to its provi- tion authority shall cooperate with sions regarding declassification. NARA in managing automatic declassification of accessioned Federal § 2001.24 Declassification markings records, presidential papers and [1.5, 1.6, 3.3]. records, and donated historical mate- (a) General. A uniform security clas- rials under the control of the Archivist sification system requires that stand- of the United States. ard markings be applied to declassified (b) Presidential records. The Archivist information. Except in extraordinary of the United States shall establish circumstances, or as approved by the procedures for the declassification of Director of ISOO, the marking of de- presidential or White House materials classified information shall not deviate transferred to the legal custody of the from the following prescribed formats. National Archives of the United States If declassification markings cannot be or maintained in the presidential li- affixed to specific information or mate- braries. rials, (e.g., agencies using automated (c) Classified information in the custody information systems, special media, of contractors, licensees, certificate hold- microfilm) the originator shall provide ers, grantees or other authorized private holders or recipients of the information organizations or individuals. Pursuant to with written instructions for marking the provisions of National Industrial the information. Markings shall be uni- Security Program, agencies must pro- formly and conspicuously applied to vide security classification/declas- leave no doubt about the declassified sification guidance to such entities or

477

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00487 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.30 32 CFR Ch. XX (7–1–05 Edition)

individuals who possess classified in- tion provisions of section 3.3 of the formation. Agencies must also deter- Order when the information is 25 years mine if classified Federal records are old. held by such entities or individuals, (h) Foreign government information. and if so, whether they are permanent The declassifying agency is the agency records of historical value and thus that initially received or classified the subject to section 3.3 of this Order. information. When foreign government Until such a determination has been information appears to be subject to made by an appropriate agency official, automatic declassification, the declas- the classified information contained in sifying agency shall determine whether such records shall not be subject to the information is subject to a treaty automatic declassification and shall be or international agreement that would safeguarded in accordance with the prevent its declassification at that most recent security classification/de- time. The declassifying agency shall classification guidance provided by the also determine if another exemption agency. under section 3.3(b) of the Order, such (d) Transferred information. In the as the exemption that pertains to case of classified information trans- United States foreign relations, may ferred in conjunction with a transfer of apply to the information. If the declas- functions, and not merely for storage sifying agency believes such an exemp- or archival purposes, the receiving tion may apply, it should consult with agency shall be deemed to be the origi- any other concerned agencies in mak- nating agency. ing its declassification determination. (e) Unofficially transferred information. The declassifying agency or the De- In the case of classified information partment of State, as appropriate, that is not officially transferred as de- should consult with the foreign govern- scribed in paragraph (d), of this sec- ment prior to declassification. tion, but that originated in an agency (i) Assistance to the Archivist of the that has ceased to exist and for which United States. Agencies shall consult there is no successor agency, the Direc- with NARA before establishing auto- tor of ISOO will designate an agency or matic declassification programs. Agen- agencies to act on provisions of the cies shall cooperate with NARA in de- Order, with the concurrence of the des- veloping schedules for the declassifica- ignated agency or agencies. tion of records in the National Ar- (f) Processing records originated by an- chives of the United States and the other agency. When an agency uncovers presidential libraries to ensure that declassified records originated by another classification is accomplished in a agency that appear to meet the criteria timely manner. NARA will provide infor the application of the automatic formation about the records proposed declassification provisions of the for automatic declassification. Agen- Order, the finding agency should alert cies shall consult with NARA before re- the originating agency and seek in- viewing records in their holdings to en- struction. sure that appropriate procedures are (g) Unscheduled records. Classified in- established for maintaining the integ- formation in records that have not rity of the records and that NARA re- been scheduled for disposal or reten- ceives accurate information about tion by NARA is not subject to section agency declassification actions when 3.3 of the Order. Classified information records are accessioned into NARA. in records that are scheduled as perma- NARA will provide guidance to the nently valuable when that information agencies about the requirements for is already more than 20 years old shall notification of declassification actions be subject to the automatic declas- on accessioned records, box labeling, sification provisions of section 3.3 of and identifying exempt information in the Order five years from the date the the records. records are scheduled. Classified infor- (j) Use of approved declassification mation in records that are scheduled as guides. Approved declassification permanently valuable when that infor- guides are a basis for the exemption mation is less than 20 years old shall be from automatic declassification of spe- subject to the automatic declassifica- cific information as provided in section

478

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00488 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.30

3.3(d) of the Order. These guides must sification for classified information include additional pertinent detail re- contained in this type of media. Agen- lating to the exemptions described in cies may delay the date for automatic section 3.3(b) of the Order, and follow declassification for up to five addi- the format required of declassification tional years for these types of special guides for systematic review as de- media. Information contained in spe- scribed in § 2001.32 of this part. In order cial media that has been referred shall for such guides to be used in place of be automatically declassified five years the identification of specific informa- from the date of notification or 30 tion within individual documents, the years from the date of origination of information to be exempted must be the special media, whichever is longer, narrowly defined, with sufficient speci- unless the information has been prop- ficity to allow the user to identify the erly exempted by the equity holding information with precision. Exemp- agency under section 3.3(d) of the tions for general categories of informa- Order. tion will not be acceptable. The actual (2) Referred or Transferred Records. items to be exempted are specific docu- An agency head or senior agency offi- ments. All such declassification guides cial, either through the agency’s de- used in conjunction with section 3.3(d) classification plan or within 90 days of of the Order must be submitted to the the decision, must notify the Director Director of ISOO, serving as Executive of the Information Security Oversight Secretary of the Interagency Security Office of a decision to delay the onset Classification Appeals Panel, for ap- of automatic declassification for proval by the Panel. records that have been referred or (k) Automatic declassification date. No transferred to that agency. Agencies later than December 31, 2006, all classi- that have records subject to automatic fied records that are more than 25 declassification must identify all equi- years old and have been determined to ties and refer them to the appropriate have permanent historical value will agency prior to the date of automatic be automatically declassified whether declassification or, if the information or not the records have been reviewed. has been properly exempted by the re- (l) Exemption from Automatic Declas- ferring agency, prior to the specific sification. Agencies may propose to ex- date or event for declassification under empt from automatic declassification section 3.3(d) of the Order. Information specific information, either by ref- contained in records that have been re- erence to information in specific ferred shall be automatically declas- records or in the form of a classifica- sified three years from the date of noti- tion or declassification guide, within fication or 28 years from the date of five years of, but not later than 180 origination of the records, whichever is days before the information is subject longer, unless the information has been to automatic declassification. The properly exempted by another equity agency head or senior agency official, holding agency under section 3.3(d) of within the specified timeframe, shall the Order. Agencies receiving a notifi- notify the Director of ISOO, serving as cation of a referral must immediately the Executive Secretary of the Inter- acknowledge receipt of it. Notifying agency Security Classification Appeals agencies must follow-up if an acknowl- Panel, of the specific information being edgment is not received within 60 days. proposed for exemption from auto- (3) Newly Discovered Records. An matic declassification. agency head or senior agency official (m) Delays in the onset of automatic de- must notify the Director of the Infor- classification. (1) Microforms, motion mation Security Oversight Office of pictures, audiotapes, videotapes, or any decision to delay automatic de- comparable media. An agency head or classification no later than 90 days, senior agency official, either through from discovery of the records. The no- its agency’s declassification plan, or tification should identify the records within 90 days of the decision, must no- and the anticipated date for declas- tify the Director of the Information Se- sification. An agency has up to three curity Oversight Office of a decision to years from the date of discovery to delay the onset of automatic declas- make a declassification, exemption or

479

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00489 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.31 32 CFR Ch. XX (7–1–05 Edition)

referral determination. If other agen- tained in permanently valuable records cies’ interests or equities are identified that is less than 25 years. in the newly discovered records, those agencies will have three years from the § 2001.32 Declassification guides [3.3]. date of notification to complete their (a) Preparation of declassification review and make a declassification or guides. Declassification guides shall be exemption determination. prepared to facilitate the declassifica- (n) Redaction standard. Agencies are tion of information contained in encouraged but are not required to re- records determined to be of permanent dact documents that contain informa- historical value. When it is sufficiently tion that is exempt from automatic de- detailed and understandable, and iden- classification under section 3.3 of the tified for both purposes, a classifica- Order, especially if the information tion guide may also be used as a declas- that must remain classified comprises sification guide. a relatively small portion of the docu- (b) General content of declassification ment. guides. Declassification guides shall, at (o) Restricted Data and Formerly Re- a minimum: stricted Data. (1) Records containing (1) Identify the subject matter of the Restricted Data (RD) and Formerly Re- declassification guide; stricted Data (FRD) are excluded from (2) Identify the original declassifica- the automatic declassification require- tion authority by name or personal ments in section 3.3 of the Order be- identifier, and position; cause they are classified under the (3) Provide the date of issuance or Atomic Energy Act of 1954, as amend- last review; ed. Restricted Data concerns: (4) State precisely the categories or (i) The design, manufacture, or utili- elements of information: zation of atomic weapons; (i) To be declassified; (ii) The production of special nuclear (ii) To be downgraded; or material, e.g., enriched uranium or plu- (iii) Not to be declassified. tonium; or (5) Identify any related files series (iii) The use of special nuclear mate- that have been exempted from auto- rial in the production of energy. matic declassification pursuant to sec- (2) Formerly Restricted Data is infor- tion 3.3(c) of the Order; mation that is still classified but which (6) To the extent a guide is used in has been removed from the Restricted conjunction with the automatic declas- Data category because it is related pri- sification provisions in section 3.3 of marily to the military utilization of the Order, state precisely the elements atomic weapons. of information to be exempted from de- (3) Any document marked as con- classification to include: taining Restricted Data or Formerly (i) The appropriate exemption cat- Restricted Data shall remain classified egory listed in section 3.3(b) of the indefinitely or shall be referred to the Order, and, when citing the exemption Department of Energy for a classifica- category listed in section 3.3(b)(9) of tion review. the Order, specify the applicable statute, treaty or international agreement; § 2001.31 Systematic declassification and review [3.4]. (ii) A date or event for declassifica- (a) Listing of declassification authori- tion. ties. Agencies shall maintain a current (c) External review. Agencies shall listing of officials delegated declas- submit declassification guides for re- sification authority by name, position, view to the Director of ISOO. To the or other identifier. If possible, this list- extent such guides are used in conjunc- ing shall be unclassified. tion with the automatic declassifica- (b) Responsibilities. Agencies shall es- tion provisions in section 3.3 of the tablish systematic review programs for Order, the Director shall submit them those records containing information for approval by the Interagency Secu- exempt from automatic declassifica- rity Classification Appeals Panel. tion. Agencies may also conduct sys- Agencies that have submitted a declas- tematic review of information con- sification guide to the ISCAP may use

480

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00490 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.33

the guide while waiting for ISCAP ap- that the custodial agency may review proval, unless otherwise notified by the its records, the custodial agency shall Panel’s Executive Secretary. review the requested records in accord- (d) Internal review and update. Agency ance with declassification guides or declassification guides shall be re- guidelines provided by the originating viewed and updated as circumstances agency. Upon receipt of a request from require, but at least once every five the referring agency, the originating years. Each agency shall maintain a agency shall process the request in ac- list of its declassification guides in use. cordance with this section. The origi- § 2001.33 Mandatory review for declas- nating agency shall communicate its sification [3.5, 3.6]. declassification determination to the referring agency. (a) U.S. originated information. (1) Re- ceipt of requests. Each agency shall (iii) Appeals of denials of mandatory declassification review requests. The publish in the FEDERAL REGISTER the identity of the person(s) or office(s) to agency appellate authority shall nor- which mandatory declassification re- mally make a determination within 60 view requests should be addressed. working days following the receipt of (2) Processing. an appeal. If additional time is re- (i) Requests for classified records in quired to make a determination, the the custody of the originating agency. agency appellate authority shall notify A valid mandatory declassification re- the requester of the additional time view request need not identify the re- needed and provide the requester with quested information by date or title of the reason for the extension. The agen- the responsive records, but must be of cy appellate authority shall notify the sufficient specificity to allow agency requester in writing of the final deter- personnel to locate the records con- mination and of the reasons for any detaining the information sought with a nial. reasonable amount of effort. In re- (iv) Appeals to the Interagency Secu- sponding to mandatory declassification rity Classification Appeals Panel. In review requests, agencies shall either accordance with section 5.3(c) of the make a prompt declassification deter- Order, the Interagency Security Classi- mination and notify the requester ac- fication Appeals Panel shall publish in cordingly, or inform the requester of the FEDERAL REGISTER the rules and the additional time needed to process procedures for bringing mandatory de- the request. Agencies shall ordinarily make a final determination within one classification appeals before it. year from the date of receipt. When in- (b) Foreign government information. formation cannot be declassified in its Except as provided in this paragraph, entirety, agencies shall make reason- agency heads shall process mandatory able efforts to release, consistent with declassification review requests for other applicable law, those declassified classified records containing foreign portions of the requested information government information in accordance that constitute a coherent segment. with this section. The declassifying Upon denial of an initial request, the agency is the agency that initially re- agency shall also notify the requester ceived or classified the information. of the right of an administrative ap- When foreign government information peal, which must be filed within 60 is being considered for declassification, days of receipt of the denial. the declassifying agency shall deter- (ii) Requests for classified records in mine whether the information is sub- the custody of an agency other than ject to a treaty or international agree- the originating agency. When an agen- ment that would prevent its declas- cy receives a mandatory declassifica- sification at that time. The declas- tion review request for records in its sifying agency or the Department of possession that were originated by an- State, as appropriate, may consult other agency, it shall refer the request with the foreign government(s) prior to and the pertinent records to the origi- declassification. nating agency. However, if the originating agency has previously agreed

481

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00491 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.34 32 CFR Ch. XX (7–1–05 Edition)

(c) Cryptologic and intelligence infor- Security Oversight Office, in coordina- mation. Mandatory declassification re- tion with the National Archives and view requests for cryptologic informa- Records Administration and the other tion and information concerning intel- concerned agencies, shall standardize ligence activities (including special ac- the referral process, including the de- tivities) or intelligence sources or velopment of standard forms. Agencies methods shall be processed solely in conducting pass/fail reviews may refer accordance with special procedures documents to agencies that redact. Ac- issued by the Secretary of Defense and tions taken by the sender and the re- the Director of Central Intelligence, recipient may differ as noted below: spectively. (1) When a referral is from a pass/fail (d) Fees. In responding to mandatory agency to a pass/fail agency, both agen- declassification review requests for cies conduct a pass/fail review and an- classified records, agency heads may notate the classification or declas- charge fees in accordance with section sification decisions in accordance with 9701 of title 31, United States Code. NARA guidelines. The receiving agency (e) Assistance to the Department of should also notify the referring agency State. Heads of agencies should assist that the review has been completed. the Department of State in its prepara- (2) When a referral is from a pass/fail tion of the Foreign Relations of the agency to a redaction agency, the re- United States (FRUS) series by facili- daction agency is only required to con- tating access to appropriate classified duct pass/fail reviews of documents re- materials in their custody and by expe- ferred by a pass/fail agency. If the re- diting declassification review of docu- daction agency wishes to redact the ments proposed for inclusion in the document, it must do so on a copy of FRUS. the referred document, then file the re- (f) Requests filed under mandatory de- dacted version with the original. The classification review and the Freedom of redaction agency should also notify the Information Act. When a requester sub- pass/fail referring agency that the re- mits a request both under mandatory view has been completed. review and the Freedom of Information (3) Referrals from redaction agencies Act (FOIA), the agency shall require to pass/fail agencies will be in the form the requester to elect one process or of document copies. In the course of re- the other. If the requester fails to elect view the pass/fail agency may either one or the other, the request will be pass or fail the document or its equi- treated as a FOIA request unless the ties. The pass/fail agency may review requested materials are subject only to and redact failed documents when prac- mandatory review. ticable. (g) FOIA and Privacy Act requests. (4) Referrals between redaction agen- Agency heads shall process requests for cies may result in redaction of any ex- declassification that are submitted emptible equities. under the provisions of the FOIA, as (b) Referral decisions. When agencies amended, or the Privacy Act of 1974, in review documents or folders only to accordance with the provisions of those the point at which exemptible informa- Acts. tion is identified, they must take one (h) Redaction standard. Agencies shall of the following actions to protect any redact documents that are the subject other unidentified equities that may be of an access demand unless the overall in the unreviewed portions of the docu- meaning or informational value of the ment: document is clearly distorted by redac- (1) Complete a review of the docu- tion. ment or folder to identify other agency equities and notify those agencies; or § 2001.34 Referrals [3.3, 3.6]. (2) Exempt the document or folder (a) Approaches to declassification. The and assign a Date/Event for automatic exchange of information between agen- declassification, before which time cies and the final disposition of docu- they must provide timely notification ments are affected by differences in the to any equity agencies. Agencies re- approaches to declassification. To fa- viewing a previously exempted docu- cilitate this process, the Information ment or folder may apply a different

482

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00492 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.40

exemption and new Date/Event for should notify the agency that placed automatic declassification based upon the tabs that the review is complete. the content of previously unreviewed Any additional equities noted in the re- equities. view must be annotated on the tab and (c) Unmarked or improperly marked brought to the attention of the agency documents. Agencies that find other that tabbed the document so the tab- agency information in unmarked or bing agency can notify those newly improperly marked documents may identified agencies. apply a different exemption and new (iv) Equity Notification Database. Date/Event for automatic declassifica- Agencies may also use an electronic tion based upon the content of pre- notification database as a means of no- viously unreviewed equities. tification. Use of such a database, when (d) Means of Referral. The reviewing agency must communicate referrals to available, will constitute referral and equity agencies. They may use either acknowledgement of referrals received of the methods below: under the Order. (1) Full text referral. Agencies will make referrals in a format mutually Subpart D—Safeguarding agreed to by the referring and receiving agencies. Each referral request will § 2001.40 General [4.1]. clearly identify the referring agency (a) Classified information, regardless and may identify the sections or areas of its form, shall be afforded a level of of the document containing the receiv- protection against loss or unauthorized ing agency’s equities and the requested disclosure commensurate with its level action; or of classification. (2) Tab and notify. (b) Except for NATO and other for- (i) Agencies will use NARA-approved tabs and will clearly indicate on them eign government information, agency the agency or agencies having equity heads or their designee(s) (hereinafter in the document(s) held within the referred to as agency heads) may adopt tabs. Successive documents with iden- alternative measures, using risk man- tical equity(ies) may be grouped within agement principles, to protect against a single tab. Documents with differing loss or unauthorized disclosure when equities, or non-successive documents, necessary to meet operational require- must be tabbed individually. In gen- ments. When alternative measures are eral, document order may not be used for other than temporary, unique changed to facilitate tabbing. In cases situations, the alternative measures where there are so many tabbed docu- shall be documented and provided to ments in a box that tabbing documents the Director, Information Security individually would seriously overfill Oversight Office (ISOO), to facilitate the box, the reviewer may group docu- that office’s oversight responsibility. ments under a single tab for each agen- Upon request, the description shall be cy equity at the back of each file fold- provided to any other agency with er, or back of the box if there is no file which classified information or secure folder. If this becomes necessary, the facilities are shared. In all cases, the reviewer shall prepare a folder/docu- alternative measures shall provide pro- ment list or consult with NARA so that tection sufficient to reasonably deter original order can be restored during and detect loss or unauthorized disclo- archival processing. sure. Risk management factors consid- (ii) Agency notification must in- ered will include sensitivity, value and clude, at a minimum, the following information: the approximate volume of crucial nature of the information; anal- equity, the highest classification of ysis of known and anticipated threats; documents, the exact location (to box vulnerability; and countermeasure ben- level) of the documents so marked, and efits versus cost. instructions related to access to the (c) NATO classified information shall boxes containing the documents. be safeguarded in compliance with U.S. (iii) Agencies will acknowledge receipt of referral notifications. They

483

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00493 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.41 32 CFR Ch. XX (7–1–05 Edition)

Security Authority for NATO Instruc- is procured, it shall be in conformance tions I–69 and I–70. Other foreign gov- with the standards and specifications ernment information shall be safe- established by the Administrator of guarded as described herein for U.S. in- General Services, and shall, to the formation except as required by an ex- maximum extent possible, be of the isting treaty, agreement or other obli- type available through the Federal gation (hereinafter, obligation). When Supply System. the information is to be safeguarded pursuant to an existing obligation, the § 2001.43 Storage [4.1]. additional requirements at § 2001.53 (a) General. Classified information may apply to the extent they were re- shall be stored only under conditions quired in the obligation as originally designed to deter and detect unauthor- negotiated or are agreed upon during amendment. Negotiations on new obli- ized access to the information. Storage gations or amendments to existing ob- at overseas locations shall be at U.S. ligations shall strive to bring provi- Government controlled facilities unless sions for safeguarding foreign govern- otherwise stipulated in treaties or ment information into accord with international agreements. Overseas standards for safeguarding U.S. infor- storage standards for facilities under a mation as described in this Directive. Chief of Mission are promulgated under (d) An agency head who originates or the authority of the Overseas Security handles classified information shall Policy Board. refer any matter pertaining to the im- (b) Requirements for physical protec- plementation of this Directive that he tion. (1) Top Secret. Top Secret infor- or she cannot resolve to the Director, mation shall be stored by one of the ISOO for resolution. following methods: (i) In a GSA-approved security con- § 2001.41 Responsibilities of holders tainer with one of the following supple- [4.1]. mental controls: Authorized persons who have access (A) Continuous protection by cleared to classified information are respon- guard or duty personnel; sible for: (B) Inspection of the security con- (a) Protecting it from persons with- tainer every two hours by cleared out authorized access to that informa- guard or duty personnel; tion, to include securing it in approved (C) An Intrusion Detection System equipment or facilities whenever it is (IDS) with the personnel responding to not under the direct control of an au- the alarm arriving within 15 minutes of thorized person; the alarm annunciation [Acceptability (b) Meeting safeguarding require- of Intrusion Detection Equipment ments prescribed by the agency head; (IDE): All IDE must be UL-listed (or and equivalent as defined by the agency (c) Ensuring that classified informa- head) and approved by the agency head. tion is not communicated over unse- Government and proprietary installed, cured voice or data circuits, in public maintained, or furnished systems are conveyances or places, or in any other manner that permits interception by subject to approval only by the agency unauthorized persons. head.]; or (D) Security-In-Depth conditions, § 2001.42 Standards for security equip- provided the GSA-approved container ment [4.1]. is equipped with a lock meeting Fed- The Administrator of General Serv- eral Specification FF-L–2740. ices shall, in coordination with agency (ii) An open storage area constructed heads originating classified informa- in accordance with § 2001.43, which is tion, establish and publish uniform equipped with an IDS with the per- standards, specifications and supply sonnel responding to the alarm arriv- schedules for security equipment de- ing within 15 minutes of the alarm an- signed to provide secure storage for nunciation if the area is covered by Se- and destruction of classified informa- curity-In-Depth or a five minute alarm tion. Whenever new security equipment response if it is not.

484

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00494 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.44

(iii) An IDS-equipped vault with the level of information protected unless personnel responding to the alarm ar- other sufficient controls exist to pre- riving within 15 minutes of the alarm vent access to the lock or knowledge of annunciation. the combination. Combinations shall (2) Secret. Secret information shall be changed under the following condi- be stored by one of the following meth- tions: ods: (i) Whenever such equipment is (i) In the same manner as prescribed placed into use; for Top Secret information; (ii) Whenever a person knowing the (ii) In a GSA-approved security con- combination no longer requires access tainer or vault without supplemental to it unless other sufficient controls controls; or exist to prevent access to the lock; or (iii) In either of the following: (A) Until October 1, 2012, in a non- (iii) Whenever a combination has GSA-approved container having a been subject to possible unauthorized built-in combination lock or in a nondisclosure. GSA-approved container secured with a (2) Equipment out of service. When rigid metal lockbar and an agency head security equipment is taken out of approved padlock; or service, it shall be inspected to ensure (B) An open storage area. In either that no classified information remains case, one of the following supplemental and the built-in combination lock shall controls is required: be reset to a standard combination. (1) The location that houses the con- (d) Key operated locks. When special tainer or open storage area shall be circumstances exist, an agency head subject to continuous protection by may approve the use of key operated cleared guard or duty personnel; locks for the storage of Secret and Con- (2) Cleared guard or duty personnel fidential information. Whenever such shall inspect the security container or locks are used, administrative proce- open storage area once every four dures for the control and accounting of hours; or keys and locks shall be established. (3) An IDS (per paragraph (b)(1)(i)(C) of this section) with the personnel re- § 2001.44 Information controls [4.1, sponding to the alarm arriving within 4.2]. 30 minutes of the alarm annunciation. (a) General. Agency heads shall estab- [In addition to one of these supple- lish a system of control measures mental controls specified in paragraphs which assure that access to classified (b)(2)(iii)(B)(1) through (3), security-in- information is limited to authorized depth as determined by the agency persons. The control measures shall be head is required as part of the supple- appropriate to the environment in mental controls for a non-GSA-ap- which the access occurs and the nature proved container or open storage area storing Secret information.] and volume of the information. The (3) Confidential. Confidential infor- system shall include technical, phys- mation shall be stored in the same ical, and personnel control measures. manner as prescribed for Top Secret or Administrative control measures which Secret information except that supple- may include records of internal dis- mental controls are not required. tribution, access, generation, inven- (c) Combinations. Use and mainte- tory, reproduction, and disposition of nance of dial-type locks and other classified information shall be required changeable combination locks. when technical, physical and personnel (1) Equipment in service. The classi- control measures are insufficient to fication of the combination shall be deter and detect access by unauthor- the same as the highest level of classi- ized persons. fied information that is protected by (b) Reproduction. Reproduction of the lock. Combinations to dial-type classified information shall be held to locks shall be changed only by persons the minimum consistent with oper- having a favorable determination of ational requirements. The following eligibility for access to classified infor- additional control measures shall be mation and authorized access to the taken:

485

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00495 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.45 32 CFR Ch. XX (7–1–05 Edition)

(1) Reproduction shall be accom- bulky item of equipment, the outside plished by authorized persons knowl- or body of the item may be considered edgeable of the procedures for classi- to be a sufficient enclosure provided fied reproduction; observation of it does not reveal classi- (2) Unless restricted by the origi- fied information; nating Agency, Top Secret, Secret, and (iii) If the classified information is Confidential information may be repro- an item of equipment that is not rea- duced to the extent required by oper- sonably packable and the shell or body ational needs, or to facilitate review is classified, it shall be concealed with for declassification; an opaque enclosure that will hide all (3) Copies of classified information classified features; shall be subject to the same controls as (iv) Specialized shipping containers, the original information; and including closed cargo transporters or (4) The use of technology that pre- diplomatic pouch, may be considered vents, discourages, or detects the unau- the outer enclosure when used; and thorized reproduction of classified in- (v) When classified information is formation is encouraged. hand-carried outside a facility, a § 2001.45 Transmission [4.1, 4.2]. locked briefcase may serve as the outer enclosure. (a) General. Classified information (2) Couriers and authorized persons shall be transmitted and received in an designated to hand-carry classified in- authorized manner which ensures that formation shall ensure that the infor- evidence of tampering can be detected, mation remains under their constant that inadvertent access can be pre- and continuous protection and that di- cluded, and that provides a method rect point-to-point delivery is made. As which assures timely delivery to the an exception, agency heads may ap- intended recipient. Persons transmitting classified information are respon- prove, as a substitute for a courier on sible for ensuring that intended recipi- direct flights, the use of specialized ents are authorized persons with the shipping containers that are of suffi- capability to store classified informa- cient construction to provide evidence tion in accordance with this Directive. of forced entry, are secured with a high (b) Dispatch. Agency heads shall es- security padlock, are equipped with an tablish procedures which ensure that: electronic seal that would provide evi- (1) All classified information phys- dence of surreptitious entry and are ically transmitted outside facilities handled by the carrier in a manner to shall be enclosed in two layers, both of ensure that the container is protected which provide reasonable evidence of until its delivery is completed. tampering and which conceal the con- (c) Transmission methods within and tents. The inner enclosure shall clearly between the U.S., Puerto Rico, or a U.S. identify the address of both the sender possession or trust territory. and the intended recipient, the highest (1) Top Secret. Top Secret informa- classification level of the contents, and tion shall be transmitted by direct con- any appropriate warning notices. The tact between authorized persons; the outer enclosure shall be the same ex- Defense Courier Service or an author- cept that no markings to indicate that ized government agency courier serv- the contents are classified shall be visi- ice; a designated courier or escort with ble. Intended recipients shall be identi- Top Secret clearance; electronic means fied by name only as part of an atten- over approved communications sys- tion line. The following exceptions tems. Under no circumstances will Top apply: Secret information be transmitted via (i) If the classified information is an the U.S. Postal Service. internal component of a packable item (2) Secret. Secret information shall of equipment, the outside shell or body be transmitted by: may be considered as the inner enclo- (i) Any of the methods established for sure provided it does not reveal classi- Top Secret; U.S. Postal Service Ex- fied information; press Mail and U.S. Postal Service Reg- (ii) If the classified information is an istered Mail, as long as the Waiver of inaccessible internal component of a Signature and Indemnity block, item

486

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00496 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.46

11–B, on the U.S. Postal Service Ex- The transmission of classified informa- press Mail Label shall not be com- tion to a U.S. Government facility lo- pleted; and cleared commercial carriers cated outside the 50 states, the District or cleared commercial messenger serv- of Columbia, the Commonwealth of ices. The use of street-side mail collec- Puerto Rico, or a U.S. possession or tion boxes is strictly prohibited; and trust territory, shall be by methods (ii) Agency heads may, on an excep- specified above for Top Secret informational basis and when an urgent re- tion or by the Department of State quirement exists for overnight delivery Courier Service. U.S. Registered Mail within the U.S. and its Territories, au- through Military Postal Service facili- thorize the use of the current holder of ties may be used to transmit Secret the General Services Administration and Confidential information provided contract for overnight delivery of in- that the information does not at any formation for the Executive Branch as time pass out of U.S. citizen control long as applicable postal regulations nor pass through a foreign postal sys- (39 CFR chapter I) are met. Any such tem. delivery service shall be U.S. owned (e) Transmission of U.S. classified infor- and operated, provide automated in- mation to foreign governments. Such transit tracking of the classified infor- transmission shall take place between mation, and ensure package integrity designated government representatives during transit. The contract shall re- using the transmission methods de- quire cooperation with government inscribed in paragraph (d) of this section. quiries in the event of a loss, theft, or When classified information is trans- possible unauthorized disclosure of ferred to a foreign government or its classified information. The sender is representative a signed receipt is re- responsible for ensuring that an au- quired. thorized person will be available to re- (f) Receipt of classified information. ceive the delivery and verification of Agency heads shall establish proce- the correct mailing address. The pack- dures which ensure that classified in- age may be addressed to the recipient formation is received in a manner by name. The release signature block which precludes unauthorized access, on the receipt label shall not be exe- provides for inspection of all classified cuted under any circumstances. The information received for evidence of use of external (street side) collection tampering and confirmation of con- boxes is prohibited. Classified Commu- tents, and ensures timely acknowledg- nications Security Information, NATO, ment of the receipt of Top Secret and and foreign government information Secret information by an authorized shall not be transmitted in this man- recipient. As noted in paragraph (e) of ner. this section, a receipt acknowledgment (3) Confidential. Confidential infor- of all classified material transmitted mation shall be transmitted by any of to a foreign government or its rep- the methods established for Secret in- resentative is required. formation or U.S. Postal Service Cer- tified Mail. In addition, when the re- § 2001.46 Destruction [4.1, 4.2]. cipient is a U.S. Government facility, (a) General. Classified information the Confidential information may be identified for destruction shall be de- transmitted via U.S. First Class Mail. stroyed completely to preclude rec- However, Confidential information ognition or reconstruction of the clas- shall not be transmitted to government sified information in accordance with contractor facilities via first class procedures and methods prescribed by mail. When first class mail is used, the agency heads. The methods and equip- envelope or outer wrapper shall be ment used to routinely destroy classi- marked to indicate that the informa- fied information include burning, tion is not to be forwarded, but is to be cross-cut shredding, wet-pulping, melt- returned to sender. The use of street- ing, mutilation, chemical decomposi- side mail collection boxes is prohib- tion or pulverizing. ited. (b) Technical guidance. Technical (d) Transmission methods to a U.S. Gov- guidance concerning appropriate meth- ernment facility located outside the U.S. ods, equipment, and standards for the

487

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00497 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.47 32 CFR Ch. XX (7–1–05 Edition)

destruction of classified electronic shall use established procedures to en- media and processing equipment com- sure coordination with— ponents may be obtained by submitting (1) The Department of Justice, and all pertinent information to the Na- (2) The legal counsel of the agency tional Security Agency/Central Secu- where the individual responsible is as- rity Service, Directorate for Informa- signed or employed. tion Systems Security, Fort Meade, MD 20755. Specifications concerning ap- § 2001.48 Special access programs [4.3]. propriate equipment and standards for (a) General. The safeguarding require- the destruction of other storage media ments of this Directive may be en- may be obtained from the GSA. hanced for information in Special Ac- cess Programs (SAP), established under § 2001.47 Loss, possible compromise or unauthorized disclosure [4.1, 4.2]. the provisions of Section 4.3 of E.O. 12958, as amended, by the agency head (a) General. Any person who has responsible for creating the SAP. Agen- knowledge that classified information cy heads shall ensure that the en- has been or may have been lost, pos- hanced controls are based on an assess- sibly compromised or disclosed to an ment of the value, critical nature, and unauthorized person(s) shall imme- vulnerability of the information. diately report the circumstances to an (b) Significant interagency support re- official designated for this purpose. quirements. Agency heads must ensure (b) Cases involving information origi- that a Memorandum of Agreement/Un- nated by a foreign government or another derstanding (MOA/MOU) is established U.S. government agency. Whenever a for each Special Access Program that loss or possible unauthorized disclosure has significant interagency support re- involves the classified information or quirements, to appropriately and fully interests of a foreign government agen- address support requirements and sup- cy, or another government agency, the porting agency oversight responsibil- department or agency in which the ities for that SAP. compromise occurred shall advise the other government agency or foreign § 2001.49 Telecommunications auto- government of the circumstances and mated information systems and net- findings that affect their information work security [4.1, 4.2]. or interests. However, foreign govern- Each agency head shall ensure that ments normally will not be advised of classified information electronically any security system vulnerabilities accessed, processed, stored or trans- that contributed to the compromise. mitted is protected in accordance with (c) Inquiry/investigation and corrective applicable national policy issuances actions. Agency heads shall establish identified in the Index of National Se- appropriate procedures to conduct an curity Telecommunications and Infor- inquiry/investigation of a loss, possible mation Systems Security Issuances compromise or unauthorized disclosure (NSTISSI) and Director of Central In- of classified information, in order to telligence Directive (DCID) 6/3. implement appropriate corrective actions, which may include disciplinary § 2001.50 Technical security [4.1]. sanctions, and to ascertain the degree Based upon the risk management fac- of damage to national security. tors referenced in § 2001.40 of this direc- (d) Department of Justice and legal tive agency heads shall determine the counsel coordination. Agency heads requirement for technical counter- shall establish procedures to ensure co- measures such as Technical Surveil- ordination with legal counsel whenever lance Countermeasures (TSCM) and a formal action, beyond a reprimand, is TEMPEST necessary to detect or deter contemplated against any person be- exploitation of classified information lieved responsible for the unauthorized through technical collection methods disclosure of classified information. and may apply countermeasures in ac- Whenever a criminal violation appears cordance with NSTISSI 7000, entitled to have occurred and a criminal pros- Tempest Countermeasures for Facili- ecution is contemplated, agency heads ties, and SPB Issuance 6–97, entitled

488

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00498 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.52

National Policy on Technical Surveil- (vi) A description of the briefings lance Countermeasures. provided and a copy of the nondisclosure agreements signed. § 2001.51 Emergency authority [4.2]. (a) Agency heads or any designee § 2001.52 Open storage areas [4.1]. may prescribe special provisions for This section describes the construc- the dissemination, transmission, safe- tion standards for open storage areas. guarding and destruction of classified (a) Construction. The perimeter walls, information during certain emergency floors, and ceiling will be permanently situations. constructed and attached to each (b) In emergency situations, in which other. All construction must be done in there is an imminent threat to life or a manner as to provide visual evidence in defense of the homeland, agency of unauthorized penetration. heads or designees may authorize the (b) Doors. Doors shall be constructed disclosure of classified information to of wood, metal, or other solid material. an individual or individuals who are Entrance doors shall be secured with a otherwise not routinely eligible for ac- built-in GSA-approved three-position cess under the following conditions: combination lock. When special cir- (1) Limit the amount of classified in- cumstances exist, the agency head may formation disclosed to the absolute authorize other locks on entrance minimum to achieve the purpose; doors for Secret and Confidential stor- (2) Limit the number of individuals age. Doors other than those secured who receive it; with the aforementioned locks shall be (3) Transmit the classified informa- secured from the inside with either tion via approved Federal Government deadbolt emergency egress hardware, a channels by the most secure and expe- deadbolt, or a rigid wood or metal bar ditious method to include those re- which extends across the width of the quired in subpart C of this directive, or door, or by other means approved by other means deemed necessary when the agency head. time is of the essence; (c) Vents, ducts, and miscellaneous (4) Provide instructions about what openings. All vents, ducts, and similar specific information is classified, how openings in excess of 96 square inches it should be safeguarded; physical cus- (and over 6 inches in its smallest di- tody of classified information must re- mension) that enter or pass through an main with an authorized Federal Gov- open storage area shall be protected ernment entity, in all but the most ex- with either bars, expanded metal grills, traordinary circumstances; commercial metal sounds baffles, or an (5) Provide appropriate briefings to intrusion detection system. the recipients on their responsibilities (d) Windows. (1) All windows which not to disclose the information and ob- might reasonably afford visual observa- tain a signed nondisclosure agreement; tion of classified activities within the (6) Within 72 hours of the disclosure facility shall be made opaque or of classified information, or the ear- equipped with blinds, drapes, or other liest opportunity that the emergency coverings. permits, but no later than 30 days after (2) Windows at ground level will be the release, the disclosing authority constructed from or covered with ma- must notify the originating agency of terials which provide protection from the information by providing the fol- forced entry. The protection provided lowing information: to the windows need be no stronger (i) A description of the disclosed in- than the strength of the contiguous formation; walls. Open storage areas which are lo- (ii) To whom the information was cated within a controlled compound or disclosed; equivalent may eliminate the require- (iii) How the information was dis- ment for forced entry protection if the closed and transmitted; windows are made inoperable either by (iv) Reason for the emergency re- permanently sealing them or equipping lease; them on the inside with a locking (v) How the information is being safe- mechanism and they are covered by an guarded; and IDS (either independently or by the

489

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00499 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.53 32 CFR Ch. XX (7–1–05 Edition)

motion detection sensors within the government ‘‘Restricted,’’ ‘‘Des- area.) ignated,’’ or unclassified provided in confidence), such information must be § 2001.53 Foreign Government Infor- classified under E.O. 12958 as amended. mation [4.1]. The receiving agency, or a receiving The requirements described below are U.S. contractor, licensee, grantee, or additional baseline safeguarding stand- certificate holder acting in accordance ards that may be necessary for foreign with instructions received from the government information, other than U.S. Government, shall provide a de- NATO information, that requires pro- gree of protection to the foreign gov- tection pursuant to an existing treaty, ernment information at least equiva- agreement, bilateral exchange or other lent to that required by the govern- obligation. NATO classified informa- ment or international organization tion shall be safeguarded in compliance that provided the information. When with United States Security Authority adequate to achieve equivalency, these for NATO Instructions I–69 and I–70. To standards may be less restrictive than the extent practical, and to facilitate the safeguarding standards that ordi- its control, foreign government infor- narily apply to U.S. CONFIDENTIAL mation should be stored separately information. If the foreign protection from other classified information. To requirement is lower than the protec- avoid additional costs, separate storage tion required for U.S. CONFIDENTIAL may be accomplished by methods such information, the following require- as separate drawers of a container. The ments shall be met: safeguarding standards described below (1) Documents may retain their origi- may be modified if required or per- nal foreign markings if the responsible mitted by treaties or agreements, or agency determines that these markings for other obligations, with the prior are adequate to meet the purposes written consent of the National Secu- served by U.S. classification markings. rity Authority of the originating gov- Otherwise, documents shall be marked, ernment, hereafter ‘‘originating gov- ‘‘This document contains (insert name ernment.’’ of country) (insert classification level) (a) Top Secret. Records shall be main- information to be treated as U.S. (in- tained of the receipt, internal distribu- sert classification level).’’ The notation, destruction, access, reproduction, tion, ‘‘Modified Handling Authorized,’’ and transmittal of foreign government may be added to either the foreign or Top Secret information. Reproduction U.S. markings authorized for foreign requires the consent of the originating government information. If remarking government. Destruction will be wit- foreign originated documents or mat- nessed. ter is impractical, an approved cover (b) Secret. Records shall be main- sheet is an authorized option; tained of the receipt, external dispatch and destruction of foreign government (2) Documents shall be provided only Secret information. Other records may to those who have an established need- be necessary if required by the origi- to-know, and where access is required nator. Secret foreign government infor- by official duties; mation may be reproduced to meet (3) Individuals being given access mission requirements unless prohibited shall be notified of applicable handling by the originator. Reproduction shall instructions. This may be accom- be recorded unless this requirement is plished by a briefing, written instruc- waived by the originator. tions, or by applying specific handling (c) Confidential. Records need not be requirements to an approved cover maintained for foreign government sheet; Confidential information unless re- (4) Documents shall be stored in such quired by the originator. a manner so as to prevent unauthorized (d) Restricted and other foreign govern- access; ment information provided in confidence. (5) Documents shall be transmitted In order to assure the protection of in a method approved for classified in- other foreign government information formation, unless this method is provided in confidence (e.g., foreign waived by the originating government.

490

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00500 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.61

(e) Third-country transfers. The reclassification activity. Activities that lease or disclosure of foreign govern- generate significant amounts of classi- ment information to any third-country fied information should conduct at entity must have the prior consent of least one document review per year. the originating government if required (f) Reporting. The format for docu- by a treaty, agreement, bilateral ex- menting findings shall be set by the of- change, or other obligation. ficial(s) responsible for the program. Subpart E—Self-Inspections § 2001.61 Coverage [5.4(d)(4)]. (a) General. These standards are not § 2001.60 General [5.4]. all-inclusive. Each agency may expand (a) Purpose. This subpart sets stand- upon the coverage according to pro- ards for establishing and maintaining gram and policy needs. Each self-in- an ongoing agency self-inspection pro- spection of an agency activity need not gram, which shall include the periodic include all the elements covered in this review and assessment of the agency’s section. Agencies without original classified product. ‘‘Self-inspection’’ classification authority need not in- means the internal review and evalua- clude in their self-inspections those tion of individual agency activities and elements of coverage pertaining to the agency as a whole with respect to original classification. the implementation of the program es- (b) Elements of coverage. (1) Original tablished under the Order. classification. (i) Evaluate original (b) Applicability. These standards are classification authority’s general un- binding on all executive branch agen- derstanding of the process of original cies that create or handle classified in- classification, including the: formation. Pursuant to Executive (A) Applicable standards for classi- Order 12829, the National Industrial Se- fication; curity Program Operating Manual (B) Levels of classification and the (NISPOM) prescribes the security re- damage criteria associated with each; quirements, restrictions and safeguards and applicable to industry, including the (C) Required classification markings. conduct of contractor self-inspections. (ii) Determine if delegations of origi- The standards established in the nal classification authority conform NISPOM should be consistent with the with the requirements of the Order, in- standards prescribed in Executive cluding whether: Order 12958, as amended and this part. (A) Delegations are limited to the (c) Responsibility. The senior agency minimum required to administer the official is responsible for the agency’s program; self-inspection program. The senior agency official shall designate agency (B) Designated original classification personnel to assist in carrying out this authorities have a demonstrable and responsibility. continuing need to exercise this au- (d) Approach. The official(s) respon- thority; sible for the program shall determine (C) Delegations are in writing and the means and methods for the conduct identify the official by name or posi- of self-inspections. These may include: tion title; and (1) A review of relevant security di- (D) New requests for delegation of rectives, guides and instructions; classification authority are justified. (2) Interviews with producers and (iii) Assess original classification users of classified information; authority’s familiarity with the dura- (3) A review of access and control tion of classification requirements, in- records and procedures; and cluding: (4) A review of a sample of classified (A) Assigning a specific date or event documents generated by agency activi- for declassification that is less than 10 ties. years when possible; (e) Frequency. The official(s) respon- (B) Establishing ordinarily a 10 year sible for the program shall set the fre- duration of classification when an ear- quency of self-inspections on the basis lier date or event cannot be deter- of program needs and the degree of mined; and

491

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00501 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.61 32 CFR Ch. XX (7–1–05 Edition)

(C) Limiting extensions of classifica- (E) Determine whether responsible tion for specific information not to ex- agency officials are cooperating with ceed 25 years for permanently valuable the ISOO Director to coordinate the records or providing a 25 year exemp- linkage and effective utilization of ex- tion. isting agency databases of records that (iv) Conduct a review of a sample of have been declassified and publicly reclassified information generated by the leased. inspected activity to determine the (4) Safeguarding. propriety of classification and the ap- (i) Monitor agency adherence to es- plication of proper and full markings. tablished safeguarding standards. (v) Evaluate classifiers’ actions to (ii) 5.4(c) of the Order—Verify wheth- comply with the standards specified in er the agency has established to the ex- § 2001.15 and § 2001.32 of this part, relat- tent practical a records system de- ing to classification and declassification guides, respectively. signed and maintained to optimize the safeguarding of classified information. (vi) Verify observance with the prohibitions on classification and limita- (iii) Assess compliance with controls tions on reclassification. for access to classified information. (vii)Assess whether the agency’s clas- (iv) Evaluate the effectiveness of the sification challenges program meets agency’s program in detecting and the requirements of the Order and this processing security violations and pre- part. venting recurrences. (2) Derivative classification. Assess (v) Assess compliance with the proce- the general familiarity of individuals dures for identifying, reporting and who classify derivatively with the: processing unauthorized disclosures of (i) Conditions for derivative classi- classified information. fication; (vi) Evaluate the effectiveness of pro- (ii) Requirement to consult with the cedures to ensure that: originator of the information when (A) The originating agency exercises questions concerning classification control over the classified information arise; it generates; (iii) Proper use of classification (B) Holders of classified information guides; and do not disclose information originated (iv) Proper and complete application by another agency without that agen- of classification markings to deriva- cy’s authorization; and tively classified documents. (C) Departing or transferred officials (3) Declassification. return all classified information in (i) Verify whether the agency has es- their possession to authorized agency tablished, to the extent practical, a personnel. system of records management to fa- (5) Security education and training. cilitate public release of declassified Evaluate the effectiveness of the agen- documents. cy’s security education and training (ii) Evaluate the status of the agency program in familiarizing appropriate declassification program, including the personnel with classification proce- requirement to: dures; and determine whether the pro- (A) Comply with the automatic de- gram meets the standards specified in classification provisions regarding his- subpart F of this part. torically valuable records over 25 years old; (6) Management and oversight. (B) Declassify, when possible, histori- (i) Determine whether original classi- cally valuable records prior to acces- fiers have received prescribed training. sion into the National Archives; (ii) Verify whether the agency’s spe- (C) Provide the Archivist with ade- cial access programs: quate and current declassification (A) Adhere to specified criteria in the guides; creation of these programs; (D) Ascertain that the agency’s man- (B) Are kept to a minimum; datory review program conforms to es- (C) Provide for the conduct of inter- tablished requirements; and nal oversight; and

492

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00502 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.71

(D) Include an annual review of each (b) Applicability. These standards are program to determine whether it con- binding on all executive branch depart- tinues to meet the requirements of the ments and agencies that create or han- Order. dle classified information. Pursuant to (iii) Assess whether: Executive Order 12829, the NISPOM (A) Senior management dem- prescribes the security requirements, onstrates commitment to the success restrictions, and safeguards applicable of the program, including providing the to industry, including the conduct of necessary resources for effective imple- contractor security education and mentation; training. The standards established in (B) Producers and users of classified the NISPOM should be consistent with information receive guidance with re- the standards prescribed in Executive spect to security responsibilities and Order 12958, as amended and of this requirements; part. (C) Controls to prevent unauthorized (c) Responsibility. The senior agency access to classified information are ef- official is responsible for the agency’s fective; security education and training pro- (D) Contingency plans are in place gram. The senior agency official shall for safeguarding classified information designate agency personnel to assist in used in or near hostile areas; carrying out this responsibility. (E) The performance contract or (d) Approach. Security education and other system used to rate civilian or training should be tailored to meet the military personnel includes the man- specific needs of the agency’s security agement of classified information as a program, and the specific roles employ- critical element or item to be evalu- ees are expected to play in that pro- ated in the rating of: Original classi- gram. The agency official(s) respon- fiers; security managers; classification sible for the program shall determine management officers; and security spe- the means and methods for providing cialists; and other employees whose du- security education and training. Train- ties significantly involve the creation ing methods may include briefings, or handling of classified information; interactive videos, dissemination of in- and structional materials, and other media (F) A method is in place for col- and methods. Agencies shall maintain lecting information on the costs associ- records about the programs it has of- ated with the implementation of the fered and employee participation in Order. them. (e) Frequency. The frequency of agency security education and training will Subpart F—Security Education vary in accordance with the needs of and Training the agency’s security classification program. Each agency shall provide § 2001.70 General [5.4]. some form of refresher security edu- (a) Purpose. This subpart sets stand- cation and training at least annually. ards for agency security education and training programs. Implementation of § 2001.71 Coverage [5.4(d)(3)]. these standards should: (a) General. Each department or agen- (1) Ensure that all executive branch cy shall establish and maintain a for- employees who create, process or han- mal security education and training dle classified information have a satis- program which provides for initial and factory knowledge and understanding refresher training, and termination about classification, safeguarding, and briefings. This subpart establishes se- declassification policies and proce- curity education and training stand- dures; ards for original classification authori- (2) Increase uniformity in the con- ties, declassification authorities, secu- duct of agency security education and rity managers, classification manage- training programs; and ment officers, security specialists, and (3) Reduce improper classification, all other personnel whose duties sig- safeguarding and declassification prac- nificantly involve the creation or han- tices. dling of classified information. These

493

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00503 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.71 32 CFR Ch. XX (7–1–05 Edition)

standards are not intended to be all-in- thorities, authorized declassification clusive. The official responsible for the authorities, individuals specifically security education and training pro- designated as responsible for derivative gram may expand or modify the cov- classification, classification manage- erage provided in this part according to ment officers, security managers, secu- the agency’s program and policy needs. rity specialists, and all other personnel (b) Elements of initial coverage. All whose duties significantly involve the cleared agency personnel shall receive creation or handling of classified infor- initial training on basic security poli- mation should receive more detailed cies, principles, practices, and crimi- training. This training should be pro- nal, civil, and administrative penalties. vided before or concurrent with the Such training must be provided in con- date the employee assumes any of the junction with the granting of a secu- positions listed above, but in any event rity clearance, and prior to granting access to classified information. The no later than six months from that following areas should be considered date. Coverage considerations should for inclusion in initial briefings. include: (1) Roles and responsibilities. (1) Original Classification Authori- (i) What are the responsibilities of ties. the senior agency official, classifica- (i) What is the difference between tion management officers, the security original and derivative classification? manager and the security specialist? (ii) Who can classify information (ii) What are the responsibilities of originally? agency employees who create or handle (iii) What are the standards that a classified information? designated classifier must meet to (iii) Who should be contacted in case classify information? of questions or concerns about classi- (iv) What discretion does the Original fication matters? Classification Authority have in (2) Elements of classifying and declassifying information, for example, classifying information. foreign government information. (i) What is classified information and (v) What is the process for deter- why is it important to protect it? (ii) What are the levels of classified mining duration of classification? information and the damage criteria (vi) What are the prohibitions and associated with each level? limitations on classifying information? (iii) What are the prescribed classi- (vii) What are the basic markings fication markings and why is it impor- that must appear on classified informa- tant to have classified information tion? fully and properly marked? (viii) What are the general standards (iv) What are the general require- and procedures for declassification? ments for declassifying information? (2) Declassification authorities other (v) What are the procedures for chal- than original classification authori- lenging the classification status of in- ties. formation? (i) What are the standards, methods (3) Elements of safeguarding. and procedures for declassifying infor- (i) What are the proper procedures for mation under Executive Order 12958, as safeguarding classified information? amended? (ii) What constitutes an unauthorized (ii) What are the standards for cre- disclosure and what are the criminal, ating and using agency declassification civil, and administrative penalties associated with these disclosures? guides? (iii) What are the general conditions (iii) What is contained in the agen- and restrictions for access to classified cy’s automatic declassification plan? information? (iv) What are the agency responsibil- (iv) What should an individual do ities for the maintenance of a declas- when he or she believes safeguarding sification database? standards may have been violated? (3) Individuals specifically designated (c) Specialized security education and as responsible for derivative classifica- training. Original classification au- tion, security managers, classification

494

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00504 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2001.81

management officers, security special- ment for refresher training by means of ists or any other personnel whose du- audiovisual products or written mate- ties significantly involve the creation rials. or handling of classified information. (e) Termination briefings. Each agency (i) What are the original and deriva- shall ensure that each employee grant- tive classification processes and the ed access to classified information who standards applicable to each? leaves the service of the agency re- (ii) What are the proper and complete ceives a termination briefing. Also, classification markings, as described in each agency employee whose clearance subpart B of this part? is withdrawn must receive such a brief- (iii) What are the authorities, meth- ing. At a minimum, termination brief- ods and processes for downgrading and ings must impress upon each employee: declassifying information? The continuing responsibility not to (iv) What are the methods for the disclose any classified information to proper use, storage, reproduction, which the employee had access and the transmission, dissemination and de- potential penalties for non-compliance; struction of classified information? and the obligation to return to the ap- (v) What are the requirements for propriate agency official all classified creating and updating classification documents and materials in the em- and declassification guides? ployee’s possession. (vi) What are the requirements for (f) Other security education and train- controlling access to classified infor- ing. Agencies are encouraged to develop mation? additional security education and (vii) What are the procedures for in- training according to program and pol- vestigating and reporting instances of icy needs. Such security education and security violations, and the penalties training could include: associated with such violations? (1) Practices applicable to U.S. offi- (viii) What are the requirements for cials traveling overseas; creating, maintaining, and terminating (2) Procedures for protecting classi- special access programs, and the mech- fied information processed and stored anisms for monitoring such programs? in automated information systems; (ix) What are the procedures for the (3) Methods for dealing with secure use, certification and accredita- uncleared personnel who work in prox- tion of automated information systems imity to classified information; and networks which use, process, store, (4) Responsibilities of personnel serv- reproduce, or transmit classified infor- ing as couriers of classified informa- mation? tion; and (x) What are the requirements for (5) Security requirements that gov- oversight of the security classification ern participation in international pro- program, including agency self-inspec- grams. tions? (d) Refresher security education and Subpart G—Reporting and training. Agencies shall provide re- Definitions fresher training to employees who create, process or handle classified infor- § 2001.80 Statistical reporting mation. Refresher training should rein- [5.2(b)(4)]. force the policies, principles and proce- Each agency that creates or handles dures covered in initial and specialized classified information shall report an- training. Refresher training should nually to the Director of ISOO statis- also address the threat and the tech- tics related to its security classifica- niques employed by foreign intel- tion program. The Director will in- ligence activities attempting to obtain struct agencies what data elements are classified information, and advise per- required, and how and when they are to sonnel of penalties for engaging in es- be reported. pionage activities. Refresher training should also address issues or concerns § 2001.81 Accounting for costs identified during agency self-inspec- [5.4(d)(8)]. tions. When other methods are imprac- (a) Information on the costs associ- tical, agencies may satisfy the require- ated with the implementation of the

495

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00505 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2001.82 32 CFR Ch. XX (7–1–05 Edition)

Order will be collected from the agen- declassification under E.O. 12958, as cies. The agencies will provide data to amended. ISOO on the cost estimates for classi- (h) ‘‘Federal Record’’ includes all fication-related activities. ISOO will books, papers, maps, photographs, ma- report these cost estimates annually to chine-readable materials, or other doc- the President. The agency senior offi- umentary materials, regardless of cial should work closely with the agen- physical form or characteristics, made cy comptroller to ensure that the best or received by an agency of the United estimates are collected. States Government under Federal law (b) The Secretary of Defense, acting or in connection with the transaction as the executive agent for the National of public business and preserved or ap- Industrial Security Program under Ex- propriate for preservation by that ecutive Order 12829, and consistent agency or its legitimate successor as with agreements entered into under evidence of the organization, functions, section 202 of E.O. 12829, will collect policies, decisions, procedures, oper- cost estimates for classification-re- ations, or other activities of the Gov- lated activities of contractors, licens- ernment or because of the informa- ees, certificate holders, and grantees, tional value of data in them. Library and report them to ISOO annually. and museum material made or ac- ISOO will report these cost estimates quired and preserved solely for ref- annually to the President. erence, and stocks of publications and processed documents are not included. § 2001.82 Definitions [6.1]. (44 U.S.C. 3301) (i) ‘‘File series’’ means a body of re- (a) ‘‘Accessioned Records’’ means lated records created or maintained by records of permanent historical value an agency, activity, office or indi- in the legal custody of NARA. vidual. The records may be related by (b) means a per- ‘‘Authorized person’’ subject, topic, form, function, or filing son who has a favorable determination scheme. An agency, activity, office, or of eligibility for access to classified in- individual may create or maintain sev- formation, has signed an approved non- eral different file series, each serving a disclosure agreement, and has a need- different function. Examples may in- to-know for the specific classified include a subject file, alphabetical name formation in the performance of offi- index, chronological file, or a record cial duties. set of agency publications. File series (c) ‘‘Cleared commercial carrier’’ means frequently correspond to items on a a carrier that is authorized by law, reg- NARA-approved agency records sched- ulatory body, or regulation, to trans- ule. Some very large series may con- port SECRET and CONFIDENTIAL ma- tain several identifiable sub-series, and terial and has been granted a SECRET it may be appropriate to treat sub-se- facility clearance in accordance with ries as discrete series for the purposes the National Industrial Security Pro- of the Order. gram. (j) ‘‘Newly Discovered Records’’ means (d) ‘‘Control’’ means the authority of records that were inadvertently not re- the agency that originates informa- viewed prior to the effective date of tion, or its successor in function, to automatic declassification because the regulate access to the information. agency declassification authority was (e) ‘‘Declassified or Declassification’’ unaware of their existence. means the authorized change in the (k) ‘‘Open storage area’’ means an status of information from classified area constructed in accordance with information to unclassified informa- section 2001.62 and authorized by the tion. agency head for open storage of classi- (f) ‘‘Equity’’ means information origi- fied information. nally classified by or under the control (l) ‘‘Pass/Fail (P/F)’’ means a declas- of an agency. sification technique that regards infor- (g) ‘‘Exempted’’ means nomenclature mation at the full document or folder and marking indicating information level. Any exemptible portion of a doc- has been determined to fall within an ument or folder may result in exemp- enumerated exemption from automatic tion (failure) of the entire documents

496

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00506 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA Pt. 2001, App. A

or folders. Documents or folders that mitigate the vulnerability of open stor- contain no exemptible information are age areas without alarms and security passed and therefore declassified. Doc- storage cabinets during non-working uments within exempt folders are ex- hours. empt from automatic declassification. (r) ‘‘Tab’’ means a narrow paper Declassified documents may be subject sleeve placed around a document or to FOIA exemptions other than the se- group of documents in such a way that curity exemption ((b)(1)), and the re- it would be readily visible. quirements placed by legal authorities (s) ‘‘Transferred Records’’ means governing Presidential records and ma- records transferred to agency storage terials. facilities or a federal records center. (m) ‘‘Permanent Records’’ means any (t) ‘‘Temporary Records’’ means fed- Federal record that has been deter- eral records approved by NARA for dis- mined by NARA to have sufficient posal, either immediately or after a value to warrant its preservation in specified retention period. Also called the National Archives of the United disposable records. States. Permanent records include all (u) ‘‘Unscheduled Records’’ means fed- records accessioned by NARA into the eral records whose final disposition has National Archives of the United States not been approved by NARA. All and later increments of the same records that fall under a NARA ap- records, and those for which the dis- proved records control schedule are position is permanent on SF 115s, Re- considered to be scheduled records. quest for Records Disposition Author- (v) ‘‘Vault’’ means an area approved ity, approved by NARA on or after May by the agency head which is designed 14, 1973. and constructed of masonry units or (n) ‘‘Presidential Historical Materials steel lined construction to provide pro- and Records’’ means the papers or tection against forced entry. A mod- records of the former Presidents under ular vault approved by the General the legal control of the Archivist pur- Services Administration (GSA) may be suant to sections 2107, 2111, 2111note, or used in lieu of a vault as prescribed in 2203 of title 44, U.S.C., as defined at 44 the first sentence of this paragraph (e). U.S.C. 2111, 2111note, and 2001. Vaults shall be equipped with a GSA- (o) ‘‘Records’’ means the records of an approved vault door and lock. agency and Presidential papers or Pres- idential records, as those terms are de- § 2001.83 Effective date [6.3]. fined in title 44, United States Code, in- Part 2001 shall become effective Sep- cluding those created or maintained by tember 22, 2003. a government contractor, licensee, certificate holder, or grantee that are sub- APPENDIX A TO PART 2001—INTER- ject to the sponsoring agency’s control AGENCY SECURITY CLASSIFICATION under the terms of the contract, li- APPEALS PANEL BYLAWS cense, certificate, or grant. ARTICLE I. PURPOSE (p) ‘‘Redaction’’ means the removal of exempted information from copies of a The purpose of the Interagency Security Classification Appeals Panel (ISCAP) and document. these bylaws is to fulfill the functions as- (q) ‘‘Security-in-depth’’ means a deter- signed to the ISCAP by Executive Order mination by the agency head that a fa- 12958, ‘‘Classified National Security Informa- cility’s security program consists of tion,’’ as amended. layered and complementary security controls sufficient to deter and detect ARTICLE II. AUTHORITY unauthorized entry and movement Executive Order 12958, ‘‘Classified National within the facility. Examples include, Security Information,’’ as amended (here- but are not limited to, use of perimeter after the ‘‘Order’’), and its implementing directives. fences, employee and visitor access controls, use of an Intrusion Detection ARTICLE III. MEMBERSHIP System (IDS), random guard patrols A. Primary Membership. Appointments throughout the facility during non- under section 5.3(a) of the Order establish working hours, closed circuit video the primary membership of the ISCAP. monitoring or other safeguards that B. Alternate Membership.

497

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00507 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 2001, App. A 32 CFR Ch. XX (7–1–05 Edition)

1. Primary members are expected to par- complete and timely manner. The members ticipate fully in the activities of the ISCAP. may arrange briefings by substantive experts The Executive Secretary shall request that from individual departments or agencies, each entity represented on the ISCAP also after consultation with the Chair. designate in writing addressed to the Chair E. Agenda. The Chair shall establish the an alternate or alternates to represent it on agenda for all meetings. Potential items for all occasions when the primary member is the agenda may be submitted to the Chair by unable to participate. Such written designa- any member or the Executive Secretary. tion must be made by the agency or office Acting through the Executive Secretary, the head represented on the ISCAP, or by their Chair will distribute the agenda and sup- deputy or senior agency official for the porting materials to the members as soon as Order. When serving for a primary member, possible before a scheduled meeting. an alternate member shall assume all the rights and responsibilities of that primary F. Minutes. The Executive Secretary shall member, including voting. be responsible for the preparation of each 2. When a vacancy in the primary member- meeting’s minutes, and the distribution of ship occurs, the designated alternate shall draft minutes to each member. The minutes represent the agency or office until the agen- will include a record of the members present cy or office head fills the vacancy. The at the meeting and the result of each vote. Chair, working through the Executive Sec- At the subsequent meeting of the ISCAP, the retary, shall take all appropriate measures Chair will read or reference the draft min- to encourage the agency or office head to fill utes of the previous meeting. At that time a vacancy in the primary membership as the minutes will be corrected, as necessary, quickly as possible. and approved by the membership and cer- C. Liaison. The Executive Secretary shall tified by the Chair. The approved minutes request that each entity represented on the will be maintained among the records of the ISCAP also designate to the Chair in writing ISCAP. an individual or individuals (hereinafter referred to as ‘‘liaisons’’) to serve as a liaison ARTICLE V. VOTING to the Executive Secretary in support of the primary member and alternate(s). Such writ- A. Motions. When a decision or rec- ten designation must be made by the agency ommendation of the ISCAP is required to re- or office head represented on the ISCAP, or solve a matter before it, the Chair shall re- by their deputy or senior agency official for quest or accept a motion for a vote. Any the Order. These designated individuals shall member, including the Chair, may make a meet at the call of the Executive Secretary. motion for a vote. No second shall be re- D. Chair. As provided in section 5.3(a) of quired to bring any motion to a vote. A the Order, the President shall select the quorum must be present when a vote is Chair from among the primary members. taken. E. Vice Chair. The members may elect B. Eligibility. Only the members, including from among the primary members a Vice the Chair, may vote on a motion before the Chair who shall: ISCAP, with each agency or office rep- 1. Chair meetings that the Chair is unable resented having one vote. to attend; and C. Voting Procedures. Votes shall ordi- 2. Serve as Acting Chair during a vacancy narily be taken and tabulated by a show of in the Chair of the ISCAP. hands. ARTICLE IV. MEETINGS D. Passing a Motion. In response to a motion, members may vote affirmatively, nega- A. Purpose. The primary purpose of ISCAP tively, or abstain from voting. Except as oth- meetings is to discuss and bring formal reso- erwise provided in these bylaws, a motion lution to matters before the ISCAP. passes when it receives a majority of affirm- B. Frequency. As provided in section 5.3(a) ative votes of the members voting. However, of the Order, the ISCAP shall meet at the in no instance will the ISCAP reverse an call of the Chair, who shall schedule meet- agency’s decision without the affirmative ings as may be necessary for the ISCAP to fulfill its functions in a timely manner. The vote of at least a majority of the members Chair shall also convene the ISCAP when represent. quested by a majority of its primary mem- E. Votes in a Non-meeting Context. The bers. Chair may call for a vote of the membership C. Quorum. Meetings of the ISCAP may be outside the context of a formal ISCAP meet- held only when a quorum is present. For this ing. An alternate member may also partici- purpose, a quorum requires the presence of pate in such a vote if the primary member at least five primary or alternate members. cannot. The Executive Secretary shall record D. Attendance. As determined by the and retain such votes in a documentary form Chair, attendance at meetings of the ISCAP and immediately report the results to the shall be limited to those persons necessary Chair and other primary and alternate mem- for the ISCAP to fulfill its functions in a bers.

498

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00508 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA Pt. 2001, App. A

ARTICLE VI. FIRST FUNCTION: APPEALS OF D. Rejection of Appeal. If the Executive AGENCY DECISIONS REGARDING CLASSIFICA- Secretary determines that the appeal does TION CHALLENGES not meet the requirements of the Order or these bylaws, the Executive Secretary shall In accordance with section 5.3(b) of the Order, the ISCAP shall decide on appeals by notify the appellant in writing that the ap- authorized persons who have filed classifica- peal will not be considered by the ISCAP. tion challenges under section 1.8 of the The notification shall include an explanation Order. of why the appeal is deficient. A. Jurisdiction. The ISCAP will consider E. Preparation. The Executive Secretary appeals from classification challenges that shall notify the Chair, the designated senior otherwise meet the standards of the Order if: agency official, and the primary member, al- 1. The appeal is filed in accordance with ternate, or liaison of the affected agency(ies) these bylaws; when an appeal is lodged. Under the direc- 2. The appellant has previously challenged tion of the ISCAP, the Executive Secretary the classification action at the agency that shall supervise the preparation of an appeal originated or is otherwise responsible for the file, pertinent portions of which will be pre- information in question in accordance with sented to the members of the ISCAP for the agency’s procedures or, if the agency has their review prior to a vote on the appeal. failed to establish procedures for classifica- The appeal file will eventually include all tion challenges, by filing a written challenge records pertaining to the appeal. directly with the agency head or designated F. Resolution of Appeals. The ISCAP may senior agency official, as defined in section vote to affirm the agency’s decision, to re- 6.1(ii) of the Order; verse the agency’s decision in whole or in 3. The appellant has (a) Received a final part, or to remand the matter to the agency agency decision denying his or her challenge; for further consideration. A decision to re- or (b) Not received (i) an initial written reverse an agency’s decision requires the af- sponse to the classification challenge from firmative vote of at least a majority of the the agency within 120 days of its filing, or members present. (ii) a written response to an internal agency G. Notification. The Executive Secretary appeal within 90 days of the filing of the ap- shall promptly notify in writing the appel- peal; lant, the agency head, and designated senior 4. There is no action pending in the federal agency official of the ISCAP’s decision. courts regarding the information in ques- H. Agency Appeals. Within 60 days of re- tion; and ceipt of an ISCAP decision that reverses a 5. The information in question has not final agency decision, the agency head may been the subject of review by the federal petition the President through the Assistant courts or the ISCAP within the past two to the President for National Security Af- years. fairs to overrule the decision of the ISCAP. B. Addressing of Appeals. Appeals should I. Protection of Classified Information. All be addressed to: Executive Secretary, Inter- persons involved in the appeal shall make agency Security Classification Appeals every effort to minimize the inclusion of Panel, Attn: Classification Challenge Ap- classified information in the appeal file. Any peals, c/o Information Security Oversight Of- classified information contained in the ap- fice, National Archives and Records Admin- peal file shall be handled and protected in istration, 7th and Pennsylvania Avenue, accordance with the Order and its imple- NW., Room 500, Washington, DC 20408. The menting directives. Information being chal- appeal must contain enough information for lenged for classification shall remain classi- the Executive Secretary to be able to obtain fied unless and until a final decision is made all pertinent documents about the classifica- to declassify it. In no instance will the tion challenge from the affected agency. No ISCAP declassify properly classified infor- classified information should be included mation solely because of an agency’s failure within the initial appeal document. The Ex- to prescribe or follow appropriate procedures ecutive Secretary will arrange for the trans- for handling classification challenges. mittal of classified information from the J. Maintenance of File. The Executive Sec- agency after receiving the appeal. If it is im- retary shall maintain the appeal file among possible for the appellant to file an appeal the records of the ISCAP. without including classified information, prior arrangements must be made by con- ARTICLE VII. SECOND FUNCTION: REVIEW OF tacting the Information Security Oversight AGENCY EXEMPTIONS FROM AUTOMATIC DE- Office. CLASSIFICATION C. Timeliness of Appeals. An appeal to the ISCAP must be filed within 60 days of: In accordance with section 5.3(b) of the 1. The date of the final agency decision; or Order, the ISCAP shall approve, deny or 2. The agency’s failure to meet the time amend agency exemptions from automatic frames established in paragraph (A)(3)(b) of declassification as provided in section 3.3(d) this Article. of the Order.

499

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00509 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 2001, App. A 32 CFR Ch. XX (7–1–05 Edition)

A. Agency Notification of Exemptions. The declassification requests that otherwise agency head or designated senior agency of- meet the standards of the Order if: ficial shall notify the Executive Secretary of 1. The appeal is filed in accordance with agency exemptions in accordance with the these bylaws; requirements of the Order and its imple- 2. The appellant has previously filed a re- menting directives. Agencies shall provide quest for mandatory declassification review any additional information or justification at the agency that originated or is otherwise that the Executive Secretary believes is nec- responsible for the information in question essary or helpful in order for the ISCAP to in accordance with the agency’s procedures review and decide on the exemption. The or, if the agency has failed to establish pro- agency head may seek relief from the ISCAP cedures for mandatory review, by filing a from any request for information by the Ex- written request directly with the agency ecutive Secretary to which the agency ob- head or designated senior agency official; jects. 3. The appellant has (a) Received a final B. Preparation. The Executive Secretary agency decision denying his or her request; shall notify the Chair of the agency submis- or (b) Not received (i) an initial decision on sion. At the direction of the ISCAP, the Ex- the request for mandatory declassification ecutive Secretary shall supervise the prepa- review from the agency within one year of ration of an exemption file, pertinent por- its filing, or (ii) a final decision on an inter- tions of which will be presented to the mem- nal agency appeal within 180 days of the fil- bers of the ISCAP for their review prior to a ing of the appeal; vote on the exemptions. The exemption file 4. There is no action pending in the federal will eventually include all records pertaining courts regarding the information in ques- to the ISCAP’s consideration of the agency’s tion; and exemptions. 5. The information in question has not C. Resolution. The ISCAP may vote to ap- been the subject of review by the federal prove an agency exemption, to deny an agen- courts or the ISCAP within the past two cy exemption, to amend an agency exemption, or to remand the matter to the agency years. for further consideration. A decision to deny B. Addressing of Appeals. Appeals should or amend an agency exemption requires the be addressed to: Executive Secretary, Inter- affirmative vote of a majority of the mem- agency Security Classification Appeals bers present. Panel, Attn: Mandatory Review Appeals, c/o D. Notification. The Executive Secretary Information Security Oversight Office, Na- shall promptly notify in writing the agency tional Archives and Records Administration, head and designated senior agency official of 7th and Pennsylvania Avenue, NW., Room the ISCAP’s decision. 500, Washington, DC 20408. The appeal must E. Agency Appeals. Within 60 days of re- contain enough information for the Execu- ceipt of an ISCAP decision that denies or tive Secretary to be able to obtain all perti- amends an agency exemption, the agency nent documents about the request for man- head may petition the President through the datory declassification review from the af- Assistant to the President for National Secu- fected agency. rity Affairs to overrule the decision of the C. Timeliness of Appeals. An appeal to the ISCAP. ISCAP must be filed within 60 days of: F. Protection of Classified Information. 1. The date of the final agency decision; or Any classified information contained in the 2. The agency’s failure to meet the time exemption file shall be handled and pro- frames established in paragraph (A)(3)(b) of tected in accordance with the Order and its this Article. implementing directives. Information that D. Rejection of Appeal. If the Executive the agency maintains is exempt from declas- Secretary determines that the appeal does sification shall remain classified unless and not meet the requirements of the Order or until a final decision is made to declassify it. these bylaws, the Executive Secretary shall G. Maintenance of File. The Executive Sec- notify the appellant in writing that the ap- retary shall maintain the exemption file peal will not be considered by the ISCAP. among the records of the ISCAP. The notification shall include an explanation of why the appeal is deficient. ARTICLE VIII. THIRD FUNCTION: APPEALS OF E. Preparation. The Executive Secretary AGENCY DECISIONS DENYING DECLASSIFICA- shall notify the Chair and the primary mem- TION UNDER MANDATORY REVIEW PROVI- ber, alternate, or liaison of the affected SIONS OF THE ORDER agency(ies) when an appeal is lodged. Under In accordance with section 5.3(b) of the the direction of the ISCAP, the Executive Order, the ISCAP shall decide on appeals by Secretary shall supervise the preparation of parties whose requests for declassification an appeal file, pertinent portions of which under section 3.5 of the Order have been de- will be presented to the members of the nied. ISCAP for their review prior to a vote on the A. Jurisdiction. The ISCAP will consider appeal. The appeal file will eventually in- appeals from denials of mandatory review for clude all records pertaining to the appeal.

500

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00510 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA Pt. 2001, App. A

F. Narrowing Appeals. To expedite the res- jority vote, or an agency head represented on olution of appeals and minimize backlogs, the Panel, may petition the President, the Executive Secretary is authorized to through the Assistant to the President for consult with appellants with the objective of National Security Affairs, to reverse the narrowing or prioritizing the information DCI’s determination. Such petitions must be subject to the appeal. made within 60 days of receipt of the DCI’s G. Resolution of Appeals. The ISCAP may determination. If the Panel has not been no- vote to affirm the agency’s decision, to re- tified of the DCI’s determination within 60 verse the agency’s decision in whole or in days (or if additional time is requested as part, or to remand the matter to the agency outlined above, within 90 days) of the date for further consideration. A decision to re- that the DCI has been notified of the Panel’s verse an agency’s decision requires the af- conclusion, the information shall be declas- firmative vote of at least a majority of the sified, pending resolution of any appeals filed members present. pursuant to section I of Article VIII of these H. Notification. The Executive Secretary bylaws. shall promptly notify in writing the appellant, the agency head, and designated senior ARTICLE X. ADDITIONAL FUNCTIONS agency official of the ISCAP’s decision. In its consideration of the matters before I. Agency Appeals. Within 60 days of re- it, the ISCAP shall perform such additional ceipt of an ISCAP decision that reverses a advisory functions as are consistent with final agency decision, the agency head may and supportive of the successful implementa- petition the President through the Assistant tion of the Order. to the President for National Security Af- fairs to overrule the decision of the ISCAP. ARTICLE XI. SUPPORT STAFF J. Protection of Classified Information. As provided in section 5.3(a) of the Order, Any classified information contained in the the Director of the Information Security appeal file shall be handled and protected in Oversight Office will serve as Executive Sec- accordance with the Order and its imple- retary to the ISCAP, and the staff of the In- menting directives. Information that is sub- formation Security Oversight Office will project to an appeal from an agency decision de- vide program and administrative support for nying declassification under the mandatory the ISCAP. The Executive Secretary will su- review provisions of the Order shall remain pervise the staff in this function pursuant to classified unless and until a final decision is the direction of the Chair and ISCAP. On an made to declassify it. In no instance will the as needed basis, the ISCAP may seek ISCAP declassify properly classified infor- detailees from its member agencies to aug- mation solely because of an agency’s failure ment the staff of the Information Security to prescribe or follow appropriate procedures Oversight Office in support of the ISCAP. for handling mandatory review for declassification requests and appeals. ARTICLE XII. RECORDS K. Maintenance of File. The Executive Sec- retary shall maintain the appeal file among A. Integrity of ISCAP Records. The Execu- the records of the ISCAP. All information tive Secretary shall maintain separately declassified as a result of ISCAP action shall documentary materials, regardless of their be available for inclusion within the data- physical form or characteristics, that are bases delineated in section 3.7 of the Order. produced by or presented to the ISCAP or its staff in the performance of the ISCAP’s func- ARTICLE IX. INFORMATION OWNED OR CON- tions, consistent with applicable federal law. TROLLED BY THE DIRECTOR OF CENTRAL IN- B. Referrals. Any Freedom of Information TELLIGENCE (DCI) Act request or other access request for a doc- Notwithstanding any conclusion reached ument that originated within an agency by the ISCAP that information owned or other than the ISCAP shall be referred to controlled by the DCI should be declassified, that agency for processing. if the DCI disagrees because he or she has ARTICLE XIII. ANNUAL REPORTS TO THE made a determination as set forth in section PRESIDENT 5.3(f) of the Order, and he or she so notifies the Panel, the information shall remain clas- The ISCAP has been established for the sified. The Panel expects notification to nor- sole purpose of advising and assisting the mally be made in writing within 60 days of President in the discharge of his constitu- receipt of the Panel’s written notification of tional and discretionary authority to protect such a conclusion. In the event that the DCI the national security of the United States requires additional time to provide notifica- (section 5.3(e) of the Order). As provided in tion to the Panel, the DCI, his or her deputy, section 5.3(a) of the Order, pertinent infor- or the DCI’s primary or alternate Panel mation and data about the activities of the member, shall notify the Panel, in writing, ISCAP shall be included in the Reports to of the need for additional time, not to exceed the President issued by the Information Se- an additional 30 days. Following receipt of curity Oversight Office. The Chair, in coordi- the DCI’s determination, the Panel, by ma- nation with the other members of the ISCAP

501

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00511 Fmt 8010 Sfmt 8002 Y:\SGML\205127.XXX 205127 Pt. 2002 32 CFR Ch. XX (7–1–05 Edition)

and the Executive Secretary, shall deter- that information. All foreign govern- mine what information and data to include ment information— in each Report. (a) Not identified in § 2002.6 of these ARTICLE XIV. APPROVAL, AMENDMENT, AND general guidelines or in specific agency PUBLICATION OF BYLAWS guidelines as requiring item-by-item The approval and amendment of these by- declassification review and final deter- laws shall require the affirmative vote of at mination by an agency declassification least four of the ISCAP’s members. In ac- authority, and cordance with the Order, the Executive Sec- (b) For which a prior declassification retary shall submit the approved bylaws and date has not been established, shall be their amendments for publication in the declassified as that information be- FEDERAL REGISTER. comes thirty years old. [69 FR 17053, Apr. 1, 2004] § 2002.2 Definition. PART 2002—GENERAL GUIDELINES Foreign government information as FOR SYSTEMATIC DECLASSIFICA- used in these guidelines means: TION REVIEW OF FOREIGN GOV- (a) Information provided by a foreign ERNMENT INFORMATION government or governments, an international organization of governments, Sec. or any element thereof with the expec- 2002.1 Purpose. tation, expressed or implied, that the 2002.2 Definition. 2002.3 Scope. information, the source of the informa- 2002.4 Responsibilities. tion, or both, are to be held in con- 2002.5 Effect of publication. fidence; or 2002.6 Categories requiring item-by-item re- (b) Information produced by the view. United States pursuant to or as a re- 2002.7 Referral and decision. sult of a joint arrangement with a for- 2002.8 Downgrading. eign government or governments or an AUTHORITY: Sec. 3.3, E.O. 12356, 47 FR 14874, international organization of govern- April 6, 1982. ments, or any element thereof, requir- SOURCE: 48 FR 4402, Jan. 31, 1983, unless ing that the information, the arrange- otherwise noted. ment, or both, are to be held in confidence. § 2002.1 Purpose. These general guidelines for the sys- § 2002.3 Scope. tematic declassification review of for- (a) These guidelines apply to foreign eign government information have government information that has been been developed in accordance with the received or classified by the United provisions of section 3.3 of Executive States Government or its agents, and Order 12356, ‘‘National Security Infor- mation,’’ and § 2001.31 of Information has been incorporated into records de- Security Oversight Office Directive No. termined by the Archivist of the 1. All foreign government information United States to have permanent that has been incorporated into the value. permanently valuable records of the (b) Atomic energy information (in- United States Government and that cluding information originated prior to has been accessioned into the National 1947 and not marked as such; informa- Archives of the United States shall be tion received from the United Kingdom systematically reviewed for declas- or Canada marked ‘‘Atomic,’’ or infor- sification by the Archivist of the mation received from NATO marked United States. Declassification reviews ‘‘Atomal’’) that is defined and identi- shall be conducted in accordance with fied as ‘‘Restricted Data’’ or ‘‘Formerly the provisions of these general guide- Restricted Data’’ in Sections 11y and lines or, if available, in accordance 142d of the Atomic Energy Act of 1954, with specific systematic review guide- as amended, is outside the scope of lines for foreign government informa- these guidelines. Such information is tion provided by the agency heads who not subject to systematic review and have declassification authority over may not be automatically downgraded

502

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00512 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2002.5

or declassified. Any document con- listed in § 2002.6 of these guidelines taining information within the defini- shall be declassified or downgraded tion of ‘‘Restricted Data’’ or ‘‘For- only upon specific authorization of the merly Restricted Data’’ that is not so agency that has declassification au- marked shall be referred to the Depart- thority over it. Such information shall ment of Energy Office of Classification be referred to the responsible agen- for review and appropriate marking, cy(ies) for review. Information so re- except for licensing and related regu- ferred shall remain classified until the latory matters which shall be referred responsible agency(ies) has declassified to the Division of Security, U.S. Nu- it. If the responsible agency cannot be clear Regulatory Commission. readily identified from the document or material, referral shall be made in § 2002.4 Responsibilities. accordance with § 2002.7 of these guide- (a) Foreign government information lines. transferred to the General Services Ad- (e) When required, the agency having ministration for accession into the Na- declassification authority over the in- tional Archives of the United States formation shall consult with foreign shall be reviewed by the Archivist of governments concerning its proposed the United States for declassification declassification. in accordance with Executive Order 12356, the directives of the Information § 2002.5 Effect of publication. Security Oversight Office, these gen- (a) Foreign government information eral guidelines, and any specific sys- shall be considered declassified when tematic declassification guidelines pro- published in an unclassified United vided by the agency with declassifica- States Government executive branch tion authority over the information. publication (e.g., the Foreign Relations (b) Accessioned foreign government of the United States series) or when information in file series concerning cleared for publication by United intelligence activities (including spe- States Government executive branch cial activities), or intelligence sources officials authorized to declassify the or methods created after 1945, and information; or if officially published cryptology records created after 1945, as unclassified by the foreign govern- shall be subject to review by the Archi- ment(s) or international organiza- vist for declassification as it becomes tion(s) of governments that furnished 50 years old. All other accessioned for- the information unless the fact of the eign government information shall be U.S. Government’s possession of the in- subject to review by the Archivist for formation requires continued protec- declassification as it becomes 30 years tion. old. (b) The unofficial publication, in the (c) Agency heads who have declas- United States or abroad, of foreign gov- sification jurisidiction over perma- ernment information contained in clas- nently valuable foreign government in- sified United States or foreign docu- formation in agency records not yet ments does not in or of itself con- accessioned into the National Archives stitute or permit the declassification of the United States are encouraged to of such information. Although prior conduct systematic declassification re- unofficial publication is a factor to be views of it in accordance with the time considered in the systematic review limits specified in paragraph (b) of this process, there may be valid reasons for section. These reviews shall comply continued protection of the informa- with the provisions of Executive Order tion which could preclude its declas- 12356, the directives of the Information sification. In particular, the classifica- Security Oversight Office, these gen- tion status of foreign government in- eral guidelines, and specific agency formation which concerns or derives systematic review guidelines that have from intelligence activities (including been issued in consultation with the special activities), intelligence sources Archivist of the United States and the or methods shall not be affected by any ISOO Director. unofficial publication of identical or (d) Foreign government information related information. The final declas- falling within any of the categories sification determination shall be made

503

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00513 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2002.6 32 CFR Ch. XX (7–1–05 Edition)

by the agency or agencies having de- (1) Any present, past or prospective classification authority over it. undercover personnel, installation, unit, or clandestine human agent, of § 2002.6 Categories requiring item-by- the United States or a foreign govern- item review. ment; Foreign government information (2) Any present, past or prospective falling into the following categories re- method, procedure, mode, technique or quire item-by-item review for declas- requirement used or being developed by sification by agencies having declas- the United States or by foreign govern- sification authority over it. ments, individually or in combination (a) Information exempted from de- to produce, acquire, transmit, analyze, classification under any joint arrange- correlate, assess, evaluate or process ment evidenced by an exchange of let- intelligence or counterintelligence, or ters, memorandum of understanding, to support an intelligence or counter- or other written record, with the for- intelligence source, operation, or activ- eign government or international orga- ity; nization of governments, or element(s) (3) The present, past or proposed ex- thereof, that furnished the informa- istence of any joint United States and tion. Questions concerning the exist- foreign government intelligence, coun- ence or applicability of such arrange- terintelligence, or covert action activ- ments shall be referred to the agency ity or facility, or the nature thereof. or agencies having declassification au- (For guidance on protecting United thority over the records under review. States foreign intelligence liaison rela- (b) Information related to the safe- tionships, see Director of Central Intel- guarding of nuclear materials or facili- ligence Directive ‘‘Security Classifica- ties, foreign and domestic, including tion Guidance and Foreign Security but not necessarily limited to Services,’’ effective January 18, 1982.) vulnerabilities and vulnerability as- (f) Information that could result in sessments of nuclear facilities and Spe- or lead to actions which would place an cial Nuclear Material. individual in jeopardy attributable to (c) Nuclear arms control information disclosure of the information, includ- (see also paragraph (k) of this section). ing but not limited to: (1) Information identifying any indi- (d) Information regarding foreign nu- vidual or organization as a confidential clear programs (other than ‘‘Restricted source of intelligence or counterintel- Data’’ and ‘‘Formerly Restricted ligence. Data’’), such as: (2) Information revealing the identity (1) Nuclear weapons testing. of an intelligence or covert action (2) Nuclear weapons storage and agent or agents. stockpile. (3) Information identifying any indi- (3) Nuclear weapons effects, hardness, vidual or organization used to develop and vulnerability. or support intelligence, counterintel- (4) Nuclear weapons safety. ligence, or covert action agents, (5) Cooperation in nuclear programs sources or activities. including, but not limited to, peaceful (g) Information about foreign indi- and military applications of nuclear viduals, organizations or events which energy. if disclosed, could be expected to: (6) Exploration, production and im- (1) Adversely affect a foreign coun- port of uranium and thorium from for- try’s or international organization’s eign countries. present or future relations with the (e) Information concerning intel- United States. ligence activities (including special ac- (2) Adversely affect present or future tivities) or intelligence or counter- confidential exchanges beween the intelligence sources or methods includ- United States and any foreign governing but not limited to intelligence, ment or international organization of counterintelligence and covert action governments. programs, plans, policies, operations, (h) Information related to plans or assessments; or which would reveal (whether executed or not, whether pre- or identify: sented in whole or in part), programs,

504

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00514 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2002.6

operations, negotiations, and assess- (p) Information which could ad- ments shared by one or several foreign versely affect the current or future governments with the United States, usefullness of military defense policies, including but not limited to those in- programs, weapons systems, oper- volving the territory, political regime ations, or plans. or government of another country, and (q) Information concerning research, which if disclosed could be expected to development, testing and evaluation of adversely affect the conduct of U.S. chemical and biological weapons and foreign policy or the conduct of an- defense systems; specific identification other country’s foreign policy with re- of chemical and biological agents and spect to a third country or countries. munitions; and chemical and biological This item would include contigency warfare plans. plans, plans for covert political, mili- (r) Technical information concerning tary or paramilitary activities or oper- weapons systems and military equip- ations by a foreign government acting ment that reveals the capabilities, lim- alone or jointly with the United States itations, or vulnerabilities of such sys- Government, and positions or actions tems, or equipment that could be ex- taken by a foreign government alone or ploited to destroy, counter, render inef- jointly with the United States con- fective or neutralize such weapons or cerning border disputes or other terri- equipment. torial issues. (s) Cryptologic information, includ- (i) Information concerning arrange- ing cryptologic sources and methods, ments with respect to foreign basing of currently in use. This includes infor- cryptologic operations and/or foreign mation concerning or revealing the policy considerations relating thereto. processes, techniques, operations, and (j) Scientific information such as scope of signals intelligence com- that concerning space, energy, clima- prising communications intelligence, tology, communications, maritime, un- electronics intelligence, and telemetry dersea, and polar projects, the disclo- intelligence, the crytosecurity and sure of which could be expected to ad- emission security components of com- versely affect current and/or future ex- munications security, and the commu- changes of such information between nications portion of cover and decep- the United States and any foreign gov- tion plans. ernments or international organiza- (t) Information concerning electronic tions of governments. warfare (electronic warfare support (k) Information on foreign policy as- measures, electronic counter-counter- pects of nuclear matters, the disclosure measures) or related activities, includ- of which could be expected to adversely ing but not necessarily limited to: affect cooperation between one or more (1) Nomenclature, functions, tech- foreign governments and the United nical characteristics or descriptions of States Government. communications and electronic equip- (l) Information concerning physical ment, its employment/development, security arrangements, plans or equip- and its association with weapoins sys- ment for safeguarding United States tems or military operations. Government embassies, missions or fa- (2) The processes, techniques, oper- cilities abroad, the disclosure of which ations or scope of activities involved in could reasonably be expected to in- the acquisition, analysis and evalua- crease the vulnerability of such facili- tion of such information, and the de- ties to penetration, attack, take-over, gree of success achieved by the above and the like. processes, techniques, operations or ac- (m) Nuclear propulsion information. tivities. (n) Information concerning the estab- (u) Present, past or proposed protec- lishment, operation, and support of nu- tive intelligence information relating clear detection systems. to the sources, plans, techniques, (o) Information concerning or reveal- equipment and methods used in caring military or paramilitary escape, rying out assigned duties of protecting evasion, cover or deception plans, pro- United States Government officials or cedures, and techniques, whether exe- other protectees abroad and foreign of- cuted or not. ficials while in the United States or

505

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00515 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2002.7 32 CFR Ch. XX (7–1–05 Edition)

United States possessions. This in- agency message traffic originated by cludes information concerning the White House or Executive Office of the identification of witnesses, informants President staff members but sent and persons suspected of being dan- through agency communication net- gerous to persons under protection. works. (v) Information on deposits of foreign official institutions in United States § 2002.7 Referral and decision. banks and on foreign official institu- (a) When the identity of the agencies tions’ holdings, purchases and sales of having declassification authority over long-term marketable securities in the foreign government information is not United States. (w) Information concerning economic apparent to the agency holding the in- and policy studies and sensitive assess- formation, or when reviewing officials ments or analyses of economic condi- do not possess the requisite expertise, tions, policies or activities of foreign the information shall be referred for countries or international organiza- review and a declassification deter- tions of governments received through mination as follows: the Multilateral Development Banks (1) Categories 2002.6 (b) through (d), and Funds or through the International Department of Energy or Nuclear Reg- Monetary Fund (IMF) and the Organi- ulatory Commission (as appropriate). zation for Economic Cooperation and (2) Categories 2002.6 (e) and (f), Cen- Development (OECD). tral Intelligence Agency. (x) Information described in para- (3) Categories 2002.6 (g) through (l), graphs (a) through (w) contained in Department of State. correspondence, transcripts, memo- (4) Categories 2002.6 (m) through (t), randa of conversation, or minutes of Department of Defense. meetings between the President of the (5) Categories 2002.6 (u) and (w), De- United States or the Vice President of partment of the Treasury. the United States and foreign government officials. (6) Categories 2002.6 (x) through (bb), (y) Information described in National Security Council. paragrpahs (a) through (w) contained (b) Referrals to agencies shall include in documents originated by or sent to copies of the documents containing the the Assistant to the President for Na- foreign government information. Agen- tional Security Affairs, his Deputy, cies shall review the referred docu- members of the National Security ments and promptly notify the Archi- Council staff, or any other person on vist of the United States of the declas- the White House or the Executive Of- sification determination. Forwarded fice of the President staffs performing copies of the documents shall be national security functions. marked to reflect any downgrading or (z) Federal agency originated docu- declassification action and shall be re- ments bearing Presidential, National turned to the National Archives. Security Council, or White House or Executive Office of the President § 2002.8 Downgrading. staffs’ comments relating to categories Foreign government information of information described in paragraphs classified ‘‘Top Secret’’ may be down- (a) through (w). (aa) Information as described in para- graded to ‘‘Secret’’ after 30 years un- graphs (a) through (w) contained in less the agency with declassification correspondence to or from the Presi- authority over it determines on its dent or the Vice President, including own, or after consultation, as appro- background briefing memoranda and priate, with the foreign government or talking points for meetings between international organization of govern- the President or the Vice President and ments which furnished the informa- foreign government officials, and dis- tion, that it requires continued protec- cussions of the timing and purposes of tion at the ‘‘Top Secret’’ level. such meetings. (bb) Information as described in paragraphs (a) through (w) contained in

506

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00516 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2003.20

PART 2003—NATIONAL SECURITY ized access to national security infor- INFORMATION—STANDARD FORMS mation. [48 FR 40849, Sept. 9, 1983] Subpart A—General Provisions § 2003.3 Waivers. Sec. 2003.1 Purpose. Except as specifically provided, waiv- 2003.2 Scope. ers from the mandatory use of the 2003.3 Waivers. standard forms prescribed in subpart B 2003.4 Availability. may be granted only by the Director of ISOO. Subpart B—Prescribed Forms [52 FR 10190, Mar. 30, 1987] 2003.20 Classified Information Nondisclosure Agreement: SF 312; Classified Informa- § 2003.4 Availability. tion Nondisclosure Agreement: SF 189; Classified Information Nondisclosure Agencies may obtain copies of the Agreement (Industrial/Commercial/Non- standard forms prescribed in subpart B Government): SF 189–A. by ordering through FEDSTRIP/ 2003.21 Security Container Information: SF MILSTRIP or from the General Serv- 700. ices Administration (GSA) Customer 2003.22 Activity Security Checklist: SF 701. 2003.23 Security Container Check Sheet: SF Supply Centers (CSCs). The national 702. stock number of each form is cited 2003.24 TOP SECRET Cover Sheet: SF 703. with its description in subpart B. 2003.25 SECRET Cover Sheet: SF 704. [50 FR 51826, Dec. 19, 1985] 2003.26 CONFIDENTIAL Cover Sheet: SF 705. 2003.27 TOP SECRET Label SF 706. Subpart B—Prescribed Forms 2003.28 SECRET Label SF 707. 2003.29 CONFIDENTIAL Label SF 708. § 2003.20 Classified Information Non- 2003.30 CLASSIFIED Label SF 709. disclosure Agreement: SF 312; Clas- 2003.31 UNCLASSIFIED Label SF 710. sified Information Nondisclosure 2003.32 DATA DESCRIPTOR Label SF 711. Agreement: SF 189; Classified Infor- AUTHORITY: Sec. 5.2(b)(7) of E.O. 12356. mation Nondisclosure Agreement (Industrial/Commercial/Non-Gov- ernment): SF 189–A. Subpart A—General Provisions (a) SF 312, SF 189, and SF 189–A are § 2003.1 Purpose. nondisclosure agreements between the United States and an individual. The The purpose of the standard forms prior execution of at least one of these prescribed in subpart B is to promote agreements, as appropriate, by an indi- the implementation of the govern- vidual is necessary before the United ment-wide information security pro- States Government may grant that in- gram. Standard forms are prescribed dividual access to classified informa- when their use will enhance the protection. From the effective date of this tion of national security information rule, September 29, 1988, the SF 312 and/or will reduce the costs associated shall be used in lieu of both the SF 189 with its protection. and the SF 189–A for this purpose. In [48 FR 40849, Sept. 9, 1983] any instance in which the language in the SF 312 differs from the language in § 2003.2 Scope. either the SF 189 or SF 189–A, agency The use of the standard forms pre- heads shall interpret and enforce the scribed in subpart B is mandatory for SF 189 or SF 189–A in a manner that is all departments, and independent agen- fully consistent with the interpreta- cies or offices of the executive branch tion and enforcement of the SF 312. that create and/or handle national se- (b) All employees of executive branch curity information. As appropriate, departments, and independent agencies these departments, and independent or offices, who have not previously agencies or offices may mandate the signed the SF 189, must sign the SF 312 use of these forms by their contractors, before being granted access to classi- licensees or grantees who are author- fied information. An employee who has

507

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00517 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2003.20 32 CFR Ch. XX (7–1–05 Edition)

previously signed the SF 189 is per- of another United States agency, pro- mitted, at his or her own choosing, to vided that an authorized United States substitute a signed SF 312 for the SF Government official or, for non-Gov- 189. In these instances, agencies shall ernment employees only, a designated take all reasonable steps to dispose of agent of the United States subse- the superseded nondisclosure agree- quently accepts by signature the SF ment or to indicate on it that it has 312 on behalf of the United States. been superseded. (g) The provisions of the SF 312, the (c) All Government contractor, li- SF 189, and the SF 189–A do not super- censee, and grantee employees, or sede the provisions of section 2302, title other non-Government personnel re- 5, United States Code, which pertain to quiring access to classified information the protected disclosure of information in the performance of their duties, who by Government employees, or any have not previously signed either the other laws of the United States. SF 189 or the SF 189–A, must sign the (h)(1) Modification of the SF 189. The SF 312 before being granted access to second sentence of paragraph 1 of every classified information. An employee executed copy of the SF 189 is clarified who has previously signed either the to read: SF 189 or the SF 189–A is permitted, at As used in this Agreement, classified infor- his or her own choosing, to substitute a mation is marked or unmarked classified in- signed SF 312 for either the SF 189 or formation, including oral communications, the SF 189–A. In these instances, agen- that is classified under the standards of Ex- cies, with the cooperation of the perti- ecutive Order 12356, or under any other Exec- nent contractor, licensee or grantee, utive order or statute that prohibits the un- shall take all reasonable steps to dis- authorized disclosure of information in the interest of national security; and unclassi- pose of the superseded nondisclosure fied information that meets the standards agreement or to indicate on it that it for classification and is in the process of a has been superseded. classification determination as provided in (d) Agencies may require other per- sections 1.1(c) and 1.2(e) of Executive Order sons, who are not included under para- 12356, or under any other Executive order or graphs (b) or (c) of this section, and statute that requires protection for such in- who have not previously signed either formation in the interest of national secu- the SF 189 or the SF 189–A, to execute rity. SF 312 before receiving access to classi- (2) Scope of ‘‘classified information’’. fied information. A person in such cir- As used in the SF 312, the SF 189, and cumstances who has previously signed the SF 189–A, ‘‘classified information’’ either the SF 189 or the SF 189–A is is marked or unmarked classified infor- permitted, at his or her own choosing, mation, including oral communica- to substitute a signed SF 312 for either tions; and unclassified information the SF 189 or the SF 189–A. In these in- that meets the standards for classifica- stances, agencies shall take all reason- tion and is in the process of a classi- able steps to dispose of the superseded fication determination, as provided in nondisclosure agreement or to indicate sections 1.1(c) and 1.2(e) of Executive on it that it has been superseded. Order 12356 or any other statute or Ex- (e) The use of the ‘‘Security Debrief- ecutive order that requires interim ing Acknowledgement’’ portion of the protection for certain information SF 312 is optional at the discretion of while a classification determination is the implementing agency. pending. ‘‘Classified information’’ does (f) An authorized representative of a not include unclassified information contractor, licensee, grantee, or other that may be subject to possible classi- non-Government organization, acting fication at some future date, but is not as a designated agent of the United currently in the process of a classifica- States, may witness the execution of tion determination. the SF 312 by another non-Government (3) Basis for liability. A party to the employee, and may accept it on behalf SF 312, SF 189 or SF 189–A may be lia- of the United States. Also, an employee ble for disclosing ‘‘classified informa- of a United States agency may witness tion’’ only if he or she knows or rea- the execution of the SF 312 by an em- sonably should know that: (i) The ployee, contractor, licensee or grantee marked or unmarked information is

508

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00518 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2003.20

classified, or meets the standards for I understand that all classified information classification and is in the process of a to which I have access or may obtain access classification determination; and (ii) by signing this Agreement is now and will his or her action will result, or reason- remain the property of, or under the control ably could result in the unauthorized of the United States Government unless and until otherwise determined by an authorized disclosure of that information. official or final ruling of a court of law. In no instance may a party to the SF 312, SF 189 or SF 189–A be liable for vio- The second sentence of paragraph 7 of lating its nondisclosure provisions by each executed copy of the SF 312 (Sep- disclosing information when, at the tember 1988 version), SF 189 and SF time of the disclosure, there is no basis 189–A, which reads, ‘‘I do not now, nor to suggest, other than pure specula- will I ever, possess any right, interest, tion, that the information is classified title or claim whatsoever to such infor- or in the process of a classification de- mation,’’ and whether executed prior termination. to or after the publication of this rule, (4) Modification of the SF 312, SF 189 is deleted. and SF 189–A. (i) Points of clarification. (1) As used in (i) Each executed copy of the SF 312, paragraph 3 of SF 189 and SF–189–A, the SF 189 and SF 189–A, whether executed word ‘‘indirect’’ refers to any situation prior to or after the publication of this in which the knowing, willful or neg- rule, is amended to include the fol- ligent action of a party to the agree- lowing paragraphs 10 and 11. ment results in the unauthorized dis- 10. These restrictions are consistent with closure of classified information even and do not supersede, conflict with or other- though the party to the agreement wise alter the employee obligations, rights does not directly communicate, deliver or liabilities created by Executive Order or transmit classified information to a 12356; section 7211 of title 5 U.S.C. (governing disclosures to Congress); section 1034 of title person who is not authorized to receive 10 U.S.C., as amended by the Military Whis- it. tleblower Protection Act (governing disclo- (2) As used in paragraph 7 of SF 189, sure to Congress by members of the mili- ‘‘information’’ refers to ‘‘classified in- tary); section 2302(b)(8) of title 5 U.S.C., as formation,’’ exclusively. amended by the Whistleblower Protection (3) As used in the third sentence of Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety paragraph 7 of SF 189 and SF 189–A, the threats); the Intelligence Identities Protec- words ‘‘all materials which have, or tion Act of 1982 (50 U.S.C. 421 et seq.) (gov- may have, come into my possession,’’ erning disclosures that could expose con- refer to ‘‘all classified materials which fidential Government agents), and the stat- have or may come into my possession,’’ utes which protect against disclosure that exclusively. may compromise the national security, in- (j) Each agency must retain its exe- cluding sections 641, 793, 794, 798, and 952 of title 18 U.S.C., and section 4(b) of the Sub- cuted copies of the SF 312, SF 189, and versive Activities Act of 1950 (50 U.S.C. sec- SF 189–A in file systems from which an tion 783(b)). The definitions, requirements, agreement can be expeditiously re- obligations, rights, sanctions and liabilities trieved in the event that the United created by said Executive Order and listed States must seek its enforcement or a statutes are incorporated into this Agree- subsequent employer must confirm its ment and are controlling. prior execution. The original, or a le- 11. I have read this Agreement carefully and my questions, if any, have been an- gally enforceable facsimile that is re- swered. I acknowledge that the briefing offi- tained in lieu of the original, such as cer has made available to me the Executive microfiche, microfilm, computer disk, Order and statutes referenced in this Agree- or electronic storage medium, must be ment and its implementing regulation (32 retained for 50 years following its date CFR 2003.20) so that I may read them at this of execution. For agreements executed time, if I so choose. by civilian employees of the United (ii) The first sentence of paragraph 7 States Government, an agency may of each executed copy of the SF 312, SF store the executed copy of the SF 312 189 and SF 189–A, whether executed and SF 189 in the United States Office prior to or after the publication of this of Personnel Management’s Official rule, is amended to read: Personnel Folder (OPF) as a long-term

509

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00519 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2003.21 32 CFR Ch. XX (7–1–05 Edition)

(right side) document for that em- ward this information to the appro- ployee. An agency may permit its con- priate agency activity or official. tractors, licensees and grantees to re- (b) SF 700 shall be used in all situa- tain the executed agreements of their tions that call for the use of a security employees during the time of employ- container information form. Agency- ment. Upon the termination of employ- wide use of SF 700 shall begin when ment, the contractors, licensee or supplies of existing forms are ex- grantee shall deliver the original or le- hausted or September 30, 1986, which- gally enforceable facsimile of the exe- ever occurs earlier. cuted SF 312, SF 189 or SF 189–A of that (c) Parts 2 and 2A of each completed employee to the Government agency copy of SF 700 shall be classified at the primarily responsible for his or her highest level of classification of the in- classified work. A contractor, licensee formation authorized for storage in the or grantee of an agency participating security container. A new SF 700 must in the Defense Industrial Security Pro- be completed each time the combina- gram shall deliver the copy or legally tion to the security container is enforceable facsimile of the executed changed as required by applicable exec- SF 312, SF 189 or SF 189–A of a termi- utive order(s), statute(s) or imple- nated employee to the Defense Indus- menting security regulations. trial Security Clearance Office. Each (d) Only the Director of the Informa- agency shall inform ISOO of the file tion Security Oversight Office (ISOO) systems that it uses to store these may grant an agency’s application for agreements for each category of af- a waiver from the use of SF 700. To fected individuals. apply for a waiver, an agency must (k) Only the National Security Coun- submit its proposed alternative form to cil may grant an agency’s request for a the Director of ISOO along with its jus- waiver from the use of the SF 312. To tification for use. The ISOO Director apply for a waiver, an agency must will review the request and notify the submit its proposed alternative non- agency of the decision. disclosure agreement to the Director of (e) The national stock number for the ISOO, along with a justification for its SF 700 is 7540–01–214–5372. use. The Director of ISOO will request [50 FR 51826, Dec. 19, 1985] a determination about the alternative agreement’s enforceability from the § 2003.22 Activity Security Checklist: Department of Justice prior to making SF 701. a recommendation to the National Se- (a) SF 701 provides a systematic curity Council. An agency that has pre- means to make a thorough end-of-day viously received a waiver from the use security inspection for a particular of the SF 189 or the SF 189–A need not work area and to allow for employee seek a waiver from the use of the SF accountability in the event that irreg- 312. ularities are discovered. (l) The national stock number for the (b) SF 701 shall be used in all situa- SF 312 is 7540–01–280–5499. tions that call for the use of an activ- [53 FR 38279, Sept. 29, 1988, as amended at 56 ity security checklist. Agency-wide use FR 2645, Jan. 23, 1991; 56 FR 27559, June 14, of SF 701 shall begin when supplies of 1991] existing forms are exhausted or Sep- tember 30, 1986, whichever occurs ear- § 2003.21 Security Container Informa- lier. tion: SF 700. (c) Completion, storage and disposi- (a) SF 700 provides the names, ad- tion of SF 701 will be in accordance dresses and telephone numbers of em- with each agency’s security regula- ployees who are to be contacted if the tions. security container to which the form (d) Only the Director of the Informa- pertains is found open and unattended. tion Security Oversight Office (ISOO) The form also includes the means to may grant an agency’s application for maintain a current record of the secu- a waiver from the use of SF 701. To rity container’s combination and pro- apply for a waiver, an agency must vides the envelope to be used to for- submit its proposed alternative form to

510

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00520 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2003.26

the Director of ISOO along with its jus- 703 is removed and, depending upon its tification for use. The ISOO Director condition, reused. will review the request and notify the (d) Only the Director of the Informa- agency of the decision. tion Security Oversight Office (ISOO) (e) The national stock number for the may grant any agency’s application for SF 701 is 7540–01–213–7899. a waiver from the use of SF 703. To apply for a waiver, an agency must [50 FR 51826, Dec. 19, 1985] submit its proposed alternative form to the Director of ISOO along with its jus- § 2003.23 Security Container Check Sheet: SF 702. tification for use. The ISOO Director will review the request and notify the (a) SF 702 provides a record of the agency of the decision. names and times that persons have (e) The national stock number of the opened, closed or checked a particular SF 703 is 7540–01–213–7901. container that holds classified information. [50 FR 51826, Dec. 19, 1985] (b) SF 702 shall be used in all situa- § 2003.25 SECRET Cover Sheet: SF 704. tions that call for the use of a security container check sheet. Agency-wide (a) SF 704 serves as a shield to pro- use of SF 702 shall begin when supplies tect SECRET classified information of existing forms are exhausted or Sep- from inadvertent disclosure and to tember 30, 1986, whichever occurs ear- alert observers that SECRET informa- lier. tion is attached to it. (c) Completion, storage and disposal (b) SF 704 shall be use in all situa- of SF 702 will be in accordance with tions that call for the use of a SECRET each agency’s security regulations. cover sheet. Agency-wide use of SF 704 shall begin when supplies of existing (d) Only the Director of the Informa- forms are exhausted or September 30, tion Security Oversight Office (ISOO) 1986, whichever occurs earlier. may grant an agency’s application for (c) SF 704 is affixed to the top of the a waiver from the use of SF 702. To SECRET document and remains at- apply for a waiver, an agency must tached until the document is de- submit its proposed alternative form to stroyed. At the time of destruction, SF the Director of ISOO along with its jus- 704 is removed and, depending upon its tification for use. The ISOO Director condition, reused. will review the request and notify the (d) Only the Director of the Informa- agency of the decision. tion Security Oversight Office (ISOO) (e) The national stock number of the may grant any agency’s application for SF 702 is 7540–01–213–7900. a waiver from the use of SF 704. To [50 FR 51826, Dec. 19, 1985] apply for a waiver, an agency must submit its proposed alternative form to § 2003.24 TOP SECRET Cover Sheet: the Director of ISOO along with its jus- SF 703. tification for use. The ISOO Director (a) SF 703 serves as a shield to pro- will review the request and notify the tect TOP SECRET classified informa- agency of the decision. tion from inadvertent disclosure and to (e) The national stock number of the alert observers that TOP SECRET in- SF 704 is 7540–01–213–7902. formation is attached to it. [50 FR 51827, Dec. 19, 1985] (b) SF 703 shall be use in all situations that call for the use of a TOP SE- § 2003.26 CONFIDENTIAL Cover CRET cover sheet. Agency-wide use of Sheet: SF 705. SF 703 shall begin when supplies of ex- (a) SF 705 serves as a shield to pro- isting forms are exhausted or Sep- tect CONFIDENTIAL classified infor- tember 30, 1986, whichever occurs ear- mation from inadvertent disclosure lier. and to alert observers that CONFIDEN- (c) SF 703 is affixed to the top of the TIAL information is attached to it. TOP SECRET document and remains (b) SF 705 shall be use in all situa- attached until the document is de- tions that call for the use of a CON- stroyed. At the time of destruction, SF FIDENTIAL cover sheet. Agency-wide

511

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00521 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2003.27 32 CFR Ch. XX (7–1–05 Edition)

use of SF 705 shall begin when supplies media and other media that contain of existing forms are exhausted or Sep- SECRET information. SF 707 is used tember 30, 1986, whichever occurs ear- instead of the SF 704 for media other lier. than documents. (c) SF 705 is affixed to the top of the (b) SF 707 shall be used in all situa- CONFIDENTIAL document and re- tions that call for the use of a SECRET mains attached until the document is Label. Agency-wide use of SF 707 shall destroyed. At the time of destruction, begin when supplies of existing forms SF 705 is removed and, depending upon are exhausted or January 31, 1988, its condition, reused. whichever occurs earlier. (d) Only the Director of the Informa- (c) SF 707 is affixed to the medium tion Security Oversight Office (ISOO) containing SECRET information in a may grant any agency’s application for manner that would not adversely affect a waiver from the use of SF 705. To operation of equipment in which the apply for a waiver, an agency must medium is used. Once the Label has submit its proposed alternative form to been applied, it cannot be removed. the Director of ISOO along with its justification for use. The ISOO Director (d) Only the Director of ISOO may will review the request and notify the grant a waiver from the use of SF 707. agency of the decision. To apply for a waiver, an agency must (e) The national stock number for the submit its proposed alternative form to SF 705 is 7540–01–213–7903. the Director of ISOO along with its justification for use. The Director of ISOO [50 FR 51827, Dec. 19, 1985] will review the request and notify the agency of the decision. § 2003.27 TOP SECRET Label SF 706. (e) The national stock number of the (a) SF 706 is used to identify and pro- SF 707 is 7540–01–207–5537. tect automatic data processing (ADP) media and other media that contain [52 FR 10190, Mar. 30, 1987] TOP SECRET information. SF 706 is used instead of the SF 703 for media § 2003.29 CONFIDENTIAL Label SF other than documents. 708. (b) SF 706 shall be used in all situa- (a) SF 708 is used to identify and pro- tions that call for the use of a TOP SE- tect automatic data processing (ADP) CRET Label. Agency-wide use of SF 706 media and other media that contain shall begin when supplies of existing CONFIDENTIAL information. SF 708 is forms are exhausted or January 31, used instead of the SF 705 for media 1988, whichever occurs earlier. other than documents. (c) SF 706 is affixed to the medium (b) SF 708 shall be used in all situa- containing TOP SECRET information tions that call for the use of a CON- in a manner that would not adversely FIDENTIAL Label. Agency-wide use of affect operation of equipment in which SF 708 shall begin when supplies of ex- the medium is used. Once the Label has isting forms are exhausted or January been applied, it cannot be removed. 31, 1988, whichever occurs earlier. (d) Only the Director of ISOO may (c) SF 708 is affixed to the medium grant a waiver from the use of SF 706. containing CONFIDENTIAL informa- To apply for a waiver, an agency must tion in a manner that would not ad- submit its proposed alternative form to versely affect operation of equipment the Director of ISOO along with its jus- in which the medium is used. Once the tification for use. The Director of ISOO Label has been applied, it cannot be re- will review the request and notify the moved. agency of the decision. (d) Only the Director of ISOO may (e) The national stock number of the grant a waiver from the use of SF 708. SF 706 is 7540–01–207–5536. To apply for a waiver, an agency must [52 FR 10190, Mar. 30, 1987] submit its proposed alternative form to the Director of ISOO along with its jus- § 2003.28 SECRET Label SF 707. tification for use. The Director of ISOO (a) SF 707 is used to identify and pro- will review the request and notify the tect automatic data processing (ADP) agency of the decision.

512

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00522 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Information Security Oversight Office, NARA § 2003.32

(e) The national stock number of the of SF 710 shall begin when supplies of SF 708 is 7540–01–207–5538. existing forms are exhausted or Janu- ary 31, 1988, whichever occurs earlier. [52 FR 10190, Mar. 30, 1987] (c) SF 710 is affixed to the medium § 2003.30 CLASSIFIED Label SF 709. containing unclassified information in a manner that would not adversely af- (a) SF 709 is used to identify and pro- fect operation of equipment in which tect automatic data processing (ADP) the medium is used. Once the Label has media and other media that contain been applied, it cannot be removed. classified information pending a deter- However, the label is small enough so mination by the classifier of the spe- that it can be wholly covered by a SF cific classification level of the informa- 706, SF 707, SF 708 or SF 709 if the me- tion. dium subsequently contains classified (b) SF 709 shall be used in all situa- information. tions that require the use of a CLASSI- FIED Label. Agency-wide use of SF 709 (d) Only the Director of ISOO may shall begin when supplies of existing grant a waiver from the use of SF 710. forms are exhausted or January 31, To apply for a waiver, an agency must 1988, whichever occurs earlier. submit its proposed alternative form to (c) SF 709 is affixed to the medium the Director of ISOO along with its jus- containing classified information in a tification for use. The Director of ISOO manner that would not adversely affect will review the request and notify the operation of equipment in which the agency of the decision. medium is used. Once the Label has (e) The national stock number of the been applied, it cannot be removed. SF 710 is 7540–01–207–5539. When a classifier has made a deter- [52 FR 10191, Mar. 30, 1987] mination of the spedific level of classification of the information contained § 2003.32 DATA DESCRIPTOR Label on the medium, either SF 706, SF 707, SF 711. or SF 708 shall be affixed on top of SF (a) SF 711 is used to identify addi- 709 so that only the SF 706, SF 707, or tional safeguarding controls that per- SF 708 is visible. tain to classified information that is (d) Only the Director of ISOO may stored or contained on automatic data grant a waiver from the use of SF 709. processing (ADP) or other media. To apply for a waiver, an agency must (b) SF 711 shall be used in all situa- submit its proposed alternative form to tions that require the use of a DATA the Director of ISOO along with its jus- DESCRIPTOR Label. Agency-wide use tification for use. The Director of ISOO of SF 711 shall begin when supplies of will review the request and notify the existing forms are exhausted or Janu- agency of the decision. ary 31, 1988, whichever occurs earlier. (e) The national stock number of the (c) SF 711 is affixed to the ADP me- SF 709 is 7540–01–207–5540. dium containing classified information [52 FR 10190, Mar. 30, 1987] in a manner that would not adversely affect operation of equipment in which § 2003.31 UNCLASSIFIED Label SF the medium is used. SF 711 is ordi- 710. narily used in conjunction with the SF (a) In a mixed environment in which 706, SF 707, SF 708 or SF 709, as appro- classified and unclassified information priate. Once the Label has been ap- are being processed or stored, SF 710 is plied, it cannot be removed. The SF 711 used to identify automatic data proc- provides spaces for information that essing (ADP) media and other media should be completed as required. that contain unclassified information. (d) Only the Director of ISOO may Its function is to aid in distinguishing grant a waiver from the use of SF 711. among those media that contain either To apply for a waiver, an agency must classified or unclassified information submit its proposed alternative form to in a mixed environment. the Director of ISOO along with its jus- (b) SF 710 shall be used in all situa- tification for use. The Director of ISOO tions that require the use of an UN- will review the request and notify the CLASSIFIED Label. Agency-wide use agency of the decision.

513

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00523 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2003.32 32 CFR Ch. XX (7–1–05 Edition)

(e) The national stock number of the PART 2004 [RESERVED] SF 711 is 7540–01–207–5541. [52 FR 10191, Mar. 30, 1987]

514

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00524 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 CHAPTER XXI—NATIONAL SECURITY COUNCIL

Part Page 2102 Rules and regulations to implement the Privacy Act of 1974 ...... 517 2103 Regulations to implement E.O. 12065—including procedures for public access to documents that may be declassified ...... 520

515

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00525 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00526 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PART 2102—RULES AND REGULA- (c) In general, Records in NSC files TIONS TO IMPLEMENT THE PRI- pertain to individual members of the VACY ACT OF 1974 public only if these individuals have been (1) employed by the NSC, (2) have corresponded on a foreign policy mat- Sec. ter with a member of the NSC or its 2102.1 Introduction. 2102.2 Purpose and scope. staff, or (3) have, as a U.S. Government 2102.3 Definitions. official, participated in an NSC meet- 2102.4 Procedures for determining if an indi- ing or in the preparation of foreign pol- vidual is the subject of a record. icy-related documents for the NSC. 2102.13 Requirements for access to a record. 2102.15 Requirements for requests to amend § 2102.2 Purpose and scope. records. (a) The following regulations set 2102.21 Procedures for appeal of determina- forth procedures whereby individuals tion to deny access to or amendment of may seek and gain access to records requested records. concerning themselves and will guide 2102.31 Disclosure of a record to persons other than the individual to whom it per- the NSC Staff response to requests tains. under the Privacy Act. In addition, 2102.41 Fees. they outline the requirements applica- 2102.51 Penalties. ble to the personnel maintaining NSC 2102.61 Exemptions. systems of records. (b) These regulations, published pur- AUTHORITY: 5 U.S.C. 552a (f) and (k). suant to the Privacy Act of 1974, Pub. SOURCE: 40 FR 47746, Oct. 9, 1975, unless L. 93–579, Section 552a (f) and (k), 5 otherwise noted. U.S.C. (hereinafter the Act), advise of procedures whereby an individual can: § 2102.1 Introduction. (1) Request notification of whether (a) Insofar as the Privacy Act of 1974 the NSC Staff maintains or has dis- (5 U.S.C. 552a) applies to the National closed a record pertaining to him or Security Council (hereafter NSC), it her in any non-exempt system of provides the American public with ex- records; panded opportunities to gain access to (2) Request a copy of such record or records maintained by the NSC Staff an accounting of that disclosure; which may pertain to them as individ- (3) Request an amendment to a uals. These regulations are the exclu- record; and, sive means by which individuals may (4) Appeal any initial adverse deter- request personally identifiable records mination of any request under the Act. and information from the National Se- (c) These regulations also specify curity Council. those systems of records which the (b) The NSC Staff, in addition to per- NSC has determined to be exempt from forming the functions prescribed in the certain provisions of the Act and thus National Security Act of 1947, as not subject to procedures established amended (50 U.S.C. 401), also serves as by this regulation. the supporting staff to the President in the conduct of foreign affairs. In doing § 2102.3 Definitions. so the NSC Staff is acting not as an As used in these regulations: agency but as an extension of the (a) Individual. A citizen of the United White House Office. In that the White States or an alien lawfully admitted House Office is not considered an agen- for permanent residence. cy for the purposes of this Act, the ma- (b) Maintain. Includes maintain, col- terials which are used by NSC Staff lect, use or disseminate. Under the Act personnel in their role as supporting it is also used to connote control over, staff to the President are not subject and, therefore, responsibility for, sys- to the provisions of the Privacy Act of tems of records in support of the NSC 1974. A description of these White statutory function (50 U.S.C. 401, et House Office files is, nevertheless, ap- seq.). pended to the NSC notices of systems (c) Systems of Records. A grouping of of files and will be published annually any records maintained by the NSC in the FEDERAL REGISTER. from which information is retrieved by

517

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00527 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2102.4 32 CFR Ch. XXI (7–1–05 Edition)

the name of the individual or by some ber of the NSC Staff authorized to act other identifying particular assigned to in the name of the Staff Secretary in the individual. responding to a request under this Act. (d) Determination. Any decision made Every effort will be made to inform the by the NSC or designated official requestor if he or she is the subject of thereof which affects the individual’s a specific record or system of records rights, opportunities, benefits, etc. and within ten working days (excluding which is based in whole or in part on Saturdays, Sundays and legal Federal information contained in that individ- Holidays) of receipt of the request. ual’s record. Such a response will also contain the (e) Routine Use. With respect to the procedures to be followed in order to disclosure of a record, the use of such a gain access to any record which may record in a manner which is compatible exist and a copy of the most recent with the purpose for which it was col- NSC notice, as published in the FED- lected. ERAL REGISTER, on the system of (f) Disclosure. The granting of access records in which the record is con- or transfer of a record by any means. tained. (d) Whenever it is not possible to re- § 2102.4 Procedures for determining if spond in the time period specified an individual is the subject of a above, the NSC Staff Secretary or a record. designated alternate will, within ten (a) Individuals desiring to determine working days (excluding Saturdays, if they are the subject of a record or Sundays and legal Federal Holidays), system of records maintained by the inform the requestor of the reasons for NSC Staff should address their inquir- the delay (e.g., insufficient requestor ies, marking them plainly as a PRI- information, difficulties in record loca- VACY ACT REQUEST, to: tion, etc.), steps that need to be taken in order to expedite the request, and Staff Secretary, National Security Council, Room 374, Old Executive Office Building, the date by which a response is antici- Washington, DC 20506. pated. All requests must be made in writing § 2102.13 Requirements for access to a and should contain: record. (1) A specific reference to the system (a) Individuals requesting access to a of records maintained by the NSC as record or system of records in which listed in the NSC Notices of Systems there is information concerning them and Records (copies available upon re- must address a request in writing to quest); or the Staff Secretary of the NSC (see (2) A description of the record or sys- § 2102.1). Due to restricted access to tems of records in sufficient detail to NSC offices in the Old Executive Office allow the NSC to determine whether Building where the files are located, re- the record does, in fact, exist in an quests cannot be made in person. NSC system of records. (b) All written requests should con- (b) All requests must contain the tain a concise description of the printed or typewritten name of the in- records to which access is requested. In dividual to whom the record pertains, addition, the requestor should include the signature of the individual making any other information which he or she the request, and the address to which feels would assist in the timely identi- the reply should be sent. In instances fication of the record. Verification of when the identification is insufficient the requestor’s identity will be deter- to insure disclosure to the individual mined under the same procedures used to whom the information pertains in in requests for learning of the exist- view of the sensitivity of the informa- ence of a record. tion, NSC reserves the right to solicit (c) To the extent possible, any re- from the requestor additional identi- quest for access will be answered by fying information. the Staff Secretary or a designated al- (c) Responses to all requests under ternate within ten working days (ex- the Act will be made by the Staff Sec- cluding Saturdays, Sundays, and legal retary, or by another designated mem- Federal holidays) of the receipt of the

518

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00528 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Security Council § 2102.21

request. In the event that a response § 2102.21 Procedures for appeal of de- cannot be made within this time, the termination to deny access to or requestor will be notified by mail of amendment of requested records. the reasons for the delay and the date (a) Individuals wishing to appeal an upon which a reply can be expected. NSC Staff denial of a request for access (d) The NSC response will forward a or to amend a record concerning them copy of the requested materials unless must address a letter of appeal to the further identification or clarification Staff Secretary of the NSC. The letter of the request is required. In the event must be received within thirty days access is denied, the requestor shall be from the date of the Staff Secretary’s informed of the reasons therefore and notice of denial and, at a minimum, the name and address of the individual should identify the following: (1) The records involved; to whom an appeal should be directed. (2) The dates of the initial request § 2102.15 Requirements for requests to and subsequent NSC determination; amend records. and (3) A brief statement of the reasons (a) Individuals wishing to amend a supporting the request for reversal of record contained in the NSC systems of the adverse determination. records pertaining to them must sub- (b) Within thirty working days (ex- mit a request in writing to the Staff cluding Saturdays, Sundays and legal Secretary of the NSC in accordance Federal holidays) of the date of receipt with the procedures set forth herein. of the letter of appeal, the Assistant to (b) All requests for amendment or the President for National Security Af- correction of a record must state con- fairs (hereinafter the ‘‘Assistant’’), or cisely the reason for requesting the the Deputy Assistant to the President amendment. Such requests should infor National Security Affairs (herein- clude a brief statement which describes after the ‘‘Deputy Assistant’’), acting the information the requestor believes in his name, shall issue a determina- to be inaccurate, incomplete, or unnec- tion on the appeal. In the event that a essary and the amendment or correc- final determination cannot be made tion desired. within this time period, the requestor will be informed of the delay, the rea- (c) To the extent possible, every re- sons therefor and the date on which a quest for amendment of a record will final response is expected. be answered within ten working days (c) If the original request was for ac- (excluding Saturdays, Sundays, and cess and the initial determination is legal Federal holidays) of the receipt of reversed, a copy of the records sought the request. In the event that a re- will be sent to the individual. If the sponse cannot be made within this initial determination is upheld, the re- time, the requestor will be notified by questor will be so advised and informed mail of the reasons for the delay and of the right to judicial review pursuant the date upon which a reply can be ex- to 5 U.S.C. 552a(g). pected. A final response to a request (d) If the initial denial of a request to for amendment will include the NSC amend a record is reversed, the records Staff determination on whether to will be corrected and a copy of the grant or deny the request. If the re- amended record will be sent to the in- quest is denied, the response will individual. In the event the original deci- clude: sion is upheld by the Assistant to the (1) The reasons for the decision; President, the requestor will be so ad- (2) The name and address of the indi- vised and informed in writing of his or her right to seek judicial review of the vidual to whom an appeal should be di- final agency determination, pursuant rected; to section 552a(g) of title 5, U.S.C. In (3) A description of the process for re- addition, the requestor will be advised view of the appeal within the NSC; and of his right to have a concise state- (4) A description of any other proce- ment of the reasons for disagreeing dures which may be required of the in- with the final determination appended dividual in order to process the appeal. to the disputed records. This statement

519

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00529 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2102.31 32 CFR Ch. XXI (7–1–05 Edition)

should be mailed to the Staff Secretary knowingly and willfully make or cause within ten working days (excluding to be made any false or fraudulent Saturdays, Sundays, and legal Federal statements or representations in any Holidays) of the date of the requestor’s matter within the jurisdiction of any receipt of the final determination. agency of the United States. Section (i)(3) of the Privacy Act (5 U.S.C. 552a) § 2102.31 Disclosure of a record to per- makes it a misdemeanor, subject to a sons other than the individual to whom it pertains. maximum fine of $5,000, to knowingly and willfully request or obtain any (a) Except as provided by the Privacy record concerning an individual under Act, 5 U.S.C. 552a(b), the NSC will not false pretenses. Sections (i)(1) and (2) of disclose a record concerning an indi- 5 U.S.C. 552a provide penalties for vio- vidual to another person or agency lations by agency employees, of the without the prior written consent of the individual to whom the record per- Privacy Act or regulations established tains. thereunder.

§ 2102.41 Fees. § 2102.61 Exemptions. (a) Individuals will not be charged Pursuant to subsection (k) of the Pri- for: vacy Act (5 U.S.C. 552a), the Staff Sec- (1) The first copy of any record pro- retary has determined that certain vided in response to a request for ac- NSC systems of records may be exempt cess or amendment; in part from sections 553(c)(3), (d), (2) The search for, or review of, (e)(1), (e)(4), (G), (H), (I), and (f) of title records in NSC files; 5, and from the provisions of these reg- (3) Any copies reproduced as a nec- ulations. These systems of records may essary part of making a record or por- contain information which is classified tion thereof available to the indi- pursuant to Executive Order 11652. To vidual. the extent that this occurs, records in (b) After the first copy has been pro- the following systems would be exempt vided, records will be reproduced at the under the provision of 5 U.S.C. rate of twenty-five cents per page for 552a(k)(1): all copying of four pages or more. (c) The Staff Secretary may provide NSC 1.1—Central Research Index, copies of a record at no charge if it is NSC 1.2—NSC Correspondence Files, and determined to be in the interest of the NSC 1.3—NSC Meetings Registry. Government. (d) The Staff Secretary may require PART 2103—REGULATIONS TO IM- that all fees be paid in full prior to the PLEMENT E.O. 12065—INCLUD- issuance of the requested copies. ING PROCEDURES FOR PUBLIC (e) Remittances shall be in the form ACCESS TO DOCUMENTS THAT of a personal check or bank draft drawn on a bank in the United States, MAY BE DECLASSIFIED or a postal money order. Remittances shall be made payable to the ‘‘United Subpart A—Introduction States Treasury’’ and mailed to the Sec. Staff Secretary, National Security 2103.1 References. Council, Washington, DC 20506. 2103.2 Purpose. (f) A receipt for fees paid will be 2103.3 Applicability. given only upon request. Refund of fees paid for services actually rendered will Subpart B—Original Classification not be made. 2103.11 Basic policy. § 2102.51 Penalties. 2103.12 Level of original classification. 2103.13 Duration of original classification. Title 18, U.S.C. section 1001, Crimes 2103.14 Challenges to classification. and Criminal Procedures, makes it a criminal offense, subject to a max- Subpart C—Derivative Classification imum fine of $10,000 or imprisonment for not more than five years or both, to 2103.21 Definition and application.

520

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00530 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Security Council § 2103.13

Subpart D—Declassification and Subpart B—Original Classification Downgrading § 2103.11 Basic policy. 2103.31 Declassification authority. 2103.32 Mandatory review for declassifica- It is the policy of the National Secu- tion. rity Council Staff to make available to 2103.33 Downgrading authority. the public as much information concerning its activities as is possible, Subpart E—Safeguarding consistent with its responsibility to protect the national security. 2103.41 Reproduction controls.

Subpart F—Implementation and Review § 2103.12 Level of original classification. 2103.51 Information Security Oversight Unnecessary classification, and clas- Committee. sification at a level higher than is nec- 2103.52 Classification Review Committee. essary, shall be avoided. If there is rea- AUTHORITY: E.O. 12065 and Information Se- sonable doubt as to which designation curity Oversight Office Directive No. 1. in section 1–1 of Executive Order 12065 SOURCE: 44 FR 2384, Jan. 11, 1979, unless is appropriate, or whether information otherwise noted. should be classified at all, the less restrictive designation should be used, or the information should not be classi- Subpart A—Introduction fied. § 2103.1 References. § 2103.13 Duration of original classi- (a) Executive Order 12065, ‘‘National fication. Security Information,’’ dated June 28, Original classification may be ex- 1978. tended beyond six years only by offi- (b) Information Security Oversight cials with Top Secret classification au- Office, Directive No. 1, ‘‘National Secu- thority. This extension authority shall rity Information,’’ dated October 2, be used only when these officials deter- 1978. mine that the basis for original classification will continue throughout the § 2103.2 Purpose. entire period that the classification The purpose of this regulation is to will be in effect and only for the fol- ensure, consistent with the authorities lowing reasons: listed in § 2103.1, that national security (a) The information is ‘‘foreign gov- information processed by the National ernment information’’ as defined by Security Council Staff is protected the authorities in § 2301.1; from unauthorized disclosure, but only (b) The information reveals intel- to the extent, and for such period, as is ligence sources and methods; necessary to safeguard the national se- (c) The information pertains to com- curity. munication security; (d) The information reveals vulner- § 2103.3 Applicability. ability or capability data, the unau- This regulation governs the National thorized disclosure of which can rea- Security Council Staff Information Se- sonably be expected to render ineffec- curity Program. In consonance with tive a system, installation, or project the authorities listed in § 2103.1, it es- important to the national security; tablishes the policy and procedures for (e) The information concerns plans the security classification, down- important to the national security, the grading, declassification, and safe- unauthorized disclosure of which reasonably can be expected to nullify the guarding of information that is owned effectiveness of the plan; by, is produced for or by, or is under (f) The information concerns specific the control of the National Security foreign relations matters, the contin- Council Staff. ued protection of which is essential to the national security;

521

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00531 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2103.14 32 CFR Ch. XXI (7–1–05 Edition)

(g) Disclosure of the information § 2103.32 Mandatory review for declas- would place a person’s life in imme- sification. diate jeopardy; or (a) Receipt. (1) Requests for manda- (h) The continued protection of the tory review for declassification under information is specifically required by section 3–501 of Executive Order 12065 statute. must be in writing and should be ad- Even when the extension authority is dressed to : exercised, the period of original classi- National Security Council, ATTN: Staff fication shall not be greater than twen- Secretary (Mandatory Review Request), Old ty years from the date or original clas- Executive Office Building, Washington, DC sification, except that the original 20506. classification of ‘‘foreign government (2) The requestor shall be informed of information’’ pursuant to paragraph (a) the date of receipt of the request. This of this section may be for a period of date will be the basis for the time lim- thirty years. its specified in paragraph (b) of this section. § 2103.14 Challenges to classification. (3) If the request does not reasonably If holders of classified information describe the information sought, the believe that the information is improp- requestor shall be notified that, unless erly or unnecessarily classified, or that additional information is provided or original classification has been ex- the request is made more specific, no tended for too long a period, they further action will be taken. should discuss the matter with their (b) Review. (1) The requestor shall be immediate superiors or the classifier of informed of the National Security the information. If these discussions do Council Staff determination within not satisfy the concerns of the chal- sixty days of receipt of the initial re- lenger, the matter should be brought to quest. the attention of the chairperson of the (2) If the determination is to with- NSC Information Security Oversight hold some or all of the material re- Committee (see § 2103.51 of this part). quested, the requestor may appeal the determination. The requestor shall be informed that such an appeal must be Subpart C—Derivative made in writing within sixty days of Classification receipt of the denial and should be addressed to the chairperson of the Na- § 2103.21 Definition and application. tional Security Council Classification Derivative classification is the act of Review Committee. assigning a level of classification to in- (3) The requestor shall be informed of formation that is determined to be the the appellate determination within same in substance as information that thirty days of receipt of the appeal. is currently classified. Thus, derivative (c) Fees. (1) Fees for the location and classification may be accomplished by reproduction of information that is the any person cleared for access to that subject of a mandatory review request level of information, regardless of shall be assessed according to the fol- whether the person has original classi- lowing schedule: fication authority at that level. (i) Search for records. $5.00 per hour when the search is conducted by a cler- Subpart D—Declassification and ical employee; $8.00 per hour when the search is conducted by a professional Downgrading employee. No fee shall be assessed for searches of less than one hour. § 2103.31 Declassification authority. (ii) Reproduction of documents. Docu- The Staff Secretary, Staff Counsel, ments will be reproduced at a rate of and Director of Freedom of Informa- $.25 per page for all copying of four tion of the National Security Council pages or more. No fee shall be assessed Staff are authorized to declassify NSC for reproducing documents that are documents after consultation with the three pages or less, or for the first appropriate NSC Staff members. three pages of longer documents.

522

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00532 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 National Security Council § 2103.52

(2) Where it is anticipated that the Subpart E—Safeguarding fees chargeable under this section will amount to more than $25, and the re- § 2103.41 Reproduction controls. questor has not indicated in advance a The Staff Secretary shall maintain willingness to pay fees as high as are records to show the number and dis- anticipated, the requestor shall be tribution of all Top Secret documents, promptly notified of the amount of the of all documents covered by special ac- anticipated fee or such portion thereof as can readily be estimated. In in- cess programs distributed outside the stances where the estimated fees will originating agency, and of all Secret greatly exceed $25, an advance deposit and Confidential documents that are may be required. Dispatch of such a no- marked with special dissemination or tice or request shall suspend the run- reproduction limitations. ning of the period for response by the NSC Staff until a reply is received Subpart F—Implementation and from the requestor. Review (3) Remittances shall be in the form either of a personal check or bank § 2103.51 Information Security Over- draft drawn on a bank in the United sight Committee. States, or a postal money order. Re- The NCS Information Security Over- mittances shall be made payable to the sight Committee shall be chaired by Treasury of the United States and the Staff Counsel of the National Secu- mailed to the Staff Secretary, National rity Council Staff. The Committee Security Council, Washington, DC shall be responsible for acting on all 20506. suggestions and complaints concerning (4) [Reserved] the administration of the National Se- (5) A receipt for fees paid will be curity Council information security given only upon request. Refund of fees program. The chairperson, who shall paid for services actually rendered will represent the NSC Staff on the Inter- not be made. agency Information Security Com- (6) If a requestor fails to pay within mittee shall also be responsible for thirty days for services rendered, fur- conducting an active oversight pro- ther action on any other requests sub- gram to ensure effective implementa- mitted by that requestor shall be sus- tion of Executive Order 12065. pended. (7) The Staff Secretary, National Se- § 2103.52 Classification Review Com- curity Council may waive all or part of mittee. any fee provided for in this section The NSC Classification Review Com- when it is deemed to be in either the mittee shall be chaired by the Staff interest of the NSC Staff or of the gen- Secretary of the National Security eral public. Council. The Committee shall decide appeals from denials of declassification § 2103.33 Downgrading authority. requests submitted pursuant to section The Staff Secretary, Staff Counsel, 3–5 of Executive Order 12065. The Com- and Director of Freedom of Informa- mittee shall consist of the chairperson, tion of the National Security Council the NSC Director of Freedom of Infor- Staff are authorized to downgrade NSC mation, and the NSC Staff member documents, after consultation with the with primary subject matter responsi- appropriate NSC Staff members. bility for the material under review.

523

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00533 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00534 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 CHAPTER XXIV—OFFICE OF SCIENCE AND TECHNOLOGY POLICY

Part Page 2400 Regulations to implement E.O. 12356; Office of Science and Technology Policy information security program ...... 527

525

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00535 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00536 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PART 2400—REGULATIONS TO IM- 2400.33 Loss or possible compromise. PLEMENT E.O. 12356; OFFICE OF Subpart F—Foreign Government SCIENCE AND TECHNOLOGY Information POLICY INFORMATION SECURITY PROGRAM 2400.34 Classification. 2400.35 Duration of classification. Subpart A—General Provisions 2400.36 Declassification. 2400.37 Mandatory review. Sec. 2400.38 Protection of foreign government in- 2400.1 Authority. formation. 2400.2 Purpose. 2400.3 Applicability. Subpart G—Security Education 2400.4 Atomic Energy Material. 2400.39 Responsibility and objectives. Subpart B—Original Classification 2400.5 Basic policy. Subpart H—Office of Science and Tech- 2400.6 Classification levels. nology Policy Information Security Pro- 2400.7 Original classification authority. gram Management 2400.8 Limitations on delegation of original classification authority. 2400.40 Responsibility. 2400.9 Classification requirements. 2400.41 Office Review Committee. 2400.10 Presumption of damage. 2400.42 Security Officer. 2400.11 Duration of classification. 2400.43 Heads of offices. 2400.12 Identification and markings. 2400.44 Custodians. 2400.13 Limitations on classification. 2400.45 Information Security Program Re- Subpart C—Derivative Classification view. 2400.46 Suggestions or complaints. 2400.14 Use of derivative classification. 2400.15 Classification guides. AUTHORITY: E.O. 12356 and Information Se- 2400.16 Derivative classification markings. curity Oversight Office Directive No. 1. SOURCE: 48 FR 10821, Mar. 15, 1983, unless Subpart D—Declassification and otherwise noted. Downgrading 2400.17 Policy. Subpart A—General Provisions 2400.18 Declassification and downgrading authority. § 2400.1 Authority. 2400.19 Declassification by the Director of the Information Security Oversight Of- (a) Executive Order 12356 ‘‘National fice. Security Information,’’ dated April 2, 2400.20 Systematic review for declassifica- 1982, 47 FR 14874 (Apr. 6, 1982); 47 FR tion. 15557 (Apr. 12, 1982) and Order of Des- 2400.21 Mandatory review for declassification. ignation of May 7, 1982, 47 FR 20105 2400.22 Freedom of Information Act and Pri- (May 11,1982). vacy Act requests. (b) Information Security Oversight 2400.23 Prohibition. Office, Directive No. 1, ‘‘National Secu- 2400.24 Downgrading. rity Information,’’ dated June 23, 1982, Subpart E—Safeguarding 47 FR 27836 (June 25, 1982) (Directive No. 1). 2400.25 Access. 2400.26 Access by historical researchers and § 2400.2 Purpose. former Presidential appointees. 2400.27 Storage of classification informa- The purpose of this Regulation is to tion. ensure, consistent with the authorities 2400.28 Dissemination of classified informa- of § 2400.1 that information of the Office tion. of Science and Technology Policy 2400.29 Accountability and control. 2400.30 Reproduction of classified informa- (OSTP) relating to national security is tion. protected from unauthorized disclo- 2400.31 Destruction of classified informa- sure, but only to the extent and for tion. such period as is necessary to safe- 2400.32 Transmittal of classified informa- guard the national security. tion.

527

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00537 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2400.3 32 CFR Ch. XXIV (7–1–05 Edition)

§ 2400.3 Applicability. pected to cause exceptionally grave damage to the national security. This Regulation governs the Office of (2) ‘‘Secret’’ shall be applied to infor- Science and Technology Policy Infor- mation, the unauthorized disclosure of mation Security Program. In accord- which reasonably could be expected to ance with the provisions of Executive cause serious damage to the national Order 12356 and Directive No. 1 it estab- security. lishes, for uniform application throughout the Office of Science and (3) ‘‘Confidential’’ shall be applied to Technology Policy, the policies and information, the unauthorized disclo- procedures for the security classifica- sure of which reasonably could be ex- tion, downgrading, declassification and pected to cause damage to the national safeguarding of information that is security. owned by, produced for or by, or under (b) Except as otherwise provided by the control of the office of Science and statute, no other terms shall be used to Technology Policy. identify classified information. Mark- ings other than ‘‘Top Secret,’’ ‘‘Se- § 2400.4 Atomic Energy Material. cret,’’ and ‘‘Confidential,’’ such as ‘‘For Official Use Only,’’ shall not be used to Nothing in this Regulation super- identify national security information. sedes any requirement made by or In addition, no other term or phrase under the Atomic Energy act of 1954, as shall be used in conjunction with one amended. ‘‘Restricted Data’’ and infor- of the three authorized classification mation designated as ‘‘Formerly Re- levels, such as ‘‘Secret Sensitive’’ or stricted Data’’ shall be handled, pro- ‘‘Agency Confidential.’’ The terms tected, classified, downgraded, and de- ‘‘Top Secret’’, ‘‘Secret’’, and ‘‘Con- classified in conformity with the provi- fidential’’ should not be used to iden- sions of the Atomic Energy Act of 1954, tify nonclassified executive branch in- as amended, and regulations issued formation. pursuant thereto by the Department of Energy. (c) Unnecessary classification, and classification at a level higher than is necessary shall be scrupulously avoid- Subpart B—Original Classification ed. (d) If there is reasonable doubt about § 2400.5 Basic policy. the need to classify information, it Except as provided in the Atomic En- shall be safeguarded as if it were classi- ergy Act of 1954, as amended, Executive fied ‘‘Confidential’’ pending a deter- Order 12356, as implemented by Direc- mination by an original classification tive No. 1 and this Regulation, provides authority, who shall make this deter- the only basis for classifying informa- mination within thirty (30) days. If tion. The policy of the Office of Science there is reasonable doubt about the ap- and Technology Policy is to make propriate level of classification the available to the public as much infor- originator of the information shall mation concerning its activities as is safeguard it at the higher level of clas- possible, consistent with its responsi- sification pending a determination by bility to protect the national security. an original classification authority, Information may not be classified un- who shall make this determination less its disclosure reasonably could be within thirty (30) days. Upon the deter- expected to cause damage to the na- mination of a need for classification tional security. and/or the proper classification level, the information that is classified shall § 2400.6 Classification levels. be marked as provided in § 2400.12 of (a) National security information this part. (hereinafter ‘‘classified information’’) shall be classified at one of the fol- § 2400.7 Original classification author- lowing three levels: ity. (1) ‘‘Top Secret’’ shall be applied to (a) Authority for original classifica- information, the unauthorized disclo- tion of information as Top Secret shall sure of which reasonably could be ex- be exercised within OSTP only by the

528

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00538 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of Science and Technology Policy § 2400.9

Director and by such principal subordi- the official in OSTP who has appro- nate officials having frequent need to priate subject matter interest and clas- exercise such authority as the Director sification authority with respect to shall designate in writing. this information. That official shall de- (b) The authority to classify informa- cide within thirty (30) days whether to tion originally as Secret shall be exer- classify this information. If the infor- cised within OSTP only by the Direc- mation is not within OSTP’s area of tor, other officials delegated in writing classification responsibility, OSTP to have original Top Secret classifica- shall promptly transmit the information authority, and any other officials tion to the responsible agency. If it is delegated in writing to have original not clear which agency has classifica- Secret classification authority. tion responsibility for this informa- (c) The authority to classify information, it shall be sent to the Director of tion originally as Confidential shall be the Information Security Oversight Of- exercised within OSTP only by officials fice. The Director shall determine the with original Top Secret or Secret agency having primary subject matter classification authority and any offi- interest and forward the information, cials delegated in writing to have origi- with appropriate recommendations, to nal Confidential classification author- that agency for a classification deter- ity. mination.

§ 2400.8 Limitations on delegation of § 2400.9 Classification requirements. original classification authority. (a) Information may be classified (a) The Director, OSTP is the only of- only if it concerns one or more of the ficial authorized to delegate original categories cited in Executive Order classification authority. 12356, as subcategorized below, and an (b) Delegations of original classifica- official having original classification tion authority shall be held to an abso- authority determines that its unau- lute minimum. thorized disclosure, either by itself or (c) Delegations of original classifica- in the context of other information, tion authority shall be limited to the reasonably could be expected to cause level of classification required. damage to the national security. (d) Original classification authority (1) Military plans, weapons or oper- shall not be delegated to OSTP per- ations; sonnel who only quote, restate, extract (2) The vulnerabilities or capabilities or paraphrase, or summarize classified of systems, installations, projects, or information or who only apply classi- plans relating to the national security; fication markings derived from source (3) Foreign government information; material or as directed by a classification guide. (4) Intelligence activities (including (e) The Executive Director, OSTP, special activities), or intelligence shall maintain a current listing of per- sources or methods; sons or positions receiving any delega- (5) Foreign relations or foreign action of original classification author- tivities of the United States; ity. If possible, this listing shall be un- (6) Scientific, technological, or eco- classified. nomic matters relating to the national (f) Original classification authority security; may not be redelegated. (7) United States Government pro- (g) Exceptional Cases. When an em- grams for safe-guarding nuclear mate- ployee, contractor, licensee, or grantee rials or facilities; of OSTP that does not have original (8) Cryptology; classification authority originates in- (9) A confidential source; or formation believed by that person to (10) Other categories of information require classification, the information which are related to national security shall be protected in a manner con- and that require protection against un- sistent with these Regulations as pro- authorized disclosure as determined by vided in § 2400.6(d) of this part. The in- the Director, Office of Science and formation shall be transmitted prompt- Technology Policy. Each such deter- ly as provided in these Regulations to mination shall be reported promptly to

529

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00539 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2400.10 32 CFR Ch. XXIV (7–1–05 Edition)

the Director of the Information Secu- classification is extended by an author- rity Oversight Office. ized official of the originating agency. (b) Foreign government information These extensions may be by individual need not fall within any other classi- documents or categories of informa- fication category listed in paragraph tion. The originating agency shall be (a) of this section to be classified. responsible for notifying holders of the (c) Certain information which would information of such extensions. otherwise be unclassified may require (c) Information classified under pred- classification when combined or associ- ecessor Executive Orders and marked ated with other unclassified or classi- for declassification review shall remain fied information. Classification on this classified until reviewed for declas- basis shall be fully supported by a writ- sification under the provisions of Exec- ten explanation that, at a minimum, utive Order 12356. shall be maintained with the file or ref- (d) Information classified under pred- erenced on the record copy of the infor- ecessor Executive Orders that does not mation. bear a specific date or event for declas- (d) Information classified in accord- sification shall remain classified until ance with this section shall not be de- reviewed for declassification. The au- classified automatically as a result of thority to extend the classification of any unofficial publication or inad- information subject to automatic de- vertent or unauthorized disclosure in classification under predecessor Orders the United States or abroad of iden- is limited to those officials who have tical or similar information. Following classification authority over the infor- an inadvertent or unauthorized publi- mation and are designated in writing cation or disclosure of information to have original classification author- identical or similar to information ity at the level of the information to that has been classified in accordance remain classified. Any decision to ex- with Executive Order 12356 or prede- tend this classification on other than a cessor orders, OSTP, if the agency of document-by-document basis shall be primary interest, shall determine the reported to the Director of the Infor- degree of damage to the national secu- mation Security Oversight Office. rity, the need for continued classification, and in coordination with the § 2400.12 Identification and markings. agency in which the disclosure oc- (a) At the time of original classifica- curred, what action must be taken to tion, the following information shall be prevent similar occurrences. If the shown on the face of all classified docu- agency of primary interest is other ments, or clearly associated with other than OSTP, the matter shall be re- forms of classified information in a ferred to that agency. manner appropriate to the medium involved, unless this information itself § 2400.10 Presumption of damage. would reveal a confidential source or Unauthorized disclosure of foreign relationship not otherwise evident in government information, the identity the document or information: of a confidential foreign source, or in- (1) One of the three classification lev- telligence sources or methods, is pre- els defined in § 2400.6 of this part; sumed to cause damage to the national (2) The identity of the original classi- security. fication authority if other than the person whose name appears as the ap- § 2400.11 Duration of classification. proving or signing official; (a) Information shall be classified as (3) The agency and office of origin; long as required by national security and considerations. When it can be deter- (4) The date or event for declassifica- mined, a specific date or event for de- tion, or the notation ‘‘Originating classification shall be set by the origi- Agency’s Determination Required.’’ nal classification authority at the time (b) Each classified document shall, the information is originally classified. by marking or other means, indicate (b) Automatic declassification deter- which portions are classified, with the minations under predecessor Executive applicable classification level, and Orders shall remain valid unless the which portions are not classified. The

530

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00540 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of Science and Technology Policy § 2400.15

Director OSTP may, for good cause, request for it under the Freedom of In- grant and revoke waivers of this re- formation Act (5 U.S.C. 552a) or the quirement for specified classes of docu- Privacy Act of 1974 (5 U.S.C. 552), or the ments or information. The Director of mandatory review provisions of Execu- the Information Security Oversight Of- tive Order 12356 (section 3.4) if such fice shall be notified of any waivers. classification meets the requirements (c) Marking designations imple- of this Order and is accomplished per- menting the provisions of Executive sonally and on a document-by-docu- Order 12356, including abbreviations, ment basis by the Director. shall conform to the standards prescribed in Directive No. 1 issued by the Subpart C—Derivative Information Security Oversight Office. Classification (d) Foreign government information shall either retain its original classi- § 2400.14 Use of derivative classifica- fication or be assigned a United States tion. classification that shall ensure a de- (a) Derivative classification is (1) the gree of protection at least equivalent determination that information is in to that required by the entity that fur- substance the same as information cur- nished the information. rently classified, and (2) the applica- (e) Information assigned a level of tion of the same classification mark- classification under predecessor Execu- ings. Persons who only reproduce, ex- tive Orders shall be considered as clas- tract, or summarize classified informa- sified at that level of classification de- tion, or who only apply classification spite the omission of other required markings derived from source material markings. Omitted markings may be or as directed by a classification guide, inserted on a document by the officials need not possess original classification specified in § 2400.18 of this part. authority. If a person who applies derivative classification markings be- § 2400.13 Limitations on classification. lieves that the paraphrasing, restating, (a) In no case shall information be or summarizing of classified informa- classified in order to conceal violations tion has changed the level of or re- of law, inefficiency, or administrative moved the basis for classification, that error; to prevent embarrassment to a person must consult an appropriate of- person, organization, or agency; to re- ficial of the originating agency or of- strain competition; or to prevent or fice of origin who has the authority to delay the release of information that declassify, downgrade or upgrade the does not require protection in the in- information. terest of national security. (b) Persons who apply derivative (b) Basic scientific research informa- classification markings shall: tion not clearly related to the national (1) Observe and respect original clas- security may not be classified. sification decisions; and (c) The Director may reclassify infor- (2) Carry forward to any newly cre- mation previously declassified and dis- ated documents any assigned author- closed if it is determined in writing ized markings. The declassification that (1) the information requires pro- date or event that provides the longest tection in the interest of national secu- period of classification shall be used rity; and (2) the information may rea- for documents classified on the basis of sonably be recovered. These reclassi- multiple sources. fication actions shall be reported promptly to the Director of the Infor- § 2400.15 Classification guides. mation Security Oversight Office. Be- (a) OSTP shall issue and maintain fore reclassifying any information, the classification guides to facilitate the Director shall consider the factors list- proper and uniform derivative classi- ed in § 2001.6 of Directive No. 1, which fication of information. These guides shall be addressed in the report to the shall be used to direct derivative clas- Director of the Information Security sification. Oversight Office. (b) The classification guides shall be (d) Information may be classified or approved, in writing, by the Director or reclassified after OSTP has received a by officials having Top Secret original

531

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00541 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2400.16 32 CFR Ch. XXIV (7–1–05 Edition)

classification authority. Such approval classification guides shall bear all constitutes an original classification markings prescribed in § 2400.12 of this decision. part and Directive No. 1 as are applica- (c) Each classification guide shall ble. Information for these markings specify the information subject to clas- shall be taken from the source docu- sification in sufficient detail to permit ment or instructions in the appropriate its ready and uniform identification classification guide. When markings and categorization and shall set forth are omitted because they may reveal a the classification level and duration in confidential source or relationship not each instance. Additionally, each clas- otherwise evident, as described in sification guide shall prescribe declas- § 2400.12 of this part, the information sification instructions for each ele- may not be used as a basis for deriva- ment of information in terms of (1) a tive classification. period of time, (2) the occurrence of an (b) The authority for classification event, or (3) a notation that the infor- shall be shown as directed in Directive mation shall not be automatically de- No. 1. classified without the approval of OSTP. Subpart D—Declassification and (d) The classification guides shall be Downgrading kept current and shall be fully reviewed at least every two years. The § 2400.17 Policy. Executive Director, OSTP shall main- Declassification of information shall tain a list of all OSTP classification be given emphasis comparable to that guides in current use. accorded classification. Information (e) The Executive Director, OSTP classified pursuant to Executive Order shall receive and maintain the record 12356 and prior orders shall be declas- copy of all approved classification sified or downgraded as soon as na- guides and changes thereto. He will as- tional security considerations permit. sist the originator in determining the Decisions concerning declassification required distribution. shall be based on the loss of sensitivity (f) The Director may, for good cause, of the information with the passage of grant and revoke waivers of the re- time or on the occurrence of an event quirement to prepare classification which permits declassification. When guides for specified classes of docu- information is reviewed for declas- ments or information. The Director of sification pursuant to this regulation, the Information Security Oversight Of- that information shall be declassified fice shall be notified of any waivers. unless the designated declassification The Director’s decision to waive the re- authority determines that the informa- quirement to issue classification tion continues to meet the classifica- guides for specific classes of documents tion requirements prescribed in § 2400.9 or information will be based, at a min- of this part despite the passage of time. imum, on an evaluation of the fol- The Office of Science and Technology lowing factors: Policy officials shall coordinate their (1) The ability to segregate and de- review of classified information with scribe the elements of information; other agencies that have a direct inter- (2) The practicality of producing or est in the subject matter. disseminating the guide because of the nature of the information; § 2400.18 Declassification and down- (3) The anticipated usage of the guide grading authority. as a basis for derivative classification; Information shall be declassified or and downgraded by the official who author- (4) The availability of alternative ized the original classification, if that sources for derivatively classifying the official is still serving the same posi- information in a uniform manner. tion; the originator’s successor; a supervisory official of either; or officials § 2400.16 Derivative classification delegated such authority in writing by markings. the Director, OSTP. The Executive Di- (a) Documents classified derivatively rector, OSTP shall maintain a current on the basis of source documents or listing of persons or positions receiving

532

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00542 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of Science and Technology Policy § 2400.21

those delegations. If possible, these unless earlier review is requested by listings shall be unclassified. the Archivist. (d) Foreign Government Information. § 2400.19 Declassification by the Direc- Systematic declassification review of tor of the Information Security foreign government information shall Oversight Office. be in accordance with guidelines issued If the Director of the Information Se- by the Director of the Information Se- curity Oversight Office (ISOO) deter- curity Oversight Office. mines that information is classified in (e) Special procedures. The Office of violation of Executive Order 12356, the Science and Technology Policy shall be Director, ISOO may require the infor- bound by the special procedures for mation to be declassified by the agency systematic review of classified that originated the classification. Any cryptologic records and classified such decision by the Director ISOO records pertaining to intelligence ac- may be appealed by the Director, OSTP tivities (including special activities) or to the National Security Council. The intelligence sources or methods issued information shall remain classified, by the Secretary of Defense and the Di- pending a prompt decision on the ap- rector of Central Intelligence, respec- peal. tively.

§ 2400.20 Systematic review for declas- § 2400.21 Mandatory review for declassification. sification. (a) Permanent records. Systematic re- (a) Except as provided in paragraph view is applicable only to those classi- (d) of this section, all information clas- fied records, and presidential papers or sified under Executive Order 12356 or predecessor orders shall be subject to a records that the Archivist of the review for declassification by the Of- United States, acting under the Fed- fice of Science and Technology Policy, eral Records Act, has determined to be if: of sufficient historical or other value (1) The request is made by a United to warrant permanent retention. States citizen or permanent resident (b) Non-permanent records. Non-per- alien, a federal agency, or a State or manent classified records shall be dis- local government; and posed of in accordance with schedules (2) The request is made in writing approved by the Administrator of Gen- and describes the document or material eral Services under the Records Dis- containing the information with suffi- posal Act. These schedules shall pro- cient specificity to enable the Office of vide for the continued retention of Science and Technology Policy to lo- records subject to an ongoing manda- cate it with a reasonable amount of ef- tory review for declassification re- fort. quest. (b) Requests should be addressed to: (c) Office of Science and Technology Executive Director, Office of Science Policy Responsibility. The Director, and Technology Policy, Executive Of- OSTP, shall: fice of the President, Washington, DC (1) Issue guidelines for systematic de- 20506. classification review and, if applicable, (c) If the request does not reasonably for downgrading. These guidelines shall describe the information sought to be developed in consultation with the allow identification of documents con- Archivist and the Director of the Infor- taining such information, the requester mation Security Oversight Office and shall be notified that unless additional be designated to assist the Archivist in information is provided or the request the conduct of systematic reviews; is made more specific, no further ac- (2) Designate experienced personnel tion will be taken. to provide timely assistance to the Ar- (d) Information originated by a Presi- chivist in the systematic review proc- dent, the White House Staff, by com- ess; mittees, commissions, or boards ap- (3) Review and update guidelines for pointed by the President, or others spe- systematic declassification review and cifically providing advice and counsel downgrading at least every five years to a President or acting on behalf of a

533

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00543 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2400.21 32 CFR Ch. XXIV (7–1–05 Edition)

President is exempted from the manda- those declassified portions of that re- tory review provisions of § 2400.24(a) of quested information the constitute a this part. The Archivist of the United coherent segment. States shall have the authority to re- (h) If the information may not be review, downgrade and declassify infor- leased in whole or in part, the re- mation under the control of the Ad- quester shall be given a brief statement ministrator of General Services or the as to the reason for denial, and notice Archivist pursuant to sections 2107, of the right to appeal the determina- 2107 note, or 2203 of title 44, United tion in writing within sixty days of re- States Code. Review procedures devel- ceipt of the denial to the chairperson of oped by the Archivist shall provide for the Office of Science and Technology consultation with agencies having pri- Policy Review Committee. If appealed, mary subject matters interest and the requester shall be informed in writ- shall be consistent with the provisions ing of the appellate determination of applicable laws or lawful agreements within thirty days of receipt of the ap- that pertain to the respective presi- peal. dential papers or records. Any decision (i) When a request is received for in- by the Archivist may be appealed to formation originated by another agen- the Director of the Information Secu- cy, the Executive Director, Office of rity Oversight Office. Agencies with Science and Technology Policy, shall: primary subject matter interest shall (1) Forward the request to such agen- be notified promptly of the Director’s cy for review together with a copy of decision on such appeals and may fur- the document containing the informa- ther appeal to the National Security tion requested, where practicable, and Council. The information shall remain where appropriate, with the Office of classified pending a prompt decision on Science and Technology Policy rec- the appeal. ommendation to withhold or declassify (e) Office of Science and Technology and release any of the information; Policy officials conducting a manda- (2) Notify the requester of the refer- tory review for declassification shall ral unless the agency to which the re- declassify information no longer request is referred objects to such notice quiring protection under Executive on grounds that its association with Order 12356. They shall release this in- the information requires protection; formation unless withholding is other- and wise authorized under applicable law. (3) Request, when appropriate, that (f) Office of Science and Technology the agency notify the Office of Science Policy responses to mandatory review and Technology Policy of its deter- requests shall be governed by the mination. amount of search and review time re- (j) If the request requires the ren- quired to process the request. Normally dering of services for which fees may be the requester shall be informed of the charged under title 5 of the Inde- Office of Science and Technology Pol- pendent Offices Appropriation Act, 31 icy determination within thirty days of U.S.C. 483a, the Executive Director, Of- receipt of the original request (or with- fice of Science and Technology Policy, in thirty days of the receipt of the re- may calculate the anticipated amount quired amplifying information in ac- of fees to be charged. cordance with paragraph (c) of this sec- (1) Fees for the location and repro- tion). In the event that a determina- duction of information that is the sub- tion cannot be made within thirty ject of a mandatory review request days, the requester shall be informed of shall be assessed according to the fol- the additional time needed to process lowing schedule: the request. However, OSTP, shall (i) Search for records. $5.00 per hour make a final determination within one when the search is conducted by a cler- year from the date of receipt of the re- ical employee; $8.00 per hour when the quest except in unusual circumstances. search is conducted by a professional (g) When information cannot be de- employee. No fee shall be assessed for classified in its entirety, OSTP will searches of less than one hour. make a reasonable effort to release, (ii) Reproduction of documents. Docu- consistent with other applicable law, ments will be reproduced at a rate of

534

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00544 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of Science and Technology Policy § 2400.25

$.25 per page for all copying of four § 2400.23 Prohibition. pages or more. No fee shall be assessed In response to a request for informa- for reproducing documents that are tion under the Freedom of Information three pages or less, or for the first Act, the Privacy Act of 1974, or the three pages of longer documents. mandatory review provisions of Execu- (2) Where it is anticipated that the tive Order 12356 and Directive No. 1, or fees chargeable under this section will this regulation: amount to more than $25, and the re- (a) The Office of Science and Tech- questor has not indicated in advance a nology Policy shall refuse to confirm willingness to pay fees as high as are or deny the existence or non-existence anticipated, the requester shall be of requested information whenever the promptly notified of the amount of the fact of its existence or non-existence is anticipated fee or such portion thereof itself classifiable under Executive as can readily be estimated. In in- Order 12356. stances where the estimated fees will (b) When the Office of Science and greatly exceed $25, an advance deposit Technology Policy receives any re- may be required. Dispatch of such a no- quest for documents in its custody that tice or request shall suspend the run- were classified by another agency, it ning of the period for response by shall refer copies of the request and the OSTP until a reply is received from the requested documents to the originating agency for processing, and may, after requester. consultation with the originating agen- (3) Remittances shall be in the form cy, inform the requester of the referral. either of a personal check or bank In cases which the originating agency draft drawn on a bank in the United determines in writing that a response States, or a postal money order. Re- under paragraph (a) of this section is mittances shall be made to the Treas- required, the Office of Science and ury of the United States and mailed to Technology Policy shall respond to the the Executive Director, Office of requester in accordance with that para- Science and Technology Policy, Execu- graph. tive Office of the President, Wash- ington, DC 20506. § 2400.24 Downgrading. (4) A receipt for fees paid will be (a) When it will serve a useful pur- given only upon request. Refund of fees pose, original classification authorities paid for services actually rendered will may, at the time of original classifica- not be made. tion, specify that downgrading of the (5) If a requester fails to pay within assigned classification will occur on a thirty days for services rendered, fur- specified date or upon the occurrence ther action on any other requests sub- of a stated event. mitted by that requestor shall be sus- (b) Classified information marked for pended. automatic downgrading is downgraded (6) The Executive Director, Office of accordingly without notification to Science and Technology Policy may holders. (c) Classified information not marked waive all or part of any fee provided for for automatic downgrading may be as- in this section when it is deemed to be signed a lower classification designa- in either the interest of the OSTP or tion by the originator or by an official the general public. authorized to declassify the same information. Prompt notice of such down- § 2400.22 Freedom of Information Act and Privacy Act requests. grading shall be provided to known holders of the information. The Office of Science and Technology Policy shall process requests for de- Subpart E—Safeguarding classification that are submitted under the provisions of the Freedom of Infor- § 2400.25 Access. mation Act, as amended, or the Pri- (a) A person is eligible for access to vacy Act of 1974, in accordance with classified information provided that a the provisions of those Acts. determination of trustworthiness has

535

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00545 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2400.26 32 CFR Ch. XXIV (7–1–05 Edition)

been made by agency heads or des- (4) A system of accounting for the ignated officials and provided that such program is established and maintained. access is essential to the accomplishment of lawful and authorized Govern- § 2400.26 Access by historical research- ment purposes. A personnel security ers and former Presidential ap- clearance is an indication that the pointees. trustworthiness decision has been (a) The requirement in Section 4.1(a) made. Procedures shall be established of Executive Order 12356 that access to by the head of each office to prevent classified information may be granted access to classified information before only as is essential to the accomplish- a personnel security clearance has been ment of authorized and lawful Govern- granted. The number of people cleared ment purposes may be waived as pro- and granted access to classified infor- vided in paragraph (b) of this section mation shall be maintained at the min- for persons who: imum number that is consistent with (1) Are engaged in historical research operational requirements and needs. projects, or No one has a right to have access to (2) Previously have occupied policy- classified information solely by virtue of rank or position. The final responsi- making positions to which they were bility for determinating whether an in- appointed by the President. dividual’s official duties require posses- (b) Waivers under paragraph (a) of sion of or access to any element or this section may be granted only if the item of classified information, and Director, Office of Science and Tech- whether the individual has been grant- nology Policy: ed the appropriate security clearance (1) Determines in writing that access by proper authority, rests with the in- is consistent with the interest of na- dividual who has authorized possession, tional security; knowledge, or control of the informa- (2) Takes appropriate steps to protect tion and not with the prospective reclassified information from unauthor- cipient. These principles are equally ized disclosure or compromise, and en- applicable if the prospective recipient sures that the information is safe- is an organizational entity, other Fed- guarded in a manner consistent with eral agencies, contractors, foreign gov- Executive Order 12356; ernments, and others. (3) Limits the access granted to (b) When access to a specific classi- former presidential appointees to items fication category is no longer required that the person originated, reviewed, for the performance of an individual’s signed, or received while serving as a assigned duties, the security clearance presidential appointee; and will be administratively adjusted, (4) Has received a written agreement without prejudice to the individual, to from the researcher or former presi- the classification category, if any, re- dential appointee that his notes can be quired. reviewed by OSTP for a determination (c) The Director, Office of Science that no classified material is contained and Technology Policy may create spe- therein. cial access programs to control access, distribution, and protection of particu- § 2400.27 Storage of classification in- larly sensitive information classified formation. pursuant to Executive Order 12356 or predecessor orders if: Whenever classified information is (1) Normal management and safe- not under the personal control and ob- guarding procedures do not limit ac- servation of an authorized person, it cess sufficiently; will be guarded or stored in a locked (2) The number of persons with access security container approved for the is limited to the minimum necessary storage and protection of the appro- to meet the objective of providing priate level of classified information as extra protection for the information; prescribed in § 2001.43 of Directive No. 1. (3) The special access program is established in writing; and

536

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00546 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of Science and Technology Policy § 2400.31

§ 2400.28 Dissemination of classified special access programs, and of all Se- information. cret and Confidential documents which Heads of OSTP offices shall establish are marked with special dissemination procedures consistent with this Regu- and reproduction limitations. lation for dissemination of classified (h) The Security Officer will develop material. The originating official may procedures for the accountability and prescribe specific restrictions on dis- control of Secret and Confidential in- semination of classified information formation. These procedures shall re- when necessary. quire all Secret and Confidential mate- (a) Classified information shall not rial originated or received by OSTP to be disseminated outside the executive be controlled. Control shall be accom- branch except under conditions that plished by the ATSCO. ensure that the information will be given protection equivalent to that af- § 2400.30 Reproduction of classified in- forded within the executive branch. formation. (b) Except as provided by directives Documents or portions of documents issued by the President through the and materials that contain Top Secret National Security Council, classified information shall not be reproduced information originating in one agency without the consent of the originator may not be disseminated outside any or higher authority. Any stated prohi- other agency to which it has been made bition against reproduction shall be available without the consent of the strictly observed. Copying of docu- originating agency. For purposes of ments containing classified informa- this Section, the Department of De- tion at any level shall be minimized. fense shall be considered one agency. Specific reproduction equipment shall § 2400.29 Accountability and control. be designated for the reproduction of classified information and rules for re- (a) Each item of Top Secret, Secret, production of classified information and Confidential information is subject shall be posted on or near the des- to control and accountability require- ignated equipment. Notices prohibiting ments. reproduction of classified information (b) The Security Officer will serve as shall be posted on equipment used only Top Secret Control Officer (TSCO) for for the reproduction of unclassified in- the Office of Science and Technology formation. All copies of classified docu- Policy and will be responsible for the ments reproduced for any purpose in- supervision of the Top Secret control cluding those incorporated in a work- program. He/she will be assisted by an ing paper are subject to the same con- Assistant Top Secret Control Officer trols prescribed for the document from (ATSCO) to effect the Controls pre- which the reproduction is made. scribed herein for all Top Secret material. § 2400.31 Destruction of classified in- (c) The TSCO shall receive, transmit, formation. and maintain current access and accountability records for Top Secret in- (a) Classified information no longer formation. The records shall show the needed in current working files or for number and distribution of all Top Se- reference or record purposes shall be cret documents, including any repro- processed for appropriate disposition in duced copies. accordance with the provisions of chap- (d) Top Secret documents and mate- ters 21 and 33 of title 44, U.S.C., which rial will be accounted for by a contin- governs disposition of classified uous chain of receipts. records. Classified information ap- (e) An inventory of Top Secret docu- proved for destruction shall be de- ments shall be made at least annually. stroyed in accordance with procedures (f) Destruction of Top Secret docu- and methods prescribed by the Direc- ments shall be accomplished only by tor, OSTP, as implemented by the Se- the TSCO or the ATSCO. curity Officer. These procedures and (g) Records shall be maintained to methods must provide adequate protec- show the number and distribution of tion to prevent access by unauthorized all classified documents covered by persons and must preclude recognition

537

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00547 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2400.32 32 CFR Ch. XXIV (7–1–05 Edition)

or reconstruction of the classified in- classification authority is not required formation or material. for this purpose. (b) All classified information to be (b) Foreign government information destroyed will be provided to the that was not classified by a foreign en- ATSCO for disposition. Controlled doc- tity but was provided with the expecta- uments will be provided whole so that tion, expressed or implied, that it be accountability records may be cor- held in confidence must be classified rected prior to destruction by the because Executive Order 12356 states a ATSCO. presumption of damage to the national security in the event of unauthorized § 2400.32 Transmittal of classified information. disclosure of such information. The transmittal of classified infor- § 2400.35 Duration of classification. mation outside of the Office of Science and Technology Policy shall be in ac- Foreign government information cordance with procedures of § 2001.44 of shall not be assigned a date or event Directive No. 1. The Security Officer for automatic declassification unless shall be responsible for resolving any specified or agreed to by the foreign en- questions relative to such transmittal. tity.

§ 2400.33 Loss or possible compromise. § 2400.36 Declassification. (a) Any person who has knowledge of Officials shall respect the intent of the loss or possible compromise of clas- this Regulation to protect foreign gov- sified information shall immediately ernment information and confidential report the circumstances to the Secu- foreign sources. rity Officer. The Security Officer shall notify the Director and the agency § 2400.37 Mandatory review. that originated the information as Except as provided in this paragraph, soon as possible so that a damage as- OSTP shall process mandatory review sessment may be conducted and appro- requests for classified records con- priate measures taken to negate or taining foreign government informa- minimize any adverse effect of the tion in accordance with § 2400.21. The compromise. (b) The Security Officer shall initiate agency that initially received or classi- an inquiry to: fied the foreign government informa- (1) Determine cause, tion shall be responsible for making a (2) Place responsibility, and declassification determination after (3) Take corrective measures and ap- consultation with concerned agencies. propriate administrative, disciplinary, If OSTP receives a request for manda- or legal action. tory review and is not the agency that (c) The Security Officer shall keep received or classified the foreign gov- the Director advised on the details of ernment information, it shall refer the the inquiry. request to the appropriate agency for action. Consultation with the foreign Subpart F—Foreign Government originator through appropriate chan- Information nels may be necessary prior to final action on the request. § 2400.34 Classification. § 2400.38 Protection of foreign govern- (a) Foreign government information ment information. classified by a foreign government or international organization of govern- Classified foreign government infor- ments shall retain its original classi- mation shall be protected as is pre- fication designation or be assigned a scribed by this regulation for United United States classification designa- States classified information of a com- tion that will ensure a degree of pro- parable level. tection equivalent to that required by the government or organization that furnished the information. Original

538

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00548 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of Science and Technology Policy § 2400.44

Subpart G—Security Education § 2400.42 Security Officer. Under the general direction of the Di- § 2400.39 Responsibility and objec- rector, the Special Assistant to the Ex- tives. ecutive Director will serve as the Secu- The OSTP Security Officer shall es- rity Officer and will supervise the ad- tablish a security education program ministration of this Regulation. He/she for OSTP personnel. The program shall will develop programs, in particular a be sufficient to familiarize all OSTP Security Education Program, to insure personnel with the provisions of Execu- effective compliance with and imple- tive Order 12356 and Directive No. 1, mentation of the Information Security and this regulation. It shall be de- Program. Specifically he/she also shall: signed to provide initial, refresher, and (a) Maintain a current listing by title termination briefings to impress upon and name of all persons who have been designated in writing to have original them their individual security respon- Top Secret, Secret, and Confidential sibilities. Classification authority. Listings will be reviewed by the Director on an an- Subpart H—Office of Science and nual basis. Technology Policy Information (b) Maintain the record copy of all Security Program Manage- approved OSTP classification guides. ment (c) Maintain a current listing of OSTP officials designated in writing to § 2400.40 Responsibility. have declassification and downgrading authority. The Director, OSTP is the senior (d) Develop and maintain systematic OSTP official having authority and re- review guidelines. sponsibility to ensure effective and uniform compliance with and imple- § 2400.43 Heads of offices. mentation of Executive Order 12356 and The Head of each unit is responsible its implementing Directive No. 1. As for the administration of this regula- such, the Director, OSTP, shall have tion within his area. These responsibil- primary responsibility for providing ities include: guidance, oversight and approval of (a) Insuring that national security policy and procedures governing the information is properly classified and OSTP Information Security Program. protected; The Director, OSTP, may approve (b) Exercising a continuing records waivers or exceptions to the provisions review to reduce classified holdings of this regulation to the extent such through retirement, destruction, down- action is consistent with Executive grading or declassification; Order 12356 and Directive No. 1. (c) Insuring that reproduction of classified information is kept to the § 2400.41 Office Review Committee. absolute minimum; (d) Issuing appropriate internal secu- The Office of Science and Technology rity instructions and maintaining the Policy Review Committee (hereinafter prescribed control and accountability referred to as the Office Review Com- records on classified information under mittee) is hereby established and will their jurisdiction. be responsible for the continuing review of the administration of this Reg- § 2400.44 Custodians. ulation with respect to the classifica- Custodians of classified material tion and declassification of informa- shall be responsible for providing pro- tion or material originated or held by tection and accountability for such the Office of Science and Technology material at all times and particularly Policy. The Office Review Committee for locking classified material in ap- shall be composed of the Executive Di- proved security equipment whenever it rector who shall serve as chairperson, is not in use or under direct super- the Assistant Director for National Se- vision of authorized persons. curity & Space, and the Security Offi- Custodians shall follow procedures cer. which insure that unauthorized persons

539

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00549 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2400.45 32 CFR Ch. XXIV (7–1–05 Edition)

do not gain access to classified infor- Officer will provide any records and as- mation or material by sight or sound, sistance required to facilitate the re- and classified information shall not be view. discussed with or in the presence of un- (c) The findings and recommenda- authorized persons. tions of the review will be provided to the Director for his determination. § 2400.45 Information Security Pro- gram Review. § 2400.46 Suggestions or complaints. (a) The Director, OSTP, shall require an annual formal review of the OSTP Persons desiring to submit sugges- Information Security Program to en- tions or complaints regarding the Of- sure compliance with the provisions of fice of Science and Technology Policy Executive Order 12356 and Directive No. Information Security Program should 1, and this regulation. do so in writing. This correspondence (b) The review shall be conducted by should be addressed to: Executive Di- a group of three to five persons ap- rector, Office of Science and Tech- pointed by the Director and chaired by nology Policy, Executive Office of the the Executive Director. The Security President, Washington, DC 20506.

540

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00550 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 CHAPTER XXVII—OFFICE FOR MICRONESIAN STATUS NEGOTIATIONS

Part Page 2700 Security information regulations ...... 543

541

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00551 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00552 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PART 2700—SECURITY § 2700.2 Purpose. INFORMATION REGULATIONS The purpose of this Regulation is to ensure, consistent with the authorities Subpart A—Introduction listed in § 2700.1, that national security Sec. information originated and/or held by 2700.1 References. the Office for Micronesian Status Ne- 2700.2 Purpose. gotiations (OMSN), which includes the 2700.3 Applicability. Status Liaison Office, Saipan, North- ern Mariana Islands (SLNO), is pro- Subpart B—Original Classification tected. To ensure that such informa- 2700.11 Basic policy. tion is protected, but only to the ex- 2700.12 Criteria for and level of original tent and for such period as is nec- classification. essary, this regulation identifies the 2700.13 Duration of original classification. information to be protected and pre- 2700.14 Challenges to classification. scribes certain classification, declassification and safeguarding procedures Subpart C—Derivative Classification to be followed. 2700.21 Definition and application. 2700.22 Classification guides. § 2700.3 Applicability. This Regulation supplements E.O. Subpart D—Declassification and 12065 within OMSN with regard to Na- Downgrading tional Security Information. In con- 2700.31 Declassification authority. sonance with the authorities listed in 2700.32 Declassification general. § 2700.1, it establishes general policies 2700.33 Mandatory review for declassifica- and certain procedures for the classi- tion. fication, declassification and safe- 2700.34 Downgrading authority. guarding of information which is Subpart E—Safeguarding owned by, is produced for or by, or is under the control of OMSN. 2700.41 General restrictions on access. 2700.42 Responsibility for safeguarding classified information. Subpart B—Original Classification 2700.43 Reproduction controls. 2700.44 Administrative sanctions. § 2700.11 Basic policy. (a) General. It is the policy of OMSN Subpart F—Implementation and Review to make available to the public as 2700.51 Information Security Oversight much information concerning its ac- Committee. tivities as is possible, consistent with 2700.52 Classified Review Committee. its responsibility to protect the na- AUTHORITY: E.O. 12065, National Security tional security. Regulation of June 28, 1978 (43 FR 28949, July (b) Safeguarding national security in- 31, 1978); Information Security Oversight Of- formation. Within the Federal Govern- fice Directive No. 1 (43 FR 46280, October 5, ment there is some information which 1978). because it bears directly on the effec- SOURCE: 44 FR 51574, Sept. 4, 1979, unless tiveness of our national defense and otherwise noted. Correctly designated at 44 the conduct of our foreign relations, FR 51990, Sept. 6, 1979. must be subject to some constraints for the security of our nation. Subpart A—Introduction (c) Balancing test. To balance the public’s interest in access to govern- § 2700.1 References. ment information with the need to pro- (a) Executive Order 12065, ‘‘National tect certain national security informa- Security Information,’’ June 28, 1978, tion from disclosure, these regulations (hereinafter E.O. 12065). indentify the information to be pro- (b) Information Security Oversight tected, prescribe classification, down- Office, Directive No. 1, ‘‘National Secu- grading, declassification, and safe- rity Information,’’ October 2, 1978, guarding procedures to be followed, and (hereinafter ISOO Directive No. 1). establish education, monitoring and

543

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00553 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2700.12 32 CFR Ch. XXVII (7–1–05 Edition)

sanctioning systems to insure their ef- the information should not be classi- fectiveness. When questions arise as fied. whether the need to protect information may be outweighed by the public § 2700.13 Duration of original classi- interest in disclosure of the informa- fication. tion, they shall be referred to OMSN (a) Information or material which is pursuant to § 2700.32(b) for a determina- classified after December 1, 1978, shall tion whether the public interest in dis- be marked at the time of classification closure outweighs the damage to na- with the date or event for declassifica- tional security that might reasonably tion or a date for review for declas- be expected from disclosure. sification. This date or event shall be as early as national security permits § 2700.12 Criteria for and level of original classification. and shall be no more than six years after original classification except as (a) General Policy. Documents or provided in paragraph (b) of this sec- other material are to be classified only tion. when protecting the national security (b) Only the President’s Personal requires that the information they con- Representative for Micronesian Status tain be withheld from public disclo- Negotiations may authorize a classi- sure. Information may not be classified to conceal violations of law, ineffi- fication period exceeding six years. ciency, or administrative error, or to Originally classified information that prevent embarrassment to a person, or- is so designated shall be identified with ganization or agency, or to restrain the authority and reason for extension. competition. No material may be clas- This authority shall be used sparingly. sified to limit dissemination, or to pre- In those cases where extension of clas- vent or delay public release, unless its sification is warranted, a declassifica- classification is consistent with E.O. tion date or event, or a date for review 12065. shall be set. This date or event shall be (b) Criteria. To be eligible for classi- early as national security permits and fication, information must meet two shall be no more than twenty years requirements: after original classification except that (1) First, it must deal with one of the for foreign information the date or criteria set forth in section 1–301 of event may be up to thirty years after E.O. 12065; original classification. (2) Second, the President’s Personal Representative for Micronesian Status § 2700.14 Challenges to classification. Negotiations or his delegate who has If holders of classified information original classification authority must believe the information is improperly determine that unauthorized disclosure or unnecessarily classified, or that of the information or material can rea- original classification has been ex- sonably be expected to cause at least tended for too long a period, they identifiable harm to the national secu- should discuss the matter with their rity. immediate superiors or the classifier of (c) Classification designations. Only the information. If these discussions do three designations of classification are not satisfy the concerns of the chal- authorized—‘‘Top Secret,’’ ‘‘Secret,’’ lenger, the matter should be brough to ‘‘Confidential.’’ No other classification the attention of the chairman of the designation is authorized or shall have OMSN Information Security Oversight force. Committee, established pursuant to (d) Unnecessary classification, and § 2700.51. Action on such challenges classification at a level higher than is shall be taken within 30 days from date necessary, shall be avoided. If there is of receipt and the challenger shall be reasonable doubt as to which designa- notified of the results. When requested, tion in section 1–1 of E.O. 12065 is appropriate, or whether information anonymity of the challenger shall be should be classified at all, the less re- preserved. strictive designation should be used, or

544

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00554 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office for Micronesian Status Negotiations § 2700.33

Subpart C—Derivative fication, release of information reason- Classification ably could still be expected to cause at least identifiable damage to the na- § 2700.21 Definition and application. tional security. Derivative classification is the act of assigning a level of classification to in- § 2700.33 Mandatory review for declas- formation which is determined to be sification. the same in substance as information (a) General. All information classified which is currently classified. Thus, de- under the Order or prior orders, except rivative classification may be accom- as provided for in section 3–503 of E.O. plished by any person cleared for ac- 12065 shall be subject to review for de- cess to that level of information, reclassification upon request of a mem- gardless of whether the person has ber of the public, a government em- original classification authority at ployee, or an agency. that level. (b) Receipt. (1) Requests for mandatory review for declassification under § 2700.22 Classification guides. section 3–501 of E.O. 12065 must be in OMSN shall issue classification writing and should be addressed to: Of- guides pursuant to section 2–2 of E.O. fice for Micronesian Status Negotia- 12065. These guides, which shall be used tions, ATTN: Security Officer (Manda- to direct derivative classification, shall tory Review Request), Room 3356, De- identify the information to be pro- partment of the Interior, Washington, tected in specific and uniform terms so that the information involved can be DC 20240. readily identified. The classification (2) The requestor shall be informed of guides shall be approved in writing by the date of receipt of the request at the President’s Personal Representa- OMSN. This date will be the basis for tive for Micronesian Status Negotia- the time limits specified in paragraph tions. Such approval constitutes an (c) of this section. original classification decision. The (3) If the request does not reasonably classification guides shall be kept cur- describe the information sought, the rent and shall be reviewed at least requestor shall be notified that, unless every two years. additional information is provided or the request is made more specific, no Subpart D—Declassification and further action will be taken. Downgrading (4) Subject to paragraph (b)(7) of this section, if the information requested is § 2700.31 Declassification authority. in the custody of and under the exclu- The Director, OMSN, is authorized to sive declassification authority of declassify OMSN originated documents OMSN, OMSN shall determine whether after consultation with the appropriate the information or any reasonably seg- OMSN staff members. regable portion of it no longer requires protection. If so, OMSN shall promptly § 2700.32 Declassification general. make such information available to Declassification of classified infor- the requester, unless withholding it is mation shall be given emphasis com- otherwise warranted under applicable parable to that accorded to classifica- law. If the information may not be re- tion. The determination to declassify leased, in whole or in part, OMSN shall information shall not be made on the give the requester a brief statement of basis of the level of classification as- the reasons, a notice of the right to ap- signed, but on the loss of the sensi- peal the determination to the agency tivity of the information with the pas- review committee, and notice that sage of time, and with due regard for such an appeal must be filed with the the public interest in access to official review committee within 60 days. information. At the time of review, any determination not to declassify shall (5) When OMSN receives a request for be based on a determination that de- information in a document which is in spite the passage of time since classi- its custody, but which was classified by

545

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00555 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2700.33 32 CFR Ch. XXVII (7–1–05 Edition)

another agency, it shall refer the re- (2) If the determination is to with- quest to the appropriate agency for re- hold some or all of the material review, together with a copy of the docu- quested, the requestor may appeal the ment containing the information re- determination. The requestor shall be quested, where practicable. OMSN shall informed that an appeal must be made also notify the requester of the refer- in writing within sixty days of receipt ral, unless the association of the re- of the denial and should be addressed viewing agency with the information to the chairperson of the OMSN Classi- requires protection. The reviewing fication Review Committee established agency shall review a document in co- pursuant to § 2700.52. ordination with any other agency in- (3) No agency in possession of a clas- volved with the classification or having sified document may, in response to a a direct interest in the subject matter. request for the document made under The reviewing agency shall respond di- the Freedom of Information Act (5 rectly to the requester in accordance U.S.C. 552) or under section 3–5 of E.O. with the pertinent procedures de- 12065, refuse to confirm the existence scribed above and, if requested, shall or non-existence of the document, un- notify OMSN of its determination. less the fact of its existence or non-ex- (6) Requests for declassification of istence would itself be classifiable. classified documents originated by (4) The requestor shall be informed of OMSN or another agency but in the the appellate determination within possession and control of the Adminis- thirty days of receipt of the appeal. trator of General Services, pursuant to (5) In considering requests for manda- 44 U.S.C 2107 or 2107 Note, shall be re- tory review, OMSN may decline to referred by the Archivist to the agency of view again any request for material origin for processing and for direct re- which has been recently reviewed and sponse to the requests. The Archivist denied, except insofar as the request will inform requesters of such referrals. constitutes an appeal under paragraph (f) of this section. (7) In the case of requests for docu- (d) Processing of Requests. The proc- ments containing foreign government essing of requests by OMSN shall be as information, OMSN, if it is also the follows: agency which initially received the for- (1) The Security Officer or his des- eign government information, shall de- ignee shall record the request, and ar- termine whether the foreign govern- range for search and review of the doc- ment information in the document uments. The documents will be re- may be declassified and released in ac- viewed for declassification in accord- cordance with agency policies or guide- ance with these regulations or any ap- lines, consulting with other agencies of plicable guidelines. If the documents subject matter interest as necessary. If remain classified and are not to be re- OMSN is not the agency which received leased, in whole or in part, the review- the foreign government information, it ing office will also prepare a letter in- shall refer the request to the latter forming the requester as described in agency, which shall take action on the paragraph (b)(4) of this section. The request. In those cases where available letter to the requester shall be signed agency policies or guidelines do not by the President’s Personal Represent- apply, consultation with the foreign ative for Micronesian Status Negotia- originator through appropriate chan- tions, his Deputy or the Status Liaison nels may be advisable prior to final ac- Officer. The Security Officer or his des- tion on the request. ignee shall record disposition of the (8) If any agency makes a request on case and forward the letter of denial to behalf of a member of the public, the the requester. request shall be considered as a request (2) If any request requires obtaining by that member of the public and han- the views of other agencies, the receiv- dled accordingly. ing office shall arrange coordination of (c) Review. (1) Within sixty days from review with such other agencies. its receipt, OMSN shall inform the re- (3) When all documents involved in questor of the determination of the the request are declassified and re- mandatory review for declassification. leased, the receiving office will send a

546

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00556 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office for Micronesian Status Negotiations § 2700.41

release statement, to the requester, (ii) Reproduction of documents: Doc- and shall inform the requester of any uments will be reproduced at a rate of fees due before releasing documents. $.25 per page for all copying of four (4) In the case of documents of agen- pages or more. No fee shall be assessed cy origin requested by a Presidential for reproducing documents which are Library on behalf of a member of the three pages or less, or for the first public, if there is a partial denial, the three pages of longer documents. letter will advise the requester as de- (2) Where it is anticipated that the scribed in paragraph (b)(4) of this sec- fees chargeable under this section will tion, but the requester will be referred amount to more than $25.00, and the re- to the Archivist for copies of the requestor has not indicated in advance a leased document, with portions willingness to pay fees as high as are excised. The receiving office will trans- anticipated, the requestor shall be mit such documents, with portions promptly notified of the amount of the marked to be excised, to Archives anticipated fee or such portion thereof which will transmit them with por- as can readily be estimated. In in- tions excised to the Presidential Li- stances where the estimated fees will brary for its records and for use in the greatly exceed $25.00, an advance de- case of further similar requests. posit may be required. Dispatch of such a notice or request shall suspend the (5) The Security Officer or his des- running of the period for response by ignee shall also coordinate requests OMSN until a reply is received from from other agencies seeking the views the requestor. of OMSN as to declassification of docu- (3) Remittance shall be in the form ments originated by such other agen- either of a personal check or bank cies but involving information of pri- draft on a bank in the United States, mary subject matter interest to OMSN. or a postal money order. Remittance The Security Officer or his designee shall be made payable to Treasurer of will transmit the documents to the re- the United States and mailed to the ad- viewing individual for a determination dress noted in paragraph (b)(1) of this as to declassification and will coordi- section. nate the reply of OMSN to the request- (4) A receipt for fees paid will be pro- ing agency. vided only upon request. Refund of fees (e) Appeals. (1) The President’s Per- for services actually rendered will not sonal Representative for Micronesian be made. Status Negotiations shall receive ap- (5) OMSN may waive all or part of peals for denial of documents by any fee provided for in this section OMSN. Such appeals shall be addressed when it is deemed to be in either the to President’s Personal Representative interest of OMSN or of the general pub- for Micronesian Status Negotiations, lic. Suite 3356, Interior Department Build- ing, Washington, DC 20240. The appeal § 2700.34 Downgrading authority. must be received in OMSN within 60 The Security Officer, OMSN is au- days of the date of the original denial thorized to downgrade OMSN origi- letter or the final release of docu- nated documents after consultation ments, whichever is later. with the staff member who is charged (2) Appeals shall be decided within 30 with functional responsibility for the days of their receipt. subject matter under question. (f) Fees. (1) Fees for the location and reproduction of information which is Subpart E—Safeguarding the subject of a mandatory review request shall be assessed according to the § 2700.41 General restrictions on ac- following schedule: cess. (i) Search for records: $5.00 per hour (a) Determination of need-to-know. when the search is conducted by a cler- Classified information shall be made ical employee; $8.00 per hour when the available to a person only when the search is conducted by a professional possessor of the classified information employee. No fee shall be assessed for establishes in each instance, except as searches of less than one hour. provided in section 4–3 of E.O. 12065,

547

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00557 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2700.42 32 CFR Ch. XXVII (7–1–05 Edition)

that access is essential to the accom- tion shall be changed as required by plishment of official Government du- ISOO Directive No. 1, section IV F ties or contractual obligations. (5)(a). The combinations shall be (b) Determination of Trustworthiness. A known only to the Security Officer and person is eligible for access to classi- his designees with the appropriate se- fied information only after a showing curity clearance. of trustworthiness as determined by (e) Security Education Program. The the President’s Personal Representa- Security Officer shall establish a pro- tive for Micronesian Status Negotia- gram of briefings to familiarize per- tions based upon appropriate investiga- sonnel with the provisions of E.O. 12065 tions in accordance with applicable and implementing directives. Such standards and criteria. briefings shall be held once per year, or more frequently. Before any new or § 2700.42 Responsibility for safe- newly assigned employee enters on guarding classified information. duty, he shall be given instruction in (a) General Policy. The specific re- sufficient detail in security procedures sponsibility for the maintenance of the and practices to inform him of his re- security of classified information rest sponsibilities arising from his access to with each person having knowledge or classified data. physical custody therof, no matter how (f) Access by Historical Researchers and obtained. The ultimate responsibility Former Presidential Appointees. In keep- for safeguarding classified information ing with provisions 4–301 and 4–302 of rests on each supervisor to the same E.O. 12065, the President’s Personal degree that supervisor is charged with Representative for Micronesian Status functional responsibility. Negotiations shall designate appro- (b) Security and Top Secret Control Of- priate officials to determine, prior to ficers. The Director, OMSN, and the granting access to classified informa- Status Liaison Officer, Saipan, are as- tion, the propriety of such action in signed specific security responsibilities the interest of national security and as Security Officer and Top Secret assurance of the recipient’s trust- Control Officer. worthiness and need-to-know. (c) Handling. All documents bearing the terms ‘‘Top Secret,’’ ‘‘Secret’’ and § 2700.43 Reproduction controls. ‘‘Confidential’’ shall be delivered to the OMSN and SLNO shall maintain Top Secret Control Officer or his des- records to show the number and dis- ignee immediately upon receipt. All tribution of all OMSN originated clas- potential recipients of such documents sified documents. Reproduction of clas- shall be advised of the names of such sified material shall take place only in designees and updated information as accordance with section 4–4 of E.O. necessary. In the event that the Top 12065 and any limitations imposed by Secret Control Officer or his designees the originator. Should copies be made, are not available to receive such docu- they are subject to the same controls ments, they shall be turned over to the as the original document. Records office supervisor and secured, un- showing the number of distribution of opened, in a designated combination copies shall be maintained by the Of- safe located in OMSN or SLNO, as ap- fice Supervisor and the log stored with propriate until the Top Secret Control the original documents. These meas- Officer is available. All materials not ures shall not restrict reproduction for immediately deliverable to the Top Se- the purposes of mandatory review. cret Control Officer shall be delivered at the earliest opportunity. Under no § 2700.44 Administrative sanctions. circumstances shall classified material Officers and employees of the United that cannot be delivered to the Top Se- States Government assigned to OMSN cret Control Officer be stored other shall be subject to appropriate admin- than in the designated safe. istrative sanctions if they knowingly (d) Storage. All classified documents and willingly commit a violation under shall be stored in the designated com- section 5–5 of E.O. 12065. These sanc- bination safe or safes located in OMSN tions may include reprimand, suspen- or SLNO as appropriate. The combina- sion without pay, removal, termination

548

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00558 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office for Micronesian Status Negotiations § 2700.52

of classification authority, or other The chairperson shall also be respon- sanction in accordance with applicable sible for conducting an active oversight law or the applicable regulations of the program to ensure effective implemen- agency from which they are assigned to tation of E.O. 12065. OMSN. § 2700.52 Classified Review Committee. Subpart F—Implementation and The OMSN Classification Review Review Committee shall be chaired by the President’s Personal Representative § 2700.51 Information Security Over- for Micronesian Status Negotiations. sight Committee. The Committee shall decide appeals The OMSN Information Security from denials of declassification re- Oversight Committee shall be chaired quests submitted pursuant to section by the Security Officer, OMSN. The 3–5 of E.O. 12065. The Committee shall Committee shall be responsible for act- consist of the President’s Personal ing on all suggestions and complaints Representative, Department of De- concerning the administration of the fense/Legal Advisor and Political/Eco- OMSN information security program. nomic Advisor.

549

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00559 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00560 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 CHAPTER XXVIII—OFFICE OF THE VICE PRESIDENT OF THE UNITED STATES

Part Page 2800 Security procedures...... 553

551

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00561 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00562 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 PART 2800—SECURITY PROCEDURES to perform the duties as outlined in these regulations. They will normally Sec. be on the staff of the Assistant to the 2800.1 Purpose. Vice President for National Security 2800.2 Guiding directives. Affairs. The Staff Security Officer and 2800.3 Policy. Assistant Staff Security Officer will 2800.4 General information. serve as Top Secret Control Officer and 2800.5 Policies. 2800.6 Delegation of classification and de- Assistant Top Secret Control Officer classification authority. and custodians of classified material 2800.7 Designation of chairperson for Ad for the Office of the Vice President re- Hoc Committees. spectively, and will be responsible for ATTACHMENT 1 TO PART 2800—EMPLOYMENT the overall supervision of the Top Se- AGREEMENT & INDOCTRINATION STATE- cret Control program. They will main- MENT tain positive control over the move- ATTACHMENT 2 TO PART 2800—SECURITY TER- ment of all Top Secret material under MINATION STATEMENT their jurisdiction. ATTACHMENT 3 TO PART 2800—SAMPLE (b) Custodian, Office of the Assistant to AUTHORITY: EO 12065, 43 FR 28949, 3 CFR, the Vice President for Congressional Rela- 1978 Comp., p. 190; (Information Security Oversight Office, Directive No. 1, 43 FR 46280, tions. The Assistant to the Vice Presi- 32 CFR ch. II. dent for Congressional Relations, Of- fice of the President of the Senate, will SOURCE: 44 FR 66591, Nov. 20, 1979, unless otherwise noted. be designated as Custodian of classified material for that office. He will be re- § 2800.1 Purpose. sponsible for compliance with the in- To establish procedures and provide structions contained herein. In this ca- guidance for the security of classified pacity, he will be charged with safe- information and material within the guarding classified material necessary Office of the Vice President. to the operation of the office. (c) National Security Classifications. § 2800.2 Guiding directives. Classifications of National Security In- (a) Executive Order 12065, June 28, formation are defined in Executive 1978, Subject: National Security Infor- Order 12065, sections 1–102 through 1– mation. 104. (b) Information Security Oversight (d) Prohibited Markings. (1) The cave- Office, Directive No. 1, October 2, 1978, ats ‘‘FOR OFFICIAL USE ONLY’’ and Subject: National Security Informa- ‘‘ADMINISTRATIVELY RE- tion. STRICTED’’ are used within the Office of the Vice President to designate cer- § 2800.3 Policy. tain unclassified information which re- The classification, declassification, quires control. These caveats will safeguarding and handling of classified under no circumstances be applied to information within the Office of the information which qualifies as classi- Vice President will comply with the fied information. Further, neither they letter and spirit of those directives nor other terms will be used in con- listed in § 2800.2. All personnel of the junction with the prescribed security Office of the Vice President are respon- classifications of CONFIDENTIAL, SE- sible individually for complying with CRET and TOP SECRET. the provisions of these regulations are (2) Unclassified information bearing in all respects. The provisions of these either of the foregoing administrative regulations applicable to all personnel designations cannot be protected from assigned or detailed to the Office of the release under the national security ex- Vice President. emption of the Freedom of Information Act (although other exemptions may § 2800.4 General information. be available). (a) Staff Security Officer/Top Secret (e) Security Clearances. No person Control Officer. A Vice Presidential shall be given access to classified infor- Staff Security Officer and Assistant mation or material unless a favorable Staff Security Officer will be assigned background investigation has been

553

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00563 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2800.4 32 CFR Ch. XXVIII (7–1–05 Edition)

completed determining that the indi- formation or material will be con- vidual is trustworthy and that access is trolled by the Staff Security Office and necessary for the performance of offi- certified in writing on an individual cial duties. basis. (1) Security Clearance Procedures. (i) (f) Access to Classified Material. Each The Counsel to the Vice President will: member of the staff who has custody or (A) Be responsible for the processing possession of classified information is of full field investigations for per- responsible for providing the required sonnel assigned to the Vice President’s degree of protection from unauthorized staff. Department of Defense detailees disclosure at all times. are processed by the Defense Investiga- (1) Classified information and mate- tive Service. rial will only be disclosed to an indi- (B) Inform the Staff Security Office vidual after it has been determined of individuals whose full field inves- that the individual possesses the re- tigations have been satisfactorily com- quired clearance and has a valid ‘‘need pleted and approved and of any subse- to know.’’ Persons releasing the infor- quent changes. mation shall be responsible in every (C) Notify the Staff Security Office case for determining the recipient’s eli- as soon as he/she is aware that a staff gibility for access. member is planning to terminate his/ (2) Access to Sensitive Compart- her employment. mented Intelligence Information will (ii) The Staff Security Office will be controlled by the Assistant to the provide newly cleared persons with a Vice President for National Security security orientation briefing covering Affairs. policy and procedures for handling classified information and material. (g) Custody and safekeeping of Classi- After the briefing individuals will sign fied Material. (1) Classified material ad- a Statement of Understanding of Secu- dressed to the Office of the Vice Presi- rity Procedures (Attachment 1). This dent will normally be delivered to and statement will be kept on file by the receipted for by the Staff Security Of- Staff Security Office. fice where it will be entered into the (iii) There is no such thing as an classified material control system. ‘‘Interim Security Clearance’’ for per- (i) Staff members receiving classified sons employed by or detailed to the Of- material from any source by any fice of the Vice President. Under no cir- means will personally deliver such ma- cumstances will uncleared persons be terial to the Staff Security Office for given access to classified material. Ac- appropriate entry into the classified cess to classified material will be de- control system. nied until the individual has had a sat- (ii) Conversely, members of the staff isfactorily completed background in- desiring to transmit classified material vestigation, has received the security will deliver the material to the Staff orientation briefing and signed the Security Office for handling in accord- Statement of Understanding of Secu- ance with paragraph (h)(5) of this sec- rity Procedures. tion. (iv) The Staff Security Office, as part (2) Storage of Classified Material. (i) of an individual’s departure debriefing, Classified material will be stored only will remind them of their continuing in accordance with the provisions of responsibilities to protect classified in- ISOO Directive No. 1, paragraph IV–F– formation to which they have had ac- 1 through 4. cess during the performance of their of- (ii) Filing of unclassified material in ficial duties. After being debriefed, the security containers is prohibited ex- individual will sign a Security Termi- cept where the unclassified material is nation Statement acknowledging his an integral part of a file which con- responsibilities (Attachment 2). tains classified material. If extenu- (2) Satisfactory completion of a ating circumstances necessitate the background investigation does not in use of a security container for storing itself grant an individual access to only unclassified material, the con- classified information. Individual tainer will be marked with a sign stat- clearances for access to classified in- ing ‘‘This container is not used to store

554

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00564 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of the Vice President of the U.S. § 2800.4

classified material’’ or ‘‘Do not store with the appropriate classification and classified material in this container.’’ provided the same degree of protection (3) Record of safe locations. The Staff as that given to other documents of an Security Office will assign numbers to equal category of classification. all security containers used to store (4) Communications security. Classified classified material in the Office of the information shall not be discussed over Vice President. A record of safe num- any voice communications device ex- bers, locations and date of last com- cept as authorized over approved secure bination change will be maintained in communications circuits. This restric- the Staff Security Office. tion also applies to electrical trans- (4) Changing of lock combinations. mission of classified material via any Combinations of security containers unsecure circuitry involving teletypes, will be changed by the Staff Security Office or the Secret Service. This serv- DEX equipment or other systems of a ice may be requested by contacting the like nature. Appropriate secure facili- Staff Security Office. Combinations ties for the discussion or transmittal of will be changed in accordance with the classified material may be arranged by provisions of ISOO Directive No. 1, contacting the Staff Security Office. paragraph IV–F–5. (5) Transmittal of Classified Material— (5) Records of combinations. Records of (i) Outside the Office of the Vice Presi- combinations shall be maintained by dent and the White House Complex. The the Staff Security Office. Whenever a Staff Security Office is responsible for combination is changed, the new com- transmitting or transferring all classi- bination and other required informa- fied material outside the Office of the tion will be recorded on GSA Optional Vice President and the White House Form 63. The sealed envelope will then Complex in accordance with the provi- be delivered to the Staff Security Of- sions of ISOO Directive No. 1, para- fice for retention in the vault safe. graphs I, G and H. (6) Custodians. Each container used (ii) Within the Office of the Vice Presi- for storage of classified material with- dent and the White House Complex. in the Office of the Vice President will Transfer or movement of classified ma- have assigned a primary and alternate terial will be accomplished only by custodian. Responsibility for security properly cleared persons handcarrying of these containers shall rest with the material to the recipient. The ma- those persons, and their names shall be affixed on the outside of the top drawer terial shall be carried in an envelope of each container positioned so as to be marked with the appropriate classifica- readily discernible. Optional Form 63 tion. Use of see through messenger enve- shall be used for this purpose. lopes is not authorized. Recipients will (h) Handling of Classified Material—(1) sign a receipt (GSA Optional Form 112) Use of cover sheets. A separate cover for all material classified SECRET and sheet indicating the classification of TOP SECRET. Whenever TOP SECRET the material will be fastened to the top material is transferred, the Staff Secu- page of cover of each CONFIDENTIAL, rity Office will be notified in order to SECRET or TOP SECRET document. maintain accurate accountability of (2) Unattended documents. Classified the material. Classified material will material will be under the direct super- never be delivered to an uncleared pervision of a person with an appropriate son, left in an unoccupied office, or security clearance and a verified need- sent through unclassified mail deliv- to-know at all times when in use. Spe- ery/distribution systems. cial care will be taken to insure that (iii) Staff members requiring the use classified material is not left unse- of classified material at conferences or cured or unattended in an office. meetings held outside the Washington, (3) Working papers. Working papers DC Metropolitan area and who intend are documents, including drafts, photo- to use commercial transportation shall graphs, etc., created to assist in the provide the material to the Staff Secu- formulation and preparation of finished papers. Working papers containing rity Office far enough in advance to as- classified information will be marked sure that the material will be available

555

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00565 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2800.4 32 CFR Ch. XXVIII (7–1–05 Edition)

on or before the date needed. This re- will be accomplished only by properly quirement does not apply when uti- cleared persons. lizing government/military transpor- (ii) Reproduction of TOP SECRET tation. In this case, material may be material will be accomplished only by handcarried. The Staff Security Office a member of the Staff Security Office will brief each staff member prior to or a designated representative of that departure concerning security require- office. ments or arrangements needed to safe- (iii) Accountability of reproduced guard the material while away from his classified material will be maintained office. For meetings or conferences by informing the Staff Security Office within the Washington, DC Metropoli- of the reproduction of SECRET and tan area, members may handcarry clas- TOP SECRET material, the number of sified material. Use of classified mate- copies reproduced and their disposi- rial during a conference or meeting re- tion. quires increased awareness and pre- cautionary handling to avoid security (iv) Reproduction machines can re- violations and/or compromises. Staff tain the imagery of material passed members using classified material dur- through them. Therefore, to avoid in- ing a meeting or conference are respon- advertent disclosure of classified infor- sible for ensuring that the material is mation through subsequent use of ma- properly protected at all times, and chines, staff members will always run that personnel present posses appro- machines through four cycles (four priate clearances for the material blank pages) after the last page of the being presented. classified material has been repro- (iv) Visits to foreign countries. Special duced. These pages will be destroyed in precautions must be taken when vis- the same manner as classified mate- iting foreign countries to ensure classi- rial. fied material is protected at all times. (8) Destruction of Classified Material. For all visits to foreign countries a (i) SECRET and TOP SECRET material member of the staff will be appointed will be given to the Staff Security Of- as custodian for all classified material fice for destruction to insure destruc- reqired for the success of the mission. tion is properly recorded and destroyed This individual will be the holder of a material is removed from the classified diplomatic passport which exempts control system. him from customs inspections. Indi- (ii) CONFIDENTIAL material may be vidual so designated will coordinate destroyed in the holder’s office by tear- with United States embassy personnel ing lengthwise and placing in a ‘‘Burn in the country to be visited for secur- Bag’’ specifically designated for classi- ing of classified material within the fied material. embassy compound or other appro- (iii) Classified waste material will be priate secure area during the course of the visit. separated from other office waste ma- (6) Preparation and marking of Classi- terial and placed in ‘‘Burn Bags.’’ Clas- fied Material. All classified material sified waste material includes working originating within the office of the papers, notes, drafts of classified cor- Vice President will be prepared and respondence, carbon paper, typewriter marked by properly authorized and ribbons and any other material con- cleared personnel in accordance with taining information requiring destruc- ISOO Directive No. 1, paragraphs I, G, tion. ‘‘Burn Bags’’ will be collected and H. A sample letter is attached for daily by a member of the White House your guidance (Attachment 3). Executive Protective Service who will Derivitive information will be prepared then dispose of the bags in a secure fa- and classified in accordance with ISOO cility. Directive No. 1, paragraphs II A (iv) Typewriter ribbons. Classified ma- through C. Questions concerning proce- terial can be reproduced from imprints dures should be directed to the Staff on used typewriter ribbons. Therefore, Security Office. ribbons which are used in the prepara- (7) Reproduction of Classified Material. tion of classified material must be (i) Reproduction of classified material safeguarded accordingly, i.e., they will

556

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00566 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of the Vice President of the U.S. § 2800.6

be stored in a safe at the close of busi- passage of time or upon the occurrence ness, destroyed as classified waste of a declassification event. For further when no longer serviceable, etc. guidance, refer to sections 3–102, 3–103 (9) Inventories. The Staff Security Of- and 3–104 of E.O. 12065. fice will conduct inventories of all TOP (d) Systematic review for declassifica- SECRET material charged to the Office tion. Systematic review for declas- of the Vice President at least annually sification will be in accordance with to determine the adequacy of control sections 3–204, 3–401 and 3–503 of E.O. procedures and insure accountability. 12065. (i) Loss or compromise. Any person (e) Mandatory review requests. Re- who has knowledge of loss of possible quests from a member of the public, a compromise of classified information government employee, or an agency, to shall promptly report the cir- declassify and release information will cumstances to the Staff Security Office be acted upon within 60 days provided for appropriate action in accordance the request reasonably identifies the with ISOO Directive No. 1, paragraph information. After review, the informa- IV, H. tion or any reasonably segregable por- (j) Penalties. Any individual breach of tion thereof that no longer requires security may warrant penalties up to protection, shall be declassified and re- and including the separation of the in- leased, except as provided in section 3– dividual from his employment or 503, E.O. 12065, unless withholding is criminal prosecution. otherwise warranted under applicable (k) Special access. Special access au- law. thority is required for release of Sen- (f) Classification guides. The Chief sitive Compartmented Intelligence In- Counsel, National Security Council, formation. The names of personnel has determined that, in view of the cleared for access to this category of limited amount of material originally information are on file in the Staff Se- classified by this office, the prepara- curity Office. tion and publication of classification guides is not required. § 2800.5 Policies. (g) Access to Classified Information by (a) Basic policy. Except as provided in historical researchers and former Presi- the Atomic Energy Act of 1943, as dential appointees. Access may be grant- amended, Executive Order 12065, as im- ed under the provisions of section 4–3 of plemented by ISOO Directive No. 1, E.O. 12065; however, access is permis- provides the only basis for classifying sive and not mandatory. information. It is the policy of this office to make available to the public as § 2800.6 Delegation of classification much information concerning its ac- and declassification authority. tivities as possible consistent with the Pursuant to the provisions of sec- need to protect the national security. tions 1–201 and 3–103 of E.O. 12065 of Accordingly, security classification June 28, 1978, the following officials shall be applied only to protect the na- within the Office of the Vice President, tional security. are designated to originally classify (b) Duration of classification. Classi- and declassify information as ‘‘SE- fication shall not be continued longer CRET’’ and/or ‘‘CONFIDENTIAL’’: than necessary for the protection of (a) Chief of Staff to the Vice Presi- national security. Each decision to dent. classify requires a simultaneous deter- (b) Counsel to the Vice President. mination of the duration such classi- (c) Executive Assistant to the Vice fication must remain in effect. For fur- President. ther guidance, refer to sections 1–401 (d) Assistant to the Vice President and 1–402, E.O. 12065. for National Security Affairs. (c) Declassification. Declassification (e) Assistant to the Vice President of information shall be given emphasis for Issues Development and Domestic comparable to that accorded to classi- Policy. fication. Decisions concerning declas- (f) Additionally, the following indi- sification shall be based on the loss of viduals are designated to declassify the information’s sensitivity with the ‘‘SECRET’’ and/or ‘‘CONFIDENTIAL’’

557

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00567 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 § 2800.7 32 CFR Ch. XXVIII (7–1–05 Edition)

information in accordance with section § 2800.7 Designation of chairperson for 3–103 of E.O. 12065: Ad Hoc Committees. (i) Staff Security Officer/Top Secret The Counsel to the Vice President is Control Officer. designated as the responsible official to (ii) Assistant Staff Security Officer/ chair Ad Hoc Committees as necessary Assistant Top Secret Control Officer. to act on all suggestions and complaints with respect to the administration of the information security program.

558

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00568 Fmt 8010 Sfmt 8010 Y:\SGML\205127.XXX 205127 Office of the Vice President of the U.S. Pt. 2800, Att. 1

ATTACHMENT 1 TO PART 2800—EMPLOYMENT AGREEMENT & INDOCTRINATION STATEMENT

559

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00569 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 EC21OC91.054 Pt. 2800, Att. 1 32 CFR Ch. XXVIII (7–1–05 Edition)

560

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00570 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 EC21OC91.055 Office of the Vice President of the U.S. Pt. 2800, Att. 2

ATTACHMENT 2 TO PART 2800—SECURITY TERMINATION STATEMENT

561

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00571 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 EC25OC91.011 Pt. 2800, Att. 3 32 CFR Ch. XXVIII (7–1–05 Edition)

ATTACHMENT 3 TO PART 2800—SAMPLE

562

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00572 Fmt 8010 Sfmt 8006 Y:\SGML\205127.XXX 205127 EC25OC91.012 FINDING AIDS

A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected

563

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00573 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00574 Fmt 8008 Sfmt 8008 Y:\SGML\205127.XXX 205127 Table of CFR Titles and Chapters (Revised as of July 1, 2005)

Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I [Reserved] II Office of Management and Budget Circulars and Guidance SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS [RESERVED]

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I General Accounting Office (Parts 1—99)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499)

565

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00575 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 5—Administrative Personnel—Continued Chap.

XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201) XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LV National Endowment for the Arts (Part 6501) LVI National Endowment for the Humanities (Part 6601) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXVII Institute of Museum and Library Services (Part 7701) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIII Department of Agriculture (Part 8301) LXXIV Federal Mine Safety and Health Review Commission (Part 8401) LXXVI Federal Retirement Thrift Investment Board (Part 8601)

566

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00576 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 5—Administrative Personnel—Continued Chap.

LXXVII Office of Management and Budget (Part 8701) XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Part 9701)

Title 6—Homeland Security

I Department of Homeland Security, Office of the Secretary (Parts 0—99)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099)

567

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00577 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 7—Agriculture—Continued Chap.

XX Local Television Loan Guarantee Board (Parts 2200—2299) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy Policy and New Uses, Department of Agri- culture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

Title 8—Aliens and Nationality

I Department of Homeland Security (Immigration and Naturaliza- tion) (Parts 1—499) V Executive Office for Immigration Review, Department of Justice (Parts 1000—1399)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

568

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00578 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 10—Energy Chap.

I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board, Department of Com- merce (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board, Department of Commerce (Parts 500—599)

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199)

569

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00579 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 14—Aeronautics and Space—Continued Chap.

II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)

Title 16—Commercial Practices

I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)

Title 17—Commodity and Securities Exchanges

I Commodity Futures Trading Commission (Parts 1—199)

570

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00580 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 17—Commodity and Securities Exchanges—Continued Chap.

II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I Bureau of Customs and Border Protection, Department of Home- land Security; Department of the Treasury (Parts 0—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Bureau of Immigration and Customs Enforcement, Department of Homeland Security (Parts 400—599)

Title 20—Employees’ Benefits

I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Employment Standards Administration, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)

571

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00581 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 22—Foreign Relations Chap.

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board Regulations (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)

Title 23—Highways

I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599)

572

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00582 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 24—Housing and Urban Development—Continued Chap.

VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— 899)

Title 27—Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399)

573

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00583 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 27—Alcohol, Tobacco Products and Firearms—Continued Chap.

II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice (Parts 400—699)

Title 28—Judicial Administration

I Department of Justice (Parts 0—299) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

574

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00584 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 30—Mineral Resources Chap.

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399) IV Geological Survey, Department of the Interior (Parts 400—499) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999)

Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799)

575

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00585 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 32—National Defense—Continued Chap.

XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—REGULATIONS RELATING TO EDUCATION XII National Council on Disability (Parts 1200—1299)

Title 35 [Reserved]

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Part 1501)

576

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00586 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 36—Parks, Forests, and Public Property—Continued Chap.

XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) III Copyright Royalty Board, Library of Congress (Parts 301—399) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—99)

Title 39—Postal Service

I United States Postal Service (Parts 1—999) III Postal Rate Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—1099) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)

Title 41—Public Contracts and Property Management

SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299)

577

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00587 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 41—Public Contracts and Property Management—Continued Chap.

105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [Reserved] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–1—303–99) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)

Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10010)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency, Department of Home- land Security (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)

578

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00588 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 45—Public Welfare Chap.

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

I Coast Guard, Department of Homeland Security (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Homeland Security (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199)

579

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00589 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 47—Telecommunication—Continued Chap.

II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 [Reserved] 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299)

580

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00590 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 48—Federal Acquisition Regulations System—Continued Chap.

53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) 54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Pipeline and Hazardous Materials Safety Administration, De- partment of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Homeland Security (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Research and Innovative Technology Administration, Depart- ment of Transportation (Parts 1400—1499) XII Transportation Security Administration, Department of Home- land Security (Parts 1500—1699)

Title 50—Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399)

581

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00591 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Title 50—Wildlife and Fisheries—Continued Chap.

IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

CFR Index and Finding Aids

Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR

582

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00592 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 Alphabetical List of Agencies Appearing in the CFR (Revised as of July 1, 2005)

CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Advanced Research Projects Agency 32, I Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development, United States 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 5, LXXIII Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Cooperative State Research, Education, and Extension 7, XXXIV Service Economic Research Service 7, XXXVII Energy, Office of 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Air Transportation Stabilization Board 14, VI Alcohol and Tobacco Tax and Trade Bureau 27, I Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX

583

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00593 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Architectural and Transportation Barriers Compliance Board 36, XI Arctic Research Commission 45, XXIII Armed Forces Retirement Home 5, XI Army Department 32, V Engineers, Corps of 33, II; 36, III Federal Acquisition Regulation 48, 51 Benefits Review Board 20, VII Bilingual Education and Minority Languages Affairs, Office of 34, V Blind or Severely Disabled, Committee for Purchase From 41, 51 People Who Are Broadcasting Board of Governors 22, V Federal Acquisition Regulation 48, 19 Census Bureau 15, I Centers for Medicare & Medicaid Services 42, IV Central Intelligence Agency 32, XIX Chief Financial Officer, Office of 7, XXX Child Support Enforcement, Office of 45, III Children and Families, Administration for 45, II, III, IV, X Civil Rights, Commission on 45, VII Civil Rights, Office for 34, I Coast Guard 33, I; 46, I; 49, IV Coast Guard (Great Lakes Pilotage) 46, III Commerce Department 44, IV Census Bureau 15, I Economic Affairs, Under Secretary 37, V Economic Analysis, Bureau of 15, VIII Economic Development Administration 13, III Emergency Management and Assistance 44, IV Federal Acquisition Regulation 48, 13 Fishery Conservation and Management 50, VI Foreign-Trade Zones Board 15, IV Industry and Security, Bureau of 15, VII International Trade Administration 15, III; 19, III National Institute of Standards and Technology 15, II National Marine Fisheries Service 50, II, IV, VI National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI National Telecommunications and Information 15, XXIII; 47, III Administration National Weather Service 15, IX Patent and Trademark Office, United States 37, I Productivity, Technology and Innovation, Assistant 37, IV Secretary for Secretary of Commerce, Office of 15, Subtitle A Technology, Under Secretary for 37, V Technology Administration 15, XI Technology Policy, Assistant Secretary for 37, IV Commercial Space Transportation 14, III Commodity Credit Corporation 7, XIV Commodity Futures Trading Commission 5, XLI; 17, I Community Planning and Development, Office of Assistant 24, V, VI Secretary for Community Services, Office of 45, X Comptroller of the Currency 12, I Construction Industry Collective Bargaining Commission 29, IX Consumer Product Safety Commission 5, LXXI; 16, II Cooperative State Research, Education, and Extension 7, XXXIV Service Copyright Office 37, II Corporation for National and Community Service 45, XII, XXV Cost Accounting Standards Board 48, 99 Council on Environmental Quality 40, V Court Services and Offender Supervision Agency for the 28, VIII District of Columbia Customs and Border Protection Bureau 19, I Defense Contract Audit Agency 32, I Defense Department 5, XXVI; 32, Subtitle A; 40, VII

584

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00594 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Advanced Research Projects Agency 32, I Air Force Department 32, VII Army Department 32, V; 33, II; 36, III, 48, 51 Defense Intelligence Agency 32, I Defense Logistics Agency 32, I, XII; 48, 54 Engineers, Corps of 33, II; 36, III Federal Acquisition Regulation 48, 2 National Imagery and Mapping Agency 32, I Navy Department 32, VI; 48, 52 Secretary of Defense, Office of 32, I Defense Contract Audit Agency 32, I Defense Intelligence Agency 32, I Defense Logistics Agency 32, XII; 48, 54 Defense Nuclear Facilities Safety Board 10, XVII Delaware River Basin Commission 18, III District of Columbia, Court Services and Offender Supervision 28, VIII Agency for the Drug Enforcement Administration 21, II East-West Foreign Trade Board 15, XIII Economic Affairs, Under Secretary 37, V Economic Analysis, Bureau of 15, VIII Economic Development Administration 13, III Economic Research Service 7, XXXVII Education, Department of 5, LIII Bilingual Education and Minority Languages Affairs, Office 34, V of Civil Rights, Office for 34, I Educational Research and Improvement, Office of 34, VII Elementary and Secondary Education, Office of 34, II Federal Acquisition Regulation 48, 34 Postsecondary Education, Office of 34, VI Secretary of Education, Office of 34, Subtitle A Special Education and Rehabilitative Services, Office of 34, III Vocational and Adult Education, Office of 34, IV Educational Research and Improvement, Office of 34, VII Elementary and Secondary Education, Office of 34, II Emergency Oil and Gas Guaranteed Loan Board 13, V Emergency Steel Guarantee Loan Board 13, IV Employee Benefits Security Administration 29, XXV Employees’ Compensation Appeals Board 20, IV Employees Loyalty Board 5, V Employment and Training Administration 20, V Employment Standards Administration 20, VI Endangered Species Committee 50, IV Energy, Department of 5, XXIII; 10, II, III, X Federal Acquisition Regulation 48, 9 Federal Energy Regulatory Commission 5, XXIV; 18, I Property Management Regulations 41, 109 Energy, Office of 7, XXIX Engineers, Corps of 33, II; 36, III Engraving and Printing, Bureau of 31, VI Environmental Protection Agency 5, LIV; 40, I, IV, VII Federal Acquisition Regulation 48, 15 Property Management Regulations 41, 115 Environmental Quality, Office of 7, XXXI Equal Employment Opportunity Commission 5, LXII; 29, XIV Equal Opportunity, Office of Assistant Secretary for 24, I Executive Office of the President 3, I Administration, Office of 5, XV Environmental Quality, Council on 40, V Management and Budget, Office of 5, III, LXXVII; 14, VI; 48, 99 National Drug Control Policy, Office of 21, III National Security Council 32, XXI; 47, 2 Presidential Documents 3 Science and Technology Policy, Office of 32, XXIV; 47, II

585

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00595 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Trade Representative, Office of the United States 15, XX Export-Import Bank of the United States 5, LII; 12, IV Family Assistance, Office of 45, II Farm Credit Administration 5, XXXI; 12, VI Farm Credit System Insurance Corporation 5, XXX; 12, XIV Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 1 Federal Aviation Administration 14, I Commercial Space Transportation 14, III Federal Claims Collection Standards 31, IX Federal Communications Commission 5, XXIX; 47, I Federal Contract Compliance Programs, Office of 41, 60 Federal Crop Insurance Corporation 7, IV Federal Deposit Insurance Corporation 5, XXII; 12, III Federal Election Commission 11, I Federal Emergency Management Agency 44, I Federal Acquisition Regulation 48, 44 Federal Employees Group Life Insurance Federal Acquisition 48, 21 Regulation Federal Employees Health Benefits Acquisition Regulation 48, 16 Federal Energy Regulatory Commission 5, XXIV; 18, I Federal Financial Institutions Examination Council 12, XI Federal Financing Bank 12, VIII Federal Highway Administration 23, I, II Federal Home Loan Mortgage Corporation 1, IV Federal Housing Enterprise Oversight Office 12, XVII Federal Housing Finance Board 12, IX Federal Labor Relations Authority, and General Counsel of 5, XIV; 22, XIV the Federal Labor Relations Authority Federal Law Enforcement Training Center 31, VII Federal Management Regulation 41, 102 Federal Maritime Commission 46, IV Federal Mediation and Conciliation Service 29, XII Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII Federal Motor Carrier Safety Administration 49, III Federal Prison Industries, Inc. 28, III Federal Procurement Policy Office 48, 99 Federal Property Management Regulations 41, 101 Federal Railroad Administration 49, II Federal Register, Administrative Committee of 1, I Federal Register, Office of 1, II Federal Reserve System 12, II Board of Governors 5, LVIII Federal Retirement Thrift Investment Board 5, VI, LXXVI Federal Service Impasses Panel 5, XIV Federal Trade Commission 5, XLVII; 16, I Federal Transit Administration 49, VI Federal Travel Regulation System 41, Subtitle F Fine Arts, Commission on 45, XXI Fiscal Service 31, II Fish and Wildlife Service, United States 50, I, IV Fishery Conservation and Management 50, VI Food and Drug Administration 21, I Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Foreign Assets Control, Office of 31, V Foreign Claims Settlement Commission of the United States 45, V Foreign Service Grievance Board 22, IX Foreign Service Impasse Disputes Panel 22, XIV Foreign Service Labor Relations Board 22, XIV Foreign-Trade Zones Board 15, IV Forest Service 36, II General Accounting Office 4, I General Services Administration 5, LVII; 41, 105 Contract Appeals, Board of 48, 61 Federal Acquisition Regulation 48, 5

586

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00596 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Federal Management Regulation 41, 102 Federal Property Management Regulations 41, 101 Federal Travel Regulation System 41, Subtitle F General 41, 300 Payment From a Non-Federal Source for Travel Expenses 41, 304 Payment of Expenses Connected With the Death of Certain 41, 303 Employees Relocation Allowances 41, 302 Temporary Duty (TDY) Travel Allowances 41, 301 Geological Survey 30, IV Government Ethics, Office of 5, XVI Government National Mortgage Association 24, III Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Harry S. Truman Scholarship Foundation 45, XVIII Health and Human Services, Department of 5, XLV; 45, Subtitle A Centers for Medicare & Medicaid Services 42, IV Child Support Enforcement, Office of 45, III Children and Families, Administration for 45, II, III, IV, X Community Services, Office of 45, X Family Assistance, Office of 45, II Federal Acquisition Regulation 48, 3 Food and Drug Administration 21, I Human Development Services, Office of 45, XIII Indian Health Service 25, V; 42, I Inspector General (Health Care), Office of 42, V Public Health Service 42, I Refugee Resettlement, Office of 45, IV Homeland Security, Department of 6, I Coast Guard 33, I; 46, I; 49, IV Coast Guard (Great Lakes Pilotage) 46, III Customs and Border Protection Bureau 19, I Federal Emergency Management Agency 44, I Immigration and Customs Enforcement Bureau 19, IV Immigration and Naturalization 8, I Transportation Security Administration 49, XII Housing and Urban Development, Department of 5, LXV; 24, Subtitle B Community Planning and Development, Office of Assistant 24, V, VI Secretary for Equal Opportunity, Office of Assistant Secretary for 24, I Federal Acquisition Regulation 48, 24 Federal Housing Enterprise Oversight, Office of 12, XVII Government National Mortgage Association 24, III Housing—Federal Housing Commissioner, Office of 24, II, VIII, X, XX Assistant Secretary for Housing, Office of, and Multifamily Housing Assistance 24, IV Restructuring, Office of Inspector General, Office of 24, XII Public and Indian Housing, Office of Assistant Secretary for 24, IX Secretary, Office of 24, Subtitle A, VII Housing—Federal Housing Commissioner, Office of Assistant 24, II, VIII, X, XX Secretary for Housing, Office of, and Multifamily Housing Assistance 24, IV Restructuring, Office of Human Development Services, Office of 45, XIII Immigration and Customs Enforcement Bureau 19, IV Immigration and Naturalization 8, I Immigration Review, Executive Office for 8, V Independent Counsel, Office of 28, VII Indian Affairs, Bureau of 25, I, V Indian Affairs, Office of the Assistant Secretary 25, VI Indian Arts and Crafts Board 25, II Indian Health Service 25, V; 42, I Industry and Security, Bureau of 15, VII Information Resources Management, Office of 7, XXVII Information Security Oversight Office, National Archives and 32, XX Records Administration Inspector General

587

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00597 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Agriculture Department 7, XXVI Health and Human Services Department 42, V Housing and Urban Development Department 24, XII Institute of Peace, United States 22, XVII Inter-American Foundation 5, LXIII; 22, X Interior Department American Indians, Office of the Special Trustee 25, VII Endangered Species Committee 50, IV Federal Acquisition Regulation 48, 14 Federal Property Management Regulations System 41, 114 Fish and Wildlife Service, United States 50, I, IV Geological Survey 30, IV Indian Affairs, Bureau of 25, I, V Indian Affairs, Office of the Assistant Secretary 25, VI Indian Arts and Crafts Board 25, II Land Management, Bureau of 43, II Minerals Management Service 30, II National Indian Gaming Commission 25, III National Park Service 36, I Reclamation, Bureau of 43, I Secretary of the Interior, Office of 43, Subtitle A Surface Mining and Reclamation Appeals, Board of 30, III Surface Mining Reclamation and Enforcement, Office of 30, VII Internal Revenue Service 26, I International Boundary and Water Commission, United States 22, XI and Mexico, United States Section International Development, United States Agency for 22, II Federal Acquisition Regulation 48, 7 International Development Cooperation Agency, United 22, XII States International Fishing and Related Activities 50, III International Investment, Office of 31, VIII International Joint Commission, United States and Canada 22, IV International Organizations Employees Loyalty Board 5, V International Trade Administration 15, III; 19, III International Trade Commission, United States 19, II Interstate Commerce Commission 5, XL James Madison Memorial Fellowship Foundation 45, XXIV Japan–United States Friendship Commission 22, XVI Joint Board for the Enrollment of Actuaries 20, VIII Justice Department 5, XXVIII; 28, I, XI; 40, IV Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II Drug Enforcement Administration 21, II Federal Acquisition Regulation 48, 28 Federal Claims Collection Standards 31, IX Federal Prison Industries, Inc. 28, III Foreign Claims Settlement Commission of the United 45, V States Immigration Review, Executive Office for 8, V Offices of Independent Counsel 28, VI Prisons, Bureau of 28, V Property Management Regulations 41, 128 Labor Department 5, XLII Benefits Review Board 20, VII Employee Benefits Security Administration 29, XXV Employees’ Compensation Appeals Board 20, IV Employment and Training Administration 20, V Employment Standards Administration 20, VI Federal Acquisition Regulation 48, 29 Federal Contract Compliance Programs, Office of 41, 60 Federal Procurement Regulations System 41, 50 Labor-Management Standards, Office of 29, II, IV Mine Safety and Health Administration 30, I Occupational Safety and Health Administration 29, XVII Public Contracts 41, 50 Secretary of Labor, Office of 29, Subtitle A

588

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00598 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX Assistant Secretary for Wage and Hour Division 29, V Workers’ Compensation Programs, Office of 20, I Labor-Management Standards, Office of 29, II, IV Land Management, Bureau of 43, II Legal Services Corporation 45, XVI Library of Congress 36, VII Copyright Office 37, II Local Television Loan Guarantee Board 7, XX Management and Budget, Office of 5, III, LXXVII; 14, VI; 48, 99 Marine Mammal Commission 50, V Maritime Administration 46, II Merit Systems Protection Board 5, II Micronesian Status Negotiations, Office for 32, XXVII Mine Safety and Health Administration 30, I Minerals Management Service 30, II Minority Business Development Agency 15, XIV Miscellaneous Agencies 1, IV Monetary Offices 31, I Morris K. Udall Scholarship and Excellence in National 36, XVI Environmental Policy Foundation National Aeronautics and Space Administration 5, LIX; 14, V Federal Acquisition Regulation 48, 18 National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National and Community Service, Corporation for 45, XII, XXV National Archives and Records Administration 5, LXVI; 36, XII Information Security Oversight Office 32, XX National Bureau of Standards 15, II National Capital Planning Commission 1, IV National Commission for Employment Policy 1, IV National Commission on Libraries and Information Science 45, XVII National Council on Disability 34, XII National Counterintelligence Center 32, XVIII National Credit Union Administration 12, VII National Crime Prevention and Privacy Compact Council 28, IX National Drug Control Policy, Office of 21, III National Foundation on the Arts and the Humanities 45, XI National Highway Traffic Safety Administration 23, II, III; 49, V National Imagery and Mapping Agency 32, I National Indian Gaming Commission 25, III National Institute for Literacy 34, XI National Institute of Standards and Technology 15, II National Labor Relations Board 5, LXI; 29, I National Marine Fisheries Service 50, II, IV, VI National Mediation Board 29, X National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI National Park Service 36, I National Railroad Adjustment Board 29, III National Railroad Passenger Corporation (AMTRAK) 49, VII National Science Foundation 5, XLIII; 45, VI Federal Acquisition Regulation 48, 25 National Security Council 32, XXI National Security Council and Office of Science and 47, II Technology Policy National Telecommunications and Information 15, XXIII; 47, III Administration National Transportation Safety Board 49, VIII National Weather Service 15, IX Natural Resources Conservation Service 7, VI Navajo and Hopi Indian Relocation, Office of 25, IV Navy Department 32, VI Federal Acquisition Regulation 48, 52 Neighborhood Reinvestment Corporation 24, XXV Northeast Interstate Low-Level Radioactive Waste 10, XVIII Commission

589

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00599 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Nuclear Regulatory Commission 5, XLVIII; 10, I Federal Acquisition Regulation 48, 20 Occupational Safety and Health Administration 29, XVII Occupational Safety and Health Review Commission 29, XX Offices of Independent Counsel 28, VI Oklahoma City National Memorial Trust 36, XV Operations Office 7, XXVIII Overseas Private Investment Corporation 5, XXXIII; 22, VII Patent and Trademark Office, United States 37, I Payment From a Non-Federal Source for Travel Expenses 41, 304 Payment of Expenses Connected With the Death of Certain 41, 303 Employees Peace Corps 22, III Pennsylvania Avenue Development Corporation 36, IX Pension Benefit Guaranty Corporation 29, XL Personnel Management, Office of 5, I, XXXV; 45, VIII Federal Acquisition Regulation 48, 17 Federal Employees Group Life Insurance Federal 48, 21 Acquisition Regulation Federal Employees Health Benefits Acquisition Regulation 48, 16 Pipeline and Hazardous Materials Safety Administration 49, I Postal Rate Commission 5, XLVI; 39, III Postal Service, United States 5, LX; 39, I Postsecondary Education, Office of 34, VI President’s Commission on White House Fellowships 1, IV Presidential Documents 3 Presidio Trust 36, X Prisons, Bureau of 28, V Procurement and Property Management, Office of 7, XXXII Productivity, Technology and Innovation, Assistant 37, IV Secretary Public Contracts, Department of Labor 41, 50 Public and Indian Housing, Office of Assistant Secretary for 24, IX Public Health Service 42, I Railroad Retirement Board 20, II Reclamation, Bureau of 43, I Refugee Resettlement, Office of 45, IV Regional Action Planning Commissions 13, V Relocation Allowances 41, 302 Research and Innovative Technology Administration 49, XI Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Saint Lawrence Seaway Development Corporation 33, IV Science and Technology Policy, Office of 32, XXIV Science and Technology Policy, Office of, and National 47, II Security Council Secret Service 31, IV Securities and Exchange Commission 17, II Selective Service System 32, XVI Small Business Administration 13, I Smithsonian Institution 36, V Social Security Administration 20, III; 48, 23 Soldiers’ and Airmen’s Home, United States 5, XI Special Counsel, Office of 5, VIII Special Education and Rehabilitative Services, Office of 34, III State Department 22, I; 28, XI Federal Acquisition Regulation 48, 6 Surface Mining and Reclamation Appeals, Board of 30, III Surface Mining Reclamation and Enforcement, Office of 30, VII Surface Transportation Board 49, X Susquehanna River Basin Commission 18, VIII Technology Administration 15, XI Technology Policy, Assistant Secretary for 37, IV Technology, Under Secretary for 37, V

590

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00600 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 CFR Title, Subtitle or Agency Chapter Tennessee Valley Authority 5, LXIX; 18, XIII Thrift Supervision Office, Department of the Treasury 12, V Trade Representative, United States, Office of 15, XX Transportation, Department of 5, L Commercial Space Transportation 14, III Contract Appeals, Board of 48, 63 Emergency Management and Assistance 44, IV Federal Acquisition Regulation 48, 12 Federal Aviation Administration 14, I Federal Highway Administration 23, I, II Federal Motor Carrier Safety Administration 49, III Federal Railroad Administration 49, II Federal Transit Administration 49, VI Maritime Administration 46, II National Highway Traffic Safety Administration 23, II, III; 49, V Pipeline and Hazardous Materials Safety Administration 49, I Saint Lawrence Seaway Development Corporation 33, IV Secretary of Transportation, Office of 14, II; 49, Subtitle A Surface Transportation Board 49, X Transportation Statistics Bureau 49, XI Transportation, Office of 7, XXXIII Transportation Security Administration 49, XII Transportation Statistics Bureau 49, XI Travel Allowances, Temporary Duty (TDY) 41, 301 Treasury Department 5, XXI; 12, XV; 17, IV; 31, IX Alcohol and Tobacco Tax and Trade Bureau 27, I Community Development Financial Institutions Fund 12, XVIII Comptroller of the Currency 12, I Customs and Border Protection Bureau 19, I Engraving and Printing, Bureau of 31, VI Federal Acquisition Regulation 48, 10 Federal Law Enforcement Training Center 31, VII Fiscal Service 31, II Foreign Assets Control, Office of 31, V Internal Revenue Service 26, I International Investment, Office of 31, VIII Monetary Offices 31, I Secret Service 31, IV Secretary of the Treasury, Office of 31, Subtitle A Thrift Supervision, Office of 12, V Truman, Harry S. Scholarship Foundation 45, XVIII United States and Canada, International Joint Commission 22, IV United States and Mexico, International Boundary and Water 22, XI Commission, United States Section Utah Reclamation Mitigation and Conservation Commission 43, III Veterans Affairs Department 38, I Federal Acquisition Regulation 48, 8 Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX Assistant Secretary for Vice President of the United States, Office of 32, XXVIII Vocational and Adult Education, Office of 34, IV Wage and Hour Division 29, V Water Resources Council 18, VI Workers’ Compensation Programs, Office of 20, I World Agricultural Outlook Board 7, XXXVIII

591

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00601 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00602 Fmt 8092 Sfmt 8092 Y:\SGML\205127.XXX 205127 List of CFR Sections Affected All changes in this volume of the Code of Federal Regulations that were made by documents published in the FEDERAL REGISTER since Jan- uary 1, 2001, are enumerated in the following list. Entries indicate the nature of the changes effected. Page numbers refer to FEDERAL REGISTER pages. The user should consult the entries for chapters and parts as well as sections for revisions. For the period before January 1, 2001, see the ‘‘List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, and 1986–2000’’ published in 11 separate volumes.

2001 32 CFR—Continued 67 FR Page 32 CFR 66 FR Chapter VII—Continued Page 861 Revised ...... 65698 Chapter VII 806b Appendix C amended ...... 54930 Chapter XII 989.1 (a) and (b) corrected ...... 16868 935 Revised ...... 16999 989.3 (a)(4)(i), (iii), (c)(2)(iv), (d)(7) 1293 Removed ...... 69688 and (h)(7) corrected...... 16868 989.5 (d) corrected ...... 16868 2003 989.12 Corrected...... 16868 989.13 (c) corrected...... 16868 32 CFR 68 FR 989.14 (g) through (j) corrected ...... 16868 Page 989.17 Corrected...... 16868 Chapter VII 989.18 (a) corrected...... 16868, 26793 806b Appendix C amended ...24882, 37970, 989.19 (a), (b) and (c)(2) cor- 68518 rected...... 16868 Chapter XX 989.20 Corrected...... 16868 989.21 (a) and (b) corrected...... 16868 2001 Revised ...... 55168 989.22 (a), (b) and (d) amended ...... 16868 2004 Removed ...... 55186 989.29 Corrected...... 16869 989.32 Corrected...... 16869 2004 989.34 (a) and (b) corrected...... 16869 989.35 (c) corrected...... 16869 32 CFR 69 FR Page 989.36 Corrected...... 16869 989.38 (b), (c) and (d) corrected ...... 16869 Chapter VII 989 Appendices A, B and C cor- 806b Revised ...... 954 rected...... 16869 806b Appendix C amended ...... 507 Appendix C corrected ...... 31177 Appendix D amended...... 12540 Regulation at 66 FR 31177 eff. Chapter XVI date corrected...... 31976 1602.11 Revised ...... 20543 1605.24 Introductory text, (a), (b) 2002 and (c) redesignated as (a) in- 32 CFR 67 FR troductory text, (1), (2) and (3); Page new (b) added ...... 20543 Chapter VII 1609.1 Amended...... 20544 806b Appendix C amended ....17619, 53879 1656.1 (b)(6) removed; (b)(7) Appendix C corrected ...... 64313 through (14) redesignated as 809a Revised ...... 13718 new (b)(6) through (13)...... 20544

593

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00603 Fmt 8060 Sfmt 8060 Y:\SGML\205127.XXX 205127 32 CFR (7–1–05 Edition)

32 CFR—Continued 69 FR 32 CFR—Continued 69 FR Page Page Chapter XVI—Continued Chapter XIX 1656.3 (a)(10) removed; (a)(11), (12) 1910 Added ...... 63064 and (13) redesignated as new (a)(10), (11) and (12) ...... 20544 Chapter XX 1656.11 (b)(4) amended ...... 20544 2001 Authority citation re- 1656.13 (d), (f), (g) and (h) amend- vised...... 17053 ed; (e) removed; (f), (g) and (h) 2001 Appendix A added ...... 17053 redesignated as new (e), (f) and (g) ...... 20544 1656.18 (c) amended ...... 20544 2005 1665.1 (a) amended ...... 1525 (No regulations published from 1665.6 (c)(3) amended ...... 1525 January 1, 2005, through July 1, 2005) 1665.7 (c) amended ...... 1525 Æ

594

VerDate Aug<04>2004 11:21 Jul 26, 2005 Jkt 205127 PO 00000 Frm 00604 Fmt 8060 Sfmt 8006 Y:\SGML\205127.XXX 205127