Title 32 National Defense Parts 700 to 799

Home , Fleet Marine Force, Naval Vessel Register, Navy Office (Royal Navy), Type 724 LCAC, USS Crommelin (FFG-37), USS Dallas (DD-199)

Revised as of July 1, 2017

Containing a codification of documents of general applicability and future effect

As of July 1, 2017

Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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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 Publishing Office Official Edi- tions only. The Superintendent of Documents of the U.S. Govern- ment Publishing Office requests that any reprinted edition clearly be labeled as a copy of the authentic work with a new ISBN.

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Page Explanation ...... v

Title 32:

SUBTITLE A—DEPARTMENT OF DEFENSE (CONTINUED)

Chapter VI—Department of the Navy ...... 5

Finding Aids:

Table of CFR Titles and Chapters ...... 545

Alphabetical List of Agencies Appearing in the CFR ...... 565

List of CFR Sections Affected ...... 575

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To cite the regulations in this volume use title, part and section number. Thus, 32 CFR 700.101 refers to title 32, part 700, section 101.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further 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, 2017), 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 cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. 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 Sep<11>2014 11:36 Aug 29, 2017 Jkt 241135 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\241135.XXX 241135 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. PAST PROVISIONS OF THE CODE Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949- 1963, 1964-1972, 1973-1985, and 1986-2000. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not accidentally dropped due to a printing or computer error. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010. 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 Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

VerDate Sep<11>2014 11:36 Aug 29, 2017 Jkt 241135 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\241135.XXX 241135 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 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, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail [email protected]. SALES The Government Publishing 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 202-512-2104, 24 hours a day. For payment by check, write to: US Government Publishing Office – New Orders, P.O. Box 979050, St. Louis, MO 63197-9000. 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 of the Presidents of the United States, Compilation of Presi- dential Documents and the Privacy Act Compilation are available in electronic format via www.ofr.gov. For more information, contact the GPO Customer Con- tact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866-512- 1800 (toll-free). E-mail, [email protected]. 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/federal-register. The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

OLIVER A. POTTS, Director, Office of the Federal Register. July 1, 2017.

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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, 2017.

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 part 800 to end.

For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez, assisted by Stephen J. Frattini.

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(This book contains parts 700 to 799)

SUBTITLE A—DEPARTMENT OF DEFENSE (CONTINUED) Part

CHAPTER VI—Department of the Navy ...... 700

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SUBCHAPTER A—UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS

Part Page 700 United States Navy regulations and official records ...... 9 701 Availability of Department of the Navy records and publication of Department of the Navy documents affecting the public ...... 45 705 Public affairs regulations ...... 137

SUBCHAPTER B—NAVIGATION 706 Certifications and exemptions under the Inter- national Regulations for Preventing Collisions at Sea, 1972 ...... 176 707 Special rules with respect to additional station and signal lights ...... 193

SUBCHAPTER C—PERSONNEL 716 Death gratuity...... 195 718 Missing Persons Act ...... 200 719 Regulations supplementing the Manual for Courts- Martial ...... 203 720 Delivery of personnel; service of process and subpoenas; production of official records ...... 216 721–722 [Reserved] 723 Board for Correction of Naval Records ...... 233 724 Naval Discharge Review Board ...... 240 725 Release of official information for litigation purposes and testimony by Department of the Navy personnel ...... 273 726 Payments of amounts due mentally incompetent members of the naval service ...... 287 727 Legal assistance...... 289 728 Medical and dental care for eligible persons at Navy medical department facilities ...... 294 732 Nonnaval medical and dental care ...... 358

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Part Page 733 Assistance to and support of dependents; paternity complaints ...... 372 734 Garnishment of pay of naval military and civilian personnel for collection of child support and alimony ...... 379 735 Reporting births and deaths in cooperation with other agencies ...... 381

SUBCHAPTER D—PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS 736 Disposition of property ...... 383 744 Policies and procedures for the protection of proprietary rights in technical information proposed for release to foreign governments ...... 387 746 Licensing of government inventions in the custody of the Department of the Navy ...... 388

SUBCHAPTER E—CLAIMS 750 General claims regulations ...... 394 751 Personnel claims regulations ...... 417 752 Admiralty claims...... 426 755 Claims for injuries to property under Article 139 of the Uniform Code of Military Justice ...... 429 756 Procedures for processing claims involving non-appropriated fund activities and their employees ... 432 757 Affirmative claims regulations ...... 434

SUBCHAPTER F—ISLANDS UNDER NAVY JURISDICTION 761 Naval Defensive Sea Areas; Naval Airspace Res- ervations, areas under Navy administration, and the Trust Territory of the Pacific Islands ...... 442 762 [Reserved] 763 Rules governing public access ...... 454

SUBCHAPTER G—MISCELLANEOUS RULES 765 Rules applicable to the public ...... 457 766 Use of Department of the Navy aviation facilities by civil aircraft ...... 461 767 Guidelines for permitting archaeological investigations and other activities directed at sunken military craft and terrestrial military craft under the jurisdiction of the Department of the Navy ...... 471 768–769 [Reserved] 770 Rules limiting public access to particular installations ...... 487

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Part Page 771–774 [Reserved] 775 Procedures for implementing the National Envi- ronmental Policy Act ...... 497 776 Professional conduct of attorneys practicing under the cognizance and supervision of the Judge Ad- vocate General ...... 505 777–799 [Reserved]

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PART 700—UNITED STATES NAVY 700.324 The Assistant Secretary of the Navy (Manpower and Reserve Affairs). REGULATIONS AND OFFICIAL 700.325 The Assistant Secretary of the Navy RECORDS (Installations and Environment). 700.326 The Assistant Secretary of the Navy Subpart A—Navy Regulations (Research, Development and Acquisi- tion). Sec. 700.327 The General Counsel of the Navy. 700.101 Origin and history of United States Navy Regulations. THE OFFICE THE SECRETARY OF THE NAVY/THE 700.102 Statutory authority for issuance of STAFF ASSISTANTS United States Navy Regulations. 700.103 Purpose and effect of United States 700.330 The Staff Assistants. Navy Regulations. 700.331 The Judge Advocate General. 700.104 Statutory authority for prescription 700.332 The Naval Inspector General. of other regulations. 700.333 The Chief of Naval Research. 700.105 Issuance of directives by other offi- 700.334 The Chief of Information. cers and officials. 700.335 The Chief of Legislative Affairs. 700.106 Control of administrative require- 700.336 The Director, Office of Program Ap- ments. praisal. 700.107 Maintenance of Navy Regulations. 700.337 The Auditor General. Subpart B—The Department of the Navy Subpart D—The Chief of Naval Operations 700.201 Origin and authority of the Depart- ment of the Navy. 700.401 Precedence. 700.202 Mission of the Department of the 700.402 Succession. Navy. 700.403 Statutory authority and responsi- 700.203 Composition. bility of the Chief of Naval Operations. 700.204 The principal elements of the De- 700.404 Statutory authority and responsi- partment of the Navy. bility of the Office of the Chief of Naval Operations. Subpart C—The Secretary of the Navy 700.405 Delegated authority and responsibility. THE SECRETARY OF THE NAVY 700.406 Naval Vessel Register, classification 700.301 Responsibilities of the Secretary of of naval craft, and status of ships and the Navy. service craft. 700.302 Responsibilities within the Depart- ment of the Navy. Subpart E—The Commandant of the 700.303 Succession. Marine Corps 700.304 Recommendations to Congress. 700.305 Assignment of functions. 700.501 Precedence. 700.306 Assignment of duty and titles. 700.502 Succession. 700.307 Powers with respect to the Coast 700.503 Statutory authority and responsi- Guard. bility of the Commandant of the Marine Corps. THE OFFICE OF THE SECRETARY OF THE NAVY 700.504 Statutory authority and responsi- 700.310 Composition. bility of the Headquarters, Marine Corps. 700.311 Sole responsibilities. 700.505 Delegated authority and responsi- 700.312 Authority over organizational mat- bility. ters. Subpart F—The United States Coast Guard THE OFFICE OF THE SECRETARY OF THE NAVY/ (When Operating as a Service of the THE CIVILIAN EXECUTIVE ASSISTANTS Navy) 700.320 The Civilian Executive Assistants. 700.321 The Under Secretary of the Navy. 700.601 Relationship and operation as a 700.322 Assistant Secretaries of the Navy; service in the Navy. statutory authorization. 700.602 The Commandant of the Coast 700.323 The Assistant Secretary of the Navy Guard. (Financial Management). 700.603 Duties and responsibilities.

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Subpart G—Commanders in Chief and 700.846 Status of logs. Other Commanders 700.847 Responsibility of a master of an in- service ship of the Military Sealift Com- TITLES AND DUTIES OF COMMANDERS mand. 700.848 Relations with merchant seamen. 700.701 Titles of commanders. 700.855 Status of boats. 700.702 Responsibility and authority of com- 700.856 Pilotage. manders. 700.857 Safe navigation and regulations gov- 700.703 To announce assumption of com- erning operation of ships and aircraft. mand. 700.859 Quarantine. 700.704 Readiness. 700.860 Customs and immigration inspec- 700.705 Observance of international law. tions. 700.706 Keeping immediate superiors informed. SPECIAL CIRCUMSTANCES/SHIPS IN NAVAL STATIONS AND SHIPYARDS STAFFS OF COMMANDERS 700.871 Responsibility for safety of ships and 700.710 Organization of a staff. craft at a naval station or shipyard. 700.711 Authority and responsibilities of of- 700.872 Ships and craft in drydock. ficers of a staff. 700.873 Inspection incident to commis- ADMINISTRATION AND DISCIPLINE sioning of ships. 700.720 Administration and discipline: Staff SPECIAL CIRCUMSTANCES/PROSPECTIVE embarked. COMMANDING OFFICERS 700.721 Administration and discipline: Staff 700.880 Duties of the prospective com- based ashore. manding officer of a ship. 700.722 Administration and discipline: Staff unassigned to an administrative com- Subpart I—The Senior Officer Present mand. 700.723 Administration and discipline: Sepa- CONTENTS rate and detached command. 700.901 The senior officer present. Subpart H—The Commanding Officer 700.902 Eligibility for command at sea. 700.903 Authority and responsibility. COMMANDING OFFICERS IN GENERAL 700.904 Authority of senior officer of the Marine Corps present. 700.801 Applicability. 700.922 Shore patrol. 700.802 Responsibility. 700.923 Precautions for health. 700.804 Organization of commands. 700.924 Medical or dental aid to persons not 700.809 Persons found under incriminating in the naval service. circumstances. 700.934 Exercise of power of consul. 700.810 Rules for visits. 700.939 Granting of asylum and temporary 700.811 Dealers, tradesmen, and agents. refuge. 700.812 Postal matters. 700.815 Deaths. Subpart J—Precedence, Authority and 700.816 The American National Red Cross. Command 700.819 Records. 700.822 Delivery of personnel to civil au- AUTHORITY thorities and service of subpoena or other process. 700.1020 Exercise of authority. 700.826 Physical security. 700.1026 Authority of an officer who suc- 700.827 Effectiveness for service. ceeds to command. 700.828 Search by foreign authorities. 700.1038 Authority of a sentry. 700.832 Environment pollution. DETAIL TO DUTY 700.834 Care of ships, aircraft, vehicles and their equipment. 700.1052 Orders to active service. 700.835 Work, facilities, supplies, or services 700.1053 Commander of a task force. for other Government departments, 700.1054 Command of a naval base. State or local governments, foreign gov- 700.1055 Command of a naval shipyard. ernments, private parties and morale, 700.1056 Command of a ship. welfare, and recreational activities. 700.1057 Command of an air activity. 700.1058 Command of a submarine. COMMANDING OFFICERS AFLOAT 700.1059 Command of a staff corps activity. 700.840 Unauthorized persons on board. 700.841 Control of passengers. Subpart K—General Regulations 700.842 Authority over passengers. STANDARDS OF CONDUCT 700.844 Marriages on board. 700.845 Maintenance of logs. 700.1101 Demand for court-martial.

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700.1113 Endorsement of commercial prod- Navy may adopt, with the approbation uct or process. of the President of the United States.’’ 700.1120 Personal privacy and rights of indi- (c) Thirteen editions of Navy Regula- viduals regarding their personal records. tions were published in accordance OFFICIAL RECORDS with this authority (later codified as 700.1121 Disclosure, publication and security Section 1547, Revised Statutes) be- of official information. tween 1865 and 1948. The 1973 edition of 700.1126 Correction of naval records. Navy Regulations was published under 700.1127 Control of official records. authority of 10 United States Code 700.1128 Official records in civil courts. (U.S.C.) 6011, which provided that ‘‘United States Navy Regulations shall DUTIES OF INDIVIDUALS be issued by the Secretary of the Navy 700.1138 Responsibilities concerning mari- with the approval of the President.’’ In juana, narcotics, and other controlled 1981, this provision was amended to substances. eliminate the requirement for presi- 700.1139 Rules for preventing collisions, afloat and in the air. dential approval. (d) While leaving this provision unaf- RIGHTS AND RESTRICTIONS fected, Congress enacted the Gold- 700.1162 Alcoholic beverages. water-Nichols Department of Defense 700.1167 Supremacist activity. Reorganization Act of 1986 (Pub. L. 99– 443), which granted each of the service AUTHORITY: 10 U.S.C. 6011. secretaries the authority to prescribe SOURCE: 64 FR 56062, Oct. 15, 1999, unless regulations to carry out his or her stat- otherwise noted. utory functions, powers and duties.

Subpart A—Navy Regulations § 700.102 Statutory authority for issuance of United States Navy Reg- § 700.101 Origin and history of United ulations. States Navy Regulations. Title 10, United States Code, section (a) United States Navy Regulations 6011, provides that United States Navy began with the enactment by the Con- Regulations shall be issued by the Sec- tinental Congress of the ‘‘Rules for the retary of the Navy. Regulations issued Regulation of the Navy of the United under this authority are permanent Colonies’’ on November 28, 1775. The regulations of general applicability, as first issuance by the United States opposed to regulations issued by the Government which covered this subject Secretary under § 700.104. matter was ‘‘An Act for the Govern- ment of the Navy of the United § 700.103 Purpose and effect of United States,’’ enacted on March 2, 1799. This States Navy Regulations. was followed the next year by ‘‘An Act United States Navy Regulation is the for the Better Government of the Navy principle regulatory document of the of the United States.’’ Department of the Navy, endowed with (b) In the years preceding the Civil War, twelve successor publications the sanction of law, as to duty, respon- were promulgated under a number of sibility, authority, distinctions and re- titles by the President, the Navy De- lationships of various commands, offi- partment and the Secretary of the cials and individuals. Other directives Navy. A decision by the Attorney Gen- issued within the Department of the eral that the last of the pre-Civil War Navy shall not conflict with, alter or issuances was invalid led to the inclu- amend any provision of Navy Regula- sion in the 1862 naval appropriations tions. bill of a provision that ‘‘the orders, regulations, and instructions here- § 700.104 Statutory authority for pre- tofore issued by the Secretary of the scription of other regulations. Navy be, and they are hereby, recog- The Secretary of the Navy may pre- nized as the regulations of the Navy scribe regulations to carry out his or Department, subject, however, to such her functions, powers and duties under alterations as the Secretary of the Title 10, United States Code.

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§ 700.105 Issuance of directives by made to Navy Regulations, he or she other officers and officials. shall forward a draft of the proposed Responsible officers and officials of addition, change or deletion, with a the Department of the Navy may issue, statement of the reasons therefor, to or cause to be issued, directives con- the Chief of Naval Operations via the cerning matters over which they exer- chain of command. The Chief of Naval cise command, control or supervision, Operations shall endeavor to obtain the which do not conflict with, alter or concurrence of the Commandant of the amend these regulations. Marine Corps, the Judge Advocate Gen- eral and appropriate offices and com- § 700.106 Control of administrative re- mands. Unresolved issues concerning quirements. such additions, changes or deletions (a) Directives will be issued with due shall be forwarded to the Secretary of regard for the imposition of workload the Navy for appropriate action. Any resulting therefrom and benefits or ad- additions, changes or deletions to the vantages to be gained. Issuance of new U.S. Navy Regulations must be ap- directives will be in accordance with proved by the Secretary of the Navy. the following: (b) Changes to Navy Regulations will (1) Directives which implement or be numbered consecutively and issued amplify directives from higher author- as page changes. Advance changes may ity will not be issued unless absolutely be used when required; these will be essential. numbered consecutively and incor- (2) Administrative reporting require- porated in page changes at frequent in- ments will not be imposed unless the tervals. expected value of the information to be gained is significantly greater than the cumulative burden imposed. Subpart B—The Department of the (b) Each officer or official issuing a Navy directive or imposing a reporting re- § 700.201 Origin and authority of the quirement will periodically, in accord- Department of the Navy. ance with instructions to be issued by appropriate authority, review such di- (a) The naval affairs of the country rective or report with a view toward began with the war for independence, the following: the American Revolution. On 13 Octo- (1) Reduction of directives by can- ber 1775, Congress passed legislation for cellation or consolidation; or ships. This, in effect, created the conti- (2) Reduction of reporting require- nental Navy. Two battalions of Ma- ments by elimination of the report, re- rines were authorized on 10 November duction in the frequency of the report, 1775. Under the Constitution, the First or combination with other reports. Congress on 7 August 1789 assigned re- (c) When issuance of a directive or a sponsibility for the conduct of naval af- tasking will result in imposition of ad- fairs to the War Department. On 30 ditional administrative requirements April 1798, the Congress established a on commands not within the chain of separate Department of the Navy with command or the issuing authority, the the Secretary of the Navy as its chief first common superior of the com- officer. On 11 July 1798, the United mands affected by the requirement States Marine Corps was established as must concur in the issuance. a separate service, and in 1834 was made a part of the Department of the § 700.107 Maintenance of Navy Regula- Navy. tions. (b) The National Security Act of 1947, (a) The Chief of Naval Operations is as amended, is the fundamental law responsible for maintaining Navy Reg- governing the position of the Depart- ulations, and for ensuring that Navy ment of the Navy in the organization Regulations conforms to the current for national defense. In 1949, the Act needs of the Department of the Navy. was amended to establish the Depart- When any person in the Department of ment of Defense as an Executive De- the Navy deems it advisable that addi- partment, and to establish the Depart- tions, changes or deletions should be ments of the Army, Navy and Air

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Force (formerly established as Execu- seizure or defense of advanced naval tive Departments by the 1947 Act) as bases and for the conduct of such land military departments within the De- operations as may be essential to the partment of Defense. prosecution of a naval campaign. In ad- (c) The Goldwater-Nichols Depart- dition, the Marine Corps shall provide ment of Defense Reorganization Act of detachments and organizations for 1986 further defined the roles of the service on armed vessels of the Navy, military departments within the De- shall provide security detachments for partment of Defense. In addition to es- the protection of naval property at tablishing the office of Vice Chairman naval stations and bases, and shall per- of the Joint Chiefs of Staff, and further form such other duties as the President emphasizing the operational chain of may direct. However, these additional command, the Act provided detailed duties may not detract from or inter- statements of the roles of the Sec- fere with the operations for which the retary of the Navy, the Chief of Naval Marine Corps is primarily organized. Operations, the Commandant of the (d) The Marine Corps shall develop, Marine Corps, and their respective in coordination with the Army and the principal assistants. Air Force, those phases of amphibious (d) The responsibilities and authority operations that pertain to the tactics, of the Department of the Navy are technique and equipment used by land- vested in the Secretary of the Navy, ing forces. and are subject to reassignment and (e) The Marine Corps is responsible, delegation by the Secretary. The Sec- in accordance with integrated joint retary is bound by the provisions of mobilization plans, for the expansion of law, the direction of the President and peacetime components of the Marine the Secretary of Defense and, along Corps to meet the needs of war. with all persons in charge of Govern- ment agencies, the regulations of cer- § 700.203 Composition. tain non-defense agencies addressing (a) The Department of the Navy is their respective areas of functional re- separately organized under the Sec- sponsibility. retary of the Navy. It operates under the authority, direction and control of § 700.202 Mission of the Department of the Secretary of Defense. the Navy. (b) The Department of the Navy is (a) The Navy, within the Department composed of the following: of the Navy, shall be organized, (1) The Office of the Secretary of the trained, and equipped primarily for Navy; prompt and sustained combat incident (2) The Office of the Chief of Naval to operations at sea. It is responsible Operations; for the preparation of naval forces nec- (3) The Headquarters, Marine Corps; essary for the effective prosecution of (4) The entire operating forces, in- war except as otherwise assigned, and, cluding naval aviation, of the Navy and in accordance with integrated joint of the Marine Corps, and the reserve mobilization plans, for the expansion of components of those operating forces; the peacetime components of the Navy (5) All field activities, headquarters, to meet the needs of war. forces, bases, installations, activities (b) The Navy shall develop aircraft, and functions under the control or su- weapons, tactics, technique, organiza- pervision of the Secretary of the Navy; tion and equipment of naval combat and and service elements. Matters of joint (6) The Coast Guard when it is oper- concern as to these functions shall be ating as a service in the Navy. coordinated between the Army, the Air Force and the Navy. § 700.204 The principal elements of the (c) The Marine Corps, within the De- Department of the Navy. partment of the Navy, shall be orga- (a) The Department of the Navy con- nized, trained, and equipped to provide sists of three elements; the Navy De- fleet marine forces of combined arms, partment, the Operating Forces of the together with supporting air compo- Navy and the Marine Corps, and the nents, for service with the fleet in the Shore Establishment.

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(b) The Navy Department refers to of Defense to provide for more effec- the central executive offices of the De- tive, efficient and economical adminis- partment of the Navy located at the tration and eliminate duplication; seat of Government. The Navy Depart- (f) The presentation and justification ment is organizationally comprised of of the position of the Department of the Office of the Secretary of the Navy, the Navy on the plans, programs and the Office of the Chief of Naval Oper- policies of the Department of Defense; ations, and the Headquarters, Marine (g) The effective supervision and con- Corps. In addition, the Headquarters, trol of the intelligence activities of the Coast Guard, is included when the Department of the Navy; and Coast Guard is operating as a service in (h) Such other activities as may be the Navy. prescribed by law or by the president (c) The operating forces of the Navy or Secretary of Defense. and the Marine Corps comprise the several fleets, seagoing forces, Fleet Ma- § 700.302 Responsibilities within the rine Forces, other assigned Marine Department of the Navy. Corps Forces, the Military Sealift The Secretary is the head of the De- Command and other forces and activi- partment of the Navy. The Secretary is ties that may be assigned thereto by responsible for, and has the authority the President or the Secretary of the necessary to conduct, all affairs of the Navy. Department of the Navy, including the (d) The shore establishment is com- following functions: prised of shore activities with defined (a) Recruiting; missions approved for establishment by (b) Organizing; the Secretary of the Navy. (c) Supplying; (d) Equipping (including research and Subpart C—The Secretary of the development); Navy (e) Training; (f) Servicing; THE SECRETARY OF THE NAVY (g) Mobilizing; § 700.301 Responsibilities of the Sec- (h) Demobilizing; retary of the Navy. (i) Administering (including the mo- The Secretary of the Navy is respon- rale and welfare of personnel); sible to the Secretary of Defense for: (j) Maintaining; (a) The functioning and efficiency of (k) The construction, outfitting and the Department of the Navy; repair of military equipment; and (b) The formulation of policies and (l) The construction, maintenance programs by the Department of the and repair of buildings, and interests in Navy that are fully consistent with na- real property necessary to carry out tional security objectives and policies the responsibilities specified in this ar- established by the President or the ticle. Secretary of Defense; (c) The effective and timely imple- § 700.303 Succession. mentation of policy, program and If the Secretary of the Navy dies, re- budget decisions and instructions of signs, is removed from office, is absent the President or the Secretary of De- or is disabled, the person who is high- fense relating to the functions of the est on the following list, and who is not Department of the Navy; absent or disabled, shall perform the (d) Carrying out the functions of the duties of the Secretary until the Presi- Department of the Navy so as to fulfill dent directs another person to perform (to the maximum extent practicable) those duties or until the absence or dis- the current and future operational re- ability ceases: quirement of the unified and specified (a) The Under Secretary of the Navy; combatant commands; (b) The Assistant Secretaries of the (e) Effective cooperation and coordi- Navy, in the order prescribed by the nation between the Department of the Secretary of the Navy and approved by Navy and the other military depart- the Secretary of Defense; ments and agencies of the Department (c) The Chief of Naval Operations;

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(d) The Commandant of the Marine (2) The Assistant Secretary of the Corps. Navy (Financial Management); (3) The Assistant Secretary of the § 700.304 Recommendations to Con- Navy (Manpower and Reserve Affairs); gress. (4) The Assistant Secretary of the After first informing the Secretary of Navy (Research, Development and Ac- Defense, the Secretary of the Navy quisition); may make such recommendations to (5) The Assistant Secretary of the Congress relating to the Department of Navy (Installations and Environment); Defense as he or she considers appro- and priate. (6) The General Counsel of the De- partment of the Navy. § 700.305 Assignment of functions. (b) The Staff Assistants: The Secretary of the Navy may as- (1) The Judge Advocate General of sign such functions, powers, and duties the Navy; as he or she considers appropriate to (2) The Naval Inspector General; the Under Secretary of the Navy and to (3) The Chief of Naval Research; the Assistant Secretaries of the Navy. (4) The Chief of Information; Officers of the Navy and the Marine (5) The Chief of Legislative Affairs; Corps shall, as directed by the Sec- (6) The Auditor General of the Navy; retary, report on any matter to the (7) The Director, Office of Program Secretary, the Under Secretary or any Appraisal; and Assistant Secretary. (8) Such other officers and officials as may be established by law or as the § 700.306 Assignment of duty and ti- Secretary of the Navy may establish or tles. designate. The Secretary of the Navy may: (a) Assign, detail and prescribe the § 700.311 Sole responsibilities. duties of members of the Navy and Ma- (a) The Office of the Secretary of the rine Corps and civilian personnel of the Navy shall have sole responsibility Department of the Navy; and within the Office of the Secretary of (b) Change the title of any officer or the Navy, the Office of the Chief of activity of the Department of the Navy Naval Operations and the Head- not prescribed by law. quarters, Marine Corps, for the following functions: § 700.307 Powers with respect to the (1) Acquisition; Coast Guard. (2) Auditing; Whenever the Coast Guard operates (3) Comptroller (including financial as a service in the Navy under Section management); 3 of Title 14, United States Code, the (4) Information management; Secretary of the Navy has the same (5) Inspector general; powers and duties with respect to the (6) Legislative affairs; Coast Guard as the Secretary of Trans- (7) Public affairs; portation has when the Coast Guard is (8) Research and development, except not so operating. for military requirements and operational test and evaluation, which are THE OFFICE OF THE SECRETARY OF THE the responsibilities of the Office of the NAVY Chief of Naval Operations and the Headquarters Marine Corps. § 700.310 Composition. (b) The following offices within the The function of the Office of the Sec- Office of the Secretary of the Navy are retary of the Navy is to assist the Sec- designated to conduct the functions retary in carrying out his or her re- specified in paragraph (a) of this sec- sponsibilities. The Office of the Sec- tion. No office or other entity may be retary of the Navy is composed of the established or designated within the following: Office of the Chief of Naval Operations (a) The Civilian Executive Assist- or the Headquarters, Marine Corps, to ants: conduct any of the functions specified (1) The Under Secretary of the Navy; in paragraph (a) of this section, except

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as noted in paragraph (a)(8) of this sec- Marine Corps such staff support as the tion. Chief of Naval Operations and the Com- (1) The Assistant Secretary of the mandant of the Marine Corps consider Navy (Research, Development and Ac- necessary to perform their respective quisition) is the Acquisition Executive duties and responsibilities. for the Department of the Navy. The (d) The vesting in the Office of the Assistant Secretary of the Navy (Re- Secretary of the Navy of the responsi- search, Development and Acquisition) bility for the conduct of a function (ASN(RD&A)) is responsible for re- specified in paragraph (a) of this sec- search, development and acquisition, tion does not preclude other elements except for military requirements and of the Department of the Navy (includ- operational test and evaluation, which ing the Office of the Chief of Naval Op- remain functions of the Office of the erations and the Headquarters, Marine Chief of Naval Operations and Head- Corps) from providing advice or assist- quarters Marine Corps. In addition to ance to the Chief of Naval Operations Acquisition Executive, ASN(RD&A) is and the Commandant of the Marine also the Navy Senior Procurement Ex- Corps, or otherwise participating in ecutive and Senior Department of the that function within the executive part Navy Information Resource Manage- of the Department under the direction ment Official. Responsibilities include of the office assigned responsibility for developing acquisition policy and pro- that function in the Office of the Sec- cedures for all Department of the Navy retary of the Navy. research, development, production, shipbuilding and production/logistics § 700.312 Authority over organiza- support programs; and Department of tional matters. the Navy international technology Subject to the approval or guidance transfer. of the Secretary of the Navy, the Civil- (2) The Auditor General is respon- ian Executive Assistants, the Chief of sible for the internal auditing function Naval Operations, the Commandant of within the Department of the Navy. the Marine Corps and the Staff Assist- (3) The Assistant Secretary of the ants are individually authorized to or- Navy (Financial Management) is re- ganize, assign and reassign responsibil- sponsible for comptrollership, includ- ities within their respective commands ing financial management, within the or offices, including the establishment Department of the Navy. and disestablishment of such compo- (4) The Naval Inspector General is re- nent organizations as may be nec- sponsible for the inspector general essary, subject to the following: function within the Department of the (a) The authority to disestablish may Navy. not be exercised with respect to any or- (5) The Chief of Legislative Affairs is ganizational component of the Depart- responsible for legislative affairs with- ment established by law. in the Department of the Navy. (b) The Secretary retains the author- (6) The Chief of Information is re- ity to approve the establishment and sponsible for public affairs within the disestablishment of shore activities. Department of the Navy. (c) The Secretary shall: THE OFFICE OF THE SECRETARY OF THE (1) Prescribe the relationship of each NAVY/THE CIVILIAN EXECUTIVE AS- office or other entity established or SISTANTS designated under paragraph (b) of this section: § 700.320 The Civilian Executive As- (i) To the Chief of Naval Operations sistants. and the Office of the Chief of Naval Op- (a) The Civilian Executive Assist- erations: and ants, as identified in § 700.310, are as- (ii) To the Commandant of the Ma- signed department-wide responsibil- rine Corps and the Headquarters, Ma- ities essential to the efficient adminis- rine Corps; and tration of the Department of the Navy. (2) Ensure that each such office or (b) Each Civilian Executive Assist- entity provides the Chief of Naval Op- ants, within his or her assigned area of erations and the Commandant of the responsibility, is the principal civilian

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advisor and assistant to the Secretary § 700.324 The Assistant Secretary of on the administration of the affairs of the Navy (Manpower and Reserve the Department of the Navy. The Civil- Affairs). ian Executive Assistants carry out The Assistant Secretary of the Navy their duties with the professional as- (Manpower and Reserve Affairs) is resistance of the Office of the Chief of sponsible for: Naval Operations and Headquarters, (a) The overall supervision of man- Marine Corps, as presided over by the power and reserve component affairs of Chief of Naval Operations and Com- the Department of the Navy, including mandant of the Marine Corps, respec- policy and administration of affairs re- tively. lated to military (active and inactive) (c) The Civilian Executive Assistants and civilian personnel; and are authorized and directed to act for (b) Supervision of offices and organi- the Secretary within their assigned zations as assigned by the Secretary, areas of responsibility. specifically the Naval Council of Per- sonnel Boards and the Board for Cor- § 700.321 The Under Secretary of the rection of Naval Records. Navy. (a) The Under Secretary of the Navy § 700.325 The Assistant Secretary of shall perform such duties and exercise the Navy (Installations and Envi- such powers as the Secretary of the ronment). Navy shall prescribe. The Assistant Secretary of the Navy (b) The Under Secretary of the Navy (Installations and Environment) is re- is designated as the deputy and prin- sponsible for: cipal assistant to the Secretary of the (a) Policy relating to Navy installa- Navy. The Under Secretary of the Navy tions, facilities, environment, safety, acts with full authority of the Sec- shore resources management and qual- retary in the general management of ity improvement; the Department of the Navy and super- (b) Development, implementation vision of offices, organizations and and evaluation of military construc- functions as assigned by the Secretary. tion, facilities management and engineering, strategic homeporting, hous- § 700.322 Assistant Secretaries of the ing, utilities, and base utilization Navy; statutory authorization. issues; There are four Assistant Secretaries (c) Environmental policy, safety, oc- of the Navy. The Assistant Secretaries cupational health, and Marine Corps shall perform such duties and exercise and Navy environmental affairs, in- such powers as the Secretary of the cluding environmental protection, res- Navy may prescribe in accordance with toration, compliance and legislation, law. natural resource programs, hazardous material/waste minimization, plastics § 700.323 The Assistant Secretary of reduction and control, afloat environ- the Navy (Financial Management). mental issues, state and federal agency The Assistant Secretary of the Navy and environmental organization co- (Financial Management) is the Comp- ordination, and the National Environ- troller of the Navy, and is responsible mental Policy Act; and for all matters related to the financial (d) Advising on fiscal resources re- management of the Department of the lated to shore appropriations. Navy, including: (a) Budgeting; § 700.326 The Assistant Secretary of (b) Accounting; the Navy (Research, Development (c) Disbursing; and Acquisition). (d) Financing; The Assistant Secretary of the Navy (e) Internal review; (Research, Development and Acquisi- (f) Progress and statistical reporting; tion) is responsible for: and (a) Research, development and acqui- (g) Supervision of offices and organi- sition, except for military require- zations as assigned by the Secretary of ments and operational test and evalua- the Navy. tion;

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(b) Direct management of acquisition § 700.331 The Judge Advocate General. programs; (a) The Judge Advocate General of (c) All aspects of the acquisition the Navy commands the Office of the process within the Department of the Judge Advocate General and is the Navy; Chief of the Judge Advocate General’s (d) All acquisition policy, including Corps. The Judge Advocate General: technology base and advanced tech- (1) Provides or supervises the provi- nology development, procurement, sion of all legal advice and related competition, contracts and business services throughout the Department of management, logistics, product integ- the Navy, except for the advice and rity, and education and training of the services provided by the General Coun- acquisition workforce. sel; (2) Performs the functions required § 700.327 The General Counsel of the or authorized by law; Navy. (3) Provides legal and policy advice (a) The General Counsel is head of to the Secretary of the Navy on mili- the Office of the General Counsel and is tary justice, administrative law, responsible for providing legal advice, claims, operational and international counsel, and guidance within the De- law, and litigation involving these partment of the Navy on the following issues; and matters: (4) Acts on other matters as directed (1) Business and commercial law, en- by the Secretary. vironmental law, civilian personnel (b) The Judge Advocate General law, real and personal property law and maintains a close working relationship patent law; with the General Counsel on all mat- (2) Procurement of services, includ- ters of common interest. ing the fiscal, budgetary and accounting aspects, for the Navy and Marine § 700.332 The Naval Inspector General. Corps; (a) Under the direction of the Sec- (3) Litigation involving the issues retary of the Navy, the Naval Inspector enumerated above; and General: (4) Other matters as directed by the (1) Inspects, investigates or inquires Secretary of the Navy. into any and all matters of importance (b) The General Counsel maintains a to the Department of the Navy with close working relationship with the particular emphasis on readiness, in- Judge Advocate General on all matters cluding, but not limited to effective- of common interest. ness, efficiency, economy and integrity; THE OFFICE OF THE SECRETARY OF THE (2) Exercises broad supervision, gen- NAVY/THE STAFF ASSISTANTS eral guidance and coordination for all Department of the Navy inspection, § 700.330 The Staff Assistants. evaluation and appraisal organizations The Staff Assistants, as identified in to minimize duplication of efforts and § 700.310, assist the Secretary of the the number of necessary inspections; Navy, or one or more of the Civilian (3) Through analysis of available in- Executive Assistants, in the adminis- formation, identifies areas of weakness tration of the Navy. They supervise all in the Department of the Navy as they functions and activities internal to relate to matters of integrity and effi- their offices and assigned field activi- ciency and provides appropriate rec- ties, if any, and are responsible to the ommendations for improvement. To ac- Secretary or to one of the Civilian Ex- complish these functions, the Inspector ecutive Assistants for the utilization of General shall have unrestricted access, resources by, and the operating effi- by any means, to any information ciency of, all activities under their su- maintained by any naval activity pervision or command. Their duties are deemed necessary, unless specifically as provided by law or as assigned by restricted by the Secretary of the the Secretary. Navy;

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(4) Receives allegations of ineffi- the Department of the Navy relating to ciency, misconduct, impropriety, mis- patents, inventions, trademarks, copy- management or violations of law, and rights and royalty payments, and mat- investigates or refers such matters for ters connected therewith. investigation, as is appropriate; and (5) Serves as principal advisor to the § 700.334 The Chief of Information. Secretary of the Navy, the Chief of (a) The Chief of Information is the di- Naval Operations and the Commandant rect representative of the Secretary of of the Marine Corps on all inspection the Navy in all public affairs and inter- and investigation matters. nal relations matters. The Chief of In- (b) In addition, the Naval Inspector formation is authorized to implement General has various functions, includ- Navy public affairs and internal rela- ing (but not limited to): tions policies and to coordinate those (1) Providing of an alternative to the Navy and Marine Corps activities of normal chain of command channel for mutual interest. receipt of complaints of personnel; (b) The Chief of Naval Operations and (2) Serving as the official to whom the Commandant of the Marine Corps employees may complain without fear are delegated responsibilities for: of reprisal; (1) Conduct of their respective serv- (3) Cooperating with the Inspector ices’ internal information programs; General, Department of Defense; (2) Conduct of their respective serv- (4) Providing oversight of intel- ices’ community relations programs; ligence and special activities; and (5) Serving as the Department of the (3) Implementing the Secretary of Navy coordinator for fraud, waste and the Navy’s public affairs policy and di- efficiency matters; rectives. (6) Serving as Navy Program Man- (c) The Chief of Information will re- ager and focal point for the Depart- port to the Chief of Naval Operations ment of the Navy and Navy Hotline for support of the responsibilities out- programs; and lined in paragraph (b) of this section, (7) Designation as the centralized or- and will provide such staff support as ganization within the Department of the Chief of Naval Operations considers Defense to monitor and ensure the co- necessary to perform those duties and ordination of criminal, civil, adminis- responsibilities. trative and contractual remedies for (d) The Deputy Chief of Information all significant cases, including inves- for Marine Corps Matters may report tigation of fraud or corruption related directly to the Secretary regarding to procurement activities affecting the public information matters related Department of the Navy. solely to the Marine Corps. The Deputy Chief will promptly inform the Chief of § 700.333 The Chief of Naval Research. Information regarding the substance of (a) The Chief of Naval Research shall all independent contacts with the Sec- command the Office of the Chief of retary pertaining to Marine Corps mat- Naval Research, the Office of Naval Re- ters. The Deputy Chief of Information search, the Office of Naval Technology for Marine Corps Matters will report to and assigned shore activities. the Commandant of the Marine Corps (b) The Office of Naval Research shall for support of the responsibilities out- perform such duties as the Secretary of lined in paragraph (b) of this section, the Navy prescribes relating to: and will provide such staff support as (1) The encouragement, promotion, the Commandant considers necessary planning, initiation and coordination to perform those duties and respon- of naval research; sibilities. (2) The conduct of naval research in augmentation of and in conjunction § 700.335 The Chief of Legislative Af- with the research and development fairs. conducted by other agencies and offices The mission of the Chief of Legisla- of the Department of the Navy; and tive Affairs is to: (3) The supervision, administration (a) Plan, develop and coordinate rela- and control of activities within or for tionships between representatives of

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the Department of the Navy and mem- service, except an officer of the naval bers of committees of the United service who is serving as Chairman or States Congress and their staffs which Vice Chairman of the Joint Chiefs of are necessary in the transaction of offi- Staff. cial Government business (except appropriations matters) affecting the De- § 700.402 Succession. partment of the Navy; and When there is a vacancy in the posi- (b) Furnish staff support, advice and tion of Chief of Naval Operations, or assistance to the Secretary of the during the absence or disability of the Navy, the Chief of Naval Operations, Chief of Naval Operations: the Commandant of the Marine Corps (a) The Vice Chief of Naval Oper- and all other principal civilian and ations shall perform the duties of the military officials of the Department of Chief of Naval Operations until a suc- the Navy concerning congressional as- cessor is appointed or the absence or pects of the Department of the Navy disability ceases. policies, plans and programs (except (b) If there is a vacancy in the posi- appropriations matters). tion of Vice Chief of Naval Operations or the Vice Chief of Naval Operations is § 700.336 The Director, Office of Pro- gram Appraisal. absent or disabled, unless the President directs otherwise, the most senior offi- (a) The Director, Office of Program cer of the Navy in the Office of the Appraisal, directs, under the imme- Chief of Naval Operations who is not diate supervision of the Secretary of absent or disabled and who is not re- the Navy, the Office of Program Ap- stricted in the performance of duty praisal. shall perform the duties of the Chief of (b) The Office of Program Appraisal Naval Operations until a successor to will assist the Secretary in assuring the Chief of Naval Operations or the that existing and proposed Navy and Vice Chief of Naval Operations is ap- Marine Corps programs provide the op- pointed or until the absence or dis- timum means of achieving the objec- ability of the Chief of Naval Operations tives of the Department of the Navy. or Vice Chief of Naval Operations § 700.337 The Auditor General. ceases, whichever occurs first. (a) The Auditor General of the Navy § 700.403 Statutory authority and re- is responsible for: sponsibility of the Chief of Naval (1) Serving as Director of the Naval Operations. Audit Service; and (a) Except as otherwise prescribed by (2) Developing and implementing law, and subject to the statutory au- Navy internal audit policies, programs thority of the Secretary of the Navy to and procedures within the framework assign functions, powers and duties, of Government auditing standards. the Chief of Naval Operations performs (b) The Auditor General can provide duties under the authority, direction information and may provide assist- and control of the Secretary of the ance and support to the Chief of Naval Navy and is directly responsible to the Operations and the Commandant of the Secretary. Marine Corps to enable them to dis- (b) Subject to the authority, direc- charge their duties and responsibil- tion and control of the Secretary of the ities. Navy, the Chief of Naval Operations shall: Subpart D—The Chief of Naval (1) Preside over the Office of the Operations Chief of Naval Operations; (2) Transmit the plans and rec- § 700.401 Precedence. ommendations of the Office of the The Chief of Naval Operations, while Chief of Naval Operations to the Sec- so serving, has the grade of admiral. In retary and advise the Secretary with the performance of duties within the regard to such plans and recommenda- Department of the Navy, the Chief of tions; Naval Operations takes precedence (3) After approval of the plans or rec- above all other officers of the naval ommendations of the Office of the

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Chief of Naval Operations by the Sec- the Secretary of the Navy), training, retary, act as the agent of the Sec- servicing, mobilizing, demobilizing, ad- retary in carrying them into effect; ministering, and maintaining of the (4) Exercise supervision, consistent Navy, as will assist in the execution of with the statutory authority assigned any power, duty or function of the Sec- to commanders of unified or specified retary or the Chief of Naval Oper- combatant commands, over such of the ations; members and organizations of the Navy (2) Investigate and report upon the and the Marine Corps as the Secretary efficiency of the Navy and its prepara- determines; tion to support military operations by (5) Perform the duties prescribed for combatant commands; a member of the Armed Forces Policy (3) Prepare detailed instructions for Council and other statutory duties; and the execution of approved plans and su- (6) Perform such other military du- pervise the execution of those plans ties, not otherwise assigned by law, as and instructions; are assigned to the Chief of Naval Oper- (4) As directed by the Secretary or ations by the President, the Secretary of Defense or the Secretary of the the Chief of Naval Operations, coordi- Navy. nate the action of organizations of the (c) The Chief of Naval Operations Navy; and shall also perform the statutory duties (5) Perform such other duties, not prescribed for a member of the Joint otherwise assigned by law, as may be Chiefs of Staff. prescribed by the Secretary. (1) To the extent that such action (b) Except as otherwise specifically does not impair the independence of prescribed by law, the Office of the the Chief of Naval Operations in the Chief of Naval Operations shall be or- performance of duties as a member of ganized in such manner, and its mem- the Joint Chiefs of Staff, the Chief of bers shall perform such duties and have Naval Operations shall inform the Sec- such titles as the Secretary may pre- retary of the Navy regarding military scribe. advice rendered by members of the Joint Chiefs of Staff on matters affect- § 700.405 Delegated authority and re- ing the Department of the Navy. sponsibility. (2) Subject to the authority, direc- (a) The Chief of Naval Operations is tion and control of the Secretary of De- the principal naval advisor and naval fense, the Chief of Naval Operations executive to the Secretary of the Navy shall keep the Secretary of the Navy on the conduct of the naval activities fully informed of significant military of the Department of the Navy. operations affecting the duties and re- (b)(1) Internal to the administration sponsibilities of the Secretary of the of the Department of the Navy, the Navy. Chief of Naval Operations, consistent with the statutory authority assigned § 700.404 Statutory authority and responsibility of the Office of the to commanders of unified or specified Chief of Naval Operations. combatant commands, under the direction of the Secretary of the Navy, shall (a) The Office of the Chief of Naval command: Operations shall furnish professional assistance to the Secretary, the Under (i) The operating forces of the Navy; Secretary and the Assistant Secre- and taries of the Navy, and to the Chief of (ii) Such shore activities as may be Naval Operations. Under the authority, assigned by the Secretary. direction and control of the Secretary (2) The Chief of Naval Operations of the Navy, the Office of the Chief of shall be responsible to the Secretary of Naval Operations shall: the Navy for the Utilization of re- (1) Subject to § 700.311(a), prepare for sources by, and the operating effi- such employment of the Navy, and for ciency of, the Office of the Chief of such recruiting, organizing, supplying, Naval Operations, the Operating Forces equipping (including those aspects of of the Navy and assigned shore activi- research and development assigned by ties.

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(c) In addition, the Chief of Naval Op- tegic plans and policies and related erations has the following specific re- command relationships; and sponsibilities: (9) Subject to guidance from the As- (1) To organize, train, equip, prepare sistant Secretary of the Navy (Finan- and maintain the readiness of Navy cial Management), to formulate budget forces, including those for assignment proposals for the Office of the Chief of to unified or specified commands, for Naval Operations, the Operating Forces the performance of military missions of the Navy and assigned shore activi- as directed by the President, the Sec- ties, and other activities and programs retary of Defense or the Chairman of as assigned; the Joint Chiefs of Staff; (10) To exercise authority for intel- (2) To determine current and future ligence within the Navy. requirements of the Navy (less Fleet (d) The Chief of Naval Operations, Marine Forces and other assigned Ma- under the direction of the Secretary of rine Corps forces) for manpower, mate- the Navy, shall exercise overall author- rial, weapons, facilities and services, ity throughout the Department of the including the determination of quan- Navy in matters related to: tities, military performance require- (1) The effectiveness of the support of ments and times, places and priorities the Operating Forces of the Navy and of need; assigned shore activities; (3) To exercise leadership in main- (2) The coordination and direction of taining a high degree of competence assigned Navy wide programs and func- among Navy officer, enlisted and civil- tions, including those assigned by high- ian personnel in necessary fields of spe- er authority; cialization, through education training (3) Matters essential to naval mili- and equal opportunities for personal tary administration, such as: advancement, and maintaining the mo- (i) Security; rale and motivation of Navy personnel (ii) Discipline; and the prestige of a Navy career; (iii) Communications; and (4) To plan and provide health care (iv) Matters related to the customs for personnel of the naval service, their and traditions of the naval service. dependents and eligible beneficiaries; (4) Except for those areas wherein (5) To direct the organization, admin- such responsibility rests with the Com- istration, training and support of the mandant of the Marine Corps, the co- Naval Reserve; ordination of activities of the Depart- (6) To inspect and investigate compo- ment of the Navy in matters con- nents of the Department of the Navy to cerning effectiveness, efficiency and determine and maintain efficiency, dis- economy. cipline, readiness, effectiveness and [64 FR 56062, Oct. 15, 1999, as amended at 68 economy, except in those areas where FR 2697, Jan. 21, 2003] such responsibility rests with the Com- mandant of the Marine Corps; § 700.406 Naval Vessel Register, classi- (7) To determine the requirements of fication of naval craft, and status of naval forces and activities, to include ships and service craft. requirements for research, develop- (a) The Chief of Naval Operations ment, test, and evaluation to plan and shall be responsible for the Naval Ves- provide for the conduct of test and sel Register (except the Secretary of evaluation which are adequate and re- the Navy shall strike vessels from the sponsive to long range objectives, im- Register) and the assignment of classi- mediate requirements, and fiscal limi- fication for administrative purposes to tations; and to provide assistance to water borne craft and the designation the Assistant Secretary of the Navy of status for each ship and service (Research, Development and Acquisi- craft. tion) in the review and appraisal of the (b) Commissioned vessels and craft overall Navy program to ensure fulfill- shall be called ‘‘United States Ship’’ or ment of stated requirements; ‘‘U.S.S.’’ (8) To formulate Navy strategic plans (c) Civilian manned ships, of the and policies and participate in the for- Military Sealift Command or other mulation of Joint and combined stra- commands, designated ‘‘active status,

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in service’’ shall be called ‘‘United Commandant or the Assistant Com- States Naval Ship’’ or ‘‘U.S.N.S.’’ mandant is appointed or until the ab- (d) Ships and service craft designated sence or disability of the Commandant ‘‘active status, in service,’’ except or the Assistant Commandant ceases, those described by paragraph (c) of this whichever occurs first. section, shall be referred to by name, when assigned, classification, and hull § 700.503 Statutory authority and re- number (e.g., ‘‘HIGHPOINT PCH–1’’ or sponsibility of the Commandant of ‘‘YOGN–8’’). the Marine Corps. (e) The Chief of Naval Operations (a) Except as otherwise prescribed by shall designate hospital ships and med- law and subject to the statutory au- ical aircraft as he or she deems nec- thority of the Secretary of the Navy to essary. Such designation shall be in assign functions, powers and duties, compliance with the Geneva Conven- the Commandant of the Marine Corps tion for the Amelioration of the Condi- performs duties under the authority, tions of Wounded, Sick and Ship direction and control of the Secretary wrecked Members of the Armed Forces of the Navy and is directly responsible at Sea of 12 August 1949. The Chief of to the Secretary. Naval Operations shall ensure compli- (b) Subject to the authority, direc- ance with the notice shall ensure com- tion and control of the Secretary of the pliance with the notice provisions of Navy, the Commandant of the Marine that Convention. Corps shall: (1) Preside over the Headquarters, Subpart E—The Commandant of Marine Corps; the Marine Corps (2) Transmit the plans and recommendations of the Headquarters, § 700.501 Precedence. Marine Corps, to the Secretary and ad- The Commandant of the Marine vise the Secretary with regard to such Corps, while so serving, has the grade plans and recommendations; of general. In the performance of duties (3) After approval of the plans or rec- within the Department of the Navy, ommendations of the Headquarters, the Commandant of the Marine Corps Marine Corps, by the Secretary, act as takes precedence above all other offi- the agent of the Secretary in carrying cers of the Marine Corps, except an of- them into effect; ficer of the Marine Corps who is serv- (4) Exercise supervision, consistent ing as Chairman or Vice Chairman of with the statutory authority assigned the Joint Chiefs of Staff. to commanders of unified or specified combatant commands, over such of the § 700.502 Succession. members and organizations of the Navy When there is a vacancy in the office and the Marine Corps as the Secretary of Commandant of the Marine Corps, or determines; during the absence or disability of the (5) Perform the duties prescribed for Commandant: a member of the Armed Forces Policy (a) The Assistant Commandant of the Council and other statutory duties; and Marine Corps shall perform the duties (6) Perform such other military du- of the Commandant until a successor is ties, not otherwise assigned by law, as appointed or the absence or disability are assigned to the Commandant of the ceases; or Marine Corps by the President, the (b) If there is a vacancy in the office Secretary of Defense or the Secretary of the Assistant Commandant of the of the Navy. Marine Corps or the Assistant Com- (c) The Commandant of the Marine mandant is absent or disabled, unless Corps shall also perform the statutory the President directs otherwise, the duties prescribed for a member of the most senior officer of the Marine Corps Joint Chiefs of Staff. in the Headquarters, Marine Corps, (1) To the extent that such action who is not absent or disabled and who does not impair the independence of is not restricted in the performance of the Commandant of the Marine Corps duty shall perform the duties of the in the performance of duties as a mem- Commandant until a successor to the ber of the Joint Chiefs of Staff, the

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Commandant of the Marine Corps shall such manner, and its members shall inform the Secretary of the Navy re- perform such duties and have such ti- garding military advice rendered by tles, as the Secretary may prescribe. members of the Joint Chiefs of Staff on matters affecting the Department of § 700.505 Delegated authority and re- the Navy. sponsibility. (2) Subject to the authority, direc- (a)(1) Internal to the administration tion and control of the Secretary of De- of the Department of the Navy, the fense, the Commandant of the Marine Commandant of the Marine Corps, con- Corps shall keep the Secretary of the sistent with the statutory authority Navy fully informed of significant mili- assigned to commanders of unified or tary operations affecting the duties specified combatant commands, under and responsibilities of the Secretary of the direction of the Secretary of the the Navy. Navy, shall command: § 700.504 Statutory authority and re- (i) The operating forces of the Marine sponsibility of the Headquarters, Corps; and Marine Corps. (ii) Such shore activities as may be (a) The Headquarters, Marine Corps, assigned by the Secretary. shall furnish professional assistance to (2) The Commandant shall be respon- the Secretary, the Under Secretary and sible to the Secretary of the Navy for the Assistant Secretaries of the Navy, the utilization of resources by, and the and to the Commandant of the Marine operating efficiency of, all commands Corps. and activities under such command. (1) Under the authority, direction (b) In addition, the Commandant has and control of the Secretary of the the following specific responsibilities: Navy, the Headquarters, Marine Corps (1) To plan for and determine the shall: needs of the Marine Corps for equip- (i) Subject to § 700.311(a), prepare for ment, weapons or weapons systems, such employment of the Marine Corps, materials, supplies, facilities, mainte- and for such recruiting, organizing, nance, and supporting services. This re- supplying, equipping (including those sponsibility includes the determination aspects of research and development of Marine Corps characteristics of assigned by the Secretary of the Navy), equipment and material to be procured training, servicing, mobilizing, demobi- or developed, and the training required lizing, administering, and maintaining to prepare Marine Corps personnel for of the Marine Corps, as will assist in combat. It also includes the operation the execution of any power, duty or of the Marine Corps Material Support function of the Secretary or the Com- System. mandant; (2) Subject to guidance from the As- (ii) Investigate and report upon the sistant Secretary of the Navy (Finan- efficiency of the Marine Corps and its cial Management), to formulate budget preparation to support military oper- proposals for the Headquarters, Marine ations by combatant commands; Corps, the Operating Forces of the Ma- (iii) Prepare detailed instructions for rine Corps, and other activities and the execution of approved plans and supervise the execution of those plans programs as assigned. and instructions; (3) To develop, in coordination with (iv) As directed by the Secretary or other military services, the doctrines, the Commandant, coordinate the ac- tactics and equipment employed by tion of organizations of the Marine landing forces in amphibious oper- Corps; and ations. (v) Perform such other duties, not (4) To formulate Marine Corps stra- otherwise assigned by law, as may be tegic plans and policies and participate prescribed by the Secretary. in the formulation of joint and com- (2) [Reserved] bined strategic plans and policies and (b) Except as otherwise specifically related command relationships. prescribed by law, the Headquarters, (5) To exercise authority for intel- Marine Corps, shall be organized in ligence within the Marine Corps.

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(6) To plan for and determine the § 700.602 The Commandant of the present and future needs, both quan- Coast Guard. titative and qualitative, for manpower, (a) The Commandant of the Coast including reserve personnel and civil- Guard is the senior officer of the ian personnel, of the United States Ma- United States Coast Guard. rine Corps. This includes responsibility (b) When reporting to the Secretary for leadership in maintaining a high of the Navy, the Commandant will re- degree of competence among Marine port to the Chief of Naval Operations. Corps officer and enlisted personnel (c) The Chief of Naval Operations and Marine Corps civilian personnel in shall represent the Coast Guard before necessary fields of specialization the Joint Chiefs of Staff. through education, training and equal § 700.603 Duties and responsibilities. opportunities for personal advancement; and for leadership in maintain- In exercising command over the ing the morale and motivation of Ma- Coast Guard while operating as a serv- rine Corps personnel and the prestige ice of the Navy, the Commandant shall: (a) Organize, train, prepare and main- of a career in the Marine Corps. tain the readiness of the Coast Guard [64 FR 56062, Oct. 15, 1999, as amended at 68 to function as a specialized service in FR 2697, Jan. 21, 2003] the Navy for the performance of national defense missions, as directed; Subpart F—The United States (b) Plan for and determine the present and future needs of the Coast Coast Guard (When Oper- Guard, both quantitative and quali- ating as a Service in the tative, for personnel, including reserve Navy) personnel; (c) Budget for the Coast Guard, ex- § 700.601 Relationship and operation cept as may be otherwise directed by as a service in the Navy. the Secretary of the Navy; (a) Upon the declaration of war or (d) Plan for and determine the sup- when the President directs, the Coast port needs of the Coast Guard for Guard shall operate as a service in the equipment, materials, weapons or com- Navy, and shall be subject to the orders bat systems, supplies, facilities, main- of the Secretary of the Navy. While so tenance and supporting services; operating as a service in the Navy, and (e) Exercise essential military ad- to the extent practicable, Coast Guard ministration of the Coast Guard. This operations shall be integrated and uni- includes, but is not limited to, such matters as discipline, communications, form with Navy operation. personnel records and accounting, con- (b) Whenever the Coast Guard oper- forming, as practicable, to Navy proce- ates as a service in the Navy: dures; (1) Applicable appropriations of the (f) In conjunction with the Director Coast Guard to cover expenses shall be of Naval Intelligence, and the National available for transfer to the Depart- Intelligence Community, where appro- ment of the Navy and supplemented, as priate, establish and maintain an intel- required, from applicable appropria- ligence and security capability to pro- tions of the Department of the Navy; vide support for the maritime defense (2) Personnel of the Coast Guard zones, port security, narcotics interdic- shall be eligible to receive gratuities, tion, anti-terrorist activity, fishery ac- medals and other insignia of honor on tivity, pollution monitoring and other the same basis as personnel in the Coast Guard missions; naval service or serving in any capac- (g) Enforce or assist in enforcing Fed- ity with the Navy; and eral laws on and under the high seas (3) To the extent practicable, Coast and waters subject to the jurisdiction Guard personnel, ships, aircraft and fa- of the United States; (h) Administer, promulgate and en- cilities will be utilized as organized force regulations for the promotion of Coast Guard units. safety of life and property on and under the high seas and waters subject to the

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jurisdiction of the United States. This shall be added to form his or her offi- applies to those matters not specifi- cial title. cally delegated by law to some other [64 FR 56062, Oct. 15, 1999, as amended at 68 executive department; FR 2697, Jan. 21, 2003] (i) Develop, establish, maintain and operate, with due regard to the require- § 700.702 Responsibility and authority ments of national defense, aids to mar- of commanders. itime navigation, ice breaking facili- (a) Commanders shall be responsible ties, for the promotion of safety on, for the satisfactory accomplishment of under and over the high seas and the mission and duties assigned to waters subject to the jurisdiction of their commands. Their authority shall the United States; be commensurate with their respon- (j) Engage in oceanographic surveys sibilities. Normally, commanders shall in conjunction with the Office of the exercise authority through their imme- Oceanographer of the Navy; and diate subordinate commanders, but (k) Continue in effect under the Sec- they may communicate directly with any of their subordinates. retary of the Navy those other func- (b) Commanders shall ensure that tions, powers and duties vested in the subordinate commands are fully aware Commandant by appropriate orders and of the importance of strong, dynamic regulations of the Secretary of Trans- leadership and its relationship to the portation on the day prior to the effec- overall efficiency and readiness of tive date of transfer of the Coast Guard naval forces. Commanders shall exer- to the Department of the Navy until cise positive leadership and actively specifically modified or terminated by develop the highest qualities of leader- the Secretary of the Navy. ship in persons with positions of authority and responsibility throughout Subpart G—Commanders In Chief their commands. and Other Commanders (c) Subject to orders of higher authority, and subject to the provisions TITLES AND DUTIES OF COMMANDERS of § 700.106 of these regulations, commanders shall issue such regulations § 700.701 Titles of commanders. and instructions as may be necessary (a) The commander of a principal or- for the proper administration of their ganization of the operating forces of commands. the Navy, as determined by the Chief of (d) Commanders shall hold the same Naval Operations, or the officer who relationship to their flagships, or to has succeeded to such command as pro- shore activities of the command in vided elsewhere in these regulations, which their headquarters may be lo- shall have the title ‘‘Commander.’’ The cated, in regard to internal administra- name of the organization under the tion and discipline, as to any other ship or shore activity of their com- command of such an officer shall be mands. added to form his or her official title, e.g., ‘‘Commander, U.S. Atlantic § 700.703 To announce assumption of Fleet.’’ Commander, U.S. Atlantic command. Fleet, Commander, U.S. Pacific Fleet, (a) Upon assuming command, com- and Commander, U.S. Naval Forces Eu- manders shall so advise appropriate su- rope, may also be referred to as a ‘‘Ge- periors, and the units of their com- ographic Fleet Commander.’’ mands. (b) The commander of each other or- (b) When appropriate, commanders ganization of units of the operating shall also advise the following officers forces of the Navy or marine corps, or and officials located within the area organization of units of shore activi- encompassed by the command con- ties, shall have the title ‘‘Com- cerning their assumption of command. mander,’’ ‘‘Commandant,’’ ‘‘Com- (1) Senior commanders of other manding General’’ or other appropriate United States armed services; title. The name of the organization (2) Officials of other federal agencies; under the command of such an officer and

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(3) Officials of foreign governments. thereto which is beyond their capacity or authority; § 700.704 Readiness. (d) Intelligence information which Commanders shall take all prac- may be of value; ticable steps to maintain their com- (e) Any battle, engagement or other mands in a state of readiness to per- significant action involving units of form their missions. In conformity their commands; with the orders and policies of higher (f) Any important service or duty authority, they shall: performed by persons or units of their (a) Organize the forces and resources commands; and under their command and assign duties (g) Unexecuted orders and matters of to their principal subordinate com- interest upon being relieved of commanders; mand. (b) Prepare plans for the employment of their forces to meet existing and STAFFS OF COMMANDERS foreseeable situations; (c) Collaborate with the commanders § 700.710 Organization of a staff. of other United States armed services (a) The term ‘‘staff’’ means those of- and with appropriate officials of other ficers and other designated persons as- federal agencies and foreign govern- signed to a commander to assist him or ments located within the area encom- her in the administration and oper- passed by their commands; ation of his or her command. (d) Maintain effective intelligence and keep themselves informed of the (b) The officer detailed as chief of political and military aspects of the staff and aide to a fleet admiral or ad- national and international situation; miral normally shall be a vice admiral (e) Make, or cause to be made, nec- or a rear admiral. The officer detailed essary inspections to ensure the readi- as chief of staff and aide to a vice ad- ness, effectiveness and efficiency of the miral or rear admiral shall normally be components of their commands; and a rear admiral or a captain. The detail- (f) Develop, in accordance with direc- ing of a vice commander or a deputy to tives issued by higher authority, train- a commander shall be reserved for se- ing strategies and plans for their com- lected commanders. An officer detailed mands. as chief staff officer to another officer shall normally not be of the same § 700.705 Observance of international grade as that officer. law. (c) The staff shall be organized into At all times, commanders shall ob- such divisions as may be prescribed by serve, and require their commands to the commander concerned or by higher observe, the principles of international authority. These divisions shall con- law. Where necessary to fulfill this reform in nature and designation, as sponsibility, a departure from other practicable and as appropriate, to provisions of Navy Regulations is au- those of the staffs of superiors. thorized. (d) The staff of a flag or general officer may include one or more personal § 700.706 Keeping immediate superiors aides. informed. Commanders shall keep their imme- § 700.711 Authority and responsibil- diate superiors appropriately informed ities of officers of a staff. of: (a) The chief of staff and aide or chief (a) The organization of their com- staff officer, under the commander, mands, the prospective and actual shall be responsible for supervising and movements of the units of their com- coordinating the work of the staff and mands, and the location of their head- shall be kept informed of all matters quarters; pertaining to that work. All persons (b) Plans for employment of their attached to the staff, except a vice forces; commander or deputy responsible di- (c) The condition of their commands rectly to the commander shall be sub- and of any required action pertaining ordinate to the chief of staff and aide

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or chief staff officer while he or she is Personnel, as appropriate, of such ac- executing the duties of that office. tion. (b) The officers of a staff shall be re- (b) If the designating commander de- sponsible for the performance of those sires the commanding officer of staff duties assigned to them by the com- enlisted personnel to possess authority mander and shall advise the com- to convene courts-martial, the commander on all matters pertaining mander should request the Judge Advo- thereto. In the performance of their cate General to obtain such authoriza- staff duties they shall have no com- tion from the Secretary of the Navy. mand authority of their own. In carrying out such duties, they shall act § 700.723 Administration and dis- for, and in the name of, the com- cipline: Separate and detached mander. command. Any flag or general officer in com- ADMINISTRATION AND DISCIPLINE mand, any officer authorized to convene general courts-martial, or the § 700.720 Administration and dis- senior officer present may designate cipline: Staff embarked. organizations which are separate or de- In matters of general discipline, the tached commands. Such officer shall staff of a commander embarked and all state in writing that it is a separate or enlisted persons serving with the staff detached command and shall inform shall be subject to the internal regula- the Judge Advocate General of the actions and routine of the ship. They tion taken. If authority to convene shall be assigned regular stations for courts-martial is desired for the com- battle and emergencies. Enlisted per- manding officer or officer in charge of sons serving with the staff shall be as- such separate or detached command, signed to the ship for administration the officer designating the organiza- and discipline, except in the case of a tion as separate or detached shall re- staff embarked for passage only, and quest the Judge Advocate general to provided in that case that an organiza- obtain authorization from the Sec- tion exists and is authorized to act for retary of the Navy. such purposes.

§ 700.721 Administration and dis- Subpart H—The Commanding cipline: Staff based ashore. Officer When a staff is based ashore, the en- COMMANDING OFFICERS IN GENERAL listed persons serving with the staff shall, when practicable, be assigned to § 700.801 Applicability. an appropriated activity for purposes of administration and discipline. The In addition to commanding officers, staff officers may be similarly as- the provisions of this chapter shall signed. Members of a staff assigned for apply, where pertinent, to aircraft any purpose to a command or activity commanders, officers in charge (includ- shall conform in matters of general dis- ing warrant officers and petty officers cipline to the internal regulations and when so detailed) and those persons routine of that command or activity. standing the command duty.

§ 700.722 Administration and dis- § 700.802 Responsibility. cipline: Staff unassigned to an ad- (a) The responsibility of the com- ministrative command. manding officer for his or her com- (a) When it is not practicable to as- mand is absolute, except when, and to sign enlisted persons serving with the the extent, relieved therefrom by com- staff of a commander to an established petent authority, or as provided other- activity for administration and dis- wise in these regulations. The author- cipline, the commander may designate ity of the commanding officer is com- an officer of the staff to act as the mensurate with his or her responsi- commanding officer of such persons bility. While the commanding officer and shall notify the Judge Advocate may, at his or her discretion, and when General and the Commandant of the not contrary to law or regulations, del- Marine Corps, or the Chief of Naval egate authority to subordinates for the

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execution of details, such delegation of and shall immediately initiate an in- authority shall in no way relieve the vestigation. commanding officer of his or her con- (b) Should an investigation indicate tinued responsibility for the safety, that such person is not a fugitive from well-being, and efficiency of the entire justice or has not committed or at- command. tempted to commit an offense, he shall (b) A commanding officer who de- be released at the earliest opportunity, parts from his or her orders or instruc- except: tions, or takes official action which is (1) If not a citizen of the United not in accordance with such orders or States, and the place of release is instructions, does so upon his or her under the jurisdiction of the United own responsibility and shall report im- States, the nearest federal immigra- mediately the circumstances to the of- tion authorities shall be notified as to ficer from whom the prior orders or in- the time and place of release suffi- structions were received. Of particular ciently in advance to permit them to importance is the commanding offi- take such steps as they deem appro- cer’s duty to take all necessary and ap- priate. propriate action in self-defense of the (2) Such persons shall not be released command. in territory not under the jurisdiction (c) The commanding officer shall be of the United States without first ob- responsible for economy within his or taining the consent of the proper for- her command. To this end the com- eign authorities, except where the in- manding officer shall require from his vestigation shows that he entered the command from territory of the foreign or her subordinates a rigid compliance state, or that he is a citizen or subject with the regulations governing the re- of that state. ceipt, accounting, and expenditure of (c) If the investigation indicates that public money and materials, and the such person has committed or at- implementation of improved manage- tempted to commit an offense punishment techniques and procedures. able under the authority of the com- (d) The commanding officer and his manding officer, the latter shall take or her subordinates shall exercise lead- such action as he deems necessary. ership through personal example, (d) If the investigation indicates that moral responsibility, and judicious at- such a person is a fugitive from justice, tention to the welfare of persons under or has committed or attempted to com- their control or supervision. Such lead- mit an offense which requires actions ership shall be exercised in order to beyond the authority of the com- achieve a positive, dominant influence manding officer, the latter shall, at the on the performance of persons in the first opportunity, deliver such person, Department of the Navy. together with a statement of the circumstances, to the proper civil au- § 700.804 Organization of commands. thorities. All commands and other activities of (e) In all cases under paragraph (d) of the Department of the Navy shall be this section, a report shall be made organized and administered in accord- promptly to the Chief of Naval Oper- ance with law, United States Navy ations or the Commandant of the Ma- Regulations, and the orders of com- rine Corps, as appropriate. petent authority. All orders and instructions of the commanding officer § 700.810 Rules for visits. shall be in accordance therewith. (a) Commanding officers are responsible for the control of visitors to their § 700.809 Persons found under incrimi- commands and shall comply with the nating circumstances. relevant provisions of Department of (a) The commanding officer shall the Navy concerning classified infor- keep under restraint or surveillance, as mation and physical security. necessary, any person not in the armed (b) Commanding officers shall take services of the United States who is such measures and impose such restric- found under incriminating or irregular tions on visitors as are necessary to circumstances within the command, safeguard the classified material under

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their jurisdiction. Arrangements for § 700.816 The American National Red general visiting shall always be made Cross. with due regard for physical security (a) Pursuant to the request of the and based on the assumption that for- Secretary of the Navy, and subject to eign agents will be among the visitors. such instructions as the Secretary may (c) Commanding officers and others issue, the American National Red Cross officially concerned shall exercise rea- is authorized to conduct a program of sonable care to safeguard the persons welfare, including social, financial, and property of visitors to naval activi- medical and dental aid, for naval per- ties as well as taking those necessary sonnel; to assist in matters pertaining precautions to safeguard the persons to prisoners of war; and to provide such and property within the command. other services as are appropriate functions for the Red Cross. The American § 700.811 Dealers, tradesmen, and National Red Cross is the only volun- agents. teer society authorized by the Govern- (a) In general, dealers or tradesmen ment to render medical and dental aid or their agents shall not be admitted to the armed forces of the United within a command, except as author- States. Other organizations desiring to ized by the commanding officer: render medical and dental aid may do (1) To conduct public business; so only through the Red Cross. (2) To transact specific private busi- (b) Requests for Red Cross services ness with individuals at the request of shall be made to the Chief of Naval the latter; or Personnel or the Commandant of the (3) To furnish services and supplies Marine Corps or, in the case of medical which are necessary and are not other- services, to the Commander, Naval wise, or are insufficiently, available to Medical Command. the personnel of the command. (c) Activities and personnel of the (b) Personal commercial solicitation American National Red Cross in areas and the conduct of commercial trans- subject to naval jurisdiction shall con- actions are governed by policies of the form to such administrative regula- Department of Defense. tions as may be prescribed by appropriate naval authority. § 700.812 Postal matters. (d) Red Cross personnel shall be con- Commanding officers shall ensure sidered to have the status of commis- that mail and postal funds are adminis- sioned officers, subject to such restric- tered in accordance with instructions tions as may be imposed by the Chief of issued by the Postmaster General and Naval Personnel or the Commandant of approved for the naval service by the the Marine Corps. Chief of Naval Operations, and instructions issued by the Chief of Naval Oper- § 700.819 Records. ations, the Chief of Naval Personnel, or The commanding officer shall require the Commandant of the Marine Corps, that records relative to personnel, ma- as appropriate; and that postal clerks terial and operations, as required by or other persons authorized to handle current instructions, are maintained mail perform their duties strictly in properly by those responsible therefor. accordance with those instructions. § 700.822 Delivery of personnel to civil § 700.815 Deaths. authorities and service of subpoena The commanding officer, in the event or other process. of the death of any person within his or (a) Commanding officers or other per- her command, shall ensure that the sons in authority shall not deliver any cause of death and the circumstances person in the naval service to civil au- under which death occurred are estab- thorities except as provided by the lished, that the provisions of the Man- Manual of the Judge Advocate General. ual of the Judge Advocate General are (b) Commanding officers are author- adhered to in documenting the cause ized to permit the service of subpoenas and circumstances, and that the appro- or other process as provided by the priate casualty report is submitted. Manual of the Judge Advocate General.

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§ 700.826 Physical security. § 700.832 Environmental pollution. (a) The commanding officer shall The commanding officer shall cooper- take appropriate action to safeguard ate with Federal, state and local gov- personnel, to prevent unauthorized ac- ernmental authorities in the preven- cess to installations, equipment, mate- tion, control and abatement of environ- rials and documents, and to safeguard mental pollution. If the requirements them against acts of sabotage, damage, of any environmental law cannot be theft, or terrorism. achieved because of operational consid- (b) The commanding officer shall erations, insufficient resources or take action to protect and maintain other reason, the commanding officer the security of the command against shall report to the immediate superior dangers from fire, windstorms, or other acts of nature. in the chain of command. The commanding officer shall be aware of exist- § 700.827 Effectiveness for service. ing policies regarding pollution con- The commanding officer shall: trol, and should recommend remedial (a) Exert every effort to maintain the measures when appropriate. command in a state of maximum effectiveness for war or other service con- § 700.834 Care of ships, aircraft, vehicles and their equipment. sistent with the degree of readiness as may be prescribed by proper authority. The commanding officer shall cause Effectiveness for service is directly re- such inspections and tests to be made lated to the state of personnel and ma- and procedures carried out as are pre- terial readiness; and scribed by competent authority, to- (b) Make him or herself aware of the gether with such others as he or she progress of any repairs, the status of deems necessary, to ensure the proper spares, repair parts and other compo- preservation, repair, maintenance and nents, personnel readiness and other operation of any ship, aircraft, vehicle, factors or conditions that could lessen and their equipment assigned to his or the effectiveness of his or her com- her command. mand. When the effectiveness is less- ened appreciably, that fact shall be re- § 700.835 Work, facilities, supplies, or ported to appropriate superiors. services for other Government departments, State or local govern- § 700.828 Search by foreign authori- ments, foreign governments, private ties. parties and morale, welfare, and (a) The commanding officer shall not recreational activities. permit a ship under his or her com- (a) Work may be done for or on facili- mand to be searched on any pretense ties, supplies, or services furnished to whatsoever by any person representing departments and agencies of the Fed- a foreign state, nor permit any of the eral and State governments, local gov- personnel within the confines of his or ernments, foreign governments, private her command to be removed from the parties, and morale, welfare, and rec- command by such person, so long as he reational activities with the approval has the capacity to repel such act. If of a commanding officer provided: force should be exerted to compel sub- (1) The cost does not exceed limita- mission, the commanding officer is to tions the Secretary of the Navy may resist that force to the utmost of his or approve or specify; and her power. (b) Except as may be provided by (2) In the case of private parties, it is international agreement, the com- in the interest of the government to do manding officer of a shore activity so and there is no issue of competition shall not permit his or her command to with private industry; and be searched by any person representing (3) In the case of foreign govern- a foreign state, nor permit any of the ments, a disqualification of a govern- personnel within the confines of his or ment has not been issued for the bene- her command to be removed from the fits of this article. command by such person, so long as he (b) Work shall not be started nor fa- or she has the power to resist. cilities, supplies, or services furnished

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morale, welfare, and recreational ac- naval service without direct cost to the tivities not classified as instrumental- Department of the Navy. ities of the United States, or state or (f) In cases of emergency involving local governments or private parties, possible loss of life or valuable prop- until funds to cover the estimated cost erty, work may be started or facilities have been deposited with the com- furnished prior to authorization, or manding officer or unless otherwise provision for payment, but in all such provided by law. cases a detailed report of the facts and (c) Work shall not be started, nor fa- circumstances shall be made promptly cilities, supplies, or services furnished to the Secretary of the Navy or the ap- other Federal Government depart- propriate authority. ments and agencies, or expenses (g) Charges and accounting for any charged to non-appropriated funds of work, supplies, or services shall be as morale, welfare and recreational ac- prescribed in the Navy Comptroller tivities classified as instrumentalities Manual. of the United States, until reimbursable funding arrangements have been COMMANDING OFFICERS AFLOAT made. (d) Work, facilities, supplies, or serv- § 700.840 Unauthorized persons on ices furnished non-appropriated fund board. activities classified as instrumental- The commanding officer shall satisfy ities of the United States in the Navy him or herself that there is no unau- Comptroller Manual shall be funded in thorized person on board before pro- accordance with regulations of the ceeding to sea or commencing a flight. Comptroller of the Navy. (e) Supplies or services may be fur- § 700.841 Control of passengers. nished to naval vessels and military (a) Control of passage in and pro- aircraft of friendly foreign govern- tracted visits to aircraft and ships of ments (unless otherwise provided by the Navy by all persons, within or law or international treaty or agree- without the Department of the Navy, ment): shall be exercised by the Chief of Naval (1) On a reimbursable basis without Operations. an advancement of funds, when in the (b) Nothing in this section shall be best interest of the United States: interpreted as prohibiting the senior (i) Routine port services (including officer present from authorizing the pilotage, tugs, garbage removal, passage in ships and aircraft of the linehandling and utilities) in terri- Navy by such persons as he or she torial waters or waters under United judges necessary in the public interest States control. or in the interest of humanity. The (ii) Routine airport services (includ- senior officer present shall report the ing air traffic control, parking, serv- circumstances to the Chief of Naval icing and use of runways). Operations when he or she gives such (iii) Miscellaneous supplies (includ- authorization. ing fuel, provisions, spare parts, and general stores) but not ammunition. § 700.842 Authority over passengers. Supplies are subject to approval of the Except as otherwise provided in these cognizant fleet or force commanders regulations or in orders from com- when provided overseas. petent authority, all passengers in a (iv) With approval of Chief of Naval ship or aircraft of the naval service are Operations in each instance, overhauls, subject to the authority of the com- repairs, and alterations together with manding officer and shall conform to necessary equipment and its installa- the internal regulations and routine of tion required in connection therewith, the ship or aircraft. The commanding to vessels and military aircraft. officer of such ship or aircraft shall (2) Routine port and airport services take no disciplinary action against a may be furnished at no cost to the for- passenger not in the naval service, eign government concerned where such other than that authorized by law. The services are provided by persons of the commanding officer may, when he or

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she deems such an action to be nec- § 700.847 Responsibility of a master of essary for the safety of the ship or air- an in-service ship of the Military craft or of any persons embarked, sub- Sealift Command. ject a passenger not in the naval serv- (a) In an in-service ship of the Mili- ice to such restraint as the cir- tary Sealift Command, the master’s re- cumstances require until such time as sponsibility is absolute, except when, delivery to the proper authorities is and to the extent, relieved therefrom possible. A report of the matter shall by competent authority. The authority be made to an appropriate superior of of the master is commensurate with the passenger. the master’s responsibility. The master § 700.844 Marriages on board. is responsible for the safety of the ship and all persons on board. He or she is The commanding officer shall not responsible for the safe navigation and perform a marriage ceremony on board technical operation of the ship and has his or her ship or aircraft. He or she paramount authority over all persons shall not permit a marriage ceremony on board. He or she is responsible for to be performed on board when the ship the preparation of the abandon ship or aircraft is outside the territory of bill and has exclusive authority to the United States, except: order the ship abandoned. The master (a) In accordance with local laws and the laws of the state, territory, or dis- may, using discretion, and when not trict in which the parties are domi- contrary to law or regulation, delegate ciled, and authority for operation of shipboard (b) In the presence of a diplomatic or functions to competent subordinates. consular official of the United States, However, such delegation of authority who has consented to issue the certifi- shall in no way relieve the master of cates and make the returns required by continued responsibility for the safety, the consular regulations. well-being, and efficiency of the ship. (b) All orders and instructions of the § 700.845 Maintenance of logs. master shall be in accordance with ap- (a) A deck log and an engineering log propriate laws of the United States, shall be maintained by each ship in and all applicable orders and regula- commission, and by such other ships tions of the Navy, Military Sealift and craft as may be designated by the Command, and the Office of Personnel Chief of Naval Operations. Management. A master who departs (b) A compass record shall be main- from the orders or instructions of com- tained as an adjunct to the deck log. petent authority or takes official ac- An engineer’s bell book shall be main- tion contrary to such orders or instruc- tained as an adjunct to the engineering tions, shall report immediately the cir- log. cumstances to the authority from (c) The Chief of Naval Operations whom the prior orders or instructions shall prescribe regulations governing were received. the contents and preparation of the deck and engineering logs and adjunct § 700.848 Relations with merchant seamen. records. (d) In the case of a ship or craft When in foreign waters, the com- equipped with automated data logging manding officer, with the approval of equipment, the records generated by the senior officer present, may receive such equipment satisfy the require- on board as supernumeraries for ra- ments of this section. tions and passage: (a) Distressed seamen of the United § 700.846 Status of logs. States for passage to the United The deck log, the engineering log, States, provided they bind themselves the compass record, the bearing hooks, to be amenable in all respects to Navy the engineer’s bell book, and any Regulations. records generated by automated data (b) As prisoners, seamen from mer- logging equipment shall each con- chant vessels of the United States, pro- stitute an official record of the com- vided that the witnesses necessary to mand. substantiate the charges against them

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are received, or adequate means adopt- § 700.857 Safe navigation and regula- ed to ensure the presence of such wit- tions governing operation of ships nesses on arrival of the prisoners at the and aircraft. place where they are to be delivered to (a) The commanding officer is re- the civil authorities. sponsible for the safe navigation of his or her ship or aircraft, except as pre- § 700.855 Status of boats. scribed otherwise in these regulations (a) Boats shall be regarded in all for ships at a naval shipyard or station, matters concerning the rights, privi- in drydock, or in the Panama Canal. leges and comity of nations as part of During an armed conflict, an exercise the ship or aircraft to which they be- simulating armed conflict, or an au- long. thorized law enforcement activity, (b) In ports where war, insurrection competent authority may modify the or armed conflict exists or threatens, use of lights or other safeguards the commanding officer shall: against collision. Except in time of ac- (1) Require that boats away from the tual armed conflict, such modifications ship or aircraft have some appropriate will be authorized only when ships or and competent person in charge; and aircraft clearly will not be hazarded. (2) See that steps are taken to make (b) Professional standards and regu- their nationality evident at all times. lations governing shiphandling, safe navigation, safe anchoring and related § 700.856 Pilotage. operational matters shall be promulgated by the Chief of Naval Operations. (a) The commanding officer shall: (c) Professional standards and regula- (1) Pilot the ship under all ordinary tions governing the operation of naval circumstances, but he may employ pi- aircraft and related matters shall be lots whenever, in his or her judgment promulgated by the Chief of Naval Op- such employment is prudent; erations or the Commandant of the Ma- (2) Not call a pilot on board until the rine Corps, as appropriate. ship is ready to proceed; (d) The Commanding Officer is re- (3) Not retain a pilot on board after sponsible for ensuring that weather the ship has reached her destination or and oceanic effects are considered in a point where the pilot is no longer re- the effective and safe operation of his quired; or her ship or aircraft. (4) Give preference to licensed pilots; and § 700.859 Quarantine. (5) Pay pilots no more than the local (a) The commanding officer or air- rates. craft commander of a ship or aircraft (b) A pilot is merely an adviser to the shall comply with all quarantine regu- commanding officer. The presence on lations and restrictions, United States board of a pilot shall not relieve the or foreign, for the port or area within commanding officer or any subordinate which the ship or aircraft is located. from his or her responsibility for the (b) The commanding officer shall proper performance of the duties with give all information required by au- which he or she may be charged con- thorized foreign officials, insofar as cerning the navigation and handling of permitted by military security, and the ship. For an exception to the provi- will meet the quarantine requirements sions of this paragraph, see ‘‘Rules and promulgated by proper authority for Regulations Covering Navigation of the United States or foreign ports. How- Panama Canal and Adjacent Waters,’’ ever, nothing in this section shall be (35 CFR Chapter I, subchapter C) which interpreted as authorizing commanding directs that the pilot assigned to a ves- officers to permit on board inspections sel in those waters shall have control by foreign officials, or to modify in any of the navigation and movement of the manner the provisions of § 700.828 of vessel. Also see the provisions of these these regulations. regulations concerning the navigation (c) The commanding officer shall of ships at a naval shipyard or station, allow no intercourse with a port or or in entering or leaving drydock. area or with other ships or aircraft

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until after consultation with local not landed nor intended to be landed health authorities when: nor in any manner trafficked in, are, (1) Doubt exists as to the sanitary by the established precedent of inter- regulations or health conditions of the national courtesy, exempt from cus- port or area; toms duties, but a declaration of such (2) A quarantine condition exists stores or cargo, when required by local aboard the ship or aircraft; customs regulations, shall be made. (3) Coming from a suspected port or Commanding officers shall prevent, as area, or one actually under quarantine. far as possible, disputes with the local (d) No concealment shall be made of authorities in such cases, but shall pro- any circumstance that may subject a tect the ship or aircraft and the Gov- ship or aircraft of the Navy to quar- ernment-owned stores and cargo from antine. any search or seizure. (e) Should there appear at any time on board a ship or aircraft conditions (c) Upon arrival from a foreign coun- which present a hazard of introduction try, at the first port of entry in United of a communicable disease outside the States territory, the commanding offi- ship or aircraft, the commanding officer, or the senior officer of ships or air- cer or aircraft commander shall at craft in company, shall notify the col- once report the fact to the senior offi- lector of the port. Each individual cer present, to other appropriate high- aboard shall, in accordance with cus- er authorities and, if in port, to the toms regulations, submit a list of arti- health authorities having quarantine cles purchased or otherwise acquired jurisdiction. The commanding officer by him abroad. Dutiable articles shall or aircraft commander shall prevent not be landed until the customs officer all contracts likely to spread disease has completed his inspection. until pratique is received. The com- (d) Commanding officers of naval ves- manding officer of a ship in port shall sels and aircraft transporting United hoist the appropriate signal. States civilian and foreign military and civilian passengers shall satisfy § 700.860 Customs and immigration inspections. themselves that the passenger clearance requirements of the Immigration (a) The commanding officer or air- and Naturalization Service are com- craft commander shall facilitate any plied with upon arrival at points with- proper examination which it may be in the jurisdiction of the United the duty of a customs officer or immigration officer of the United States to States. Clearance for such passengers make on board the ship or aircraft. The by an immigration officer is necessary commanding officer or air craft com- upon arrival from foreign ports and at mander shall not permit a foreign cus- the completion of movements between toms officer or an immigration officer any of the following: Continental to make any examination whatsoever, United States (including Alaska and except as hereinafter provided, on Hawaii), the Canal Zone, Puerto Rico, board the ship, aircraft or boats under Virgin Islands, Guam, American his or her command. Samoa, or other outlying places sub- (b) When a ship or aircraft of the ject to United States jurisdiction. Navy or a public vessel manned by Commanding officers, prior to arriving, naval personnel and operating under shall advise the cognizant naval or ci- the direction of the Department of the vilian port authority of the aforemen- Navy is carrying cargo for private com- tioned passengers aboard and shall de- mercial account, such cargo shall be tain them for clearance as required by subject to the local customs regula- the Immigration and Naturalization tions of the port, domestic or foreign, Service. in which the ship or aircraft may be, (e) The provisions of this section and in all matters relating to such shall not be construed to require delay- cargo, the procedure prescribed for pri- ing the movements of any ship or air- vate merchant vessels and aircraft craft of the Navy in the performance of shall be followed. Government-owned stores or cargo in such ship or aircraft her assigned duty.

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SPECIAL CIRCUMSTANCES/SHIPS IN until the extremity of the ship last to NAVAL STATIONS AND SHIPYARDS leave the dock clears the sill, and the ship is pointed fair for leaving the dry- § 700.871 Responsibility for safety of dock, when the ship’s commanding offi- ships and craft at a naval station or cer shall assume responsibility for the shipyard. safety and control of the ship. (a) The commanding officer of a (e) When a naval ship is to be naval station or shipyard shall be re- drydocked in a private shipyard under sponsible for the care and safety of all a contract being administered by a su- ships and craft at such station or ship- pervisor of shipbuilding, the respon- yard not under a commanding officer sibilities of the commanding officer are or assigned to another authority, and the same as in the case of drydocking for any damage that may be done by or in a naval shipyard. The responsibil- to them. In addition, the commanding ities for the safety of the actual officer of a naval station or shipyard drydocking, normally assigned to the shall be responsible for the safe execu- commanding officer of a naval shipyard tion of work performed by that activ- through the docking officer, will be as- ity upon any ship located at the activ- signed by contract to the contractor. ity. The supervisor of shipbuilding is re- (b) It shall be the responsibility of sponsible, however, for ensuring that the commanding officer of a ship in the contractor facilities, methods, op- commission which is undergoing over- erations, and qualifications meet the haul, or which is otherwise immo- standards of efficiency and safety pre- bilized at a naval station or shipyard, scribed by Navy directives. to request such services as are nec- (f) If the ship is elsewhere than at a essary to ensure the safety of the ship. naval station or shipyard, the relation- The commanding officer of the naval ship between the commanding officer station or shipyard shall be responsible and the supervisor of shipbuilding, or for providing requested services in a other appropriate official, shall be the timely and adequate manner. same as that between the commanding (c) When a ship or craft not under her officer and the commanding officer of a own power is being moved by direction naval station or naval shipyard as of the commanding officer of a naval specified in this article. station or shipyard, that officer shall be responsible for any damage that § 700.872 Ships and craft in drydock. may result therefrom. The pilot or (a) The commanding officer of a ship other person designated for the purpose in drydock shall be responsible for ef- shall be in direct charge of such move- fecting adequate closure, during such ment, and all persons on board shall periods as they will be unattended, of cooperate with and assist the pilot as all openings in the ship’s bottom upon necessary. Responsibility for such ac- which no work is being undertaken by tions in a private shipyard will be as- the docking activity. The commanding signed by contract to the contractor. officer of the docking activity shall be (d) When a ship operating under her responsible for the closing, at the end own power is being drydocked, the of working hours, of all valves and commanding officer shall be fully re- other openings in the ship’s bottom sponsible for the safety of his ship upon which work is being undertaken until the extremity of the ship first to by the docking activity, when such enter the drydock reaches the dock sill closing is practicable. and the ship is pointed fair for entering (b) Prior to undocking, the com- the drydock. The docking officer shall manding officer of a ship shall report then take charge and complete the to the docking officer any material docking, remaining in charge until the changes in the amount and location of ship has been properly landed, bilge weights on board which have been blocks hauled, and the dock pumped made by the ship’s force while in dock, down. In undocking, the docking offi- and shall ensure, and so report, that all cer shall assume charge when flooding sea valves and other openings in the the dock preparatory to undocking is ship’s bottom are properly closed. The started, and shall remain in charge level of water in the dock shall not be

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permitted to rise above the keel blocks (2) Inspect the ship as soon after re- prior to receipt of this report. The porting for duty as practicable, and fre- above valves and openings shall be quently thereafter, in order to keep tended during flooding of the dock. him or herself informed of the state of (c) When a ship or craft, not in com- her preparation for service. If, during mission, is in a naval drydock, the pro- the course of these inspections he or visions of this article shall apply, ex- she notes an unsafe or potentially un- cept that the commanding officer of safe condition, he or she shall report the docking activity or his representa- such fact to the commander of the tive shall act in the capacity of the naval shipyard or the supervisor of commanding officer of the ship or shipbuilding and to his or her superior craft. for resolution; (d) When a naval ship or craft is in (3) Keep him or herself informed as to drydock in a private shipyard, respon- the progress of the work being done, in- sibility for actions normally assigned cluding tests of equipment, and make by the commanding officer of the dock- such recommendations to the coming activity will be assigned by con- mander of the naval shipyard or the su- tract to the contractor. pervisor of shipbuilding as he or her she deems appropriate; § 700.873 Inspection incident to com- (4) Ensure that requisitions are sub- missioning of ships. mitted for articles to outfit the ship which are not otherwise being pro- When a ship is to be commissioned, vided; the authority designated to place such (5) Prepare the organization of the ship in commission shall, just prior to ship; commissioning, cause an inspection to (6) Train the nucleus crew to effec- be made to determine the cleanliness tively and efficiently take charge of and readiness of the ship to receive its and operate the ship upon commis- crew and outfit. In the case of the de- sioning; and livery of a ship by a contractor, the (7) Make such reports as may be re- above inspection shall precede accept- quired by higher authority, and include ance of the ship. A copy of the report of therein a statement of any deficiency this inspection shall be furnished the in material or personnel. officer detailed to command the ship (b) If the prospective commanding of- and to appropriate commands. ficer does not consider the ship in proper condition to be commissioned at the SPECIAL CIRCUMSTANCES/PROSPECTIVE time the commander of the naval ship- COMMANDING OFFICERS yard or the supervisor of shipbuilding signifies his intention of transferring § 700.880 Duties of the prospective commanding officer of a ship. the ship to the prospective commanding officer, he or she shall report (a) Except as may be prescribed by that conclusion with his reasons there- the Chief of Naval Operations, the pro- for, in writing, to the commander of spective commanding officer of a ship the naval shipyard or the supervisor of not yet commissioned shall have no shipbuilding and to the appropriate independent authority over the prepa- higher authority. ration of the ship for service by virtue (c) If the ship is elsewhere than at a of his assignment to such duty, until naval shipyard, the relationship be- the ship is commissioned and placed tween the prospective commanding of- under his or her command. The pro- ficer and the supervisor of ship- spective commanding officer shall: building, or other appropriate official, (1) Procure from the commander of shall be the same as that between the the naval shipyard or the supervisor of prospective commanding officer and shipbuilding the general arrangement the commander of a naval shipyard as plans of the ship, and all pertinent in- specified in this article. formation relative to the general con- (d) The Chief of Naval Operations dition of the ship and the work being shall be responsible for providing the undertaken on the hull, machinery and commanding officer or prospective equipment, upon reporting for duty; commanding officer of a naval nuclear

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powered ship with the authority and § 700.904 Authority of senior officer of direction necessary to carry out his or the Marine Corps present. her responsibilities. The authority and responsibility of the senior officer present are also con- Subpart I—The Senior Officer ferred upon the senior commanding of- Present ficer of the Marine Corps present with respect to those units of the Marine CONTENTS Corps, including Navy personnel attached, which are in the locality and § 700.901 The senior officer present. not under the authority of the senior officer present. Unless some other officer has been so designated by competent authority, § 700.922 Shore patrol. the ‘‘senior officer present’’ is the sen- (a) When liberty is granted to any ior line officer of the Navy on active considerable number of persons, except duty, eligible for command at sea, who in an area that can absorb them with- is present and in command of any part out danger of disturbance or disorder, of the Department of the Navy in the the senior officer present shall cause to locality or within an area prescribed by be established, temporarily or perma- competent authority, except where per- nently, in charge of an officer, a suffi- sonnel of both the Navy and the Marine cient patrol of officers, petty officers, Corps are present on shore and the offi- and noncommissioned officers to main- cer of the Marine Corps who is in com- tain order and suppress any unseemly mand is senior to the senior line officer conduct on the part of any person on of the Navy. In such cases, the officer liberty. The senior patrol officer shall of the Marine Corps shall be the senior communicate with the chief of police officer present on shore. or other local officials and make such arrangements as may be practicable to § 700.902 Eligibility for command at aid the patrol in carrying out its duties sea. properly. Such duties may include providing assistance to military personnel All officers of the line of the Navy, in relations with civil courts and po- including Naval Reserve, on active lice, arranging for release of service duty, except those designated for the personnel from civil authorities to the performance of engineering, aero- parent command, and providing other nautical engineering or special duties, services that favorably influence dis- and except those limited duty officers cipline and morale. who are not authorized to perform all (b) A patrol shall not be landed in deck duties afloat, are eligible for com- any foreign port without first obtain- mand at sea. ing the consent of the proper local officials. Tact must be used in requesting § 700.903 Authority and responsibility. permission; and, unless it is given will- At all times and places not excluded ingly and cordially, the patrol shall in these regulations, or in orders from not be landed. If consent cannot be ob- competent authority, the senior officer tained, the size of liberty parties shall present shall assume command and di- be held to such limits as may be nec- rect the movements and efforts of all essary to render disturbances unlikely. (c) Officers and enlisted personnel on persons in the Department of the Navy patrol duty in a foreign country nor- present, when, in his or her judgment, mally should not be armed. In the the exercise of authority for the pur- United States, officers and men may be pose of cooperation or otherwise is nec- armed as prescribed by the senior offi- essary. The senior officer present shall cer present. exercise this authority in a manner (d) No officer or enlisted person who consistent with the operational com- is a member of the shore patrol or mand responsibility vested in the com- beach guard, or is assigned in support manders of unified or specified com- thereof, shall partake of or indulge in mands. any form of intoxicating beverage or other form of intoxicant while on duty,

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on post, or at other times prescribed by any naval aircraft or waterborne craft, the senior patrol officer. The senior pa- Navy or Marine Corps activity or sta- trol officer shall ensure that the provi- tion. sions of this paragraph are strictly ob- (ii) Under no circumstances shall the served and shall report promptly in person seeking asylum be surrendered writing to the senior officer present all to foreign jurisdiction or control, un- violations of these provisions that may less at the personal direction of the come to his or her notice. All officers Secretary of the Navy or higher au- and enlisted personnel of the patrol thority. Persons seeking political asy- shall report to the senior patrol officer lum should be afforded every reason- all violations of the provisions of this able care and protection permitted by paragraph on the part of those under the circumstances. them. (2) In territories under foreign jurisdiction (including foreign territorial § 700.923 Precautions for health. seas, territories, and possessions): The senior officer present shall take (i) Temporary refuge shall be granted precautions to preserve the health of for humanitarian reasons on board a the persons under his or her authority. naval aircraft or waterborne craft, He or she shall obtain information re- Navy or Marine Corps activity or sta- garding the healthfulness of the area tion, only in extreme or exceptional and medical facilities available therein circumstances wherein life or safety of and shall adopt such measures as are a person is put in imminent danger, required by the situation. such as pursuit by a mob. When temporary refuge is granted, such protec- § 700.924 Medical or dental aid to per- tion shall be terminated only when di- sons not in the naval service. rected by the Secretary of the Navy or The senior officer present may re- higher authority. quire the officers of the Medical Corps (ii) A request by foreign authorities and Dental Corps under his or her au- for return of custody of a person under thority to render emergency profes- the protection of temporary refuge will sional aid to persons not in the naval be reported to the CNO or Commandant service when such aid is necessary and of the Marine Corps. The requesting demanded by the laws of humanity or foreign authorities will be informed the principles of international cour- that the case has been referred to high- tesy. er authorities for instructions. (iii) Persons whose temporary refuge § 700.934 Exercise of power of consul. is terminated will be released to the When upon the high seas or in any protection of the authorities des- foreign port where there is no resident ignated in the message authorizing re- consul of the United States, the senior lease. officer present afloat has the authority (iv) While temporary refuge can be to exercise all powers of a consul in re- granted in the circumstances set forth lation to mariners of the United above, permanent asylum will not be States. granted. (v) Foreign nationals who request as- § 700.939 Granting of asylum and tem- sistance in forwarding requests for po- porary refuge. litical asylum in the United States will (a) If an official of the Department of not be received on board, but will be the Navy is requested to provide asy- advised to apply in person at the near- lum or temporary refuge, the following est American Embassy or Consulate. If procedures shall apply: a foreign national is already on board, (1) On the high seas or in territories however, such person will not be sur- under exclusive United States jurisdic- rendered to foreign jurisdiction or con- tion (including territorial seas, the trol unless at the personal direction of Commonwealth of Puerto Rico, terri- the Secretary of the Navy. tories under United States administra- (3) The Chief of Naval Operations or tion, and possessions): Commandant of the Marine Corps, as (i) At his or her request, an applicant appropriate, will be informed by the for asylum will be received on board most expeditious means of all action

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taken pursuant to paragraphs (a)(1)(i) sonnel embarked, or when placed on and (a)(1)(ii) of this section, as well as duty by such officer. the attendant circumstances. Tele- (3) When senior officer at the scene of phone or voice communications will be a riot or other emergency, or when used where possible, but must be con- placed on duty by such officer. firmed as soon as possible with an immediate precedence message, informa- § 700.1026 Authority of an officer who tion to the Secretary of State (for ac- succeeds to command. tions taken pursuant to paragraphs (a) An officer who succeeds to com- (a)(2)(i) and (a)(2)(v) of this section, mand due to incapacity, death, depar- also make the appropriate American ture on leave, detachment without re- Embassy or Consular Office an infor- lief or absence due to orders from com- mation addressee). If communication petent authority of the officer detailed by telephone or voice is not possible, to command, has the same authority notification will be effected by an im- and responsibility as the officer whom mediate precedence message, as de- he or she succeeds. scribed above. The Chief of Naval Oper- (b) An officer who succeeds to com- ations or Commandant of the Marine mand during the temporary absence of Corps will cause the Secretary of the the commanding officer shall make no Navy and the Deputy Director for Op- changes in the existing organization, erations of the National Military Com- and shall endeavor to have the routine mand Center to be notified without and other affairs of the command car- delay. ried on in the usual manner. (b) Personnel of the Department of (c) When an officer temporarily suc- the Navy shall neither directly nor in- ceeding to command signs official cor- directly invite persons to seek asylum respondence, the word ‘‘Acting’’ shall or temporary refuge. appear below his or her signature. § 700.1038 Authority of a sentry. Subpart J—Precedence, Authority and Command A sentry, within the limits stated in his or her orders, has authority over all AUTHORITY persons on his or her post. DETAIL TO DUTY § 700.1020 Exercise of authority. (a) All persons in the naval service on § 700.1052 Orders to active service. active service, and those on the retired (a) No person who is on leave of ab- list with pay, and transferred members sence or not on active service shall be of the Fleet Reserve and the Fleet Ma- ordered into active service or on duty rine Corps Reserve, are at all times without permission of the Com- subject to naval authority. While on mandant of the Marine Corps, or the active service they may, if not on leave Chief of Naval Personnel, as appro- of absence except as noted below, on priate, except: the sick list, taken into custody, under (1) In the case of a person on leave of arrest, suspended from duty, in con- absence, by the officer who granted the finement or otherwise incapable of dis- leave or a superior, or charging their duties, exercise author- (2) By the senior officer present on a ity over all persons who are subordi- foreign station. nated to them. (b) In the event that the senior offi- (b) A person in the naval service, al- cer present of a foreign station issues though on leave, may exercise author- any orders as contemplated by this ar- ity: ticle, he or she shall report the facts, (1) When in a naval ship or aircraft including the reasons for issuing such and placed on duty by the commanding orders, to the Commandant of the Ma- officer or aircraft commander. rine Corps or the Chief of Naval Per- (2) When in a ship or aircraft of the sonnel, without delay. armed services of the United States, (c) Retired officers of the Navy and other than a naval ship or aircraft, as Marine Corps may be ordered to active the commanding officer of naval per- service, with their consent, in time of

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peace. In time of war or a national § 700.1057 Command of an air activity. emergency, such retired officers may, (a) The officer detailed to command a at the discretion of the Secretary of naval aviation school, a naval air sta- the Navy, be ordered to active service. tion, or a naval air unit organized for § 700.1053 Commander of a task force. flight tactical purposes shall be an officer of the line in the navy, designated (a) A geographic fleet commander, as a naval aviator or naval flight offi- and any other naval commander, may cer, eligible for command at sea. detail in command of a task force, or (b) For the purposes of Title 10 U.S.C. other task command, any eligible offi- § 5942, a naval air training squadron is cer within his or her command whom not considered to be a naval aviation he or she desires. All other officers or- school or a naval air unit organized for dered to the task force or the task command shall be considered subordi- flight tactical purposes. The officer de- nate to the designated commander. tailed to command a naval air training squadron or an air unit organized for (b) All orders issued under the au- administrative purposes shall be a line thority of this article shall continue in officer of the naval service, designated effect after the death or disability of as a naval aviator or naval flight offi- the officer issuing them until they are cer, eligible for command. If a naval revoked by his or her successor in com- air training squadron has been des- mand or higher authority. ignated a multi-service training squad- (c) The powers delegated to a com- ron, the officer detailed to command mander by this article are not con- that squadron may be a line officer ferred on any other officer by virtue of from any armed service designated as the fact that he or she is the senior of- the equivalent of a naval aviator naval ficer present. flight officer and otherwise eligible to [64 FR 56062, Oct. 15, 1999, as amended at 68 command an aviation squadron or unit FR 2697, Jan. 21, 2003] under that officer’s pertinent service regulations. § 700.1054 Command of a naval base. (c) The officer detailed to command a The officer detailed to command a naval air activity of a technical nature naval base shall be an officer of the on shore may be an officer of the line line in the Navy, eligible for command in the navy not eligible for command at sea. at sea, but designated as a naval aviator or a naval flight officer or des- § 700.1055 Command of a naval ship- ignated for aeronautical engineering yard. duty. The officer detailed to command a (d) The officer detailed to command a naval shipyard shall be trained in the Marine Corps air unit organized for technical aspects of building and repair flight tactical purpose shall be an offi- of ships and shall have had substantial cer of the Marine Corps, designated as previous experience in the technical a naval aviator or naval flight officer. and management phases of such work. (e) Other than an air training squad- Such officer may have been designated ron, an officer of the Navy shall not for engineering duty. normally be detailed to command an aviation unit of the Marine Corps nor § 700.1056 Command of a ship. shall an officer of the Marine Corps (a) The officer detailed to command a normally be detailed to command an commissioned ship shall be an officer aviation unit of the Navy. Aircraft of the line in the Navy eligible for com- units of the Marine Corps may, how- mand at sea. ever, be assigned to ships or to naval (b) The officer detailed to command air activities in the same manner as an aircraft carrier, an aircraft tender, aircraft units of the navy and, con- or a ship with a primary task of oper- versely, aircraft units of the navy may ating or supporting aircraft shall be an be so assigned to Marine Corps air ac- officer of the line in the navy, eligible tivities. A group composed of aircraft for command at sea, designated as a units of the Navy and aircraft units of naval aviator or naval flight officer. the Marine Corps may be commanded

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either by an officer of the Navy or an OFFICIAL RECORDS officer of the Marine Corps. § 700.1121 Disclosure, publication and § 700.1058 Command of a submarine. security of official information. The officer detailed to command a (a) No person in the Department of submarine shall be an officer of the the Navy shall convey or disclose by line in the Navy, eligible for command oral or written communications, publication, graphic (including photo- at sea and qualified for command of graphic) or other means, any classified submarines. information except as provided in di- § 700.1059 Command of a staff corps rectives governing the release of such activity. information. Additionally, no person in the Department of the Navy shall com- Officers in a staff corps shall be de- municate or otherwise deal with for- tailed to command only such activities eign entities, even on an unclassified as are appropriate to their corps. basis, when this would commit the De- partment of the Navy to disclose clas- Subpart K—General Regulations sified military information except as may be required in that person’s offi- STANDARDS OF CONDUCT cial duties and only after coordination with and approval by a release author- § 700.1101 Demand for court-martial. ity designated by competent authority. Except as otherwise provided in the (b) No person in the Department of Uniform Code of Military Justice, no the Navy shall convey or disclose by person in the naval service may de- oral or written communication, publi- mand a court martial either on him or cation or other means except as may be required by his or her official duties, herself or on any other person in the any information concerning the De- naval service. partment of Defense or forces, or any § 700.1113 Endorsement of commercial person, thing, plan or measure per- product or process. taining thereto, where such information might be of possible assistance to Except as necessary during contract a foreign power; nor shall any person in administration to determine specifica- the Department of the Navy make any tion or other compliance, no person in public speech or permit publication of the Department of the Navy, in his or an article written by or for that person her official capacity, shall endorse or which is prejudicial to the interests of express an opinion of approval or dis- the United States. The regulations con- approval of any commercial product or cerned with the release of information process. to the public through any media will be as prescribed by the Secretary of the § 700.1120 Personal privacy and rights Navy. of individuals regarding their per- (c) No person in the Department of sonal records. the Navy shall disclose any informa- (a) Except as specifically provided in tion whatever, whether classified or this section, maintenance of personal unclassified, or whether obtained from records of individuals, and the release official records or within the knowl- of those records, shall be in accordance edge of the relator, which might aid or with the provisions of the Privacy Act be of assistance in the prosecution or and directives issued by the Secretary support of any claim against the United States. The prohibitions pre- of the Navy. scribed by the first sentence of this (b) Except as specifically provided in paragraph are not applicable to an offi- this section, the release of depart- cer or employee of the United States mental records to private parties shall who is acting in the proper course of, be in accordance with the provisions of and within the scope of, his or her offi- the Freedom of Information Act and dicial duties, provided that the disclo- rectives issued by the Secretary of the sure of such information is otherwise Navy. authorized by stature, Executive Order

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of the President or departmental regu- stroy them, or withhold them from lation. those persons authorized to have access (d) Any person in the Department of to them. the Navy receiving a request from the (b) Except as specifically provided in public for Department of the Navy this section, maintenance of personal records shall be governed by the provi- records of individuals, and the release sions of the Freedom of Information of those records, shall be in accordance Act and implementing directives issued with the provisions of the Privacy Act by the Secretary of the Navy. and directives issued by the Secretary (e) Persons in the Department of the of the Navy. Navy desiring to submit manuscripts (c) Except as specifically provided in to commercial publishers on profes- this section, the release of depart- sional, political or international sub- mental records to private parties shall jects shall comply with regulations be in accordance with the provisions of promulgated by the Secretary of the the Freedom of Information Act and di- Navy. rectives issued by the Secretary of the (f) No persons in the naval service on Navy. active duty or civilian employee of the Department of the Navy shall act as § 700.1128 Official records in civil correspondent of a news service or peri- courts. odical, or as a television or radio news (a) Department of the Navy personnel commentator or analyst, unless as- shall not provide official information, signed to such duty in connection with testimony, or documents, submit to the public affairs activities of the De- interview, or permit a view or visit, for partment of the Navy, or authorized by litigation purposes, without special the Secretary of the Navy. Except as written authorization. authorized by the Secretary of the (b) Department of the Navy personnel Navy, no person assigned to duty in shall not provide, with or without com- connection with public affairs activi- pensation, opinion or expert testimony ties of the Department of the Navy concerning official Department of De- shall receive any compensation for act- fense information, subjects, personnel ing as such correspondent, commen- or activities, except on behalf of the tator or analyst. United States or a party represented by the Department of Justice, or with § 700.1126 Correction of naval records. special written authorization.

(a) Any military record in the De- DUTIES OF INDIVIDUALS partment of the Navy may be corrected by the Secretary of the Navy, acting § 700.1138 Responsibilities concerning through the Board for Correction of marijuana, narcotics, and other Naval Records, when the Secretary controlled substances. considers that such action should be (a) All personnel shall endeavor to taken in order to correct an error or to prevent and eliminate the unauthor- remove an injustice. ized use of marijuana, narcotics and (b) Applications for corrections under other controlled substances within the this article may be made only after ex- naval service. haustion of all other administrative (b) The wrongful possession, use, in- remedies afforded by law or regulation. troduction, manufacture, distribution (c) Applications for such corrections and possession, or introduction with should be submitted to the Secretary intent to distribute, of a controlled of the Navy (Board for Correction of substance by persons in the naval serv- Naval Records) in accordance with pro- ice are offenses under Article 112a, Uni- cedural regulations established by the form Code of Military Justice. Except Secretary of the Navy and approved by for authorized medicinal or other au- the Secretary of Defense. thorized purposes, the possession, use, introduction, sale, or other transfer of § 700.1127 Control of official records. marijuana, narcotics or other con- (a) No person, without proper author- trolled substances on board any ship or ity, shall withdraw official records or aircraft of the Department of the Navy correspondence from the files, or de- or within any naval base, station or

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other place under the jurisdiction of craft, or in any vehicle of the Depart- the Department of the Navy by all per- ment of the Navy is prohibited. The sons is prohibited. transportation of alcoholic beverages (c) The term ‘‘controlled substance’’ for personal use ashore is authorized, means: a drug or other substance in- subject to the discretion of the officer cluded in Schedule I, II, III, IV, or V es- in command or officer in charge, or tablished by section 202 of the Com- higher authority, when the beverages prehensive Drug Abuse Prevention and are delivered to the custody of the offi- Control Act of 1970 (84 Stat. 1236), as cer in command or officer in charge of updated and republished under the pro- the ship, craft, or aircraft in sealed visions of that Act (21 U.S.C. 812). packages, securely packed, properly marked and in compliance with cus- § 700.1139 Rules for preventing colli- toms laws and regulations, and stored sions, afloat and in the air. in securely locked compartments, and (a) All persons in the naval service the transportation can be performed responsible for the operation of naval without undue interference with the ships, craft and aircraft shall diligently work or duties of the ship, craft, or air- observe the International Rules for craft. Whenever an alcoholic beverage Preventing Collisions at Sea (com- is brought on board any ship, craft, or monly called the COLREGS) (33 CFR aircraft for transportation for personal chapter I), Inland Navigation Rules (33 use ashore, the person who brings it on CFR chapter I), domestic and inter- board shall at that time file with the national air traffic regulations (14 CFR officer in command or officer in charge chapter I), and such other rules and of the ship, craft or aircraft, a state- regulations as may be established by ment of the quantity and kind of alco- the Secretary of Transportation or holic beverage brought on board, to- other competent authority for regu- gether with a certification that its im- lating traffic and preventing collisions portation will be in compliance with on the high seas, in inland waters or in customs and internal revenue laws and the air, where such laws, rules and reg- regulations and applicable State or ulations are applicable to naval ships local laws at the place of debarkation. and aircraft. In those situations where (b) The introduction, possession and such law, rule or regulation is not ap- use of alcoholic beverages for personal plicable to naval ships, craft or air- consumption or sale is authorized with- craft, they shall be operated with due in naval activities and other places regard for the safety of others. ashore under naval jurisdiction to the (b) Any significant infraction of the extent and in such manner as the Sec- laws, rules and regulations governing retary of the Navy may prescribe. traffic or designed to prevent collisions on the high seas, in inland waters, or in § 700.1167 Supremacist activity. the air which may be observed by per- No person in the naval service shall sons in the naval service shall be participate in any organization that es- promptly reported to their superiors, pouses supremacist causes; attempts to including the Chief of Naval Operations create illegal discrimination based on or Commandant of the Marine Corps race, creed, color, sex, religion, or na- when appropriate. tional origin; advocates the use of force (c) Reports need not be made under or violence against the Government of this article if the facts are otherwise the United States or the Government reported in accordance with other di- of any state, territory, district, or pos- rectives, including duly authorized session thereof, or the Government of safety programs. any subdivision therein; or otherwise engages in efforts to deprive individ- RIGHTS AND RESTRICTIONS uals of their civil rights. The term ‘‘participate’’, as used in this article, § 700.1162 Alcoholic beverages. includes acts or conduct, performed (a) Except as may be authorized by alone or in concert with another, such the Secretary of the Navy, the intro- as demonstrating, rallying, fund- duction, possession or use of alcoholic raising, recruiting, training, or orga- beverages on board any ship, craft, air- nizing or leading such organizations.

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The term ‘‘participate’’ also includes Subpart C—FOIA Fees engaging in any other activities in relation to such organizations or in fur- 701.40 Background. 701.41 FOIA fee terms. therance of the objectives of such orga- 701.42 Categories of requesters—applicable nizations when such activities are det- fees. rimental to good order, discipline, or 701.43 Fee declarations. mission accomplishment. 701.44 Restrictions. 701.45 Fee assessment. 701.46 Aggregating requests. PART 701—AVAILABILITY OF DE- 701.47 FOIA fees must be addressed in re- PARTMENT OF THE NAVY sponse letters. RECORDS AND PUBLICATION OF 701.48 Fee waivers. DEPARTMENT OF THE NAVY 701.49 Payment of fees. 701.50 Effect of the Debt Collection Act of DOCUMENTS AFFECTING THE 1982. PUBLIC 701.51 Refunds. 701.52 Computation of fees. Subpart A—Department of the Navy Free- 701.53 FOIA fee schedule. dom of Information Act (FOIA) Pro- 701.54 Collection of fees and fee rates for gram technical data. 701.55 Processing FOIA fee remittances. Sec. 701.1 Purpose. Subpart D—FOIA Exemptions 701.2 Navy FOIA website/FOIA handbook. 701.3 Applicability. 701.56 Background. 701.4 Responsibility and authority. 701.57 Ground rules. 701.5 Policy. 701.58 In-depth analysis of FOIA exemp- 701.6 Reading rooms. tions. 701.7 Relationship between the FOIA and 701.59 A brief explanation of the meaning PA. and scope of the nine FOIA exemptions. 701.8 Processing FOIA requests. 701.9 Referrals. Subpart E—Indexing, Public Inspection, 701.10 Processing requests received from and Federal Register Publication of governmental officials. Department of the Navy Directives 701.11 Processing specific kinds of records. and Other Documents Affecting the 701.12 FOIA appeals/litigation. Public Subpart B—FOIA Definitions and Terms 701.61 Purpose. 701.62 Scope and applicability. 701.13 5 U.S.C. 552(a)(1) materials. 701.63 Policy. 701.14 5 U.S.C. 552(a)(2) materials. 701.64 Publication of adopted regulatory 701.15 5 U.S.C. 552(a)(3) materials. documents for the guidance of the public. 701.16 Administrative appeal. 701.65 Availability, public inspection, and 701.17 Affirmative information disclosure. indexing of other documents affecting 701.18 Agency record. the public. 701.19 Appellate authority. 701.66 Publication of proposed regulations 701.20 Discretionary disclosure. for public comment. 701.21 Electronic record. 701.67 Petitions for issuance, revision, or 701.22 Exclusions. cancellation of regulations affecting the 701.23 Executive Order 12958. public. 701.24 Federal agency. 701.25 5 U.S.C. 552, Freedom of Information Subpart F—DON Privacy Program Act (FOIA). 701.26 FOIA exemptions. 701.100 Purpose. 701.27 FOIA fee terms location. 701.101 Privacy program terms and defini- 701.28 FOIA request. tions. 701.29 Glomar response. 701.102 Online resources. 701.30 Initial Denial Authority (IDA). 701.103 Applicability. 701.31 Mosaic or compilation response. 701.104 Responsibility and authority. 701.32 Perfected request. 701.105 Policy. 701.33 Public domain. 701.106 Collecting information about indi- 701.34 Public interest. viduals. 701.35 Reading room. 701.107 Record access. 701.36 Release authorities. 701.108 Amendment of records. 701.37 Reverse FOIA. 701.109 Privacy Act (PA) appeals. 701.38 Technical data. 701.110 Conditions of disclosure. 701.39 Vaughn index. 701.111 Disclosure accounting. 45

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701.112 ‘‘Blanket routine uses.’’ FOIA websites, and to the Navy’s elec- 701.113 PA exemptions. tronic reading rooms. 701.114 PA enforcement actions. (b) FOIA requesters are encouraged 701.115 Protected personal information (PPI). to visit the Navy FOIA website prior to 701.116 PA systems of records notices over- filing a request. It features a FOIA view. Handbook which provides: guidance on 701.117 Changes to PA systems of records. how and where to submit requests; 701.118 Privacy, IT, and PIAs. what’s releasable/what’s not; addresses 701.119 Privacy and the web. for frequently requested information; 701.120 Processing requests that cite or imply PA, Freedom of Information time limits and addresses for filing ap- (FOIA), or PA/FOIA. peals, etc. FOIA requesters may also 701.121 Processing ‘‘routine use’’ disclo- use the electronic FOIA request form sures. on the website to seek access to 701.122 Medical records. records originated by the Secretary of 701.123 PA fees. the Navy (SECNAV) or the Chief of 701.124 PA self assessments/inspections. 701.125 Computer matching program. Naval Operations (CNO).

Subpart G—Privacy Act Exemptions § 701.3 Applicability. 701.126 Purpose. (a) Subparts A, B, C, and D of this 701.127 Exemption for classified records. part apply throughout the Department 701.128 Exemptions for specific Navy record of the Navy (DON) and take precedence systems. over other DON instructions, which 701.129 Exemptions for specific Marine may serve to supplement it [i.e., Public Corps record systems. Affairs Regulations, Security Classi- AUTHORITY: 5 U.S.C. 552. fication Regulations, Navy Regula- SOURCE: 64 FR 49850, Sept. 14, 1999, unless tions, Marine Corps Orders, etc.]. Fur- otherwise noted. ther, issuance of supplementary instructions by DON activities, deemed Subpart A—Department of the essential to the accommodation of per- Navy Freedom of Information ceived requirements peculiar to those Act (FOIA) Program activities, may not conflict. (b) The FOIA applies to ‘‘records’’ § 701.1 Purpose. maintained by ‘‘agencies’’ within the Subparts A, B, C, and D of this part Executive Branch of the Federal gov- issue policies and procedures for imple- ernment, including the Executive Of- menting the Freedom of Information fice of the President and independent Act (5 U.S.C. 552), and Department of regulatory agencies. It states that Defense Directives 5400.7 and 5400.7–R ‘‘any person’’ (U.S. citizen; foreigner, series 1 ,Department of Defense Free- whether living inside or outside the dom of Information Act Program, (See United States; partnerships; corpora- 32 CFR part 286) and promote uni- tions; associations; and foreign and do- formity in the Department of the Navy mestic governments) has the right en- Freedom of Information Act (FOIA) forceable by law, to access Federal Program. agency records, except to the extent that such records (or portions thereof) § 701.2 Navy FOIA website/FOIA handbook. are protected from disclosure by one or more of the nine FOIA exemptions or (a) The Navy FOIA website (http:// one of three special law enforcement www.ogc.secnav.hq.navy.mil/foia/ exclusions. index.html) is an excellent resource for requesters and FOIA coordinators. It (c) Neither Federal agencies nor fugi- provides connectivity to the Navy’s of- tives from justice may use the FOIA to ficial website, to other FOIA and non/ access agency records. (d) The Department of Defense (DoD) FOIA directive states that the FOIA 1 Copies may be obtained if needed from the Navy FOIA Website at http:// programs of the U.S. Atlantic Com- www.ogc.secnav.hq.navy.mil/foia/index.html mand and the U.S. Pacific Command

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fall under the jurisdiction of the De- responses are complete, timely, and ac- partment of Defense and not the De- curate. Additionally, N09B30 works partment of the Navy. This policy rep- closely with other DoD and DON offi- resents an exception to the policies di- cials to ensure they are aware of highly rected under DoD Directive 5100.3, visible and/or sensitive FOIA requests ‘‘Support of the Headquarters of Uni- being processed by the DON. fied, Specified, and Subordinate Com- (2) SECNAV has delegated Initial De- mands.’’ nial Authority (IDA) to N09B30 for requests at the Secretariat and OPNAV § 701.4 Responsibility and authority. level. (a) The Head, DON PA/FOIA Policy (b) The Commandant of the Marine Branch [CNO (N09B30)] has been dele- Corps is delegated responsibility for gated the responsibility for managing administering and supervising the exe- the DON’s FOIA program, which in- cution of this instruction within the cludes setting FOIA policy and admin- Marine Corps. To accomplish this task, istering, supervising, and overseeing the Director of Administrative Re- the execution of the 5 U.S.C. 552 and source Management (Code ARAD) Department of Defense Directives serves as the FOIA Coordinator for 5400.7 and 5400.7-R series, Department Headquarters, U.S. Marine Corps, and of Defense Freedom of Information Act assists CNO (N09B30) in promoting the Program (see 32 CFR part 286). Department of the Navy FOIA Program (1) As principal DON FOIA policy of- by issuing a Marine Corps FOIA Hand- ficial, CNO (N09B30) issues SECNAV In- book; utilizing the Marine Corps FOIA struction 5720.42; oversees the adminis- website to disseminate FOIA informa- tration of the DON FOIA program; tion; consolidating its activities An- issues and disseminates FOIA policy; nual FOIA Reports and submitting it oversees the Navy FOIA website; rep- to CNO (N09B30); maintaining a current resents the DON at all meetings, sym- list of Marine Corps FOIA coordina- posiums, and conferences that address tors, etc. FOIA matters; writes the Navy’s FOIA (c) The DON Chief Information Offi- Handbook; serves on FOIA boards and cer (DONCIO) is responsible for pre- committees; serves as principal policy paring and making publicly available advisor and oversight official on all upon request an index of all DON major FOIA matters; prepares the DON An- information systems and a description nual FOIA Report for submission to of major information and record loca- the Attorney General; reviews all FOIA tor systems maintained by the Depart- appeals to determine trends that im- ment of the Navy as required by 5 pact on the DON; reviews all FOIA liti- U.S.C. 552 and DoD 5400.7–R, ‘‘DoD gation matters involving the DON and Freedom of Information Act Program.’’ apprises the Director, Freedom of In- (d) FOIA coordinators will: formation and Security Review, DoD of (1) Implement and administer a local same; responds to depositions and liti- FOIA program under this instruction; gation regarding DON FOIA policy Sec- serve as principal point of contact on retary of the Navy Instruction 5820.8A, FOIA matters; issue a command/activ- Release of Information for Litigation ity instruction that implements Purposes and Testimony by DON Per- SECNAVINST 5740.42F by reference sonnel; reviews/analyzes all proposed and highlights only those areas unique FOIA legislation to determine its im- to the command/activity (i.e., des- pact on the DON; develops a Navy-wide ignate the command/activity’s FOIA FOIA training program and serves as Coordinator and IDA; address internal training oversight manager; conducts FOIA processing procedures; and ad- staff assistance visits/reviews within dress command/activity level FOIA re- the DON to ensure compliance with 5 porting requirements); receive and U.S.C. 552 and this part; reviews all track FOIA requests to ensure re- SECNAV and Operations Navy instruc- sponses are made in compliance with 5 tions/forms that address FOIA; and U.S.C. 552 and DoD Directives 5400.7 oversees the processing of FOIA re- and 5400.7–R and this part; provide gen- quests received by SECNAV and Chief eral awareness training to command/ of Naval Operations (CNO), to ensure activity personnel on the provisions of

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5 U.S.C. 552 and this instruction; col- placed on the activity’s website does lect and compile FOIA statistics and not violate references in paragraphs submit a consolidated Annual FOIA (a), (c) and (f). Report to Echelon 2 FOIA coordinator (e) Initial Denial Authorities (IDAs). for consolidation; provide guidance on The following officials are delegated to how to process FOIA requests; and pro- serve as Initial Denial Authorities, on vide guidance on the scope of FOIA ex- behalf of SECNAV (see § 701.30 for defi- emptions. nition): (2) Additionally, CMC (ARAD) and (1) Under Secretary of the Navy; Dep- Echelon 2 FOIA coordinators will: (i) Ensure that reading room mate- uty Under Secretary of the Navy; As- rials are placed in the activity’s elec- sistant Secretaries of the Navy (ASNs) tronic reading room and that the ac- and their principal deputy assistants; tivity’s website is linked to the Navy Assistant for Administration FOIA website and the activity’s read- (SECNAV); Director, Administrative ing room is linked to the Navy’s FOIA Division (SECNAV); Special Assistant reading room lobby. Documents placed for Legal and Legislative Affairs in the reading room shall also be in- (SECNAV); Director, Office of Program dexed as a Government Information Appraisal (SECNAV); DONCIO; Direc- Locator Service (GILS) record, as this tor, Small and Disadvantaged Business will serve as an index of available Utilization (SECNAV); Chief of Infor- records. mation (CHINFO); Director, Navy (ii) Review proposed legislation and International Programs Office; Chief of policy recommendations that impact Legislative Affairs; CNO; Vice CNO; Di- the FOIA and provide comments to rector, Naval Nuclear Propulsion Pro- CNO (N09B30). gram (NOON); Director, Navy Staff (iii) Review SECNAVINST 5720.42F (N09B); Head, DON PA/FOIA Policy and provide recommended changes/ Branch (N09B30); Director of Naval In- comments to CNO (N09B30). telligence (N2); Director of Space, In- (iv) Routinely conduct random staff formation Warfare, Command and Con- assistance visits/reviews/self-evalua- trol (N6); Director of Navy Test & Eval- tions within the command and lower uation & Technology Requirements echelon commands to ensure compli- (N091); Surgeon General of the Navy ance with FOIA. (N093); Director of Naval Reserve (v) Collect and compile command and feeder reports for the Annual FOIA Re- (N095); Oceanographer of the Navy port and provide a consolidated report (N096); Director of Religious Ministries/ to CNO (N09B30). Chief of Chaplains of the Navy (N097); (vi) Maintain a listing of their subor- all Deputy Chiefs of Naval Operations; dinate activities’ FOIA coordinators to Chief of Naval Personnel; Director, include full name, address, and tele- Strategic Systems Programs; Chief, phone (office and fax) and place on Bureau of Medicine and Surgery; Direc- their website. tor, Office of Naval Intelligence; Naval Inspector General; Auditor General of NOTE TO PARAGRAPH (d)(2)(vi): Do not place the Navy; Commanders of the Naval names of FOIA coordinators who are overseas, routinely deployable or in sensitive Systems Commands; Chief of Naval units on the website. Instead just list ‘‘FOIA Education and Training; Commander, Coordinator’’ Naval Reserve Force; Chief of Naval (vii) Notify CNO (N09B30) of any Research; Director, Naval Criminal In- change of name, address, office code vestigative Service; Deputy Com- and zip code, telephone and facsimile mander, Naval Legal Service Com- number, and/or e-mail address of Ech- mand; Commander, Navy Personnel elon 2 FOIA Coordinators. Command; Director, Naval Center of (viii) Conduct overview training to Cost Analysis; Commander, Naval Me- ensure all personnel are knowledgeable teorology and Oceanography Com- of the FOIA and its requirements. See mand; Director, Naval Historical Cen- § 701.12. ter; heads of DON staff offices, boards, (ix) Work closely with the activity and councils; Program Executive Offi- webmaster to ensure that information cers; and all general officers.

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(2) Within the Marine Corps: CMC viduals acting during their absence if and his Assistant, Chief of Staff, Dep- this serves the purpose of streamlining uty Chiefs of Staff; Director, Personnel and/or complying with the time limits Management Division; Fiscal Director of FOIA. of the Marine Corps; Counsel for the NOTE TO PARAGRAPH (e)(5): Such delega- Commandant; Director of Intelligence; tions shall be limited to comply with DoD Director, Command, Communications Directive 5400.7, ‘‘DoD Freedom of Informa- and Computer Systems Division; Legis- tion Act Program’’. lative Assistant to the Commandant; Director, Judge Advocate Division; In- (6) Delegations of IDA authority spector General of the Marine Corps; should be reflected in the activity’s Director, Manpower, Plans, and Policy supplementing FOIA instruction or by Division; Head, Freedom of Informa- letter, with a copy to CNO (N09B30) or tion and Privacy Acts Section, HQMC; CMC (ARAD), as appropriate. Director of Public Affairs; Director of (f) Release authorities. Release au- Marine Corps History and Museums; thorities are authorized to grant re- Director, Personnel Procurement Divi- quests on behalf of the Office of the sion; Director, Morale Support Divi- Secretary of the Navy for agency sion; Director, Human Resources Divi- records under their possession and con- sion; Director of Headquarters Support; trol for which no FOIA exemption ap- commanding generals; directors, Ma- plies; to respond to requesters con- rine Corps districts; commanding offi- cerning refinement of their requests; to cers, not in the administrative chain of provide fee estimates; and to offer ap- command of a commanding general or peal rights for adequacy of search or district director. For each official list- fee estimates to the requester. ed above, the deputy or principal as- (g) Appellate authorities are ad- sistant is also authorized denial au- dressed in § 701.12. thority. (3) JAG and his Deputy and the DON § 701.5 Policy. General Counsel (DONGC) and his dep- (a) Compliance with the FOIA. DON uties are excluded from this grant of policy is to comply with the FOIA as authorization, since SECNAV has dele- set forth in the Department of De- gated them to serve as his appellate fense’s FOIA Directives 5400.7 and authorities. However, they are author- 5400.7–R, and this instruction in this ized to designate IDA responsibilities part in both letter and spirit; conduct to other senior officers/ officials within its activities in an open manner con- JAG and DONGC. DONGC has dele- sistent with the need for security and gated IDA responsibilities to the As- adherence to other requirements of law sistant General Counsels and the Asso- and regulation; and provide the public ciate General Counsel (Litigation). with the maximum amount of accurate (4) For the shore establishment and and timely information concerning its operating forces: All officers author- activities. ized by Article 22, Uniform Code of (b) Prompt action. DON activities Military Justice (UCMJ) or designated shall act promptly on requests when a in section 0120, Manual of the Judge member of the public complies with Advocate General (JAGINST 5800.7C) to the procedures established in the in- convene general courts-martial. struction in this part (i.e., files a ‘‘per- (5) IDAs must balance their decision fected request’’) and the request is re- to centralize denials for the purpose of ceived by the official designated to re- promoting uniform decisions against spond. See § 701.11 for minimum re- decentralizing denials to respond to requirements of the FOIA. quests within the FOIA time limits. (c) Provide assistance. DON activities Accordingly, the IDAs listed in para- shall assist requesters in under- graphs (e)(1) through (4) are authorized standing and complying with the pro- to delegate initial denial authority to cedures established by the instruction subordinate activities for the purpose in this part, ensuring that procedural of streamlining FOIA processing. They matters do not unnecessarily impede a may also delegate authority to a spe- requester from obtaining DON records cific staff member, assistant, or indi- promptly.

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(d) Grant access. (1) DON activities However, the request need not be proc- shall grant access to agency records essed when the capability to respond when a member of the public complies does not exist without a significant ex- with the provisions of the instruction penditure of resources, thus not being a in this part and there is no FOIA ex- normal business as usual approach. As emption available to withhold the reused in this sense, a significant inter- quested information (see subpart D of ference with the operation of the DON this part). activity’s automated information sys- (2) In those instances where the re- tem would not be a business as usual quester has not cited FOIA, but the approach. records are determined to be releasable (f) Disclosures—(1) Discretionary Dis- in their entirety, the request shall be closures. DON activities shall make dis- honored without requiring the requester to invoke FOIA. cretionary disclosures whenever disclo- (e) Create a record. (1) A record must sure would not foreseeably harm an in- exist and be in the possession and con- terest protected by a FOIA exemption. trol of the DON at the time of the re- A discretionary disclosure is normally quest to be considered subject to the not appropriate for records clearly ex- instruction in this part and the FOIA. empt under exemptions (b)(1), (b)(3), Accordingly, DON activities need not (b)(4), (b)(6), (b)(7)(C) and (b)(7)(F). Ex- process requests for records which are emptions (b)(2), (b)(5), and (b)(7)(A), not in existence at the time the re- (b)(7)(B), (b)(7)(D) and (b)(7)(E) are dis- quest is received. In other words, re- cretionary in nature and DON activi- questers may not have a ‘‘standing ties are encouraged to exercise discre- FOIA request’’ for release of future tion whenever possible. Exemptions records. (b)(4), (b)(6), and (b)(7)(C) cannot be (2) There is no obligation to create, claimed when the requester is the compile, or obtain a record to satisfy a ‘‘submitter’’ of the information. While FOIA request. However, this is not to discretionary disclosures to FOIA re- be confused with honoring form or for- questers constitute a waiver of the mat requests (see § 701.8). A DON activ- FOIA exemption that may otherwise ity, however, may compile a new apply, this policy does not create any record when so doing would result in a legally enforceable right. more useful response to the requester, (2) Public domain. Non-exempt records or be less burdensome to the agency released under FOIA to a member of than providing existing records, and the requester does not object. Cost of the public are considered to be in the creating or compiling such a record public domain. Accordingly, such may not be charged to the requester records may also be made available in unless the fee for creating the record is reading rooms, in paper form, as well equal to or less than the fee which as electronically to facilitate public would be charged for providing the ex- access. isting record. Fee assessments shall be (3) Limited disclosures. Disclosure of in accordance with subpart C of this records to a properly constituted advi- part. sory committee, to Congress, or to (3) With respect to electronic data, other Federal agencies does not waive the issue of whether records are actu- a FOIA exemption. ally created or merely extracted from (4) Unauthorized disclosures. Exempt an existing database is not always records disclosed without authoriza- readily apparent. Consequently, when tion by the appropriate DON official do responding to FOIA requests for elec- not lose their exempt status. tronic data where creation of a record, (5) Official versus personal disclosures. programming, or particular format are While authority may exist to disclose questionable, DON activities should records to individuals in their official apply a standard of reasonableness. In capacity, the provisions of the instruc- other words, if the capability exists to respond to the request, and the effort tion in this part apply if the same indi- would be a business as usual approach, vidual seeks the records in a private or then the request should be processed. personal capacity.

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(6) Distributing information. DON ac- collections on their own servers, the tivities are encouraged to enhance ac- Navy FOIA website provides a common cess to information by distributing in- gateway for all Navy online resources. formation on their own initiative To this end, DON activities shall: through the use of electronic informa- (a) Establish their reading rooms and tion systems, such as the Government link them to the Navy FOIA Reading Information Locator Service (GILS). Room Lobby which is found on the (g) Honor form or format requests. DON Navy FOIA website. activities shall provide the record in (b) Ensure that responsive documents any form or format requested by the held by their subordinate activities are requester, if the record is readily repro- also placed in the reading room. ducible in that form or format. DON activities shall make reasonable efforts NOTE TO PARAGRAPH (b): SECNAV/ASN and to maintain their records in forms or OPNAV offices shall ensure that responsive formats that are reproducible. In re- documents are provided to CNO (N09B30) for placement in the reading room. sponding to requests for records, DON activities shall make reasonable efforts (c) Ensure that documents placed in to search for records in electronic form a reading room are properly excised to or format, except when such efforts preclude the release of personal or con- would significantly interfere with the tractor-submitted information prior to operation of the DON activities’ auto- being made available to the public. In mated information system. Such deter- every case, justification for the dele- minations shall be made on a case-by- tion must be fully explained in writing, case basis. and the extent of such deletion shall be (h) Authenticate documents. Records indicated on the record which is made provided under the instruction in this publicly available, unless such indica- part shall be authenticated with an ap- tion would harm an interest protected propriate seal, whenever necessary, to by an exemption under which the dele- fulfill an official Government or other tion was made. If technically feasible, legal function. This service, however, is the extent of the deletion in electronic in addition to that required under the records or any other form of record FOIA and is not included in the FOIA shall be indicated at the place in the fee schedule. DON activities may record where the deletion was made. charge for the service at a rate of $5.20 However, a DON activity may publish for each authentication. in the FEDERAL REGISTER a description of the basis upon which it will delete § 701.6 Reading rooms. identifying details of particular types The FOIA requires that (a)(2) records of records to avoid clearly unwarranted created on or after 1 November 1996, be invasions of privacy, or competitive made available electronically (starting harm to business submitters. In appro- 1 November 1997) as well as in hard priate cases, the DON activity may copy, in the FOIA reading room for in- refer to this description rather than spection and copying, unless such write a separate justification for each records are published and copies are of- deletion. DON activities may remove fered for sale. DoD 5400.7–R, ‘‘DoD (a)(2)(D) records from their electronic Freedom of Information Act Program,’’ reading room when the appropriate of- requires that each DoD Component ficials determine that access is no provide an appropriate facility or fa- longer necessary. cilities where the public may inspect (d) Should a requester submit a FOIA and copy or have copied the records request for FOIA-processed (a)(2) held in their reading rooms. To com- records, and insist that the request be ply, the Navy FOIA website includes processed, DON activities shall process links that assist members of the public the FOIA request. However, DON ac- in locating Navy libraries, online docu- tivities have no obligation to process a ments, and Navy electronic reading FOIA request for 5 U.S.C. 552(a)(2)(A), rooms maintained by SECNAV/CNO, (B), and (C) [5 U.S.C. 552] records be- CMC, OGC, JAG and Echelon 2 com- cause these records are required to be mands. Although each of these activi- made public and not FOIA-processed ties will maintain their own document under paragraph (a)(3) of the FOIA.

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(e) DON activities may share reading § 701.7 Relationship between the FOIA room facilities if the public is not un- and PA. duly inconvenienced. When appro- Not all requesters are knowledgeable priate, the cost of copying may be im- of the appropriate statutory authority posed on the person requesting the ma- to cite when requesting records. In terial in accordance with FOIA fee some instances, they may cite neither guidelines (see subpart C of this part). Act, but will imply one or both Acts. (f) DON activities shall maintain an For these reasons, the following guide- index of all available documents. A lines are provided to ensure requesters general index of FOIA-processed (a)(2) receive the greatest amount of access records shall be made available to the rights under both Acts: public, both in hard copy and electroni- (a) If the record is required to be re- cally by 31 December 1999. To comply leased under the FOIA, the PA does not with this requirement, DON activities bar its disclosure. Unlike the FOIA, the shall establish a GILS record for each PA applies only to U.S. citizens and document it places in a reading room. aliens admitted for permanent residence. Subpart F of this part imple- No (a)(2) materials issued or adopted ments the DON’s Privacy Act Program. after 4 July 1967, that are not indexed (b) Requesters who seek records and either made available or published about themselves contained in a PA may be relied upon, used or cited as system of records and who cite or precedent against any individual unless imply only the PA, will have their re- such individual has actual and timely quests processed under the provisions notice of the contents of such mate- of both the PA and the FOIA. If the PA rials. Such materials issued or adopted system of records is exempt from the before 4 July 1967, need not be indexed, provisions of 5 U.S.C. 552a(d)(1) and the but must be made available upon re- records, or any portion thereof are ex- quest if not exempted under the in- empt under the FOIA, the requester struction in this part. shall be so advised with the appro- (g) An index and copies of unclassi- priate PA and FOIA exemption. Ap- fied Navy instructions, forms, and ad- peals shall be processed under both dresses for DON activities (i.e., the Acts. Standard Navy Distribution List (c) Requesters who seek records (SNDL) are located on the Navy Elec- about themselves that are not con- tronics Directives System (http:// tained in a PA system of records and neds.nebt.daps.mil/). who cite or imply the PA will have (h) DON material published in the their requests processed under the pro- FEDERAL REGISTER, such as material visions of the FOIA, since the PA does required to be published by Section not apply to these records. Appeals 552(a)(1) of the FOIA, shall be made shall be processed under the FOIA. (d) Requesters who seek records available by JAG in their FOIA reading about themselves that are contained in room and electronically to the public. a PA system of records and who cite or (i) Although not required to be made imply the FOIA or both Acts will have available in response to FOIA requests their requests processed under the pro- or made available in FOIA Reading visions of both the PA and the FOIA. If Rooms, ‘‘(a)(1)’’ materials may, when the PA system of records is exempt feasible, be made available to the pub- from the provisions of 5 U.S.C. lic in FOIA reading rooms for inspec- 552a(d)(1), and the records, or any portion and copying, and by electronic tion thereof are exempt under the means. Examples of ‘‘(a)(1)’’ materials FOIA, the requester shall be so advised are: descriptions of an agency’s central with the appropriate PA and FOIA ex- and field organization, and to the exemption. Appeals shall be processed tent they affect the public, rules of under both Acts. procedures, descriptions of forms avail- (e) Requesters who seek access to able, instruction as to the scope and agency records that are not part of a contents of papers, reports, or exami- PA system of records, and who cite or nations, and any amendment, revision, imply the PA and FOIA, will have their or report of the aforementioned. requests processed under FOIA, since

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the PA does not apply to these records. and correct. Additionally, written con- Appeals shall be processed under the sent of the subject of the record is re- FOIA. quired for disclosure from a Privacy (f) Requesters who seek access to Act System of records, even to the sub- agency records and who cite or imply ject’s attorney. the FOIA will have their requests and (c) Review description of requested appeals processed under the FOIA. record(s). (1) The FOIA requester is re- (g) Requesters shall be advised in sponsible for describing the record he/ final responses which Act(s) was (were) she seeks so that a knowledgeable offi- used, inclusive of appeal rights. cial of the activity can locate the (h) The time limits for responding to record with a reasonable amount of ef- the request will be determined based on fort. In order to assist DON activities the Act cited. For example, if a rein conducting more timely searches, a quester seeks access under the FOIA requester should endeavor to provide as for his or her personal records which much identifying information as pos- are contained in a PA system of sible. When a DON activity receives a records, the time limits of the FOIA request that does not reasonably de- apply. scribe the requested record, it shall no- (i) Fees will be charged based on the kind of records being requested (i.e., tify the requester of the defect in writ- FOIA fees if agency records are re- ing. The requester should be asked to quested; PA fees for requesters who are provide the type of information out- seeking access to information con- lined in this paragraph. DON activities tained in a PA system of record which are not obligated to act on the request is retrieved by their name and/or per- until the requester responds to the sonal identifier). specificity letter. When practicable, DON activities shall offer assistance to § 701.8 Processing FOIA requests. the requester in identifying the records Upon receipt of a FOIA request, DON sought and in reformulating the re- activities shall: quest to reduce the burden on the agen- (a) Review the request to ensure it cy in complying with the FOIA. The meets the minimum requirements of following guidelines are provided to the FOIA to be processed. deal with generalized requests and are (1) Minimum requirements of a FOIA re- based on the principle of reasonable ef- quest. A request must be in writing; fort. Descriptive information about a cite or imply FOIA; reasonably de- record may be divided into two broad scribe the records being sought so that categories. a knowledgeable official of the agency (i) Category I is file-related and in- can conduct a search with reasonable cludes information such as type of effort; and if fees are applicable, the re- record (for example, memorandum), quester should include a statement re- title, index citation, subject area, date garding willingness to pay all fees or the record was created, and originator. those up to a specified amount or re- (ii) Category II is event-related and quest a waiver or reduction of fees. includes the circumstances that re- (2) If a request does not meet the sulted in the record being created or minimum requirements of the FOIA, the date and circumstances sur- DON activities shall apprise the re- rounding the event the record covers. quester of the defect and assist him/her (2) Generally, a record is not reason- in perfecting the request. ably described unless the description NOTE TO PARAGRAPH (a)(2): The statutory 20 contains sufficient Category I informa- working day time limit applies upon receipt tion to permit the conduct of an orga- of a ‘‘perfected’’ FOIA request. nized, non random search based on the (b) When a requester or his/her attor- DON activity’s filing arrangements and ney requests personally identifiable in- existing retrieval systems, or unless formation in a record, the request may the record contains sufficient Category require a notarized signature or a II information to permit inference of statement certifying under the penalty the Category I elements needed to con- of perjury that their identity is true duct such a search.

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(3) The following guidelines deal with quester (i.e., search, review, and/or du- requests for personal records: Ordi- plication and at what salary level and narily, when personal identifiers are the actual time expended); and as input provided solely in connection with a re- to the Annual FOIA Report. Requesters quest for records concerning the re- may request a copy of the applicable quester, only records in Privacy Act form to review the time and costs asso- system of records that can be retrieved ciated with the processing of a request. by personal identifiers need be (5) Final response letters shall ad- searched. However, if a DON activity dress whether or not fees are applicable has reason to believe that records on or have been waived. A detailed expla- the requester may exist in a record sys- nation of FOIA fees is provided at sub- tem other than a PA system, the DON part C of this part. activity shall search the system under (e) Control FOIA Request. Each FOIA the provisions of the FOIA. In either request should be date stamped upon case, DON activities may request a rea- receipt; given a case number; and en- sonable description of the records de- tered into a formal control system to sired before searching for such records track the request from receipt to re- under the provisions of the FOIA and sponse. Coordinators may wish to con- the PA. If the records are required to spicuously stamp, label, and/or place be released under the FOIA, the PA the request into a brightly colored does not bar its disclosure. folder/cover sheet to ensure it receives (4) The guidelines in paragraph (c)(3) immediate attention by the action offi- notwithstanding, the decision of the cer. DON activity concerning reasonable- (f) Enter request into multitrack proc- ness of description must be based on essing system. When a DON activity has the knowledge of its files. If the de- a significant number of pending re- scription enables the DON activity per- quests that prevents a response deter- sonnel to locate the record with rea- mination being made within 20 working sonable effort, the description is ade- days, the requests shall be processed in quate. The fact that a FOIA request is a multitrack processing system, based broad or burdensome in its magnitude on the date of receipt, the amount of does not, in and of itself, entitle a DON work and time involved in processing activity to deny the request on the the requests, and whether the request ground that it does not reasonably de- qualifies for expedited processing. scribe the records sought. The key fac- (1) DON activities may establish as tor is the ability of the staff to reason- many queues as they wish, however, at ably ascertain and locate which records a minimum three processing tracks are being requested. shall be established, all based on a (d) Review request to determine if FOIA first-in, first-out concept, and rank or- fees may be applicable. (1) FOIA fee dered by the date of receipt of the re- issues shall be resolved before a DON quest: one track for simple requests, activity begins processing a FOIA re- one track for complex requests, and quest. one track for expedited processing. De- (2) FOIA fees shall be at the rates terminations as to whether a request is prescribed at subpart C of this part. simple or complex shall be made by (3) If fees are applicable, a requester each DON activity. shall be apprised of what category of (2) DON activities shall provide a re- requester he/she has been placed and quester whose request does not qualify provided a complete breakout of fees to for the fastest queue (except for expe- include any and all information pro- dited processing), an opportunity to vided before fees are assessed (e.g., first limit in writing by hard copy, fac- two hours of search and first 100 pages simile, or electronically the scope of of reproduction have been provided the request in order to qualify for the without charge.) fastest queue. (4) Forms DD 2086 (for FOIA requests) (3) This multitrack processing sys- and 2086–1 (for FOIA requests for tech- tem does not obviate the activity’s re- nical data) serve as an administrative sponsibility to exercise due diligence in record of all costs incurred to process a processing requests in the most expedi- request; actual costs charged to a re- tious manner possible.

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(4) Referred requests shall be proc- litigation or commercial activities essed according to the original date re- would not qualify, nor would a news ceived by the initial activity and then media publication or broadcast dead- placed in the appropriate queue. line unrelated to the news breaking na- (5) Establish a separate queue for ex- ture of the information. pedited processing. A separate queue (iv) A demonstration of compelling shall be established for requests meet- need by a requester shall be made by a ing the test for expedited processing. statement certified by the requester to Expedited processing shall be granted be true and correct to the best of his/ to a requester after the requester re- her knowledge. This statement must quests such and demonstrates a com- accompany the request in order to be pelling need for the information. No- considered and responded to within the tice of the determination as to whether to grant expedited processing in re- 10 calendar days required for decisions sponse to a requester’s compelling need on expedited access. shall be provided to the requester with- (v) Other reasons that merit expe- in 10 calendar days after receipt of the dited processing by DON activities are request in the office which will deter- an imminent loss of substantial due mine whether to grant expedited ac- process rights and humanitarian need. cess. Once the determination has been A demonstration of imminent loss of made to grant expedited processing, substantial due process rights shall be DON activities shall process the re- made by a statement certified by the quest as soon as practicable. Actions requester to be true and correct to the by DON activities to initially deny or best of his/her knowledge. Humani- affirm the initial denial on appeal of a tarian need means that disclosing the request for expedited processing, and information will promote the welfare failure to respond in a timely manner and interests of mankind. A dem- shall be subject to judicial review. onstration of humanitarian need shall (i) Compelling need means that the also be made by a statement certified failure to obtain the records on an ex- by the requester to be true and correct pedited basis could reasonably be ex- to the best of his/her knowledge. Both pected to pose an imminent threat to of these statements must accompany the life or physical safety of an indi- the request in order to be considered vidual. and responded to within the 10 calendar (ii) Compelling need also means that days required for decisions on expe- the information is urgently needed by an individual primarily engaged in dis- dited access. Once the decision has seminating information in order to in- been made to expedite the request for form the public concerning actual or either of these reasons, the request alleged Federal Government activity. may be processed in the expedited An individual primarily engaged in dis- processing queue behind those requests seminating information means a per- qualifying for compelling need. son whose primary activity involves (6) These same procedures also apply publishing or otherwise disseminating to requests for expedited processing of information to the public. Representa- administrative appeals. tives of the news media would nor- (g) Respond to request within FOIA mally qualify as individuals primarily time limits. Once an activity receives a engaged in disseminating information. ‘‘perfected’’ FOIA request, it shall in- Other persons must demonstrate that form the requester of its decision to their primary activity involves pub- grant or deny access to the requested lishing or otherwise disseminating in- records within 20 working days. Activi- formation to the public. ties are not necessarily required to re- (iii) Urgently needed means that the lease records within the 20 working information has a particular value that days, but access to releasable records will be lost if not disseminated quick- should be granted promptly thereafter ly. Ordinarily this means a breaking and the requester apprised of when he/ news story of general public interest. However, information of historical in- she may expect to receive a final re- terest only, or information sought for sponse to his/her request. Naturally,

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interim releases of documents are en- the appellate authority may take when couraged if appropriate. Sample re- responding to a FOIA appeal. sponse letters are provided on the Navy (h) Conduct a search for responsive FOIA website. records. (1) Conduct a search for respon- (1) If a significant number of re- sive records, keeping in mind a test for quests, or the complexity of the re- reasonableness (i.e., file disposition requests prevents a final response deter- quirements set forth in SECNAVINST mination within the statutory time pe- 5212.5D, ‘‘Navy and Marine Corps riod, DON activities shall advise the re- Records Disposal Manual’’). This in- quester of this fact, and explain how cludes making a manual search for the request will be responded to within records as well as an electronic search its multitrack processing system. A for records. Do not assume that be- final response determination is notifi- cause a document is old, it does not cation to the requester that the exist. Rather, ensure that all possible records are released, or will be released avenues are considered before making by a certain date, or the records are de- a determination that no record could nied under the appropriate FOIA ex- be found (i.e., such as determining if emption(s) or the records cannot be the record was transferred to a federal provided for one or more of the ‘‘other records center for holding). reasons’’ (see § 701.8(n)). Interim re- (2) Requesters can appeal ‘‘adequacy sponses acknowledging receipt of the of search.’’ To preclude unnecessary request, negotiations with the re- appeals, you are encouraged to detail quester concerning the scope of the re- your response letter to reflect the quest, the response timeframe, and fee search undertaken so the requester un- agreements are encouraged; however, derstands the process. It is particularly such actions do not constitute a final helpful to address the records disposal response determination under FOIA. requirements set forth in (2) Formal extension. In those in- SECNAVINST 5212.5D, ‘‘Navy and Ma- stances where a DON activity cannot rine Corps Records Disposal Manual’’ respond within the 20 working day time for the records being sought. limit, the FOIA provides for extension (i) Review documents for release. Once of initial time limits for an additional documents have been located, the 10 working days for three specific situ- originator or activity having posses- ations: the need to search for and col- sion and control is responsible for re- lect records from separate offices; the viewing them for release and coordi- need to examine a voluminous amount nating with other activities/agencies of records required by the request; and having an interest. The following pro- the need to consult with another agen- cedures should be followed: cy or agency component. In such in- (1) Sort documents by originator and stances, naval activities shall apprise make necessary referrals (see § 701.9). requesters in writing of their inability (2) Documents for which the activity to respond within 20 working days and has possession and control should be advise them of their right to appeal to reviewed for release. If the review offi- the appellate authority. cial determines that all or part of the documents requested require denial, NOTE TO PARAGRAPH (g)(2): Formal exten- and the head of the activity is an IDA, sion letters require IDA signature. he/she shall respond directly to the re- (3) Informal extension. A recommended quester. If, however, the activity head alternative to taking a formal exten- is not an IDA, then the request, a copy sion is to call the requester and nego- of the responsive documents tiate an informal extension of time (unexcised), proposed redacted copy of with the requester. The advantages in- the documents, and a detailed expla- clude the ability to agree on a mutu- nation regarding their release must be ally acceptable date to respond that ex- referred to the IDA for a final release ceeds a formal extension of an addi- determination and the requester shall tional 10 working days, and the letter be notified in writing of the transfer. of confirmation does not require the (3) Documents for which the activity signature of an IDA. Additionally, it does not have possession and control, does not impact on the additional days but has an interest, should be referred

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to the originator along with any rec- (k) Withholding/excising information. ommendations regarding release (see (1) DON records may only be withheld § 701.9). if they qualify for exemption under one (j) Process non-responsive information or more of the nine FOIA exemptions/ in responsive documents. DON activities three exclusions and it is determined shall interpret FOIA requests liberally that a foreseeable harm to an interest when determining which records are re- protected by those exemptions would sponsive to the requests, and may re- result if the information is released. lease non-responsive information. How- There are nine FOIA exemptions. See ever, should DON activities desire to subpart D of this part for the scope of withhold non-responsive information, each exemption. the following steps shall be accom- (2) Although a FOIA exemption may plished: apply, DON activities are encouraged (1) Consult with the requester, and to consider discretionary disclosures of ask if the requester views the informa- information when an exemption per- tion as responsive, and if not, seek the mits such disclosure (see § 701.5(f).) requester’s concurrence to deletion of (3) Excising documents. The excision of non-responsive information without a information within a document should FOIA exemption. Reflect this concur- be made so that the requester can read- rence in the response letter. ily identify the amount of information (2) If the responsive record is unclas- being withheld and the reason for the sified and the requester does not agree withholding. Accordingly, ensure that to deletion of non-responsive informa- any deletion of information is brack- tion without a FOIA exemption, re- eted and all applicable exemptions list- lease all non-responsive and responsive ed. In those instances, where multiple information which is not exempt. For pages of documents are determined to non-responsive information that is ex- be exempt from disclosure in their en- empt, notify the requester that even if tirety, indicate the number of pages the information were determined re- being denied and the basis for the de- sponsive, it would likely be exempted nial. (state the appropriate exemption(s).) Advise the requester of the right to re- (l) Reasonably segregable information. quest this information under a sepa- DON activities must release all ‘‘rea- rate FOIA request. The separate re- sonably segregable information’’ when quest shall be placed in the same loca- the meaning of these portions is not tion within the processing queue as the distorted by deletion of the denied por- original request. tions, and when it reasonably can be (3) If the responsive record is classi- assumed that a skillful and knowledge- fied, and the requester does not agree able person could not reasonably recon- to deletion of non-responsive informa- struct excised information. When a tion without a FOIA exemption, re- record is denied in whole, the response lease all unclassified responsive and to the requester will specifically state non-responsive information which is that it is not reasonable to segregate not exempt. If the non-responsive in- portions of the record for release. formation is exempt, follow the proce- (m) Making a discretionary disclosure. dures provided. The classified, non-re- A discretionary disclosure to one responsive information need not be requester may preclude the withholding viewed for declassification at this of similar information under a FOIA point. Advise the requester than even if exemption if subsequently requested by the classified information were deter- the same individual or someone else. mined responsive, it would likely be The following suggested language exempt under 5 U.S.C. 552 (b)(1) and should be included with the discre- other exemptions if appropriate. Advise tionary disclosure of any record that the requester of the right to request could be subject to withholding: ‘‘The this information under a separate information you requested is subject to FOIA request. The separate request being withheld under section (b)(l) of shall be placed in the same location the FOIA. The disclosure of this mate- within the processing queue as the rial to you by the DON is discretionary original request. and does not constitute a waiver of our

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right to claim this exemption for simi- meaning of the FOIA and the instruc- lar records in the future.’’ tion in this part. (n) Other reasons. There are 10 rea- NOTE TO PARAGRAPH (n)(7): Response letter sons for not complying with a request does not require signature by IDA. for a record under FOIA: (1) No record. The DON activity con- (8) Duplicate request. When a request ducts a reasonable search of files and is duplicative of another request which fails to identify records responsive to has already been completed or cur- the request. rently in process from the same requester. NOTE TO PARAGRAPH (n)(1): Requester must be advised that he/she may appeal the ade- NOTE TO PARAGRAPH (n)(8): Response letter quacy of search and provided appeal rights. does not require signature by IDA. Response letter does not require signature by IDA. (9) Other (specify). When a FOIA request cannot be processed because the (2) Referral. The request is referred to requester does not comply with pub- another DoD/DON activity or to an- lished rules, other than for those rea- other executive branch agency for their sons described in paragraphs (n) (1) action. through (8). DON activities must docu- NOTE TO PARAGRAPH (n)(2): Referral does ment the specific discrepancy. not need to be signed by IDA. NOTE TO PARAGRAPH (n)(9): Response letter (3) Request withdrawn. The requester does not require signature by IDA. withdraws request. (10) Denial of request. The record is NOTE TO PARAGRAPH (n)(3): Response letter denied in whole or in part in accord- does not require signature by IDA. ance with procedures set forth in 5 U.S.C. 552, DoD 5400.7–R, and the in- (4) Fee-related reason. Requester is un- struction in this part. willing to pay fees associated with the request; is past due in payment of fees NOTE TO PARAGRAPH (n)(10): The requester from a previous request; or disagrees is advised that he/she may appeal the deter- with the fee estimate. mination and response letter must be signed by IDA. NOTE TO PARAGRAPH (n)(4): Requester must be advised that he/she may appeal the fee es- (o) Writing a response letter. FOIA re- timate. Response letter does not require sig- sponse letters should contain the fol- nature by IDA. lowing information: (5) Records not reasonably described. A (1) The date of the request; when it record has not been described with suf- was received; if records were not lo- ficient particularity to enable the DON cated, where the search was conducted activity to locate it by conducting a and what the records disposal require- reasonable search. ments are for those records. (2) Cut-off dates. Normally, DON ac- NOTE TO PARAGRAPH (n)(5): Response letter tivities shall consider the date of re- does not require signature by IDA. ceipt of a FOIA request as the cut-off (6) Not a proper FOIA request for some date for a records search. Where a DON other reason. When the requester fails activity employs a particular cut-off unreasonably to comply with proce- date, however, it should give notice of dural requirements, other than those that date in the response letter to the fee-related issues described in para- requester. graph (n)(4), imposed by the instruc- (3) If a request is denied in whole or tion in this part and/or other published in part, the denial response letter rules or directives. should cite the exemption(s) claimed; if possible, delineate the kinds of infor- NOTE TO PARAGRAPH (n)(6): Response letter mation withheld (i.e., social security does not require signature by IDA. numbers, date of birth, home addresses, (7) Not an agency record. When the re- etc.) as this may satisfy the requester quester is provided a response indi- and thus eliminate an appeal; provide cating that the requested information appeal rights, and be signed by an IDA. was ‘‘not an agency record’’ within the However, there is no requirement that

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the response contain the same docu- originator of the information prior to mentation necessary for litigation (i.e., making a release determination. FOIA requesters are not entitled to a (c) A request received by a DON ac- Vaughn index (see definition in § 701.39 tivity having no records responsive to during the administrative process). a request shall be referred routinely to (4) The fees charged or waived; if fees another DoD/DON activity, if the other were charged, what category was the activity has reason to believe it has requester placed in and provide a the requested record. Prior to notifying breakout of the fees charged (i.e., the a requester of a referral to another first 2 hours of search were waived and DoD/DON activity, the DON activity so you are being charged for the re- receiving the initial request shall con- maining 4 hours of search at $25 per sult with the other DoD/DON activity hour, or $100; the first 100 pages of re- to determine if that activity’s associa- production were waived and the re- tion with the material is exempt. If the maining 400 pages being provided were association is exempt, the activity re- charged at $.15 per page, resulting in ceiving the initial request will protect $60 in reproduction fees, for a total of the association and any exempt infor- $160). These figures are derived from mation without revealing the identity Form DD 2086 (FOIA Fees) or Form DD of the protected activity. The pro- 2086–1 (Technical Data Fees). tected activity shall be responsible for (5) Sample response letters are pro- submitting the justifications required vided on the Navy FOIA website. in any litigation. (p) Press responses. Ensure responses (d) Any DON activity receiving a re- being made to the press are cleared quest that has been misaddressed shall through public affairs channels. refer the request to the proper address (q) Special mail services. DON activi- and advise the requester. DON activities are authorized to use registered ties making referrals of requests or mail, certified mail, certificates of records shall include with the referral, mailing and return receipts. However, a point of contact by name, a telephone their use should be limited to instances number (commercial and DSN), and an where it appears advisable to establish e-mail address (if available). proof of dispatch or receipt of FOIA correspondence. (e) A DON activity shall refer a FOIA request for a record that it holds but § 701.9 Referrals. was originated by another Executive Branch agency, to them for a release (a) The DoD/DON FOIA referral pol- determination and direct response to icy is based upon the concept of the the requester. The requester shall be originator of a record making a release informed of the referral, unless it has determination on its information. If a been determined that notification DON activity receives a request for records originated by another DoD/ would reveal exempt information. Re- DON activity, it should contact the ac- ferred records shall only be identified tivity to determine if it also received to the extent consistent with security the request, and if not, obtain concur- requirements. rence to refer the request. In either sit- (f) A DON activity may refer a re- uation, the requester shall be advised quest for a record that it originated to of the action taken, unless exempt in- another activity or agency when the formation would be revealed. activity or agency has a valid interest (b) While referrals to originators of in the record, or the record was created information result in obtaining the for the use of the other agency or ac- best possible decision on release of the tivity. In such situations, provide the information, the policy does not re- record and a release recommendation lieve DON activities from the responsi- on the record with the referral action. bility of making a release decision on a DON activities should include a point record should the requester object to of contact and telephone number in the referral of the request and the record. referral letter. If that organization is Should this situation occur, DON ac- to respond directly to the requester, tivities should coordinate with the apprise the requester of the referral.

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(g) Within the DON/DoD, a DON ac- Members of Congress who seek access tivity shall ordinarily refer a FOIA re- to records on behalf of their con- quest and a copy of the record it holds, stituent are provided the same infor- but that was originated by another mation that the constituent would be DON/DoD activity or that contains sub- entitled to receive. There is no need to stantial information obtained from verify that the individual has author- that activity, to that activity for di- ized the release of his/her record to the rect response, after direct coordination Congressional member, since the Pri- and obtaining concurrence from the ac- vacy Act’s ‘‘blanket routine use’’ for tivity. The requester shall be notified Congressional inquiries applies. of such referral. In any case, DON ac- (b) Privileged release to U.S. Govern- tivities shall not release or deny such ment officials. DON records may be au- records without prior consultation thenticated and released to U.S. Gov- with the activity, except as provided in ernment officials if they are requesting paragraph (c) of this section. them in their official capacity on be- (h) Activities receiving a referred re- half of Federal governmental bodies, quest shall place it in the appropriate whether legislative, executive, admin- processing queue based on the date it istrative, or judicial. To ensure ade- was initially received by the referring quate protection of these documents, activity/agency. DON activities shall inform officials (i) Agencies outside the DON that are receiving records under the provisions subject to the FOIA. (1) A DON activity of this paragraph that those records may refer a FOIA request for any are exempt from public release under record that originated in an agency FOIA. DON activities shall also mark outside the DON or that is based on in- the records as ‘‘Privileged’’ and ‘‘Ex- formation obtained from an outside empt from Public Disclosure’’ and an- agency to the agency for direct re- notate any special handling instruc- sponse to the requester after coordina- tions on the records. Because such re- tion with the outside agency, if that leases are not made under the provi- agency is subject to FOIA. Otherwise, sions of the FOIA, they do not impact the DON activity must respond to the on future decisions to release/deny re- request. quests for the same records to other re- NOTE: DON activities shall not refer docu- questers. Examples of privileged re- ments originated by entities outside the Ex- leases are: ecutive Branch of Government (e.g., Con- (1) In response to a request from a gress, State and local government agencies, police departments, private citizen cor- Committee or Subcommittee of Con- respondence, etc.), to them for action and di- gress, or to either House sitting as a rect response to the requester, since they are whole. not subject to the FOIA. (2) To the Federal Courts, whenever (2) A DON activity shall refer to the ordered by officers of the court as nec- agency that provided the record any essary for the proper administration of FOIA request for investigative, intel- justice. ligence, or any other type of records (3) To other Federal agencies, both that are on loan to the DON for a spe- executive and administrative, as deter- cific purpose, if the records are re- mined by the head of a DON activity or stricted from further release and so designee. marked. However, if for investigative (c) State or local government officials. or intelligence purposes, the outside Requests from State or local govern- agency desires anonymity, a DON ac- ment officials for DON records are tivity may only respond directly to the treated the same as any other re- requester after coordination with the quester. outside agency. (d) Non-FOIA requests from foreign governments. Requests from foreign § 701.10 Processing requests received governments that do not invoke the from governmental officials. FOIA shall be referred to the appro- (a) Members of Congress. Many con- priate foreign disclosure channels and stituents seek access to information the requester so notified. See § 701.11(c) through their Member of Congress. regarding processing FOIA requests

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from foreign governments and/or their priate, the referring agency shall deny officials. the request. (b) Courts-martial records of trial. The § 701.11 Processing specific kinds of release/denial authority for these records. records is the Office of the Judge Advo- DON activities that possess copies or cate General (Code 20), Washington receive requests for the following kinds Navy Yard, Building 111, Washington, of records shall promptly forward the DC 20374–1111. Promptly refer the re- requests to the officials named in this quest and/or documents to this activity section and if appropriate apprise the and apprise the requester of the refer- requester of the referral: ral. (a) Classified records. Executive Order (c) Foreign requests/information. (1) 12958 governs the classification of FOIA requests received from foreign records. governments/foreign government officials should be processed as follows: (1) Glomar response. In the instance (i) When a DON activity receives a where a DON activity receives a re- FOIA request for a record in which an quest for records whose existence or affected DoD/DON activity has a sub- nonexistence is itself classifiable, the stantial interest in the subject matter, DON activity shall refuse to confirm or or the DON activity receives a FOIA deny the existence or non-existence of request from a foreign government, a the records. This response is only effec- foreign citizen, or an individual or en- tive as long as it is given consistently. tity with a foreign address, the DON If it were to be known that an agency activity receiving the request shall gave a ‘‘Glomar’’ response only when provide a copy of the request to the af- records do exist and gave a ‘‘no fected DON activity. records’’ response otherwise, then the (ii) Upon receiving the request, the purpose of this approach would be de- affected activity shall review the re- feated. A Glomar response is a denial quest for host nation relations, coordi- and exemption (b)(1) is cited and appeal nate with Department of State as ap- rights are provided to the requester. propriate, and if necessary, provide a (2) Processing classified documents copy of the request to the appropriate originated by another activity. DON foreign disclosure office for review. activities shall refer the request and Upon request by the affected activity, copies of the classified documents to the DON activity receiving the initial the originating activity for processing. request shall provide a copy of releas- If the originating activity simply com- able records to the affected activity. piled the classified portions of the doc- The affected activity may further re- ument from other sources, it shall lease the records to its host nation refer, as necessary, those portions to after coordination with Department of the original classifying authority for State if release is in the best interest their review and release determination of the United States Government. If and apprise that authority of any rec- the record is released to the host na- ommendations they have regarding re- tion government, the affected DON ac- lease. If the classification authority for tivity shall notify the DON activity the information cannot be determined, which initially received the request of then the originator of the compiled the release to the host nation. document has the responsibility for (iii) Such processing must be done making the final determination. expeditiously so as not to impede the Records shall be identified consistent processing of the FOIA request by the with security requirements. Only after DON activity that initially received consultation and approval from the the request. originating activity, shall the re- (2) Non-U.S. Government Records quester be apprised of the referral. In (i.e., records originated by multi- most cases, the originating activity national organizations such as the will make a determination and respond North Atlantic Treaty Organization directly to the requester. In those in- (NATO), the North American Air De- stances where the originating activity fense (NORAD) and foreign govern- determines a Glomar response is appro- ments) which are under the possession

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and control of DON shall be coordi- pant’s name (i.e., exemption (b)(6) ap- nated prior to a final release deter- plies). mination being made. Coordination (2) Disclosure of lists of names and with foreign governments shall be duty addresses or duty telephone num- made through the Department of bers of persons assigned to units that State. are stationed in foreign territories, (d) Government Accounting Office routinely deployable, or sensitive, has (GAO) documents. (1) On occasion, the also been held by the courts to con- DON receives FOIA requests for GAO stitute a clearly unwarranted invasion documents containing DON informa- of personal privacy and must be with- tion, either directly from requesters or held from disclosure under 5 U.S.C. as referrals from GAO. Since the GAO 552(b)(6). General officers and public af- is outside of the Executive Branch and therefore not subject to FOIA, all FOIA fairs officers information is releasable. requests for GAO documents con- Specifically, disclosure of such infor- taining DON information will be proc- mation poses a security threat to those essed by the DON under the provisions service members because it reveals in- of the FOIA. formation about their degree of in- (2) In those instances when a re- volvement in military actions in sup- quester seeks a copy of an unclassified port of national policy, the type of GAO report, DON activities may ap- Navy and/or Marine Corps units to prise the requester of its availability which they are attached, and their from the Director, GAO Distribution presence or absence from households. Center, ATTN: DHISF, P.O. Box 6015, Release of such information aids in the Gaithersburg, MD 20877–1450 under the targeting of service members and their cash sales program. families by terrorists or other persons (e) Judge Advocate General Manual opposed to implementation of national (JAGMAN) investigative records. These policy. Only an extraordinary public records are no longer centrally proc- interest in disclosure of this informa- essed. Accordingly, requests for inves- tion can outweigh the need and respon- tigations should be directed to the fol- sibility of the DON to protect the tran- lowing officials: quility and safety of service members (1) JAGMAN Investigations con- and their families who repeatedly have ducted prior to 1 Jul 95—to the Judge been subjected to harassment, threats, Advocate General (Code 35), Wash- and physical injury. Units covered by ington Navy Yard, Suite 3000, 1322 Pat- this policy are: terson Avenue, SE, Washington, DC 20374–5066. (i) Those located outside of the 50 (2) Command Investigation—to the States, District of Columbia, Common- command that conducted the inves- wealth of Puerto Rico, Guam, U.S. Vir- tigation. gin Islands, and American Samoa. (3) Litigation-Report Investigation— (ii) Routinely deployable units— to the Judge Advocate General (Code Those units that normally deploy from 35), Washington Navy Yard, Suite 3000, homeport or permanent station on a 1322 Patterson Avenue, SE, Wash- periodic or rotating basis to meet oper- ington, DC 20374–5066. ational requirements or participate in (4) Court or Board of Inquiry—to the scheduled exercises. This includes rou- Echelon 2 commander over the com- tinely deployable ships, aviation mand that convened the investigation. squadrons, operational staffs, and all (f) Mailing lists. Numerous FOIA re- units of the Fleet Marine Force (FMF). quests are received for mailing lists of Routinely deployable units do not in- home addresses or duty addresses of clude ships undergoing extensive yard DON personnel. Processing of such re- work or those whose primary mission quests is as follows: is support of training, e.g., yard craft (1) Home addresses are normally not and auxiliary aircraft landing training releasable without the consent of the ships. individuals concerned. This includes lists of home addresses and military (iii) Units engaged in sensitive oper- quarters’ addresses without the occu- ations. Those primarily involved in

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training for or conduct of covert, clan- NAVSAFECEN is encouraged. The re- destine, or classified missions, includ- quester shall be notified of the referral. ing units primarily involved in col- (i) National Security Council (NSC)/ lecting, handling, disposing, or storing White House. (1) DON activities that re- of classified information and materials. ceive requests for records of NSC, the This also includes units engaged in White House, or the White House/Mili- training or advising foreign personnel. tary Office (WHMO) shall process the Examples of units covered by this ex- requests. emption are nuclear power training fa- (2) DON records in which the NSC or cilities, SEAL Teams, Security Group the White House has a concurrent re- Commands, Weapons Stations, and viewing interest, and NSC, White Communications Stations. House, or WHMO records discovered in (3) Except as otherwise provided, lists DON activity files, shall be forwarded containing names and duty addresses to CNO (N09B30), 2000 Navy Pentagon, of DON personnel, both military and ci- Washington, DC 20350–2000. N09B30, in vilian, who are assigned to units in the turn, will coordinate the request di- Continental United States (CONUS) rectly with DFOISR, so DFOISR can and U.S. territories shall be released coordinate the request with NSC, regardless of who has initiated the re- White House, or WHMO. After coordi- quest. nation, the records will be returned to (4) Exceptions to this policy must be the DON activity for their direct re- coordinated with CNO (N09B30) or CMC sponse to the requester. During the in- (ARAD) prior to responding to re- terim, DON activities should notify the quests, including those from Members requester that they are coordinating of Congress. The policy in paragraphs their request and a response will there- (f) (1) through (3) should be considered fore be delayed. when weighing the releasability of the (j) Naval attache documents/informa- address or telephone number of a spe- tion. The Director, Defense Intelligence cifically named individual. Agency (DIA) has the responsibility for (5) DON activities are reminded that reviewing for release/denial any naval e-mail addresses that identify an indi- attache-originated documents/informa- vidual who is routinely deployable, tion. Accordingly, FOIA requests for overseas, or assigned to a sensitive naval attache documents or copies of unit should not be made available. Ad- the documents located in DON files or ditionally, organizational charts for referred in error to a DON activity these kinds of units and activities that shall be promptly referred to the Chief, identify specific members should not Freedom of Information Act Staff, De- be placed on the Internet. fense Intelligence Agency (SVI–1), (g) Medical quality assurance docu- Washington, DC 20340–5100 for action ments. The Chief, Bureau of Medicine and direct response to the requester. and Surgery (BUMED) is the release/de- Ensure that the requester is notified in nial authority for all naval medical writing of the transfer to DIA. quality assurance documents as defined (k) Naval Audit Service reports. The by Title 10, United States Code, Sec- Director, Naval Audit Service is the re- tion 1102. Requests for medical quality lease/denial authority for their reports. assurance documents shall be promptly All requests or documents located referred to BUMED and the requester which apply shall be promptly referred notified of the referral. to the Director, Naval Audit Service, (h) Mishap investigation reports 5611 Columbia Pike, NASSIF Building, (MIRs). The Commander, Naval Safety Falls Church, VA 22041–5080 for action. Center (NAVSAFECEN) is the release/ The requester shall be notified of the denial authority for all requests for referral. mishap investigations or documents (l) Naval Criminal Investigative Service which contain mishap information. All (NCIS) reports. The Director, NCIS is requests or documents located which the release/denial authority for all apply shall be promptly referred to the NCIS reports/information. All requests Commander, Naval Safety Center, Code for and copies of NCIS reports located 503, 375 A Street, Norfolk, VA 23511–4399 in DON activity files shall be promptly for action. Telephonic liaison with referred to the Director, NCIS (Code

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OOJF), Washington Navy Yard, Build- (o) Naval Telecommunications Proce- ing 111, 716 Sicard Street, SE, Wash- dures (NTP) publications. The Com- ington, DC 20388–5380 for action and, if mander, Naval Computer and Tele- appropriate, the requester so notified. communications Command is the re- Telephonic liaison with NCIS Head- lease/denial authority for NTP publica- quarters is strongly encouraged. tions. All requests or documents lo- (m) Naval Inspector General cated which apply shall be promptly re- (NAVINSGEN) reports. (1) NAVINSGEN ferred to the Commander, Naval Com- is the release/denial authority for all puter and Telecommunications Com- investigations and inspections con- mand (Code NOOJ), 4401 Massachusetts ducted by or at the direction of Avenue, NW, Washington, DC 20394–5460 NAVINSGEN and for any records held for action and direct response to the by any command that relate to Navy requester. hotline complaints that have been re- (p) News media requests. (1) Respond ferred to the NAVINSGEN. Accord- promptly to requests received from ingly, such actions shall be promptly news media representatives through referred to the Naval Inspector General public information channels, if the in- (Code OOL), Building 200, Room 100, formation is releasable under FOIA. Washington Navy Yard, 901 M Street, This eliminates the requirement to in- SE, Washington, DC 20374–5006 for ac- voke FOIA and may result in timely tion and, if appropriate, the requester information being made available to so notified. the public. (2) Requests for local command in- (2) In those instances where records/ spector general reports which have not information are not releasable, either been referred to NAVINSGEN should be in whole or in part, or are not cur- processed by the command that con- rently available for a release consider- ducted the investigation and ation, Public Affairs Officers shall NAVINSGEN advised as necessary. promptly advise the requester of where (3) The Deputy Naval Inspector Gen- and how to submit a FOIA request. eral for Marine Corps Matters (3) DON activities receiving and proc- (DNIGMC) is the release/denial author- essing requests from members of the ity for all investigations conducted by press shall ensure that responses are the DNIGMC. Requests for local Marine cleared through their public affairs Corps command Inspector General re- channels. ports shall be coordinated with the (q) Records originated by other govern- DNIGMC. ment agencies. (1) A DON activity may (n) Naval Nuclear Propulsion Informa- refer a FOIA request for any record tion (NNPI). The Director, Naval Nu- that originated in an agency outside clear Propulsion Program (CNO the DON or that is based on informa- (NOONB)/NAVSEA (08)) is the release/ tion obtained from an outside agency denial authority for all information to the cognizant agency for direct re- and requests concerning NNPI. Naval sponse to the requester after coordina- activities receiving such requests are tion with the outside agency, if that responsible for searching their files for agency is subject to FOIA. Otherwise, responsive records. If no documents are the DON activity must respond to the located, the naval activity shall re- request. spond to the requester and provide CNO (2) A DON activity shall refer to the (NOONB) with a copy of the request agency that provided the record any and response. If documents are located, FOIA request for investigative, intel- the naval activity shall refer the re- ligence, or any other type of records quest, responsive documents, and a rec- that are on loan to the DON for a spe- ommendation regarding release to the cific purpose, if the records are re- Director, Naval Nuclear Propulsion stricted from further release and so Program (NOONB), 2000 Navy Pen- marked. However, if for investigative tagon, Washington, DC 20350–2000, who or intelligence purposes, the outside will make the final release determina- agency desires anonymity, a DON action to the requester, after coordi- tivity may only respond directly to the nating the release through DoD activi- requester after coordination with the ties. outside agency.

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(r) Submitter documents. (1) When a re- approval of a request to waive or request is received for a record con- duce fees; disputes regarding fee esti- taining confidential commercial infor- mates; reviewing determinations not to mation that was submitted to the Gov- grant expedited access to agency ernment, the requirements of Execu- records, and reviewing ‘‘no record’’ de- tive Order 12600 shall apply. Specifi- terminations when the requester con- cally, the submitter shall be notified of siders such responses adverse in na- the request (telephonically, by letter, ture. They have the authority to re- or by facsimile) and afforded a reason- lease or withhold records, or portions able amount of time (anywhere from 2 thereof; to waive or reduce fees; and to weeks to a month depending on the cir- act as required by SECNAV for appeals cumstances) to present any objections under 5 U.S.C. 552 and this instruction. concerning release, unless it is clear The JAG has further delegated this ap- there can be no valid basis for objec- pellate authority to the Assistant tion. For example, the record was pro- Judge Advocate General (Civil Law). vided with actual or presumptive The DONGC has further delegated this knowledge of the submitter that it appellate authority to the Principal would be made available to the public Deputy General Counsel, the Deputy upon request. General Counsel, and the Associate (2) The DON activity will evaluate General Counsel (Management). any objections and negotiate with the (1) In their capacity, appellate au- submitter as necessary. When a sub- thorities will serve as principal points stantial issue has been raised, the DON of contact on DON FOIA appeals and activity may seek additional informa- litigation; receive and track FOIA ap- tion from the submitter and afford the peals and ensure responses are made in submitter and requester reasonable op- compliance with 5 U.S.C. 552, DoD portunities to present their arguments 5400.7 and 5400.7–R, and the instruction in legal and substantive issues prior to in this part; complete responsive por- making an agency determination. tions of the Annual FOIA Report that (3) The final decision to disclose in- addresses actions on appeals and litiga- formation claimed to be exempt under tion costs during the fiscal year and exemption (b)(4) shall be made by an submit to CNO (N09B30); provide CNO official at least equivalent in rank to (N09B30) with a copy of all appeal de- the IDA and the submitter advised that terminations as they are issued; and he or she may seek a restraining order keep CNO (N09B30) informed in writing or take court action to prevent the re- of all FOIA lawsuits as they are filed lease. The submitter is given 10 days to against the DON. Appellate authorities take action. shall facsimile a copy of the complaint (4) Should the submitter take such to CNO (N09B30) for review and provide action, the requester will be notified updates to CNO (N09B30) to review and and no action will be taken on the re- disseminate to DFOISR. quest until the outcome of the court (2) OGC’s cognizance: Legal advice action is known. and services to SECNAV and the Civil- (s) Technical Documents Controlled ian Executive Assistants on all matters by Distribution Statements B, C, D, E, affecting DON; legal services in subor- F, or X shall be referred to the control- dinate commands, organizations, and ling DoD office for review and release activities in the areas of business and determination. commercial law, real and personal property law, intellectual property § 701.12 FOIA appeals/litigation. law, fiscal law, civilian personnel and (a) Appellate authorities. SECNAV has labor law, environmental law, and in delegated his appellate authority to coordination with the JAG, such other the JAG and the DONGC to act on mat- legal services as may be required to ters under their cognizance. Their re- support the mission of the Navy and sponsibilities include adjudicating ap- the Marine Corps, or the discharge of peals made to SECNAV on: denials of the General Counsel’s responsibilities; requests for copies of DON records or and conducting litigation involving the portions thereof; disapproval of a fee areas enumerated above and oversight category claim by a requester; dis- of all litigation affecting the DON.

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(3) JAG’s cognizance: In addition to lease of records. In such cases, a copy military law, all matters except those of the response will be provided to the falling under the cognizance of the Department of Justice (DOJ). DONGC. (d) Addresses for filing appeals. (1) (b) Appellants may file an appeal if General Counsel of the Navy, 720 they have been denied information in Kennon Street, SE, Room 214, Wash- whole or in part; have been denied a ington Navy Yard, Washington, DC waiver or reduction of fees; have been 20374–5012, or denied/have not received a response (2) Judge Advocate General, Wash- within 20 working days; or received a ington Navy Yard, 1322 Patterson Ave- ‘‘no record’’ response or wish to chal- nue, SE, Suite 3000, Washington, DC lenge the ‘‘adequacy of a search’’ that 20374–5066. was made. Appeal procedures also (e) Appeal letter requirements. The ap- apply to the disapproval of a fee cat- pellant shall file a written appeal with egory claim by a requester, disputes re- the cognizant appellate authority (i.e., garding fee estimates, review of an ex- DONGC or JAG). The appeal should in- pedited basis determination not to clude a copy of the DON response letter grant expedited access to agency and supporting rationale on why the records, or any determination found to appeal should be granted. be adverse in nature by the requester. (f) Consultation/coordination. (1) The (c) Action by the appellate authority. Special Assistant for Naval Investiga- (1) Upon receipt, JAG (34) or Assistant tive Matters and Security (CNO (N09N)) to the General Counsel (FOIA) will may be consulted to resolve inconsist- promptly notify the IDA of the appeal. encies or disputes involving classified In turn, the IDA will provide the appel- records. late authority with the following docu- (2) Direct liaison with officials with- ments so that a determination can be in DON and other interested Federal made: a copy of the request, responsive agencies is authorized at the discretion documents both excised and unexcised, of the appellate authority, who also co- a copy of the denial letter, and sup- ordinates with appropriate DoD and porting rationale for continued with- DOJ officials. holding. IDAs shall respond to the ap- (3) SECNAV, appropriate Assistant or pellate authority within 10 working Deputy Assistant Secretaries, and CNO days. (N09B30) shall be consulted and kept (2) Final determinations on appeals advised of cases with unusual implica- normally shall be made within 20 work- tions. CHINFO shall be consulted and ing days after receipt. When the appel- kept advised on cases involving public late authority has a significant number affairs implications. of appeals preventing a response deter- (4) Final refusal involving issues not mination within 20 working days, the previously resolved or that the DON appeals shall be processed in a multi- appellate authority knows to be incon- track processing system based, at a sistent with rulings of other DoD com- minimum, on the three processing ponents ordinarily should not be made tracks established for initial requests. before consultation with the DoD Of- (3) If the appeal is received by the fice of General Counsel (OGC). wrong appellate authority, the time (5) Tentative decisions to deny limits do not take effect until it is re- records that raise new and significant ceived by the right one. If, however, legal issues of potential significance to the time limit for responding cannot be other agencies of the Government shall met, the appellate authority shall ad- be provided to the DoD OGC. vise the appellant that he/she may con- (g) Copies of final appeal determina- sider his/her administrative remedies tions. Appellate authorities shall pro- exhausted. However, he/she may await vide copies of final appeal determina- a substantive response without tions to the activity affected and to prejudicing his/her right of judicial CNO (N09B30) as appeals are decided. remedy. Nonetheless, the appellate au- (h) Denying an appeal. The appellate thority will continue to process the authority must render his/her decision case expeditiously, whether or not the in writing with a full explanation as to appellant seeks a court order for re- why the appeal is being denied along

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with a detailed explanation of the basis appealed for which an adverse deter- for refusal with regard to the applica- mination was made. ble statutory exemption(s) invoked. (ii) When the final refusal is based in With regard to denials involving classi- whole or in part on a security classified information, the final refusal fication, the explanation shall include should explain that a declassification a determination that the record meets review was undertaken and based on the cited criteria and rationale of the the governing Executive Order and im- governing Executive Order, and that plementing security classification this determination is based on a declas- guides (identify the guides), the infor- sification review, with the explanation mation cannot be released and that in- of how that review confirmed the con- formation being denied does not continuing validity of the security classi- tain meaningful portions that are rea- fication. sonably segregable. In all instances, (iii) The final denial shall include the the final denial letter shall contain the name and title or position of the offi- name and position title of the official cial responsible for the denial. responsible for the denial and advise (iv) In the case of appeals for total the requester of the right to seek judi- denial of records, the response shall ad- cial review. vise the requester that the information (i) The appellate Granting an appeal. being denied does not contain meaning- authority must render his/her decision ful portions that are reasonably seg- in writing. When an appellate author- regable. ity makes a determination to release all or a portion of records withheld by (v) When the denial is based upon an an IDA, a copy of the releasable exemption (b)(3) statute, the response, records should be promptly forwarded in addition to citing the statute relied to the requester after compliance with upon to deny the information, shall any procedural requirements, such as state whether a court has upheld the payment of fees. decision to withhold the information (j) Processing appeals made under PA under the statute, and shall contain a and FOIA. When denials have been concise description of the scope of the made under the provisions of PA and information withheld. FOIA, and the denied information is (vi) The response shall advise the re- contained in a PA system of records, quester of the right to judicial review. the appeal shall be processed under (l) Time limits/requirements. (1) A FOIA both PA and FOIA. If the denied infor- appeal has been received by a DON ac- mation is not maintained in a PA sys- tivity when it reaches the appellate au- tem of records, the appeal shall be thority having jurisdiction. Mis- processed under FOIA. directed appeals should be referred ex- (k) Response letters. (1) When an ap- peditiously to the proper appellate au- pellate authority makes a final deter- thority. mination to release all or portion of (2) The requester shall be advised to records withheld by an IDA, a written file an appeal so that it is postmarked response and a copy of the records so no later than 60 calendar days after the released should be forwarded promptly date of the initial denial letter. If no to the requester after compliance with appeal is received, or if the appeal is any preliminary procedural require- postmarked after the conclusion of the ments, such as payment of fees. 60 day period, the case may be consid- (2) Final refusal of an appeal must be ered closed. However, exceptions may made in writing by the appellate au- be considered on a case-by-case basis. thority or by a designated representa- (3) In cases where the requester is tive. The response at a minimum shall provided several incremental deter- include the following: minations for a single request, the (i) The basis for the refusal shall be time for the appeal shall not begin explained to the requester in writing, until the date of the final response. Re- both with regard to the applicable stat- quests and responsive records that are utory exemption or exemptions in- denied shall be retained for a period of voked under the provisions of the 6 years to meet the statute of limita- FOIA, and with respect to other issues tions requirement.

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(4) Final determinations on appeals commonly referred to as ‘‘reading normally shall be made within 20 work- room’’ materials and are required to be ing days after receipt. When a DON ap- indexed to facilitate public inspection. pellate authority has a significant (a)(2) materials consist of: number of appeals preventing a re- (a) 5 U.S.C. 552(a)(2)(A) records. Final sponse determination within 20 work- opinions, including concurring and dis- ing days, the appeals shall be processed senting opinions, and orders made in in a multitrack processing system, the adjudication of cases, as defined in based at a minimum on the three proc- 5 U.S.C. 551, that may be cited, used, or essing tracks established for initial re- relied upon as precedents in future ad- quests. (See § 701.8(f)). judications. (5) If additional time is needed due to (b) 5 U.S.C. 552(a)(2)(B) records. State- unusual circumstances, the final deci- ments of policy and interpretations sion may be delayed for the number of that have been adopted by the agency working days (not to exceed 10) that and are not published in the FEDERAL were not used as additional time for re- REGISTER. sponding to the initial request. (c) 5 U.S.C. 552(a)(2)(C) records. Ad- (6) If a determination cannot be made ministrative staff manuals and instruc- and the requester notified within 20 tions, or portions thereof, that estab- working days, the appellate authority lish DON policy or interpretations of shall acknowledge to the requester, in policy that affect a member of the pub- writing, the date of receipt of the ap- lic. This provision does not apply to in- peal, the circumstances surrounding structions for employees on tactics and the delay, and the anticipated date for techniques to be used in performing substantive response. Requesters shall their duties, or to instructions relating be advised that, if the delay exceeds only to the internal management of the statutory extension provision or is the DON activity. Examples of manuals for reasons other than the unusual cir- and instructions not normally made cumstances, they may consider their available are: administrative remedies exhausted. (1) Those issued for audit, investiga- They may, however, without tion, and inspection purposes, or those prejudicing their right of judicial rem- that prescribe operational tactics, edy, await a substantive response. The standards of performance, or criteria appellate authority shall continue to for defense, prosecution, or settlement process the case expeditiously. of cases. (m) FOIA litigation. The appellate au- (2) Operations and maintenance thority is responsible for providing manuals and technical information CNO (N09B30) with a copy of any FOIA concerning munitions, equipment, sys- litigation filed against the DON and tems, and foreign intelligence oper- any subsequent status of the case. CNO ations. (N09B30) will, in turn, forward a copy of (d) 5 U.S.C. 552(a)(2)(D) records. Those the complaint to DFOISR for their re- (a)(2) records, which because of the na- view. ture of the subject matter, have become or are likely to become the sub- Subpart B—FOIA Definitions and ject of subsequent requests for substan- Terms tially the same records. These records are referred to as FOIA-processed (a)(2) § 701.13 5 U.S.C. 552(a)(1) materials. records. DON activities shall decide on Section (a)(1) of the FOIA requires a case-by-case basis whether records publication in the FEDERAL REGISTER fall into this category based on the fol- of descriptions of agency organizations, lowing factors: previous experience of functions, substantive rules, and state- the DON activity with similar records; ments of general policy. particular circumstances of the records involved, including their nature and § 701.14 5 U.S.C. 552(a)(2) materials. the type of information contained in Section (a)(2) of the FOIA requires them; and/or the identity and number that certain materials routinely be of requesters and whether there is made available for public inspection widespread press, historic, or commer- and copying. The (a)(2) materials are cial interest in the records.

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(1) This provision is intended for situ- information is likely to be of such in- ations where public access in a timely terest to members of the public, and manner is important and it is not in- that it can be disclosed without con- tended to apply where there may be a cern for any FOIA exemption sensi- limited number of requests over a short tivity. Affirmative disclosures can be period of time from a few requesters. of mutual benefit to both the DON and DON activities may remove the records the members of the public who are in- from this access medium when the ap- terested in obtaining access to such in- propriate officials determine that ac- formation. cess is no longer necessary. (2) Should a requester submit a FOIA § 701.18 Agency record. request for FOIA-processed (a)(2) Agency records are either created or records and insist that the request be obtained by an agency and under agen- processed under FOIA, DON activities cy control at the time of the FOIA re- shall process the FOIA request. How- quest. Agency records are stored as ever, DON activities have no obligation various kinds of media, such as: to process a FOIA request for (a)(2)(A), (B) and (C) records because these (a) Products of data compilation (all records are required to be made public books, maps, photographs, machine and not FOIA-processed under para- readable materials, inclusive of those graph (a)(3) of the FOIA. in electronic form or format, or other (e) However, agency records that are documentary materials), regardless of withheld under FOIA from public dis- physical form or characteristics, made closure, based on one or more of the or received by an agency of the United FOIA exemptions, do not qualify as States Government under Federal law (a)(2) materials and need not be pub- in connection with the transaction of lished in the FEDERAL REGISTER or public business and in Department of made available in a library reading the Navy possession and control at the room. time the FOIA request is made. (b) Care should be taken not to ex- § 701.15 5 U.S.C. 552(a)(3) materials. clude records from being considered Agency records which are processed agency records, unless they fall within for release under the provisions of the one of the following categories: FOIA. (1) Objects or articles, such as structures, furniture, paintings, three-di- § 701.16 Administrative appeal. mensional models, vehicles, equipment, A request made by a FOIA requester parts of aircraft, ships, etc., whatever asking the appellate authority (JAG or their historical value or value as evi- OGC) to reverse a decision to: withhold dence. all or part of a requested record; deny (2) Anything that is not a tangible or a fee category claim by a requester; documentary record, such as an indi- deny a request for expedited processing vidual’s memory or oral communica- due to demonstrated compelling need; tion. deny a request for a waiver or reduc- (3) Personal records of an individual tion of fees; deny a request to review not subject to agency creation or re- an initial fee estimate; and confirm tention requirements, created and that no records were located during the maintained primarily for the conven- initial search. FOIA requesters may ience of an agency employee, and not also appeal a non-response to a FOIA distributed to other agency employees request within the statutory time lim- for their official use. Personal papers its. fall into three categories: those created before entering Government service; § 701.17 Affirmative information dis- private materials brought into, cre- closure. ated, or received in the office that were This is where a DON activity makes not created or received in the course of records available to the public on its transacting Government business, and own initiative. In such instance, the work-related personal papers that are DON activity has determined in ad- not used in the transaction of Govern- vance that a certain type of records or ment business.

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(4) A record must exist and be in the authorize Federal law enforcement possession and control of the DON at agencies for especially sensitive the time of the request to be consid- records under certain specified cir- ered subject to this instruction and the cumstances to treat the records as not FOIA. There is no obligation to create, subject to the requirements of the compile, or obtain a record to satisfy a FOIA. FOIA request. (5) Hard copy or electronic records, § 701.23 Executive Order 12958. which are subject to FOIA requests Revoked Executive Order 12356 on Oc- under 5 U.S.C. 552(a)(3), and which are tober 14, 1995 and is the basis for claim- available to the public through an es- ing that information is currently and tablished distribution system, or properly classified under (b)(1) exemp- through the FEDERAL REGISTER, the tion of the FOIA. It sets forth new re- National Technical Information Serv- quirements for classifying and declas- ice, or the Internet, normally need not sifying documents. It recognizes both be processed under the provisions of the right of the public to be informed the FOIA. If a request is received for about the activities of its government such information, DON activities shall and the need to protect national secu- provide the requester with guidance, rity information from unauthorized or inclusive of any written notice to the untimely disclosure. public, on how to obtain the information. However, if the requester insists § 701.24 Federal agency. that the request be processed under the A Federal agency is any executive de- FOIA, then process the request under partment, military department, Gov- FOIA. ernment corporation, Government-controlled corporation, or other establish- § 701.19 Appellate authority. ment in the executive branch of the SECNAV has delegated the OGC and Government (including the Executive JAG to review administrative appeals Office of the President), or any inde- of denials of FOIA requests on his be- pendent regulatory agency. half and prepare agency paperwork for use by the DOJ in defending a FOIA § 701.25 5 U.S.C. 552, Freedom of Infor- lawsuit. JAG is further authorized to mation Act (FOIA). delegate this authority to a designated An access statute that pertains to Assistant JAG. The authority of OGC agency records of the Executive Branch is further delegated to the Principal of the Federal Government, including Deputy General Counsel, the Deputy the Executive Office of the President General Counsel, and the Associate and independent regulatory agencies. General Counsel (Management). NOTE TO § 701.25: Records maintained by § 701.20 Discretionary disclosure. State governments, municipal corporations, by the courts, by Congress, or by companies The decision to release information and private citizens do not fall under this that could qualify for withholding Federal statute. under a FOIA exemption, but upon review the determination has been made § 701.26 FOIA exemptions. that there is no foreseeable harm to There are nine exemptions that iden- the Government for releasing such in- tify certain kinds of records/informa- formation. Discretionary disclosures do tion that qualify for withholding under not apply to exemptions (b)(1), (b)(3), FOIA. See subpart D of this part for a (b)(4), (b)(6) and (b)(7)(C). detailed explanation of each exemption. § 701.21 Electronic record. Records (including e-mail) which are § 701.27 FOIA fee terms location. created, stored, and retrieved by elec- The FOIA fee terms can be found in tronic means. subpart C of this part.

§ 701.22 Exclusions. § 701.28 FOIA request. The FOIA contains three exclusions A written request for DON records, (c)(1), (c)(2) and (c)(3) which expressly made by ‘‘any person’’ including a

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member of the public (U.S. or foreign ity having possession and control over citizen/entity), an organization, or a the documents/information. business, but not including a Federal agency or a fugitive from the law that § 701.33 Public domain. either explicitly or implicitly invokes Agency records released under the the FOIA by citing DoD FOIA regula- provisions of FOIA and the instruction tions or the instruction in this part. in this part to a member of the public. FOIA requests can be made for any purpose whatsoever, with no showing § 701.34 Public interest. of relevancy required. Because the purpose for which records are sought has The interest in obtaining official in- no bearing on the merits of the re- formation that sheds light on a DON quest, FOIA requesters do not have to activity’s performance of its statutory explain or justify their requests. Writ- duties because the information falls ten requests may be received by postal within the statutory purpose of the service or other commercial delivery FOIA to inform citizens what their means, by facsimile or electronically. government is doing. That statutory purpose, however, is not fostered by § 701.29 Glomar response. disclosure of information about private Refusal by the agency to either con- citizens accumulated in various gov- firm or deny the existence or non-exist- ernmental files that reveals nothing ence of records responsive to a FOIA about an agency’s or official’s own con- request. See exemptions (b)(1), (b)(6), duct. and (b)(7)(C) at subpart D of this part. § 701.35 Reading room. § 701.30 Initial Denial Authority (IDA). Location where (a)(2) materials are SECNAV has delegated authority to made available for public inspection a limited number of officials to act on and copying. his behalf to withhold records under their cognizance that are requested § 701.36 Release authorities. under the FOIA for one or more of the Commanding officers and heads of nine categories of records exempt from Navy and Marine Corps shore activities mandatory disclosure; to deny a fee or their designees are authorized to category claim by a requester; to deny grant requests on behalf of SECNAV a request for expedited processing due for agency records under their posses- to demonstrated compelling need; to sion and control for which no FOIA ex- deny or grant a request for waiver or emption applies. As necessary, they reduction of fees when the information will coordinate releases with other offi- sought relates to matters within their cials who may have an interest in the respective geographical areas of re- releasability of the record. sponsibility or chain of command; fees; to review a fee estimate; and to con- § 701.37 Reverse FOIA. firm that no records were located in response to a request. IDAs may also When the ‘‘submitter’’ of informa- grant access to requests. tion, usually a corporation or other business entity, that has supplied the § 701.31 Mosaic or compilation re- agency with data on its policies, oper- sponse. ations and products, seeks to prevent The concept that apparently harm- the agency that collected the informa- less pieces of information when assem- tion from revealing the data to a third bled together could reveal a damaging party in response to the latter’s FOIA picture. See exemption (b)(1) at sub- request. part D of this part. § 701.38 Technical data. § 701.32 Perfected request. Recorded information, regardless of A request which meets the minimum form or method of the recording, of a requirements of the FOIA to be proc- scientific or technical nature (includ- essed and is received by the DON activ- ing computer software documentation).

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§ 701.39 Vaughn index. § 701.41 FOIA fee terms. Itemized index, correlating each (a) Direct costs means those expendi- withheld document (or portion) with a tures a DON activity actually makes in specific FOIA exemption(s) and the rel- searching for, reviewing (in the case of evant part of the agency’s nondisclo- commercial requesters), and dupli- sure justification. The index may con- cating documents to respond to a FOIA tain such information as: date of docu- request. Direct costs include, for exam- ment; originator; subject/title of docu- ple, the salary of the employee performing the work (the basic rate of pay ment; total number of pages reviewed; for the employee plus 16 percent of that number of pages of reasonably seg- rate to cover benefits), and the costs of regable information released; number operating duplicating machinery. of pages denied; exemption(s) claimed; These factors have been included in the justification for withholding; etc. FOIA fee rates prescribed in this subpart. requesters are not entitled to a Vaughn Not included in direct costs are over- index during the administrative proc- head expenses such as costs of space, ess. heating or lighting the facility in which the records are stored. Subpart C—FOIA Fees (b) Duplication refers to the process of making a copy of a document in re- § 701.40 Background. sponse to a FOIA request. Such copies can take the form of paper copy, micro- (a) The DON follows the uniform fee fiche, audiovisual, or machine readable schedule developed by DoD and estab- documentation (e.g., magnetic tape or lished to conform with the Office of disc), among others. Every effort will Management and Budget’s (OMB’s) be made to ensure that the copy pro- Uniform Freedom of Information Act vided is in a form that is reasonably Fee Schedule and Guidelines. usable, the requester shall be notified (b) Fees reflect direct costs for that the copy provided is the best search; review (in the case of commer- available, and that the activity’s mas- cial requesters); and duplication of doc- ter copy shall be made available for re- uments, collection of which is per- view upon appointment. For duplica- mitted by the FOIA. They are neither tion of computer tapes and audiovisual, intended to imply that fees must be the actual cost, including the opera- charged in connection with providing tor’s time, shall be charged. In prac- information to the public in the rou- tice, if a DON activity estimates that tine course of business, nor are they assessable duplication charges are like- meant as a substitute for any other ly to exceed $25.00, it shall notify the schedule of fees, which does not super- requester of the estimate, unless the sede the collection of fees under the requester has indicated in advance his FOIA. or her willingness to pay fees as high as those anticipated. Such a notice (c) FOIA fees do not supersede fees shall offer a requester the opportunity chargeable under a statute specifically to confer with activity personnel with providing for setting the level of fees the object of reformulating the request for particular types of records. For ex- to meet his or her needs at a lower ample, 5 U.S.C. 552 (a)(4)(A)(vi) enables cost. a Government agency such as the Gov- (c) Review refers to the process of ex- ernment Printing Office (GPO) or the amining documents located in response National Technical Information Serv- to a FOIA request to determine wheth- ice (NTIS), to set and collect fees. DON er one or more of the statutory exemp- activities should ensure that when doc- tions permit withholding. It also in- uments that would be responsive to a cludes processing the documents for request are maintained for distribution disclosure, such as excising them for by agencies operating statutory-based release. Review does not include the fee schedule programs, such as GPO or time spent resolving general legal or NTIS, they inform requesters of the policy issues regarding the application steps necessary to obtain records from of exemptions. It should be noted that those sources. charges for commercial requesters may

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be assessed only for the initial review. § 701.42 Categories of requesters—ap- DON activities may not charge for re- plicable fees. views required at the administrative (a) Commercial requesters refers to a appeal level of an exemption already request from, or on behalf of one who applied. However, records or portions seeks information for a use or purpose of records withheld in full under an ex- that furthers the commercial, trade, or emption that is subsequently deter- profit interest of the requester or the mined not to apply may be reviewed person on whose behalf the request is again to determine the applicability of made. In determining whether a re- other exemptions not previously con- quester properly belongs in this cat- sidered. The costs for such a subse- egory, DON activities must determine quent review would be properly assess- the use to which a requester will put able. the documents requested. More over, (d) Search refers to time spent look- where an activity has reasonable cause ing, both manually and electronically, to doubt the use to which a requester for material that is responsive to a re- will put the records sought, or where that use is not clear from the request quest. Search also includes a page-by- itself, it should seek additional clari- page or line-by-line identification (if fication before assigning the request to necessary) of material in the record to a specific category. determine if it, or portions thereof are (1) Fees shall be limited to reason- responsive to the request. DON activi- able standard charges for document ties should ensure that searches are search, review and duplication when done in the most efficient and least ex- records are requested for commercial pensive manner so as to minimize costs use. Requesters must reasonably de- for both the activity and the requester. scribe the records sought. For example, activities should not en- (2) When DON activities receive a re- gage in line-by-line searches when du- quest for documents for commercial plicating an entire document known to use, they should assess charges which contain responsive information would recover the full direct costs of search- prove to be the less expensive and ing for, reviewing for release, and du- quicker method of complying with the plicating the records sought. Commer- request. Time spent reviewing docu- cial requesters (unlike other request- ments in order to determine whether to ers) are not entitled to 2 hours of free apply one or more of the statutory ex- search time, nor 100 free pages of repro- emptions is not search time, but review duction of documents. Moreover, com- time. mercial requesters are not normally (1) DON activities may charge for entitled to a waiver or reduction of fees time spent searching for records, even based upon an assertion that disclosure if that search fails to locate records re- would be in the public interest. How- sponsive to the request. ever, because use is the exclusive determining criteria, it is possible to en- (2) DON activities may also charge vision a commercial enterprise making search and review (in the case of com- a request that is not for commercial mercial requesters) time if records lo- use. It is also possible that a non-profit cated are determined to be exempt organization could make a request that from disclosure. is for commercial use. Such situations (3) In practice, if the DON activity must be addressed on a case-by-case estimates that search charges are like- basis. ly to exceed $25.00, it shall notify the (b) Educational Institution refers to requester of the estimated amount of a pre-school, a public or private ele- fees, unless the requester has indicated mentary or secondary school, an insti- in advance his or her willingness to pay tution of graduate high education, an fees as high as those anticipated. Such institution of undergraduate higher a notice shall offer the requester the education, an institution of profes- opportunity to confer with activity sional education, and an institution of personnel with the object of reformu- vocational education, which operates a lating the request to meet his or her program or programs of scholarly re- needs at a lower cost. search.

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(1) Fees shall be limited to only rea- telecommunications services), such al- sonable standard charges for document ternative media would be included in duplication (excluding charges for the this category. In the case of ‘‘free- first 100 pages) when the request is lance’’ journalists, they may be re- made by an educational institution garded as working for a news organiza- whose purpose is scholarly research. tion if they can demonstrate a solid Requesters must reasonably describe basis for expecting publication through the records sought. that organization, even though not ac- (2) Requesters must show that the re- tually employed by it. A publication quest is being made under the auspices contract would be the clearest proof, of a qualifying institution and that the but DON activities may also look to records are not sought for commercial the past publication record of a re- use, but in furtherance of scholarly requester in making this determination. search. (2) To be eligible for inclusion in this (3) Fees shall be waived or reduced in category, a requester must meet the the public interest if criteria of § 701.58 criteria established in paragraph (d)(1), have been met. and his or her request must not be (c) Non-commercial Scientific Insti- made for commercial use. A request for tution refers to an institution that is records supporting the news dissemina- not operated on a ‘‘commercial’’ basis tion function of the requester shall not and that is operated solely for the pur- be considered to be a request that is for pose of conducting scientific research, a commercial use. For example, a docu- the results of which are not intended to ment request by a newspaper for promote any particular product or in- records relating to the investigation of dustry. a defendant in a current criminal trial (1) Fees shall be limited to only rea- of public interest could be presumed to sonable standard charges for document be a request from an entity eligible for duplication (excluding the first 100 inclusion in this category, and entitled pages) when the request is made by a to records at the cost of reproduction non-commercial scientific institution alone (excluding charges for the first whose purpose is scientific research. 100 pages). Requesters must reasonably describe (3) Representative of the news media the records sought. does not include private libraries, pri- (2) Requesters must show that the re- vate repositories of Government quest is being made under the auspices records, information vendors, data bro- of a qualifying institution and that the kers or similar marketers of informa- records are not sought for commercial tion whether to industries and busi- use, but in furtherance of or scientific nesses, or other entities. research. (4) Fees shall be limited to only rea- (d) Representative of the news media. sonable standard charges for document (1) Refers to any person actively gath- duplication (excluding charges for the ering news for an entity that is orga- first 100 pages) when the request is nized and operated to publish or broad- made by a representative of the news cast news to the public. The term media. Requesters must reasonably de- ‘‘news’’ means information that is scribe the records sought. Fees shall be about current events or that would be waived or reduced if the fee waiver cri- of current interest to the public. Exam- teria have been met. ples of news media entities include tel- (e) All other requesters. DON activi- evision or radio stations broadcasting ties shall charge requesters who do not to the public at large, and publishers of fit into any of the categories described periodicals (but only in those instances in paragraph (a) through (d) fees which when they can qualify as disseminators recover the full direct cost of searching of ‘‘news’’) who make their products for and duplicating records, except that available for purchase or subscription the first 2 hours of search time and the by the general public. These examples first 100 pages of duplication shall be are not meant to be all-inclusive. furnished without charge. Requesters Moreover, as traditional methods of must reasonably describe the records news delivery evolve (e.g., electronic sought. Requests from subjects about dissemination of newspapers through themselves will continue to be treated

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under the fee provisions of the Privacy sequently, if a DON activity, after Act of 1974, which permit fees only for completing its portion of a request, duplication. DON activities are re- finds it necessary to refer the request minded that this category of requester to a subordinate office, another DON may also be eligible for a waiver or re- activity, or another Federal agency to duction of fees if disclosure of the in- action their portion of the request, the formation is in the public interest. referring activity shall inform the recipient of the referral of the expended § 701.43 Fee declarations. amount of search time and duplication Requesters should submit a fee dec- cost to date. laration appropriate for the categories (c) The elements to be considered in in paragraphs (a) through (c) of this determining the ‘‘cost of collecting a section, if fees are expected to exceed fee’’ are the administrative costs to the the minimum fee threshold of $15.00. DON activity of receiving and record- (a) Commercial. Requesters should ing a remittance, and processing the indicate a willingness to pay all search, fee for deposit in the Department of review and duplication costs. Treasury’s special account. The cost to (b) Educational or noncommercial the Department of Treasury to handle scientific institution or news media. such remittance is negligible and shall Requesters should indicate a willing- not be considered in activity deter- ness to pay duplication charges in ex- minations. cess of 100 pages if more than 100 pages (d) For the purposes of the restric- of records are desired. tions in this section, the word ‘‘pages’’ (c) All others. Requesters should in- refers to paper copies of a standard dicate a willingness to pay assessable size, which will normally be ‘‘81⁄2 × 11’’ search and duplication costs if more or ‘‘11 × 14.’’ Thus, requesters would not than 2 hours of search effort or 100 be entitled to 100 microfiche or 100 pages of records are desired. computer disks, for example. A micro- (d) If the conditions in paragraphs (a) fiche containing the equivalent of 100 through (c) are not met, then the re- pages or 100 pages of computer printout quest need not be processed and the re- however, might meet the terms of the quester shall be so informed. restriction. § 701.44 Restrictions. (e) In the case of computer searches, (a) No fees may be charged by any the first 2 free hours will be determined DON activity if the costs of routine against the salary scale of the indi- collection and processing of the fee are vidual operating the computer for the likely to equal or exceed the amount of purposes of the search. As an example, the fee. With the exception of request- when the direct costs of the computer ers seeking documents for a commer- central processing unit, input-output cial use, activities shall provide the devices, and memory capacity equal first 2 hours of search time, and the $24.00 (2 hours of equivalent search at first 100 pages of duplication without the clerical level), amounts of com- charge. For example, for a request puter costs in excess of that amount (other than one from a commercial re- are chargeable as computer search quester) that involved 2 hours and 10 time. In the event the direct operating minutes of search time, and resulted in cost of the hardware configuration can- 105 pages of documents, an activity not be determined, computer search would determine the cost of only 10 shall be based on the salary scale of the minutes of search time, and only five operator executing the computer pages of reproduction. If this proc- search. essing cost was equal to, or less than, the cost to the activity for billing the § 701.45 Fee assessment. requester and processing the fee col- (a) Fees may not be used to discour- lected, no charges would result. age requesters, and to this end, FOIA (b) Requesters receiving the first 2 fees are limited to standard charges for hours of search and the first 100 pages direct document search, review (in the of duplication without charge are enti- case of commercial requesters) and du- tled to such only once per request. Con- plication.

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(b) In order to be as responsive as likely to exceed $250.00, the activity possible to FOIA requests while mini- shall notify the requester of the likely mizing unwarranted costs to the tax- cost and obtain satisfactory assurance payer, DON activities shall analyze of full payment where the requester each request to determine the category has a history of prompt payments, or of the requester. If the activity’s deter- require an advance payment of an mination regarding the category of the amount up to the full estimated requester is different than that claimed charges in the case of requesters with by the requester, the activity shall: no payment history. (1) Notify the requester to provide (f) Where a requester has previously additional justification to warrant the failed to pay a fee charged in a timely category claimed, and that a search for fashion (i.e., within 30 calendar days responsive records will not be initiated from the date of the billing), the DON until agreement has been attained rel- activity may require the requester to ative to the category of the requester. pay the full amount owed, plus any ap- Absent further category justification plicable interest, or demonstrate that from the requester, and within a rea- he or she has paid the fee, and to make sonable period of time (i.e., 30 calendar an advance payment of the full amount days), the DON activity shall render a of the estimated fee before the DON ac- final category determination, and no- tivity begins to process a new or pend- tify the requester of such determina- ing request from the requester. Inter- tion, to include normal administrative est will be at the rate prescribed by 31 appeal rights of the determination. U.S.C. 3737 and confirmed with respec- (2) Advise the requester that, not- tive finance and accounting offices. withstanding any appeal, a search for (g) After all the work is completed on responsive records will not be initiated a request, and the documents are ready until the requester indicates a willing- for release, DON activities may require ness to pay assessable costs appro- payment before forwarding the docu- priate for the category determined by ments, particularly for those request- the activity. ers who have no payment history, or (c) Estimate of fees. DON activities for those requesters who have failed to must be prepared to provide an esti- previously pay a fee in a timely fashion mate of assessable fees if desired by the (i.e., within 30 calendar days from the requester. While it is recognized that date of the billing). search situations will vary among ac- (h) DON activities may charge for tivities, and that an estimate is often time spent searching for records, even difficult to obtain prior to an actual if that search fails to locate records research, requesters who desire estimates sponsive to the request. DON activities are entitled to such before committing may also charge search and review (in to a willingness to pay. Should the ac- the case of commercial requesters) tivity’s actual costs exceed the amount time if records located are determined of the estimate or the amount agreed to be exempt from disclosure. In prac- to by the requester, the amount in ex- tice, if the DON activity estimates that cess of the estimate or the requester’s search charges are likely to exceed agreed amount shall not be charged $25.00, it shall notify the requester of without the requester’s agreement. the estimated amount of fees, unless (d) Advance payment of fees. DON ac- the requester has indicated in advance tivities may not require advance pay- his or her willingness to pay fees as ment of any fee (i.e., before work is high as those anticipated. Such a no- commenced or continued on a request) tice shall offer the requester the oppor- unless the requester has failed to pay tunity to confer with activity per- fees in a timely fashion (i.e., 30 cal- sonnel with the object of reformulating endar days from the date of the as- the request to meet his or her needs at sessed billing in writing), or the activ- a lower cost. ity has determined that the fee will exceed $250.00. § 701.46 Aggregating requests. (e) When a DON activity estimates or Except for requests that are for a determines that allowable charges that commercial use, a DON activity may a requester may be required to pay are not charge for the first 2 hours of

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search time or for the first 100 pages of cause furnishing the information is reproduction. However, a requester likely to contribute significantly to may not file multiple requests at the public understanding of the operations same time, each seeking portions of a or activities of the DON/DoD and is not document or documents, solely in order primarily in the commercial interest of to avoid payment of fees. When an ac- the requester. When assessable costs tivity reasonably believes that a re- for a FOIA request total $15.00 or less, quester or, on rare occasions, a group fees shall be waived automatically for of requesters acting in concert, is at- all requesters, regardless of category. tempting to break a request down into Decisions to waive or reduce fees that a series of requests for the purpose of exceed the automatic waiver threshold avoiding the assessment of fees, the ac- shall be made on a case-by-case basis, tivity may aggregate any such requests consistent with the following factors: and charge accordingly. One element to (a) Disclosure of the information ‘‘is be considered in determining whether a in the public interest because it is like- belief would be reasonable is the time ly to contribute significantly to public period in which the requests have oc- understanding of the operations or ac- curred. For example, it would be rea- tivities of the Government.’’ sonable to presume that multiple re- (b) The subject of the request. DON quests of this type made within a 30- activities should analyze whether the day period had been made to avoid fees. subject matter of the request involves For requests made over a longer period issues that will significantly con- however, such a presumption becomes tribute to the public understanding of harder to sustain and activities should the operations or activities of the DON/ have a solid basis for determining that DoD. Requests for records in the pos- aggregation is warranted in such cases. session of the DON which were origi- DON activities are cautioned that be- nated by non-government organiza- fore aggregating requests from more tions and are sought for their intrinsic than one requester, they must have a content, rather than informative value, concrete basis on which to conclude will likely not contribute to public un- that the requesters are acting in con- derstanding of the operations or activi- cert and are acting specifically to ties of the DON/DoD. An example of avoid payment of fees. In no case may such records might be press clippings, an activity aggregate multiple requests magazine articles, or records for- on unrelated subjects. warding a particular opinion or concern from a member of the public re- § 701.47 FOIA fees must be addressed garding a DON/DoD activity. Similarly, in response letters. disclosures of records of considerable DON activities shall ensure that re- age may or may not bear directly on questers receive a complete breakout the current activities of the DON/DoD, of all fees which are charged and ap- however, the age of a particular record prised of the ‘‘Category’’ in which they shall not be the sole criteria for deny- have been placed. For example: ‘‘We ing relative significance under this fac- are treating you as an ‘All Other Re- tor. It is possible to envisage an in- quester.’ As such, you are entitled to 2 formative issue concerning the current free hours of search and 100 pages of re- activities of the DON/DoD, based upon production, prior to any fees being as- historical documentation. Requests of sessed. We have expended an additional this nature must be closely reviewed 2 hours of search at $25.00 per hour and consistent with the requester’s stated an additional 100 pages of reproduction, purpose for desiring the records and for a total fee of $65.00.’’ the potential for public understanding of the operations and activities of the § 701.48 Fee waivers. DON/DoD. Documents shall be furnished with- (c) The informative value of the in- out charge, or at a charge reduced formation to be disclosed. This factor below fees assessed to the categories of requires a close analysis of the sub- requesters, when the DON activity de- stantive contents of a record, or por- termines that waiver or reduction of tion of the record, to determine wheth- the fees is in the public interest be- er disclosure is meaningful, and shall

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inform the public on the operations or current level of public knowledge, or activities of the DON. While the sub- understanding which exists before the ject of a request may contain informa- disclosure. In other words, will disclo- tion that concerns operations or activi- sure on a current subject of wide public ties of the DON, it may not always hold interest be unique in contributing pre- great potential for contributing to a viously unknown facts, thereby en- meaningful understanding of these op- hancing public knowledge, or will it erations or activities. An example of basically duplicate what is already such would be a previously released known by the general public? A deci- record that has been heavily redacted, sion regarding significance requires ob- the balance of which may contain only jective judgment, rather than subjec- random words, fragmented sentences, tive determination, and must be ap- or paragraph headings. A determina- plied carefully to determine whether tion as to whether a record in this situ- disclosure will likely lead to a signifi- ation will contribute to the public un- cant public understanding of the issue. derstanding of the operations or activi- DON activities shall not make value ties of the DON must be approached judgments as to whether the informa- with caution and carefully weighed tion is important enough to be made against the arguments offered by the public. requester. Another example is informa- (f) Disclosure of the information ‘‘is tion already known to be in the public not primarily in the commercial inter- domain. Disclosure of duplicative or est of the requester.’’ nearly identical information already (1) The existence and magnitude of a existing in the public domain may add commercial interest. If the request is no meaningful new information con- determined to be of a commercial in- cerning the operations and activities of terest, DON activities should address the DON. the magnitude of that interest to de- (d) The contribution to an under- termine if the requester’s commercial standing of the subject by the general interest is primary, as opposed to any public likely to result from disclosure. secondary personal or non-commercial The key element in determining the interest. In addition to profit-making applicability of this factor is whether organizations, individual persons or disclosure will inform, or have the po- other organizations may have a com- tential to inform, the public rather mercial interest in obtaining certain than simply the individual requester or records. Where it is difficult to deter- small segment of interested persons. mine whether the requester is of a The identity of the requester is essen- commercial nature, DON activities tial in this situation in order to deter- may draw inference from the request- mine whether such requester has the er’s identity and circumstances of the capability and intention to dissemi- request. Activities are reminded that nate the information to the public. in order to apply the commercial Mere assertions of plans to author a standards of the FOIA, the requester’s book, researching a particular subject, commercial benefit must clearly over- doing doctoral dissertation work, or in- ride any personal or non-profit inter- digence are insufficient without dem- est. onstrating the capacity to further dis- (2) The primary interest in disclo- close the information in a manner that sure. Once a requester’s commercial in- will be informative to the general pub- terest has been determined, DON ac- lic. Requesters should be asked to de- tivities should then determine if the scribe their qualifications, the nature disclosure would be primarily in that of their research, the purpose of the re- interest. This requires a balancing test quested information, and their in- between the commercial interest of the tended means of dissemination to the request against any public benefit to be public. derived as a result of that disclosure. (e) The significance of the contribu- Where the public interest is served tion to public understanding. In apply- above and beyond that of the requesting this factor, DON activities must er’s commercial interest, a waiver or differentiate the relative significance reduction of fees would be appropriate. or impact of the disclosure against the Conversely, even if a significant public

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interest exists, and the relative com- pated costs, and the fees do not exceed mercial interest of the requester is de- $250.00. termined to be greater than the public (b) However, after all work is com- interest, then a waiver or reduction of pleted on a request, and the documents fees would be inappropriate. As exam- are ready for release, DON activities ples, news media organizations have a may request payment before for- commercial interest as business orga- warding the documents, particularly nizations; however, their inherent role for those requesters who have no pay- of disseminating news to the general ment history, or for those requesters public can ordinarily be presumed to be who have failed previously to pay a fee of a primary interest. Therefore, any in a timely fashion (i.e., within 30 cal- commercial interest becomes sec- endar days from the date of the bill- ondary to the primary interest in serving). ing the public. Similarly, scholars (c) When a DON activity estimates or writing books or engaged in other determines that allowable charges that forms of academic research may recog- a requester may be required to pay are nize a commercial benefit, either di- likely to exceed $250.00, the activity rectly, or indirectly (through the insti- shall notify the requester of the likely tution they represent); however, nor- cost and obtain satisfactory assurance mally such pursuits are primarily un- of full payment where the requester dertaken for educational purposes, and has a history of prompt payments, or the application of a fee charge would require an advance payment of an be inappropriate. Conversely, data bro- amount up to the full estimated kers or others who merely compile gov- charges in the case of requesters with ernment information for marketing no history of payment. can normally be presumed to have an (d) Advance payment of a fee is also interest primarily of a commercial na- applicable when a requester has pre- ture. viously failed to pay fees in a timely (g) The factors and examples used in fashion (i.e., 30 calendar days) after this section are not all inclusive. Each being assessed in writing by the activ- fee decision must be considered on a ity. Further, where a requester has pre- case-by-case basis and upon the merits viously failed to pay a fee charged in a of the information provided in each re- timely fashion (i.e., within 30 calendar quest. When the element of doubt as to days from the date of the billing), the whether to charge or waive the fee can- DON activity may require the re- not be clearly resolved, DON activities quester to pay the full amount owed, should rule in favor of the requester. plus any applicable interest, or demonstrate that he or she has paid the (h) The following additional cir- fee, and to make an advance payment cumstances describe situations where of the full amount of the estimated fee waiver or reduction of fees are most before the activity begins to process a likely to be warranted: new or pending request from the re- (1) A record is voluntarily created to quester. Interest will be at the rate prevent an otherwise burdensome ef- prescribed in 31 U.S.C. 3717 and con- fort to provide voluminous amounts of firmed with respective finance and ac- available records, including additional counting offices. information not requested. (2) A previous denial of records is re- § 701.50 Effect of the Debt Collection versed in total, or in part, and the as- Act of 1982. sessable costs are not substantial (e.g. The Debt Collection Act of 1982 (Pub. $15.00–$30.00). L. 97–365) provides for a minimum annual rate of interest to be charged on § 701.49 Payment of fees. overdue debts owed the Federal Gov- (a) Normally, fees will be collected at ernment. DON activities may levy this the time of providing the documents to interest penalty for any fees that re- the requester when the requester spe- main outstanding 30 calendar days cifically states that the costs involved from the date of billing (the first de- shall be acceptable or acceptable up to mand notice) to the requester of the a specified limit that covers the antici- amount owed. The interest rate shall

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be as prescribed in 31 U.S.C. 3717. DON parts; individual time (hereafter re- activities should verify the current inferred to as human time) and machine terest rate with respective finance and time. accounting offices. After one demand (1) Human time. Human time is all the letter has been sent and 30 calendar time spent by humans performing the days have lapsed with no payment, necessary tasks to prepare the job for a DON activities may submit the debt to machine to execute the run command. respective finance and accounting of- If execution of a run requires moni- fices for collection. toring by a human, that human time may be also assessed as computer § 701.51 Refunds. search. The terms ‘‘programmer/oper- In the event that a DON activity dis- ator’’ shall not be limited to the tradi- covers that it has overcharged a re- tional programmers or operators. quester or a requester has overpaid, the Rather, the terms shall be interpreted DON activity shall promptly refund the in their broadest sense to incorporate charge to the requester by reimburse- any human involved in performing the ment methods that are agreeable to computer job (e.g. technician, adminis- the requester and the activity. trative support, operator, programmer, database administrator, or action offi- § 701.52 Computation of fees. cer). (a) It is imperative that DON activi- (2) Machine time. Machine time in- ties compute all fees to ensure accu- volves only direct costs of the central rate reporting in the Annual FOIA Re- processing unit (CPU), input/output de- port, but ensure that only applicable vices, and memory capacity used in the fees be charged to the requester. For actual computer configuration. Only example, although we calculate cor- this CPU rate shall be charged. No respondence and preparation costs, other machine-related costs shall be these fees are not recoupable from the charged. In situations where the capa- requester. bility does not exist to calculate CPU (b) DD 2086, Record of Freedom of In- time, no machine costs can be passed formation (FOI) Processing Cost, on to the requester. When CPU calcula- should be filled out accurately to re- tions are not available, only human flect all processing costs, as requesters time costs shall be assessed to request- may solicit a copy of that document to ers. Should DON activities lease com- ensure accurate computation of fees. puters, the services charged by the les- Costs shall be computed on time actu- sor shall not be passed to the requester ally spent. Neither time-based nor dol- under the FOIA. lar-based minimum charges for search, (c) Duplication. review and duplication are authorized. Type Cost per page § 701.53 FOIA fee schedule. Pre-Printed material ...... $.02 Office copy ...... 15 The following fee schedule shall be Microfiche ...... 25 used to compute the search, review (in Computer copies (tapes, Actual cost of duplicating the the case of commercial requesters) and discs or printouts). tape, disc or printout (includes operator’s time and duplication costs associated with proc- cost of the medium). essing a given FOIA request. The appropriate fee category of the requester (d) Review time (in the case of commer- shall be applied before computing fees. cial requesters, only). (a) Manual search. Type Grade Hourly Hourly rate Type Grade rate Clerical ...... E9/GS8 and below ...... $12.00 Clerical ...... E9/GS8 and below ...... $12.00 Professional ...... O1–O6/GS9–GS15 ...... Professional ...... O1–O6/GS9–GS15 ...... 25.00 25.00 Executive ...... O7/GS16/ES1 and above Executive ...... O7/GS16/ES1 and above 45.00 45.00 (e) Audiovisual documentary materials. (b) Computer search. Fee assessments Search costs are computed as for any for computer search consist of two other record. Duplication cost is the

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actual direct cost of reproducing the the absence of a known market value, material, including the wage of the charges shall be based on recovery of person doing the work. Audiovisual full costs to the Federal Government. materials provided to a requester need The full costs shall include all direct not be in reproducible format or qual- and indirect costs to conduct the ity. search and to duplicate the records re- (f) Other records. Direct search and sponsive to the request. This cost is to duplication cost for any record not de- be differentiated from the direct costs scribed in this section shall be com- allowable under information released puted in the manner described for under FOIA. audiovisual documentary material. (c) Waiver. DON activities shall waive (g) Costs for special services. Com- the payment of costs required in para- plying with requests for special serv- graph (a) of this section which are ices is at the discretion of the DON ac- greater than the costs that would be tivity. Neither the FOIA nor its fee required for release of this same infor- structure cover these kinds of services. mation under the FOIA if: Therefore, DON activities may recover (1) The request is made by a citizen the costs of special services requested of the United States or a United States by the requester after agreement has corporation and such citizen or cor- been obtained in writing from the re- poration certifies that the technical quester to pay for such fees as certi- data requested is required to enable it fying that records are true copies, to submit an offer or determine wheth- sending records by special methods er it is capable of submitting an offer such as express mail, etc. to provide the product to which the technical data relates to the United § 701.54 Collection of fees and fee rates States or a contractor with the United for technical data. States. However, DON activities may (a) Technical data, other than tech- require the citizen or corporation to nical data that discloses critical tech- pay a deposit in an amount equal to nology with military or space applica- not more than the cost of complying tion, if required to be released under with the request, which will be re- the FOIA, shall be released after the funded upon submission of an offer by person requesting such technical data the citizen or corporation; pays all reasonable costs attributed to (2) The release of technical data is research, duplication and review of the quested in order to comply with the records to be released. Technical data, terms of an international agreement; as used in this section, means recorded or, information, regardless of the form or (3) The DON activity determines in method of the recording of a scientific accordance with § 701.48 that such a or technical nature (including com- waiver is in the interest of the United puter software documentation). This States. term does not include computer soft- (d) Fee rates—(1) Manual search. ware, or data incidental to contract ad- Hourly ministration, such as financial and/or Type Grade rate management information. (b) DON activities shall retain the Clerical ...... E9/GS8 and below ...... $13.25 amounts received by such a release, Clerical (Minimum ...... 8.30 Charge). and it shall be merged with and avail- Professional ...... 01 to 06/GS9 to GS15 ...... (**) able for the same purpose and the same Executive ...... 07/GS16/ES–1 and above (**) time period as the appropriation from ** Rate to be established at actual hourly rate prior to which the costs were incurred in com- search. A minimum charge will be established at 1⁄2 Minimum plying with request. All reasonable Charge) costs as used in this sense are the full (2) Computer search is based on the costs to the Federal Government of total cost of the central processing rendering the service, or fair market unit, input-output devices, and mem- value of the service, whichever is high- ory capacity of the actual computer er. Fair market value shall be deter- configuration. The wage (based upon mined in accordance with commercial the scale for manual search) for the rates in the local geographical area. In computer operator and/or programmer

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determining how to conduct, and sub- costs and will be deposited directly sequently executing the search will be into the accounting line item from recorded as part of the computer which the costs were incurred. search. (c) Payments for fees assessed by (3) Duplication. Working Capital Fund or Non-Appro- priated Fund (NAF) activities shall be Type Cost made payable to the DON activity and Aerial photograph, maps, specifications, per- deposited directly into their account. mits, charts, blueprints, and other technical engineering documents ...... $2.50 Engineering data (microfilm): Subpart D—FOIA Exemptions Aperture cards: Silver duplicate negative, per card ...... 75 § 701.56 Background. When key punched and verified, per card ...... 85 The FOIA is a disclosure statute Diazo duplicate negative, per card .65 When key punched and verified, per card .75 whose goal is an informed citizenry. 35mm roll film, per frame ...... 50 Accordingly, records are considered to 16mm roll film, per frame ...... 45 be releasable, unless they contain in- Paper prints (engineering drawings), formation that qualifies for with- each ...... 1.50 Paper reprints of microfilm indices, holding under one or more of the nine each ...... 10 FOIA exemptions. The exemptions are identified as 5 U.S.C. 552 (b)(1) through (4) Review time. (b)(9).

Hourly Type Grade rate § 701.57 Ground rules.

Clerical ...... E9/GS8 and below ...... $13.25 (a) Identity of requester. In applying Clerical Minimum E9/GS8 and below ...... 8.30 exemptions, the identity of the re- Charge. quester and the purpose for which the Professional ...... 01 to 06/GS9 to GS15 ...... (**) record is sought are irrelevant with the Executive ...... 07/GS16/ES1 or higher ..... (**) exception that an exemption may not ** Rate to be established at actual hourly rate prior to be invoked where the particular inter- search. (A minimum charge will be established at 1⁄2 Minimum Charge) est to be protected is the requester’s (5) Other technical data records. interest. However, if the subject of the Charges for any additional services not record is the requester for the record specifically provided in paragraph (d) and the record is contained in a Pri- of this section, consistent with Volume vacy Act system of records, it may 11A of DoD 7000.14–R (NOTAL) shall be only be denied to the requester if with- made by DON activities at the fol- holding is both authorized in systems lowing rates: notice and by a FOIA exemption. (b) Reasonably segregable. Even Minimum charge for office copy up to six im- though a document may contain infor- ages)—$3.50 mation which qualifies for withholding Each additional image—$ .10 under one or more FOIA exemptions, Each typewritten page—$3.50 Certification and validation with seal, FOIA requires that all ‘‘reasonably seg- each—$5.20 regable’’ information be provided to Hand-drawn plots and sketches, each hour or the requester, unless the segregated infraction Thereof—$12.00 formation would have no meaning. In other words, redaction is not required § 701.55 Processing FOIA fee remit- when it would reduce the balance of tances. the text to unintelligible gibberish. (a) Payments for FOIA charges, less (c) Discretionary release. A discre- fees assessed for technical data or by a tionary release of a record to one re- Working Capital Fund or a Non-Appro- quester shall prevent the withholding priated Fund (NAF) activity, shall be of the same record under a FOIA ex- made payable to the U.S. Treasurer emption if the record is subsequently and deposited in Receipt Account Num- requested by someone else. However, a ber 172419.1203. FOIA exemption may be invoked to (b) Payments for fees assessed for withhold information that is similar or technical data shall be made payable related that has been the subject of a to the DON activity that incurred the discretionary release.

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(d) Initial Denial Authority (IDA) ac- (ii) Compilation: Compilations of tions. The decision to withhold infor- items of information that are individ- mation in whole or in part based on ually unclassified may be classified if one or more of the FOIA exemptions the compiled information reveals addi- requires the signature of an IDA. See tional association or relationship that listing of IDAs in § 701.4. meets the standard for classification under an existing executive order for § 701.58 In-depth analysis of FOIA ex- classification and is not otherwise re- emptions. vealed in the individual items of infor- An in-depth analysis of the FOIA ex- mation. emptions is addressed in the DOJ’s an- (b) 5 U.S.C. 552 (b)(2): Those related nual publication, ‘‘Freedom of Infor- solely to the internal personnel rules mation Act Guide & Privacy Act Over- and practices of the DON and its activi- view.’’ A copy is available on the DOJ’s ties. This exemption is entirely discre- FOIA website (see Navy FOIA website tionary and has two profiles, high (b)(2) at http://www.ogc.secnav.hq.navy.mil/ and low (b)(2): foia/index.html for easy access). (1) High (b)(2) are records containing or constituting statutes, rules, regula- § 701.59 A brief explanation of the tions, orders, manuals, directives, in- meaning and scope of the nine structions, and security classification FOIA exemptions. guides, the release of which would (a) 5 U.S.C. 552 (b)(1): Those properly allow circumvention of these records and currently classified in the interest thereby substantially hindering the ef- of national defense or foreign policy, as fective performance of a significant specifically authorized under the cri- function of the DON. For example: teria established by Executive Order (i) Those operating rules, guidelines, and implemented by regulations. and manuals for DON investigators, in- (1) Although material is not classi- spectors, auditors, or examiners that fied at the time of the FOIA request, a must remain privileged in order for the classification review may be under- DON activity fulfill a legal require- taken to determine whether the infor- ment; mation should be classified based on (ii) Personnel and other administra- the Executive Order on classification tive matters, such as examination (i.e., Executive Order 12958) and/or a se- questions and answers used in training curity classification guide. The proce- courses or in the determination of the dures for reclassification are addressed qualifications of candidates for em- in the Executive Order. ployment, entrance on duty, advance- (2) If the information qualifies as ex- ment, or promotion; emption (b)(1) information, there is no (iii) Computer software, the release discretion regarding its release. In ad- of which would allow circumvention of dition, this exemption shall be invoked a statute or DON rules, regulations, or- when the following situations are ap- ders, manuals, directives, or instruc- parent: tions. In this situation, the use of the (i) Glomar response: The fact of the ex- software must be closely examined to istence or nonexistence of a record ensure a circumvention possibility ex- would itself reveal classified informa- ists. tion. In this situation, DON activities (2) Discussion of low (b)(2) is provided shall neither confirm nor deny the ex- for information only, as DON activities istence or nonexistence of the record may not invoke the low (b)(2). Low being requested. A ‘‘refusal to confirm (b)(2) records are those matters which or deny’’ response must be used con- are trivial and housekeeping in nature sistently, not only when a record ex- for which there is no legitimate public ists, but also when a record does not interest or benefit to be gained by re- exist. Otherwise, the pattern of using a lease, and it would constitute an ad- ‘‘no record’’ response when a record ministrative burden to process the re- does not exist, and a ‘‘refusal to con- quest in order to disclose the records. firm or deny’’ when a record does exist Examples include rules of personnel’s will itself disclose national security in- use of parking facilities or regulation formation. of lunch hours, statements of policy as

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to sick leave, and administrative data formation; impair the Government’s such as file numbers, mail routing ability to obtain necessary information stamps, initials, data processing nota- in the future; or impair some other le- tions, brief references to previous com- gitimate Government interest. Com- munications, and other like adminis- mercial or financial information sub- trative markings. mitted on a voluntary basis, absent (c) 5 U.S.C. 552 (b)(3): Those con- any exercised authority prescribing cerning matters that a statute specifi- criteria for submission is protected cally exempts from disclosure by terms without any requirement to show com- that permit no discretion on the issue, petitive harm. If the information quali- or in accordance with criteria estab- fies as exemption (b)(4) information, lished by that statute for withholding there is no discretion in its release. Ex- or referring to particular types of mat- amples include: ters to be withheld. A few examples of (1) Commercial or financial informa- (b)(3) statutes are: tion received in confidence in connec- (1) 10 U.S.C. 128, Physical Protection tion with loans, bids, contracts, or proof Special Nuclear Material, Limita- posals set forth in or incorporated by tion on Dissemination of Unclassified reference in a contract entered into be- Information. tween the DON activity and the offeror (2) 10 U.S.C. 130, Authority to With- that submitted the proposal, as well as hold From Public Disclosure Certain other information received in con- Technical Data. fidence or privileged, such as trade se- (3) 10 U.S.C. 1102, Confidentiality of crets, inventions, discoveries, or other Medical Quality Assurance Records. proprietary data. Additionally, when (4) 10 U.S.C. 2305(g), Protection of the provisions of 10 U.S.C. 2305(g) and Contractor Submitted Proposals. 41 U.S.C. 423 are met, certain propri- (5) 12 U.S.C. 3403, Confidentiality of etary and source selection information Financial Records. may be withheld under exemption (6) 18 U.S.C. 798, Communication In- (b)(3). telligence. (2) Statistical data and commercial (7) 35 U.S.C. 181–188, Patent Secrecy— or financial information concerning any records containing information re- contract performance, income, profits, lating to inventions that are the sub- losses, and expenditures, if offered and ject of patent applications on which received in confidence from a con- Patent Secrecy Orders have been tractor or potential contractor. issued. (3) Personal statements given in the (8) 35 U.S.C. 205, Confidentiality of course of inspections, investigations, Inventions Information. or audits, when such statements are re- (9) 41 U.S.C. 423, Procurement Integ- ceived in confidence from the indi- rity. vidual and retained in confidence be- (10) 42 U.S.C. 2162, Restricted Data cause they reveal trade secrets or com- and Formerly Restricted Data. mercial or financial information nor- (11) 50 U.S.C. 403 (d)(3), Protection of mally considered confidential or privi- Intelligence Sources and Methods. leged. (d) 5 U.S.C. 552 (b)(4): Those con- (4) Financial data provided in containing trade secrets or commercial or fidence by private employers in con- financial information that a DON ac- nection with locality wage surveys tivity receives from a person or organi- that are used to fix and adjust pay zation outside the Government with schedules applicable to the prevailing the understanding that the informa- wage rate of employees within the tion or record will be retained on a DON. privileged or confidential basis in ac- (5) Scientific and manufacturing cordance with the customary handling processes or developments concerning of such records. Records within the ex- technical or scientific data or other in- emption must contain trade secrets, or formation submitted with an applica- commercial or financial records, the tion for a research grant, or with a re- disclosure of which is likely to cause port while research is in progress. substantial harm to the competitive (6) Technical or scientific data devel- position of the source providing the in- oped by a contractor or subcontractor

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exclusively at private expense, and containing staff evaluations, advice, technical or scientific data developed opinions, or suggestions. in part with Federal funds and in part (2) Advice, suggestions, or evalua- at private expense, wherein the con- tions prepared on behalf of the DON by tractor or subcontractor has retained individual consultants or by boards, legitimate proprietary interests in committees, councils, groups, panels, such data in accordance with 10 U.S.C. conferences, commissions, task forces, 2320–2321 and DoD Federal Acquisition or other similar groups that are formed Regulation Supplement (DFARS), for the purpose of obtaining advice and chapter 2 of 48 CFR, subparts 227.71 and recommendations. 227.72. Technical data developed exclu- (3) Those non-factual portions of sively with Federal funds may be with- evaluations by DON personnel of con- held under Exemption (b)(3) if it meets tractors and their products. the criteria of 10 U.S.C. 130 and DoD Di- (4) Information of a speculative, ten- rective 5230.25 of 6 November 1984. tative, or evaluative nature or such (7) Computer software which is copy- matters as proposed plans to procure, righted under the Copyright Act of 1976 lease or otherwise acquire and dispose (17 U.S.C. 106), the disclosure of which of materials, real estate, facilities or would have an adverse impact on the functions, when such information potential market value of a copy- would provide undue or unfair competi- righted work. tive advantage to private personal in- (8) Proprietary information sub- terests or would impede legitimate mitted strictly on a voluntary basis, government functions. absent any exercised authority pre- (5) Trade secret or other confidential scribing criteria for submission. Exam- research development, or commercial ples of exercised authorities pre- information owned by the Government, scribing criteria for submission are where premature release is likely to af- statutes, Executive Orders, regula- fect the Government’s negotiating po- tions, invitations for bids, requests for sition or other commercial interest. proposals, and contracts. Submission of (6) Those portions of official reports information under these authorities is of inspection, reports of the Inspector not voluntary. Generals, audits, investigations, or sur- (e) 5 U.S.C. 552(b)(5): Those con- veys pertaining to safety, security, or taining information considered privi- the internal management, administra- leged in litigation, primarily under the tion, or operation of one or more DON deliberative process privilege. For ex- activities, when these records have tra- ample: internal advice, recommenda- ditionally been treated by the courts as tions, and subjective evaluations, as privileged against disclosure in litiga- contrasted with factual matters, that tion. are reflected in deliberative records (7) Planning, programming, and pertaining to the decision-making budgetary information that is involved process of an agency, whether within in the defense planning and resource or among agencies or within or among allocation process. DON activities. In order to meet the (8) If any such intra- or inter-agency test of this exemption, the record must record or reasonably segregable portion be both deliberative in nature, as well of such record hypothetically would be as part of a decision-making process. made available routinely through the Merely being an internal record is in- discovery process in the course of liti- sufficient basis for withholding under gation with the agency, then it should this exemption. Also potentially ex- not be withheld under the FOIA. If, empted are records pertaining to the however, the information hypo- attorney-client privilege and the attor- thetically would not be released at all, ney work-product privilege. This ex- or would only be released in a par- emption is entirely discretionary. Ex- ticular case during civil discovery amples of the deliberative process in- where a party’s particularized showing clude: of need might override a privilege, then (1) The nonfactual portions of staff the record may be withheld. Discovery papers, to include after-action reports, is the formal process by which litigants lessons learned, and situation reports obtain information from each other for

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use in the litigation. Consult with legal ship in the Armed Forces, and the eli- counsel to determine whether exemp- gibility of individuals (civilian, mili- tion 5 material would be routinely tary, or contractor employees) for se- made available through the discovery curity clearances, or for access to par- process. ticularly sensitive classified informa- (9) Intra- or inter-agency memoranda tion. or letters that are factual, or those (2) Files containing reports, records, reasonably segregable portions that are and other material pertaining to per- factual, are routinely made available sonnel matters in which administrative through discovery, and shall be made action, including disciplinary action, available to a requester, unless the fac- may be taken. tual material is otherwise exempt from (3) Home addresses, including private release, inextricably intertwined with e-mail addresses, are normally not re- the exempt information, so fragmented leasable without the consent of the in- as to be uninformative, or so redundant dividuals concerned. This includes lists of information already available to the of home addressees and military quar- requester as to provide no new sub- ters’ addressees without the occupant’s stantive information. name. Additionally, the names and (10) A direction or order from a supe- duty addresses (postal and/or e-mail) of rior to a subordinate, though contained DON/DoD military and civilian per- in an internal communication, gen- sonnel who are assigned to units that erally cannot be withheld from a re- are sensitive, routinely deployable, or quester if it constitutes policy guid- stationed in foreign territories can ance or a decision, as distinguished constitute a clearly unwarranted inva- from a discussion of preliminary mat- sion of personal privacy. ters or a request for information or ad- (4) Privacy interest. A privacy interest vice that would compromise the deci- may exist in personal information even sion-making process. though the information has been dis- (11) An internal communication con- closed at some place and time. If per- cerning a decision that subsequently has been made a matter of public sonal information is not freely avail- record must be made available to a re- able from sources other than the Fed- quester when the rationale for the deci- eral Government, a privacy interest ex- sion is expressly adopted or incor- ists in its nondisclosure. The fact that porated by reference in the record con- the Federal Government expended taining the decision. funds to prepare, index and maintain (f) 5 U.S.C. 552(b)(6): Information in records on personal information, and personnel and medical files, as well as the fact that a requester invokes FOIA similar personal information in other to obtain these records indicates the files, that, if disclosed to a requester, information is not freely available. other than the person about whom the (5) Names and duty addresses (postal information is about, would result in a and/or e-mail) published in telephone clearly unwarranted invasion of per- directories, organizational charts, ros- sonal privacy. Release of information ters and similar materials for per- about an individual contained in a Pri- sonnel assigned to units that are sen- vacy Act System of records that would sitive, routinely deployable, or sta- constitute a clearly unwarranted inva- tioned in foreign territories are sion of privacy is prohibited, and could withholdable under this exemption. subject the releaser to civil and crimi- (6) This exemption shall not be used nal penalties. If the information quali- in an attempt to protect the privacy of fies as exemption (b)(6) information, a deceased person, but it may be used there is no discretion in its release. Ex- to protect the privacy of the deceased amples of other files containing per- person’s family if disclosure would re- sonal information similar to that con- kindle grief, anguish, pain, embarrass- tained in personnel and medical files ment, or even disruption of peace of include: mind of surviving family members. In (1) Those compiled to evaluate or ad- such situations, balance the surviving judicate the suitability of candidates family members’ privacy against the for civilian employment or member- public’s right to know to determine if

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disclosure is in the public interest. Ad- (g) 5 U.S.C. 552(b)(7). Records or infor- ditionally, the deceased’s social secu- mation compiled for law enforcement rity number should be withheld since it purposes; i.e., civil, criminal, or mili- is used by the next of kin to receive tary law, including the implementation benefits. Disclosures may be made to of Executive Orders or regulations the immediate next of kin as defined in issued under law. This exemption may DoD Directive 5154.24 of 28 October 1996 be invoked to prevent disclosure of (NOTAL). documents not originally created for, (7) A clearly unwarranted invasion of but later gathered for law enforcement the privacy of third parties identified purposes. With the exception of in a personnel, medical or similar (b)(7)(C) and (b)(7)(F), this exemption is record constitutes a basis for deleting discretionary. This exemption applies, those reasonably segregable portions of however, only to the extent that pro- that record. When withholding third duction of such law enforcement party personal information from the records or information could result in subject of the record and the record is the following: contained in a Privacy Act system of (1) 5 U.S.C. 552(b)(7)(A): Could reason- records, consult with legal counsel. ably be expected to interfere with en- (8) This exemption also applies when forcement proceedings. the fact of the existence or nonexist- (2) 5 U.S.C. 552(b)(7)(B): Would de- ence of a responsive record would itself prive a person of the right to a fair reveal personally private information, trial or to an impartial adjudication. and the public interest in disclosure is (3) 5 U.S.C. 552(b)(7)(C): Could reason- not sufficient to outweigh the privacy ably be expected to constitute an un- interest. In this situation, DON activi- warranted invasion of personal privacy ties shall neither confirm nor deny the of a living person, including surviving existence or nonexistence of the record family members of an individual iden- being requested. This is a Glomar re- tified in such a record. sponse, and exemption (b)(6) must be (i) This exemption also applies when cited in the response. Additionally, in the fact of the existence or nonexist- order to insure personal privacy is not ence of a responsive record would itself violated during referrals, DON activi- reveal personally private information, ties shall coordinate with other DON and the public interest in disclosure is activities or Federal agencies before not sufficient to outweigh the privacy referring a record that is exempt under interest. In this situation, Components the Glomar concept. shall neither confirm nor deny the ex- (i) A ‘‘refusal to confirm or deny’’ re- istence or nonexistence of the record sponse must be used consistently, not being requested. This is a Glomar re- only when a record exists, but also sponse, and exemption (b)(7)(C) must be when a record does not exist. Other- cited in the response. Additionally, in wise, the pattern of using a ‘‘no order to insure personal privacy is not records’’ response when a record does violated during referrals, DON activi- not exist and a ‘‘refusal to confirm or ties shall coordinate with other DON/ deny’’ when a record does exist will DoD activities or Federal Agencies be- itself disclose personally private infor- fore referring a record that is exempt mation. under the Glomar concept. A ‘‘refusal (ii) Refusal to confirm or deny should to confirm or deny’’ response must be not be used when the person whose per- used consistently, not only when a sonal privacy is in jeopardy has pro- record exists, but also when a record vided the requester a waiver of his or does not exist. Otherwise, the pattern her privacy rights; the person initiated of using a ‘‘no records’’ response when or directly participated in an inves- a record does not exist and a ‘‘refusal tigation that led to the creation of an to confirm or deny’’ when a record does agency record seeks access to that exist will itself disclose personally pri- record; or the person whose personal vate information. privacy is in jeopardy is deceased, the (ii) Refusal to confirm or deny should Agency is aware of that fact, and dis- not be used when the person whose per- closure would not invade the privacy of sonal privacy is in jeopardy has pro- the deceased’s family. vided the requester with a waiver of his

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or her privacy rights; or the person available by law (such as, the Jencks whose personal privacy is in jeopardy Act, 18 U.S.C. 3500), is not diminished. is deceased, and the activity is aware (9) Exclusions. Excluded from the ex- of that fact. emption in paragraph (g)(8) are the fol- (4) 5 U.S.C. 552(b)(7)(D): Could reason- lowing two situations applicable to the ably be expected to disclose the iden- DON: tity of a confidential source, including a source within the DON; a State, (i) Whenever a request is made that local, or foreign agency or authority; involves access to records or informa- or any private institution that fur- tion compiled for law enforcement pur- nishes the information on a confiden- poses, and the investigation or pro- tial basis; and could disclose informa- ceeding involves a possible violation of tion furnished from a confidential criminal law where there is reason to source and obtained by a criminal law believe that the subject of the inves- enforcement authority in a criminal tigation or proceeding is unaware of its investigation or by an agency con- pendency, and the disclosure of the ex- ducting a lawful national security in- istence of the records could reasonably telligence investigation. be expected to interfere with enforcement proceedings, DON activities may, (5) 5 U.S.C. 552(b)(7)(E): Would dis- during only such times as that cir- close techniques and procedures for law cumstance continues, treat the records enforcement investigations or prosecutions, or would disclose guidelines for or information as not subject to the law enforcement investigations or FOIA. In such situation, the response prosecutions if such disclosure could to the requester will state that no reasonably be expected to risk cir- records were found. cumvention of the law. (ii) Whenever informant records (6) 5 U.S.C. 552(b)(7)(F): Could reason- maintained by a criminal law enforce- ably be expected to endanger the life or ment organization within a DON ac- physical safety of any individual. tivities under the informant’s name or (7) Some examples of exemption 7 personal identifier are requested by a are: Statements of witnesses and other third party using the informant’s name material developed during the course or personal identifier, the DON activity of the investigation and all materials may treat the records as not subject to prepared in connection with related the FOIA, unless the informant’s sta- Government litigation or adjudicative tus as an informant has been officially proceedings; the identity of firms or in- confirmed. If it is determined that the dividuals being investigated for alleged records are not subject to 5 U.S.C. irregularities involving contracting 552(b)(7), the response to the requester with the DoD when no indictment has will state that no records were found. been obtained nor any civil action filed against them by the United States; in- (iii) DON activities considering information obtained in confidence, ex- voking an exclusion should first con- pressed or implied, in the course of a sult with the DOJ’s Office of Informa- criminal investigation by a criminal tion and Privacy. law enforcement agency or office within a DON activity or a lawful national (h) 5 U.S.C. 552(b)(8): Those contained security intelligence investigation con- in or related to examination, operation ducted by an authorized agency or of- or condition reports prepared by, on be- fice within the DON; national security half of, or for the use of any agency re- intelligence investigations include sponsible for the regulation or super- background security investigations and vision of financial institutions. those investigations conducted for the purpose of obtaining affirmative or (i) 5 U.S.C. 552(b)(9): Those containing counterintelligence information. geological and geophysical information (8) The right of individual litigants and data (including maps) concerning to investigative records currently wells.

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Subpart E—Indexing, Public In- § 701.62 Scope and applicability. spection, and Federal Reg- This subpart prescribes actions to be ister Publication of Depart- executed by, or at the direction of, ment of the Navy Directives Navy Department (as defined in and Other Documents Affect- § 700.104c of this chapter) components and specified headquarters activities ing the Public for apprising members of the public of Department of the Navy regulations, SOURCE: 65 FR 24635, Apr. 27, 2000, unless policies, substantive and procedural otherwise noted. rules, and decisions which may affect them, and for enabling members of the § 701.61 Purpose. public to participate in Department of This subpart implements 5 U.S.C. the Navy rulemaking processes in mat- 552(a) (1) and (2) and provisions of De- ters of substantial and direct concern partment of Defense Directive 5400.7 to the public. This subpart com- May 13, 1988 (32 CFR part 286, 55 FR plements subpart A, which implements 53104); Department of Defense Directive Navy-wide requirements for furnishing 5400.9, December 23, 1974 (32 CFR part documents to members of the public 336, 40 FR 49111); and the Regulations of upon request. That a document may be the Administrative Committee of the published or indexed and made available for public inspection and copying Federal Register (1 CFR chaps. I and II) under this instruction does not affect by delineating responsibilities and pre- the possible requirement under subpart scribing requirements, policies, cri- A for producing it for examination, or teria, and procedures applicable to: furnishing a copy, in response to a re- (a) Publishing the following Depart- quest made under that subpart. ment of the Navy documents in the FEDERAL REGISTER: § 701.63 Policy. (1) Certain classes of regulatory, or- In accordance with the spirit and in- ganizational policy, substantive, and tent of 5 U.S.C. 552, the public has the procedural documents required to be right to maximum information con- published for the guidance of the pub- cerning the organization and functions lic; of the Department of the Navy. This (2) Certain classes of proposed regu- includes information on the policies latory documents required to be pub- and the substantive and procedural lished for public comment prior to rules used by the Department of the issuance; and Navy in its dealings with the public. In (3) Certain public notices required by accordance with Department of De- law or regulation to be published; fense policy described in 32 CFR part (b) Making available, for public in- 336, 40 FR 4911, moreover, the public is spection and copying, certain classes of encouraged to participate in Depart- documents having precedential effect ment of the Navy rulemaking when the on decisions concerning members of proposed rule would substantially and the public; directly affect the public. (c) Maintaining current indexes of § 701.64 Publication of adopted regu- documents having precedential effect latory documents for the guidance on decisions concerning members of of the public. the public, and publishing such indexes (a) Classes of documents to be pub- or making them available by other lished. Subject to the provisions of 5 means; U.S.C. 552(b) which exempt specified (d) Receiving and considering peti- matters from requirements for release tions of members of the public for the to the public [see subpart B of this issuance, revision, or cancellation of part], the classes of Department of the regulatory documents of some classes; Navy documents required to be pub- and lished on a current basis in the FED- (e) Distributing the FEDERAL REG- ERAL REGISTER are listed below. ISTER for official use within the De- (1) Naval organization and points of partment of the Navy. contact—description of the central and

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field organization of the Department of appropriate, with the concurrence of the Navy and the locations at which, the Judge Advocate General. the members or employees from whom, (iv) Incorporation by reference. With and the methods whereby, the public the approval of the Director of the Fed- may obtain information, make submit- eral Register given in the limited in- tals or requests, or obtain decisions; stances authorized in 1 CFR part 51 and (2) Methods and procedures for business 32 CFR 336.5(c), the requirement for with public—statements of the general publication in the FEDERAL REGISTER course and methods by which Depart- may be satisfied by reference in the ment of the Navy functions affecting FEDERAL REGISTER to other publica- members of the public are channeled tions containing the information which and determined, including the nature must otherwise be published in the and requirements of all formal and in- FEDERAL REGISTER. In general, matters formal procedures available; eligible for incorporation by reference (3) Procedural rules and forms—rules of are restricted to materials in the na- procedure for functions affecting mem- ture of published data, criteria, stand- bers of the public, descriptions of forms ards, specifications, techniques, illus- available or the places at which forms trations, or other published informa- may be obtained, and instructions as to tion which are reasonably available to the scope and contents of all papers, re- members of the class affected. ports, or examinations required to be (b) Public inspection. When feasible, submitted under such rules of proce- Department of the Navy and Depart- dures; and ment of Defense documents published in the FEDERAL REGISTER should be (4) Substantive rules and policies—sub- made available for inspection and stantive rules of general applicability copying, along with available indexes adopted as authorized by law, and of such documents, in the same loca- statements of general policy or inter- tions used for copying of the docu- pretations of general applicability for- ments contemplated in § 701.65. mulated and adopted by the Depart- ment of the Navy. Such rules are com- § 701.65 Availability, public inspection, monly contained in directives, manu- and indexing of other documents af- als, and memorandums. fecting the public. (i) ‘‘General applicability’’ defined. The (a) Discussion. Section 552(a) of title definition prescribed in 1 CFR 1.1 per- 5, United States Code, requires the De- tains to the classes of documents con- partment of the Navy to make avail- templated in § 701.64(b) (4). able for public inspection and copying (ii) Internal personnel rules and inter- documents which have precedential nal practices. In addition to other ex- significance on those Department of emptions listed in 5 U.S.C. 552(b) and the Navy decisions which affect the subpart B of this part, particular at- public. These documents must be kept tention is directed to the exemption readily available for public inspection pertaining to internal personnel rules and copying at designated locations, and internal practices. unless they are promptly published and (iii) Local regulations. It is unneces- copies are offered for sale. Addition- sary to publish in the FEDERAL REG- ally, documents issued after July 4, ISTER a regulation which is essentially 1967, are required to be indexed on a local in scope or application, such as a current basis. These indexes, or supple- directive issued by a base commander ments thereto, must be published at in the implementation of his responsi- least quarterly in accordance with the bility and authority under subpart G of provisions of this paragraph. In deter- part 700 of this title for guarding the mining whether a particular document security of the installation or control- is subject to the requirements of this ling the access and conduct of visitors paragraph, consideration should be or tradesmen. However, such publica- given to the statutory purposes and tion may be authorized under extraor- legal effect of the provisions. dinary circumstances, as determined (1) Statutory purposes. In general, the by the Chief of Naval Operations or the purpose of the requirement to provide Commandant of the Marine Corps, as members of the public with essential

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information is to enable them to deal ministration, and most other ‘‘propri- effectively and knowledgeably with etary’’ functions of the department are Federal agencies; to apprise members not within the scope of this provision. of the public of the existence and con- This provision also does not apply to tents of documents which have poten- instructions for employees on methods, tial legal consequences as precedents techniques, and tactics to be used in in administrative determinations performing their duties; for example: which may affect them; and to permit (A) Instructions or manuals issued public examination of the basis for ad- for audit, investigation, and inspection ministrative actions which affect the purposes; public. (B) Those which prescribe oper- (2) Legal effect. If a document is reational tactics; standards of perform- quired to be indexed and made avail- ance; criteria for defense, prosecution, able under this paragraph, it may not or settlement of cases; or negotiating be used or asserted as a precedent or bargaining techniques, limitations, against a member of the public unless or positions; and it was indexed and made available, or (C) Operations and maintenance unless the person against whom it is manuals and technical information asserted had actual and timely notice concerning munitions, equipment, and of its contents. systems, and foreign intelligence oper- (b) Classes of documents affected. (1) ations. Subject to the provisions of 5 U.S.C. 552(b) which exempt specified matters (2) In determining whether a docu- from the requirements of public disclo- ment has precedential effect, the pri- sure, the following classes of Depart- mary test is whether it is intended as ment of the Navy documents are in- guidance to be followed either in deci- cluded in the requirements of this sions or evaluations by the issuing paragraph: authority’s subordinates, or by the (i) Final adjudicative opinions and or- issuing authority itself in the adjudica- ders—opinions (including concurring tion or determination of future cases and dissenting opinions) which are involving similar facts or issues. The issued as part of the final disposition of kinds of orders or opinions which clear- adjudication proceedings (as defined in ly have precedential effect are those 5 U.S.C. 551) and which may have prece- that are intended to operate both as dential effect in the disposition of final dispositions of the questions in- other cases affecting members of the volved in the individual cases pre- public; sented, and as rules of decision to be (ii) Policy statements and interpreta- followed by the issuing authority or its tions—statements of policy and inter- subordinates in future cases involving pretations of less than general applica- similar questions. By contrast, many bility (i.e., applicable only to specific adjudicative orders and opinions issued cases; organizations, or persons), which within the Department of the Navy op- are not required to be published in the erate only as case-by-case applications FEDERAL REGISTER, but which may of policies or interpretations estab- have precedential effect in the disposi- lished in provisions of manuals or dition of other cases affecting members rectives and are not themselves used, of the public; cited, or relied on as rules of decision (iii) Manuals and instructions—admin- in future cases. In these instances, the istrative staff manuals, directives, and underlying manual or directive provi- instructions to staff, or portions there- sions obviously would have preceden- of, which establish Department of the tial effect, but the orders and opinions Navy policy or interpretations of pol- themselves would not have. A rec- icy that serve as a basis for deter- ommendation by an official who is not mining the rights of members of the authorized to adjudicate, or to issue a public with regard to Department of binding statement of policy or inter- the Navy functions. In general, manu- pretation in a particular matter would als and instructions relating only to not have precedential effect though an Internal management aspects of prop- order, opinion, statement of policy, or erty or fiscal accounting, personnel ad- interpretation issued by an authorized

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official pursuant to such recommenda- 1, 1975. An updated version of each such tion might have that effect. index, or a current supplement thereto, (c) Deletion of identifying details. (1) shall be published by an authorized Although the exemptions from public method at least annually thereafter. disclosure described in 5 U.S.C. 552 and (3) Methods of publication. The meth- subpart B of this part are applicable to ods authorized for publication of the documents which are required to be in- indexes contemplated in this paragraph dexed and made available for public in- are: spection and copying under this para- (i) Publication in the FEDERAL REG- graph, there is no general requirement ISTER; that any segregable portions of par- (ii) Commercial publication, provided tially exempt documents be so indexed that such commercial publication is and made available for public inspec- readily available to members of the tion and copying. As a general rule, a public, or will be made available upon record may therefore be held exempt in request, and payment of costs (if this its entirety from the requirements of method is utilized, information on the this paragraph if it is determined that cost of copies and the address from it contains exempt matter and that it which they may be obtained shall be is reasonably foreseeable that disclo- published in the FEDERAL REGISTER); or sure would be harmful to an interest (iii) Furnishing internally repro- protected by that exemption. An excep- duced copies upon request, at cost not tion to this general rule does exist with to exceed the direct cost of duplication regard to a record which would be ex- in accordance with subpart D of this empt only because it contains informa- part, provided that it is determined by tion which, if disclosed, would result in an order published in the FEDERAL a clearly unwarranted invasion of pri- REGISTER, that the publication of the vacy. index by methods § 701.65(d) (3) (i) or (ii) (2) Where necessary to prevent a would be unnecessary or impracticable. clearly unwarranted invasion of a per- Such order shall state the cost of cop- son’s privacy, identifying details ies and the address from which they should be deleted from a record which may be obtained. The Chief of Naval is required to be indexed and made Operations (N09B30) is authorized to available for public inspection and issue such an order in a proper case. copying under this paragraph. In every (4) Public inspection of indexes. In ad- such case, the justification for the de- dition to publication by one of the fore- letion must be fully stated in writing going methods, each index will be made in a manner which avoids creating in- available for public inspection and ferences that could be injurious to the copying in accordance with § 701.65(e) person whose privacy is involved. Usual at the locations where Department of reasons for deletion of identifying de- the Navy records are available for pub- tails include the protection of privacy lic inspection. in a person’s business affairs, medical (e) Where records may be inspected. Lo- matters, or private family matters; hu- cations and times at which Department manitarian considerations; and avoid- of the Navy records, and indexes there- ance of embarrassment to a person. of, are available for public inspection (d) Publication of indexes—(1) Form of and copying are shown in § 701.32. indexes. Each index should be arranged (f) Cost. Fees for copying services, if topically or by descriptive words, so any, furnished at locations shown in that members of the public may be able § 701.32 shall be determined in accord- to locate the pertinent documents by ance with subpart D of this part. subject, rather than by case name or (g) Records of the United States Navy- by a numbering system. Marine Corps Court of Military Review. (2) Time of publication. Each compo- The United States Navy-Marine Corps nent having cognizance of records re- Court of Military Review is deemed to quired under this paragraph to be in- be ‘‘a court of the United States’’ with- dexed shall compile and maintain an in the meaning of 5 U.S.C. 551 and is index of such records on a continually therefore excluded from the require- current basis. Each such index was re- ments of 5 U.S.C. 552. Nevertheless, un- quired to initially be published by July published decisions of the United

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States Navy-Marine Corps Court of both that a significant and legitimate Military Review, although not indexed, interest of the Department of the Navy are available for public inspection at or the public will be served by omitting the location shown in § 701.32(c). such publication for public comment, and that the document is subject to § 701.66 Publication of proposed regu- one or more of the following excep- lations for public comment. tions: (a) Discussion. The requirements of (1) It pertains to a military or foreign this section are not imposed by stat- affairs function of the United States ute, but are the implementation of which has been determined under the policies and procedures created admin- criteria of an Executive Order or stat- istratively in 32 CFR part 336. In effect, ute to require a security classification the pertinent provisions of 32 CFR part in the interests of national defense or 336 establish, within the Department of foreign policy; Defense and its components, proce- (2) It relates to naval management, dures that are analogous to the public naval military or civilian personnel, or rulemaking procedures applicable to public contracts (e.g. Navy Procure- some functions of other Federal agen- ment Directives), including non- cies under 5 U.S.C. 553. While the ad- appropriated fund contracts; ministrative policy of encouraging the (3) It involves interpretative rules, maximum practicable public participa- general statements of policy, or rules tion in the Department of the Navy of agency organization, procedure, or rulemaking shall be diligently fol- practice; or lowed, determinations by the Depart- ment of the Navy as to whether a pro- (4) It is determined with regard to posed regulatory requirement origi- the document, for good cause, that in- nated by it comes within the purview viting the public comment is impracti- of this paragraph and the cor- cable, unnecessary, or contrary to the responding provisions of 32 CFR part public interest. 336, and as to whether inviting public (c) Procedures—(1) Normal case. Unless comment is warranted, shall be conclu- the official having cognizance of a pro- sive and final. posed regulatory document determines (b) Classes of documents affected. Each under the criteria of § 701.66(b) that in- proposed regulation or other document viting public comment is not war- of a class described in § 701.64(a) (or a ranted, he or she shall cause it to be proposed revision of an adopted docu- published in the FEDERAL REGISTER ment of any of those classes) which with an invitation for the public to would ‘‘originate’’ within the Depart- submit comments in the form of writ- ment of the Navy a requirement of gen- ten data, views, or arguments during a eral applicability and future effect for specified period of not less than 30 days implementing, interpreting, or pre- following the date of publication. An scribing law or policy, or practice and opportunity for oral presentation nor- procedure requirements constituting mally will not be provided, but may be authority for prospective actions hav- provided at the sole discretion of the ing substantial and direct impact on official having cognizance of the pro- the public, or a significant portion of posed directive if he or she deems it to the public, must be evaluated to deter- be in the best interest of the Depart- mine whether inviting public comment ment of the Navy or the public to do prior to issuance is warranted. Docu- so. After careful consideration of all ments that merely implement regula- relevant matters presented within the tions previously issued by higher naval period specified for public comment, authorities or by the Department of the proposed document may be issued Defense will not be deemed to ‘‘origi- in final form. After issuance, the nate’’ requirements within the purview adopted document, and a preamble ex- of this section. If a proposed document plaining the relationship of the adopt- is within the purview of this section, ed document to the proposed and the publication to invite public comment nature and effect of public comments, will be warranted unless, upon evalua- shall be published in the FEDERAL REG- tion, it is affirmatively determined ISTER for guidance of the public.

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(2) Where public comment is not war- all DON military members and civilian/ ranted. The official having cognizance contractor employees are made fully of a proposed document within the pur- aware of their rights and responsibil- view of this paragraph shall, if he or ities under the provisions of the Pri- she determines that inviting public vacy Act (PA); to balance the Govern- comment concerning the document is ment’s need to maintain information not warranted under the criteria of with the obligation to protect individ- § 701.66(b), incorporate that determina- uals against unwarranted invasions of tion, and the basis therefor, in the doc- their privacy stemming from the ument when it is issued or submitted DON’s collection, maintenance, use, to a higher authority for issuance. and disclosure of Protected Personal After issuance, such document shall be Information (PPI); and to require pri- published in the FEDERAL REGISTER for vacy management practices and proce- the guidance of the public, if required dures be employed to evaluate privacy under § 701.64(b). risks in publicly accessible DON Web sites and unclassified non-national se- § 701.67 Petitions for issuance, revi- curity information systems. sion, or cancellation of regulations affecting the public. (a) Scope. Governs the collection, safeguarding, maintenance, use, access, In accordance with the provisions of amendment, and dissemination of PPI 32 CFR part 336, the Department of the kept by DON in PA systems of records. Navy shall accord any interested per- (b) Guidance. Provides guidance on son the right to petition in writing, for how to respond to individuals who seek the issuance, revision, or cancellation access to information in a PA system of regulatory document that origi- of records that is retrieved by their nates, or would originate, for the De- name and/or personal identifier. partment of the Navy, a policy, re- (c) Verify identity. Establishes ways quirement, or procedure which is, or to verify the identity of individuals would be, within the purview of § 701.66. who request their records before the The official having cognizance of the records are made available to them. particular regulatory document in- (d) Online resources. Directs the pub- volved, or having cognizance of the lic to the Navy’s PA Online Web site at subject matter of a proposed document, http://www.privacy.navy.mil that defines shall give full and prompt consider- the DON’s PA Program, lists all Navy, ation to any such petition. Such offi- Marine Corps, and Government-wide cial may, at his or her absolute discre- systems of records and provides guid- tion, grant the petitioner an oppor- ance on how to gain access to those tunity to appear, at his or her own ex- records. pense, for the purpose of supporting the (e) Rules of conduct. Governs the PA petition, if this is deemed to be com- rules of conduct for personnel, who will patible with orderly conduct of public be subject to either civil or criminal business. The petitioner shall be ad- penalties for noncompliance with 5 vised in writing of the disposition, and U.S.C. 552a. the reasons for the disposition, of any (f) Privacy impact assessment (PIA) re- petition within the purview of this sec- quirements. Establishes requirements tion. for conducting, reviewing, approving, and publishing PIAs. Subpart F—DON Privacy Program § 701.101 Privacy program terms and SOURCE: 71 FR 27536, May 11, 2006, unless definitions. otherwise noted. (a) Access. Review or copying a record or parts thereof contained in a system § 701.100 Purpose. of records by any individual. Subparts F and G of this part imple- (b) Agency. For the purposes of dis- ment the Privacy Act (5 U.S.C. 552a), closing records subject to the PA be- and the DOD Directives 5400.11 and tween or among DOD components, DOD 5400.11–R series, DOD Privacy Program is considered a single agency. For all (see 32 CFR part 310) and provides DON other purposes, DON is considered an policies and procedures to ensure that agency within the meaning of PA.

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(c) Disclosure. The transfer of any (k) Minor. Under this subpart, a personal information from a system of minor is an individual under 18 years of records by any means of communica- age, who is not a member of the U.S. tion (such as oral, written, electronic, Navy or Marine Corps, or married. mechanical, or actual review), to any (l) Official use. Within the context of person, private entity, or Government this subpart, this term is used when agency, other than the subject of the DON officials and employees have a record, the subject’s designated agent demonstrated need for the use of any or the subject’s legal guardian. record or the information contained (d) Federal personnel. Officers and em- therein in the performance of their of- ployees of the U.S. Government, mem- ficial duties. bers of the uniformed services (includ- (m) Personal information. Information ing members of the reserve), individ- about an individual that identifies, re- uals or survivors thereof, entitled to lates, or is unique to, or describes him receive immediate or deferred retirement benefits under any retirement or her (e.g., Social Security Number program of the U.S. Government (in- (SSN), age, military rank, civilian cluding survivor benefits). grade, marital status, race, salary, (e) Individual. A living citizen of the home/office phone numbers, etc.). U.S. or an alien lawfully admitted to (n) Privacy Act (PA) request. A request the U.S. for permanent residence. The from an individual for notification as custodial parent of a minor or the legal to the existence of, access to, or guardian of any individual also may amendment of records pertaining to act on behalf of an individual. Members that individual. These records must be of the United States Armed Forces are maintained in a system of records. ‘‘individuals.’’ Corporations, partner- (o) Privacy Impact Assessment (PIA). ships, sole proprietorships, professional An ongoing assessment to evaluate groups, businesses, whether incor- adequate practices in balancing pri- porated or unincorporated, and other vacy concerns with the security needs commercial entities are not ‘‘individ- of an organization. The process is de- uals.’’ signed to guide owners and developers (f) Individual access. Access to infor- of information systems in assessing mation pertaining to the individual by privacy through the early stages of de- the individual or his/her designated velopment. The process consists of pri- agent or legal guardian. vacy training, gathering data from a (g) Information in identifiable form project on privacy issues, identifying (IIF). Information in an Information and resolving the privacy risks, and ap- Technology (IT) system or online col- proval by a designated privacy rep- lection that directly identifies an indi- resentative. vidual (e.g., name, address, social secu- (p) Protected personal information rity number or other identifying code, (PPI). Any information or characteris- telephone number, e-mail address, etc.) tics that may be used to distinguish or or by an agency intends to identify spe- trace an individual’s identity, such as cific individuals in conjunction with their name, SSN, or biometric records. other data elements (i.e., indirect identification that may include a combina- (q) Record. Any item, collection, or tion of gender, race, birth date, geo- grouping of information, whatever the graphic indicator, and other storage media (e.g., paper, electronic, descriptors). etc), about an individual that is main- (h) Information system. A discrete set tained by a DON activity including, of information resources organized for but not limited to, the individual’s the collection, processing, mainte- education, financial transactions, and nance, transmission, and dissemination medical, criminal, or employment his- of information. tory, and that contains the individual’s (i) Maintain. Includes maintain, col- name or other identifying particulars lect, use, or disseminate. assigned to the individual, such as a (j) Member of the public. Any indi- finger or voice print or a photograph. vidual or party acting in a private ca- (r) Review authority. An official pacity. charged with the responsibility to rule

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on administrative appeals of initial de- § 701.102 Online resources. nials of requests for notification, ac- (a) Navy PA online Web site (http:// cess, or amendment of records. www.privacy.navy.mil). This Web site SECNAV has delegated review author- supplements this subpart and subpart ity to the Assistant Secretary of the G. It provides a detailed understanding Navy (Manpower & Reserve Affairs) of the DON’s PA Program. It contains (ASN(M&RA)), General Counsel of the information on Navy and Marine Corps DON (GC), and the Judge Advocate systems of records notices; Govern- General of the Navy (JAG). Addition- ment-wide systems of records notices ally, the Office of Personnel Manage- that can be used by DON personnel; and ment (OPM) is the review authority for identifies Navy and Marine Corps ex- civilian official personnel folders or empt systems of records notices. It in- records contained in any other OPM cludes: PA policy documents; sample record. training materials; DOD ‘‘Blanket Rou- (s) ‘‘Routine use’’ disclosure. A disclo- tine Uses;’’ a checklist for conducting sure of a record made outside DOD for staff assistance visits; a copy of PA a purpose that is compatible with the statute; guidance on how to establish, purpose for which the record was col- delete, alter, or amend PA systems of lected and maintained by DOD. The records notices; and provides updates ‘‘routine use’’ must have been included on the DON’s PA Program. in the notice for the system of records (b) DON Chief Information Officer published in the FEDERAL REGISTER. (DON CIO) Web site (http:// (t) Statistical record. A record main- www.doncio.navy.mil). This Web site tained only for statistical research, or provides detailed guidance on PIAs. reporting purposes, and not used in (c) DOD’s PA Web site (http:// whole or in part in making any deter- www.defenselink.mil/privacy). This Web mination about a specific individual. site is an excellent resource that con- (u) System manager. An official who tains a listing of all DOD and its components’ PA systems of records notices, has overall responsibility for a system DOD PA directive and regulation, OMB of records. He/she may serve at any Circulars, Defense Privacy Decision level in DON. Systems managers are Memoranda, etc. indicated in the published record sys- (d) DON Freedom of Information Act tems notices. If more than one official (FOIA) Web site (http:// is indicated as a system manager, ini- www.foia.navy.mil). This Web site dis- tial responsibility resides with the cusses the interface between PA and manager at the appropriate level (i.e., FOIA and provides detailed guidance for local records, at the local activity). on the DON’s FOIA Program. (v) System of records. A group of records under the control of a DON ac- § 701.103 Applicability. tivity from which information is re- (a) DON activities. Applies to all DON trieved by the individual’s name or by activities that collect, maintain, or some identifying number, symbol, or disseminate PPI. Applies to DON ac- other identifying particular assigned to tivities and to contractors, vendors, the individual. System notices for all and other entities that develop, pro- PA systems of records must be pub- cure, or use Information Technology lished in the FEDERAL REGISTER and (IT) systems under contract to DOD/ are also available for viewing or DON, to collect, maintain, or dissemi- downloading from the Navy’s Privacy nate IIF from or about members of the Act Online Web site at http:// public. www.privacy.navy.mil. (b) Combatant commands. Applies to (w) Web site. A collection of informa- the U.S. Joint Forces Command tion organized into a number of Web (USJFCOM) and U.S. Pacific Command documents related to a common sub- (USPACOM), except for U.S. Forces ject or set of subjects, including the Korea as prescribed by DOD Directive ‘‘home page’’ and the linked subordi- 5100.3. nate information. (c) U.S. citizens and legally admitted (x) Working day. All days excluding aliens. Applies to living citizens of the Saturday, Sunday, and legal holidays. U.S. or aliens lawfully admitted for

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permanent legal residence. Requests ternal contractor management deci- for access to information in a PA sys- sions, such as records maintained by tem of records made by individuals who the contractor for use in managing the are not U.S. citizens or permanent resi- contract; dents will be processed under the provi- (ii) Maintained as internal contractor sions of the FOIA. employee records, even when used in (d) Federal contractors. Applies to conjunction with providing goods or Federal contractors by contract or services to a DON activity; other legally binding action, whenever (iii) Maintained as training records a DON contract provides for the oper- by an educational organization con- ation, maintenance, or use of records tracted by a DON activity to provide contained in a PA system of records to training when the records of the con- accomplish a DON function. tract students are similar to and com- (1) When a DON activity contracts mingled with training records of other for the operation or maintenance of a students, such as admission forms, system of records or a portion of a sys- transcripts, and academic counseling tem of records by a contractor, the and similar records; record system or the portion of the (iv) Maintained by a consumer re- record system affected are considered porting agency to which records have to be maintained by the DON activity been disclosed under 31 U.S.C. 3711; or and are subject to this subpart and sub- (7) DON activities shall establish con- part G of this part. tract surveillance programs to ensure (2) The contractor and its employees contractors comply with the proce- are considered employees of the DON dures established by the DAR Council. activity for purposes of the sanction (8) Disclosing records to a contractor provisions of the PA during the per- for use in performing a contract let by formance of the contract. a DON activity is considered a disclo- (3) The Defense Acquisition Regu- sure within DON (i.e., based on an offi- latory (DAR) Council, which oversees cial need to know). The contractor is the implementation of the Federal Ac- considered the agent of DON when re- quisition Regulations (FAR) within ceiving and maintaining the records for DOD, is responsible for developing the that activity. specific policies and procedures for soliciting, awarding, and administering (e) Precedence. In case of a conflict, contracts that are subject to this sub- this subpart and subpart G takes prece- part and 5 U.S.C. 552a. dence over any DON directive that (4) Consistent with the FAR regula- deals with the personal privacy and tions, contracts for the operation of a rights of individuals regarding their system of records shall identify specifi- personal records, except for disclosure cally the record system and the work of PPI required by 5 U.S.C. 552 and im- to be performed, and shall include in plemented by Secretary of the Navy the solicitation and resulting contract (SECNAVINST) 5720.42F. the terms as prescribed by the FAR § 701.104 Responsibility and authority. (see http://www.privacy.navy.mil (Admin Tools)). (a) Delegation. The Chief of Naval Op- (5) DON activities must furnish PA erations (CNO) for administering and Program guidance to their personnel supervising the execution of 5 U.S.C. who solicit and award or administer 552a, DOD Directive 5400.11 and DOD Government contracts; inform prospec- Regulation 5400.11–R. The Director, tive contractors of their responsibil- Navy Staff (DNS) will administer this ities regarding the DON PA Program; program through the Head, DON PA/ and establish an internal system of FOIA Policy Branch (DNS–36) who will contractor performance review to en- serve as the Principal PA Program sure compliance with the DON Privacy Manager for the DON. Program. (b) CNO (DNS–36). (1) Develops and (6) This instruction does not apply to implements DON policy on the provi- records of a contractor that are: sions of the PA; serves as principal ad- (i) Established and maintained solely visor on all DON PA matters; oversees to assist the contractor in making in- the administration of the DON’s PA

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program; reviews and resolves PA com- (8) Chairs the DON PA Oversight plaints; maintains the DON’s PA On- Working Group. line Web site; develops a Navy-wide PA (c) Commandant of the Marine Corps training program and serves as train- (CMC). (1) Administers and supervises ing oversight manager; establishes, the execution of this instruction with- maintains, deletes, and approves Navy in the Marine Corps and maintains and and joint Navy/Marine Corps PA sys- approves Marine Corps PA systems of tems of records notices; compiles re- records notices. The Commandant has ports that address the DON’s PA Pro- designated CMC (ARSF) as the PA gram to DOD and/or the Office of Man- manager for the U.S. Marine Corps. agement and Budget (OMB); conducts (2) Oversees the administration of the PA reviews as defined in OMB Circular Marine Corps’ PA program; reviews and A–130; publishes exempt systems of resolves PA complaints; develops a Ma- records in the CFR; and conducts staff rine Corps privacy education, training, assistance visits/program evaluations and awareness program; reviews and within DON to review compliance with validates PIAs for Marine Corps infor- 5 U.S.C. 552a, this subpart and subpart mation systems and submits the vali- G of this part. dation to CNO (DNS–36); establishes, (2) Serves as PA Coordinator for the maintains, deletes, and approves Ma- Secretary of the Navy (SECNAV), Of- rine Corps PA systems of records no- fice of the CNO (OPNAV) and the Naval tices; and conducts staff assistance vis- Historical Center (NHC). its/program evaluations within the Ma- (3) Represents SECNAV on the De- rine Corps to review compliance with 5 fense Privacy Board (DPO). Per DOD U.S.C. 552a, this subpart and subpart G Directive 5400.11, the Board has over- of this part. sight responsibility for implementa- (3) Serves as the PA Coordinator for tion of the DOD Privacy Program. all Headquarters, U.S. Marine Corps components, except for Marine Corps (4) Represents SECNAV on the De- Systems Command and the Marine fense Data Integrity Board. Per DOD Corps Combat Development Command. Directive 5400.11, the Board has over- (4) Provides input to CNO (DNS–36) sight responsibility for reviewing and for inclusion FISMA Report. approving all computer matching (5) Serves on the DON PA Oversight agreements between the DOD and other Working Group. Federal, State, or local government (6) Coordinates on all PIAs prior to agencies, as well as memoranda of un- the PIA being submitted to DON CIO derstanding when the match is internal for review and final approval, making a to DOD, to ensure that appropriate determination as to whether the new procedural and due process require- IT system constitutes a PA system of ments have been established before en- records. If it does, determines whether gaging in computer matching activi- an existing system covers the collec- ties. tion or whether a new systems notice (5) Provides input to the DPO on will have to be written and approved. OMB’s Federal Information Security As necessary, assists the DON activity Management Act (FISMA) Report. in creating and getting a new PA sys- (6) Coordinates on all PIAs prior to tem of records notice approved. the PIA being submitted to DON CIO (d) DON CIO. (1) Integrates protec- for review and final approval. Makes a tion of PPI into the overall DON major determination as to whether the new information system life cycle manage- IT system constitutes a PA system of ment process as defined in the E-Gov- records. If it does, determines whether ernment Act of 2002 (Pub. L. 107–347). an existing system covers the collec- (2) Provides guidance for effective as- tion or whether a new systems notice sessment and utilization of privacy-re- will have to be written and approved. lated technologies. As necessary, assists the DON activity (3) Provides guidance to DON offi- in creating and getting a new PA sys- cials on the conduct of PIAs (see their tem of records notice approved. Web site at http://www.doncio.navy.mil) (7) Oversees the administration of and oversees DON PIA policy and pro- OPNAV’s PA program. cedures to ensure PIAs are conducted

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commensurate with the information (e) The Chief of Information (CHINFO) system being assessed, the sensitivity and U.S. Marine Corps Director of Public of IIF in that system, and the risk of Affairs (DIRPA). CHINFO and DIRPA, harm for unauthorized release of that in accordance with DON CIO guidance information. Also, DON CIO reserves on Department-wide Information Man- the right to request that a PIA be com- agement (IM) and IT matters, are re- pleted on any system that may have sponsible for developing and admin- privacy risks. istering Navy and Marine Corps Web (4) Reviews and approves all PIAs for site privacy policies and procedures re- the DON and submits the approved spectively per SECNAVINST 5720.47B. PIAs to DOD and OMB according to Additionally, CHINFO and DIRPA: Federal and DOD guidance. (1) Maintains master World Wide Web (5) Serves as the focal point in estab- (WWW) page to issue new service-spe- lishing and validating DON informa- cific Web privacy guidance. CHINFO tion systems privacy requirements and will maintain a master WWW page to coordinating issues with other DOD issue DON guidance and DIRPA will Military Departments and Federal link to that page. All significant Agencies. changes to this Web site and/or its lo- (6) Develops and coordinates privacy cation will be issued via Naval policy, procedures, education, training, (ALNAV) message. and awareness practices regarding DON (2) Maintains overall cognizance for information systems. DON and U.S. Marine Corps Web sites (7) Compiles and prepares responses and Web site content-related questions to either DOD or OMB regarding PIA as they pertain to Web site privacy re- issues. quirements. (3) Ensures that public-facing Web (8) Develops and coordinates DON sites have machine-readable privacy web privacy policy, education, training policies ( , web privacy policies are and an awareness program in accord- i.e. P3P-enabled or automatically readable ance with DON Web privacy require- using some other tool). ments including annual Web site pri- (4) Provides input to CNO (DNS–36) vacy posting training with CNO (DNS– for inclusion in the FISMA Report. 36). (5) Serves on the DON PA Oversight (9) Provides guidance toward effec- Working Group. tive research and development of pri- (f) DON PA Oversight Working Group. vacy-related technologies. The DON PA Oversight Working Group (10) Serves as the focal point in es- is charged with reviewing and coordi- tablishing and validating DON Web pri- nating compliance with DON PA pro- vacy requirements and coordinating gram initiatives. CNO (DNS–36) will issues with DOD, other Military De- chair this working group, hosting partments, and other Federal agencies. meetings as deemed appropriate to dis- (11) Provides guidance on the use of cuss best PA practices, PA issues, encryption software to protect privacy FISMA reporting and other reporting sensitive information. requirements, PA training initiatives, (12) Implements DON IT privacy re- etc. At a minimum, membership shall quirements and coordinates IT infor- consist of CNO (DNS–36), DON CIO, mation system requirements that cross CMC (ARSF), CMC (C4I–IA), OJAG service boundaries with the Joint (Code 13), OGC (PA/FOIA), CMC (JAR), Staff. CHINFO, and CMC (PA). (13) Provides recommended changes (g) DON activities. Each DON activity to CNO (DNS–36) on policy guidance set is responsible for implementing and ad- forth in this instruction regarding IT ministering a PA program under this privacy policy and procedures that in- subpart and subpart G. cludes requirements/guidance for con- (h) Navy Echelon 2 and 3 Commands ducting PIAs. and Marine Corps Major Subordinate (14) Provides input to CNO (DNS–36) Commands. Each Navy Echelon 2 and 3 for inclusion in the FISMA Report. Command and Marine Corps Major (15) Serves on the DON PA Oversight Subordinate Command will designate a Working Group. PA Coordinator to:

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(1) Serve as principal point of contact lecting, maintaining, and dissemi- on PA matters. nating information in a PA system of (2) Advise CNO (DNS–36) promptly of records notice. the need to establish a new Navy PA (13) Process PA complaints. system of records; amend or alter an (14) Ensure protocols are in place to existing Navy system of records; or, de- avoid instances of loss of PPI. Should a lete a Navy system of records that is loss occur, take immediate action to no longer needed. apprise affected individuals of how to (3) Advise CMC (ARSF) promptly of ensure their identity has not been com- the need to establish a new Marine promised. Corps PA system of records; amend or (15) Work closely with their public af- alter an existing Marine Corps system fairs officer and/or web master to en- of records; or, delete a Marine Corps sure that PPI is not placed on public system of records that is no longer Web sites or in public folders. needed. (16) Annually conduct reviews of (4) Ensure no official files are main- their PA systems of records to ensure tained on individuals that are retrieved that they are necessary, accurate, and by name or other personal identifier complete. without first ensuring that a system of (17) Provide CNO (DNS–36) or CMC records notice exists that permits such (ARSF) respectively, with a complete collection. listing of all PA Coordinators under (5) Ensure that PA systems of records their jurisdiction. Such information managers are properly trained on their should include activity name, complete responsibilities for protecting PPI mailing and E-Mail addresses, office being collected and maintained under code, name of PA Coordinator, and the DON PA Program. commercial, DSN, and FAX telephone (6) Provide overview training to ac- numbers. tivity/command personnel on the provi- (18) Review and validate PIAs for sions of this subpart and subpart G. their information systems and submit (7) Issue an implementing instruction the validation to CNO (DNS–36) for which designates the activity’s PA Co- Navy information systems or to HQMC ordinator, addresses PA records dis- (ARSF) for Marine Corps information position, addresses PA processing pro- systems. cedures, identifies those PA systems of (i) DON employees/contractors. DON records being used by their activity; employees/contractors are responsible and provide training/guidance to those for safeguarding the rights of others personnel involved with collecting, by: maintaining, disseminating informa- (1) Ensuring that PPI contained in a tion from a PA system of records. system of records, to which they have (8) Review internal directives, forms, access or are using to conduct official practices, and procedures, including business, is protected so that the secu- those having PA implications and rity and confidentiality of the informa- where Statements (PAS) are used or tion is preserved. PPI is solicited. (2) Not disclosing any information (9) Maintain liaison with records contained in a system of records by management officials (e.g., mainte- any means of communication to any nance and disposal procedures and person or agency, except as authorized standards, forms, and reports), as ap- by this instruction or the specific PA propriate. systems of records notice. (10) Provide guidance on handling PA (3) Not maintaining unpublished offi- requests; scope of PA exemptions; and cial files that would fall under the pro- the fees, if any, that may be collected. visions of 5 U.S.C. 552a. (11) Conduct staff assistance visits or (4) Safeguarding the privacy of indi- program evaluations within their com- viduals and confidentiality of PPI con- mand and lower echelon commands to tained in a system of records. ensure compliance with the PA. (5) Properly marking all documents (12) Work closely with their PA sys- containing PPI data (e.g., letters, E- tems managers to ensure they are Mails, message traffic, etc.) as ‘‘FOR properly trained with regard to col- OFFICIAL USE ONLY—PRIVACY

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SENSITIVE—Any misuse or unauthor- enforcement purposes, under (b)(7) of 5 ized disclosure can result in both civil U.S.C. 552a, is delegated to CMC; the and criminal penalties.’’ Commander, Naval Criminal Investiga- (6) Not maintaining privacy-sensitive tive Service; JAG and GC. information in public folders. (m) System manager. System man- (7) Reporting any unauthorized dis- agers are responsible for overseeing the closure of PPI from a system of records collection, maintenance, use, and dis- to the applicable Privacy Point of Con- semination of information from a PA tact (POC) for his/her activity. system of records and ensuring that all (8) Reporting the maintenance of any personnel who have access to those unauthorized system of records to the records are aware of their responsibil- applicable Privacy POC for his/her ac- ities for protecting PPI that is being tivity. collected or maintained. In this capac- (j) Denial authority. Within DON, the ity, they shall: head of the activity having cognizance (1) Establish appropriate administra- over an exempt PA system of record is tive, technical, and physical safeguards authorized to deny access to that infor- to ensure the records in every system mation under the exemptions cited in of records are protected from unau- the PA systems of records notice. The thorized alteration, destruction, or dis- denial authority may also deny re- closure. quests to amend a system of records or (2) Protect the records from reason- to deny notification that a record ex- ably anticipated threats or hazards ists. As deemed appropriate, the head that could result in substantial harm, of the activity may further designate embarrassment, inconvenience, or un- initial denial authority to an indi- fairness to any individual on whom in- vidual properly trained on the provi- formation is maintained. sions of the PA and this subpart and (3) Work closely with their coordi- subpart G of this part. nator to ensure that all personnel who (k) Release authority. Within DON, of- have access to a PA system of records ficials having cognizance over a non- are properly trained on their respon- exempt PA system of record that is re- sibilities under the PA. Training mate- quested by a first party or his/her au- rials may be downloaded from http:// thorized representative are authorized www.privacy.navy.mil. to release records. A release authority (4) Ensure that no illegal files are may also grant requests for notifica- maintained. tion and amendment of systems of NOTE: Official files on individuals that are records. The PA systems manager, who retrieved by name and/or personal identifier is properly trained on the provisions of must be approved and published in the FED- 5 U.S.C. 552a, DOD Directive 5400.11 and ERAL REGISTER. DOD 5400.11–R, may be delegated this (5) Review annually each PA system responsibility. of records notice under their cog- (l) Review authority. (1) Assistant Sec- nizance to determine if the records are retary of the Navy (Manpower & Re- up-to-date and/or used in matching pro- serve Affairs) (ASN(M&RA)) is des- grams and whether they are in compli- ignated to act upon requests for admin- ance with the OMB Guidelines. Such istrative review of initial denials of re- items as organization names, titles, ad- quests for amendment of records re- dresses, etc., frequently change and lated to fitness reports and perform- should be reported to CNO (DNS–36) for ance evaluations of military personnel. updating and publication in the FED- (2) Both the JAG and GC are des- ERAL REGISTER. ignated to act upon requests for admin- (6) Work with IT personnel to iden- istrative review of initial denials of tify any new information systems records for notification, access, or being developed that contain PPI. If a amendment of records under their cog- PA systems notice does not exist to nizance. allow for the collection, assist in cre- (3) The authority of SECNAV, as the ating a new systems notice that per- head of an agency, to request records mits collection. subject to the PA from an agency ex- (7) Complete and maintain a PIA for ternal to DOD for civil or criminal law those systems that collect, maintain or

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disseminate IIF, according to DON PIA that DON activities shall fully comply guidance found at http:// with 5 U.S.C. 552a, DOD Directive www.privacy.navy.mil and http:// 5400.11 and DOD 5400.11–R to protect in- www.doncio.navy.mil. dividuals from unwarranted invasions (8) Complete and maintain a disclo- of privacy when information is col- sure accounting form for all disclosures lected, processed, maintained, or dis- made without the consent of the record seminated. To ensure compliance, DON subject, except those made within DOD activities shall follow the procedures or under FOIA. (See 701.111). listed in this section. (9) Ensure that only those DOD/DON (a) Collection, maintenance and use. (1) officials with a ‘‘need to know’’ in the Only maintain systems of records that official performance of their duties has have been approved and published in access to information contained in a the FEDERAL REGISTER. (See http:// system of records. www.privacy.navy.mil for a list of all (10) Ensure safeguards are in place to DOD, Navy, Marine Corps, and compo- protect the privacy of individuals and nent systems of records notices, as well confidentiality of PPI contained in a as, links to Government-wide systems system of records. that the DON is eligible to use). (11) Ensure that records are main- NOTE: CNO (DNS–36) can assist Navy ac- tained in accordance with the identi- tivities in identifying existing systems that fied PA systems of records notice. may meet their needs and HQMC (ARSF) can (12) Ensure that each newly proposed assist Marine Corps activities. PA system of records notice is evalu- (2) Only collect, maintain, and use ated for need and relevancy and con- PPI needed to support a DON function firm that no existing PA system of or program as authorized by law or records notice covers the proposed col- E.O. and disclose this information only lection. as authorized by 5 U.S.C. 552a, this sub- (13) Stop collecting any category or part and subpart G of this part. In as- item of information about individuals sessing need, DON activities shall con- that is no longer justified, and when sider alternatives such as: truncating feasible remove the information from the SSN by only using the last four existing records. digits; using information that is not in- (14) Ensure that records are kept in dividually identifiable; using a sam- accordance with retention and disposal pling of certain data for certain indi- requirements set forth in viduals only. Additionally, they shall SECNAVINST 5720.47B. consider the length of time the infor- (15) Take reasonable steps to ensure mation is needed and the cost of main- the accuracy, relevancy, timeliness, taining the information compared to and completeness of a record before the risks and adverse consequences of disclosing the record to anyone outside not maintaining the information. the Federal Government. (3) Only maintain PPI that is timely, (16) Identify all systems of records accurate, complete, and relevant to the that are maintained in whole or in part purpose for which it was collected. by contractor personnel, ensuring that (4) DON activities shall not maintain they are properly trained and that they records describing how an individual are routinely inspected for PA compli- exercises his/her rights guaranteed by ance. the First Amendment (freedom of religion; freedom of political beliefs; free- § 701.105 Policy. dom of speech; freedom of the press; DON recognizes that the privacy of the right to peaceful assemblage; and an individual is a personal and funda- petition for redress of grievances), un- mental right that shall be respected less they are: expressly authorized by and protected and that PPI shall be statute; authorized by the individual; collected, maintained, used, or dis- within the scope of an authorized law closed to ensure that it is relevant and enforcement activity; or are used for necessary to accomplish a lawful DON/ the maintenance of certain items of in- DOD purpose required to be accom- formation relating to religious affili- plished by statute or Executive Order ation for members of the naval service (E.O.). Accordingly, it is DON policy who are chaplains.

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NOTE: This should not be construed, how- (4) Allow individuals to appeal deci- ever, as restricting or excluding solicitation sions that deny them access to or re- of information that the individual is willing fusal to amend their records. If a re- to have in his/her record concerning religious preference, particularly that required in quest to amend their record is denied, emergency situations. allow the individual to file a written statement of disagreement. (b) Disposal. Dispose of records from (d) Posting and use of PA sensitive in- systems of records to prevent inad- formation. (1) Do not post PPI on an vertent disclosure. To this end: (1) Disposal methods are considered Internet site. Also, limit the posting adequate if the records are rendered and use of PA sensitive information on unrecognizable or beyond reconstruc- an Intranet Web site, letter, FAX, e- tion (e.g., tearing, burning, melting, mail, etc. chemical decomposition, burying, (2) When posting or transmitting pulping, pulverizing, shredding, or mu- PPI, ensure the following legend is tilation). Magnetic media may be posted on the document: ‘‘FOR OFFI- cleared by completely erasing, over- CIAL USE ONLY—PRIVACY ACT writing, or degaussing the tape. SENSITIVE: Any misuse or unauthor- (2) DON activities may recycle PA ized disclosure of this information may data. Such recycling must be accom- result in both criminal and civil pen- plished to ensure that PPI is not com- alties.’’ promised. Accordingly, the transfer of (e) Safeguarding PPI. DON activities large volumes of records in bulk to an shall establish appropriate administra- authorized disposal activity is not con- tive, technical and physical safeguards sidered a disclosure of records. to ensure that the records in every sys- (3) When disposing of or destroying tem of records are protected from un- large quantities of records from a sys- authorized alteration or disclosure and tem of records, DON activities must that their confidentiality is protected. ensure that the records are disposed of Protect the records against reasonably to preclude easy identification of spe- anticipated threats of hazards that cific records. could result in substantial harm, em- (c) Individual access. (1) Allow individ- barrassment, inconvenience, or unfair- uals to have access to and/or copies of ness to any individual about whom in- all or portions of their records to which formation is kept. At a minimum, DON they are entitled. In the case of a legal activities shall: guardian or custodial parent of a (1) Tailor system safeguards to con- minor, they have the same rights as form to the type of records in the sys- the individual he/she represents. A tem, the sensitivity of the PPI stored, minor is defined as an individual under the storage medium used, and the num- the age of 18. In the case of members of ber of records maintained. the Armed Forces under the age of 18, (2) Treat all unclassified records that they are not considered to be minors contain PPI that normally would be for the purposes of the PA. withheld from the public under FOIA (2) Enter all PA first-party access re- exemptions (b)(6) and (b)(7)(C) as if quests into a tracking system and as- they were designated ‘‘For Official Use sign a case file number. (Files should Only’’ and safeguard them from unau- comply with DON PA systems of thorized disclosure. records notice NM05211–1, PA Request (3) Ensure that privacy consider- Files and Tracking System at http:// ations are addressed in the re- www.privacy.navy.mil/notices.) engineering of business processes and (3) Allow individuals to seek amend- take proactive steps to ensure compli- ment of their records when they can ance with the PA and 5 U.S.C. 552a as identify and provide proof that factual they move from conducting routine information contained therein is erro- business via paper to electronic media. neous, untimely, incomplete, or irrele- (4) Recognize the importance of pro- vant. While opinions are not subject to tecting the privacy of its members, es- amendment, individuals who are denied pecially as it modernizes its collection access to amending their record may systems. Privacy issues must be ad- have a statement of disagreement dressed when systems are being devel- added to the file. oped, and privacy protections must be

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integrated into the development life is mandatory or voluntary; by what cycle of automated systems. This ap- law or other authority the SSN is so- plies also to contractors, vendors, and licited; and what uses will be made of other entities that develop, procure, or the SSN. use IT systems under contract to DOD/ (3) The preceding advice relates only DON, to collect, maintain, or dissemi- to the SSN. If other information about nate IIF from or about members of the the individual is solicited for a system public (see § 701.115). of records, a PAS also must be pro- (5) Ensure that adequate safeguards vided. are implemented and enforced to pre- (4) The notice published in the FED- vent misuse, unauthorized disclosure, ERAL REGISTER for each system of alteration, or destruction of PPI in records containing SSNs solicited from records per 5 U.S.C. 552a, this subpart individuals must indicate the author- and subpart G of this part. ity for soliciting the SSNs and whether it is mandatory for the individuals to § 701.106 Collecting information about provide their SSN. E.O. 9397 requires individuals. Federal Agencies to use SSNs as nu- (a) Collecting information directly from merical identifiers for individuals in the individual. To the greatest extent most Federal records systems. How- practicable, collect information for ever, it does not make it mandatory for systems of records directly from the in- individuals to provide their SSNs. dividual to whom the record pertains if (5) When entering military service or the record may be used to make an ad- civilian employment with the DON, in- verse determination about the individ- dividuals are asked to provide their ual’s rights, benefits, or privileges SSNs. In many instances, this becomes under a Federal program. the individual’s numerical identifier (b) Collecting information about indi- and is used to establish personnel, fi- viduals from third persons. It may not nancial, medical, and other official always be practical to collect all infor- records (as authorized by E.O. 9397). mation about an individual directly. The individuals must be given the noti- For example, when verifying informa- fication described above. Once the indi- tion through other sources for security vidual has provided his/her SSN to es- or employment suitability determina- tablish a record, a notification is not tions; seeking other opinions, such as a required when the SSN is requested supervisor’s comments on past per- only for identification or to locate the formance or other evaluations; obtain- records. ing the necessary information directly (6) DON activities are discouraged from the individual would be excep- from collecting SSNs when another tionally difficult or would result in un- identifier would suffice. In those in- reasonable costs or delays; or, the indi- stances where activities wish to dif- vidual requests or consents to con- ferentiate individuals, they may find it tacting another person to obtain the advantageous to only collect the last information. four digits of the individual’s SSN, (c) Soliciting the SSN. (1) It is unlawful which is not considered to be privacy for any Federal, State, or local govern- sensitive. ment agency to deny an individual a (7) If a DON activity requests an indi- right, benefit, or privilege provided by vidual’s SSN even though it is not re- law because the individual refuses to quired by Federal statute, or is not for provide his/her SSN. However, this pro- a system of records in existence and hibition does not apply if a Federal law operating prior to January 1, 1975, it requires that the SSN be provided, or must provide a PAS and make it clear the SSN is required by a law or regula- that disclosure of the number is vol- tion adopted before January 1, 1975, to untary. Should the individual refuse to verify the individual’s identity for a disclose his/her SSN, the activity must system of records established and in be prepared to identify the individual use before that date. by alternate means. (2) Before requesting an individual to (d) Contents of a PAS. (1) When an in- provide the SSN, the individual must dividual is requested to furnish PPI for be advised whether providing the SSN possible inclusion in a system of

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records, a PAS must be provided to the (4) On a separate form which the indi- individual, regardless of the method vidual may keep. used to collect the information (e.g., (f) Using forms issued by non-DOD ac- forms, personal or telephonic inter- tivities. Forms subject to the PA issued view, etc). If the information requested by other Federal agencies have a PAS will not be included in a system of attached or included. DON activities records, a PAS is not required. shall ensure that the statement pre- (2) The PAS shall include the fol- pared by the originating agency is ade- lowing: quate for the purpose for which the (i) The Federal law or E.O. that au- form will be used by the DON activity. thorizes collection of information (i.e., If the PAS provided is inadequate, the E.O. 9397 authorizes collection of DON activity concerned shall prepare a SSNs); new statement or a supplement to the (ii) Whether or not it is mandatory existing statement before using the for the individual to provide the reform. Forms issued by agencies not quested information. (Note: It is only subject to the PA (state, municipal, mandatory when a Federal law or E.O. and local agencies) do not contain a of the President specifically imposes a PAS. Before using a form prepared by requirement to furnish the information such agencies to collect PPI subject to and provides a penalty for failure to do this subpart and subpart G, an appro- so. If furnishing information is a condi- priate PAS must be added. tion precedent to granting a benefit or privilege voluntarily sought by the in- § 701.107 Record access. dividual, then the individual may de- The access provisions of this subpart cline to provide the information and and subpart G of this part are intended decline the benefit); for use by individuals about whom (iii) The principal purposes for col- records are maintained in systems of lecting the information; records. Accordingly, only individuals (iv) The routine uses that will be seeking first party access to records re- made of the information (e.g., to whom trieved by their name and/or personal and why it will be disclosed outside identifier from a system of records DOD); and have access under the provisions of 5 (v) The possible effects on the indi- U.S.C. 552a, this subpart and subpart G vidual if the requested information is of this part, unless they provide writ- not provided. ten authorization for their representa- (3) The PAS must appear on the form tive to act on their behalf. (See used to collect the information or on a § 701.107(e) regarding access by custo- separate form that can be retained by dial parents and legal guardians.) the individual collecting the informa- (a) How to request records. Individuals tion. If the information is collected by shall address requests for access to a means other than a form completed records retrieved by their name and/or by the individual, i.e., solicited over personal identifier to the PA systems the telephone, the PAS should be read manager or to the office designated in to the individual and if requested by the paragraph entitled, ‘‘Record Access the individual, a copy sent to him/her. Procedures.’’ There is no requirement that the indi- (1) DON activities may not require an vidual sign the PAS. individual to state a reason or justify (e) Format for a PAS. When forms are the need to gain access under 5 U.S.C. used to collect information about indi- 552a, this subpart and subpart G of this viduals for a system of records, the part. PAS shall appear as follows (listed in (2) However, an individual must com- the order of preference): ply with the requirements of the PA (1) Immediately below the title of the and this instruction in order to seek form; access to records under the provisions (2) Elsewhere on the front page of the of 5 U.S.C. 552a, this subpart and sub- form (clearly indicating it is the PAS); part G of this part. Specifically, indi- (3) On the back of the form with a no- viduals seeking access to records about tation of its location below the title of themselves that are maintained in a the form; or, PA system of records must sign their

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request and provide specific identifying ‘‘blanket’’ requests from individuals data to enable a search for the re- for access or copies of ‘‘all records per- quested record. Failure to sign the retaining to them,’’ because they do not quest or to provide sufficient identi- have a centralized index that would fying data to locate the record will re- allow them to query by name and per- sult in the request being returned for sonal identifier to identify ‘‘all files.’’ non-compliance with the ‘‘Record Ac- Accordingly, it is the requester’s recess Procedures’’ cited in the PA sys- sponsibility to identify the specific PA tem of records notice. system of records notice for which they (b) Authorized access. (1) Individuals seek information. To assist the re- may authorize the release of all or part quester in identifying such systems, of their records to anyone they choose DON activities shall apprise the re- provided they submit a signed author- quester that a listing of all DON PA ization to that DON activity. Such au- systems of records can be downloaded thorization must specifically state the from http://www.privacy.navy.mil and records to which the individual may that they should identify the specific have access. records they are seeking and write di- (2) Individuals may be accompanied rectly to the PA systems manager list- by anyone they choose when seeking to ed in the notice, following the guidance review their records. In such instance, set forth under the section entitled DON activities shall require the indi- ‘‘Record Access Procedures’’ of the no- vidual to provide a written authoriza- tice. tion to allow the record to be discussed (e) Access by custodial parents and in front of the other person. legal guardians. The custodial parent of (c) Failure to comply. First party re- any minor, or the legal guardian of any questers will be granted access to their individual declared by a court of com- records under the provisions of the PA, petent jurisdiction to be incompetent unless: due to physical or mental incapacity or (1) They did not properly identify the age, may obtain access to the record of records being sought; did not sign their the minor or incompetent individual request; and/or failed to provide suffi- under the provisions of the PA, if they cient identifying data to locate the re- are acting on behalf of/in the best in- quested record(s); terest of/for the benefit of the minor or (2) They are seeking access to infor- incompetent. If the systems manager mation in a system of records that is determines that they are not acting on exempt from disclosure in whole or in behalf of/in the best interest of/for the part under the provisions of 5 U.S.C. benefit of the minor or incompetent, 552a; access will not be granted under the (3) They are seeking access to infor- PA and the request will be processed mation that was compiled in anticipa- under FOIA (5 U.S.C. 552). See 701.122 tion of a civil action or proceeding (i.e., regarding access to medical records. 5 U.S.C. 552a(d)(5) applies). The term (f) Access by a minor or incompetent. ‘‘civil action or proceeding’’ includes The right of access of the parent or quasi-judicial and pre-trial judicial legal guardian is in addition to that of proceedings, as well as formal litiga- the minor or incompetent. Although a tion. However, this does not prohibit minor or incompetent has the same access to records compiled or used for right of access as any other individual purposes other than litigation or to under this subpart and subpart G of records frequently subject to litiga- this part, DON activities may wish to tion. The information must have been ascertain whether or not the individual compiled for the primary purpose of is being coerced to obtain records for litigation to be withheld under 5 U.S.C. the benefit of another. If so, the activ- 552a(d)(5); or ity may refuse to process the request (4) They are seeking access to infor- under the provisions of PA. mation contained in the system that is (g) Requests from members of Congress. currently and properly classified (see 5 Requests received from a Member of U.S.C. 552a(k)(1)). Congress on behalf of a constituent (d) Blanket requests. Many DON ac- shall be processed under the provisions tivities are unable to respond to of the PA and this subpart and subpart

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G of this part if the requester is seek- to divulge his/her SSN, unless it is the ing access to records about the con- only means of retrieving the record or stituent contained in a non-exempt PA verifying identity. system of records (i.e., first party re- (2) DON activities may not insist quest). Otherwise, the request will be that a requester submit a notarized processed under the provisions of the signature to request records. Instead, FOIA (see 5 U.S.C. 552) since the re- the requester shall be offered the alter- quest is received from a third party native of submitting an unsworn dec- (i.e., not the record subject). laration that states ‘‘I declare under (1) The DOD ‘‘Blanket Routine Uses’’ perjury or penalty under the laws of enables DON activities to process re- the United States of America that the quests from Members of Congress on foregoing is true and correct.’’ behalf of their constituents without (j) Telephonic requests. DON activities submitting a written authorization shall not honor telephonic requests nor from the constituent granting author- unsigned E-Mail/FAX/letter requests ization to act on their behalf. for first party access to a PA system of (2) In those instances where the DON records. activity wishes to verify that a con- (k) Denials. (1) An individual may be stituent is seeking assistance from a denied access to a record pertaining to Member of Congress, an oral or written him/her only if the record was compiled statement by a Congressional staff in reasonable anticipation of civil ac- member is sufficient to confirm that tion; is in a system of records that has the request was received from the indi- been exempted from the access provi- vidual to whom the record pertains. sions of this subpart and subpart G of (3) If the constituent inquiry is made this part under one of the permitted on behalf of an individual other than exemptions; contains classified infor- the record subject (i.e., a third party mation that has been exempted from requester), advise the Member of Con- the access provision of this instruction gress that a written consent from the under the blanket exemption for such record subject is required before infor- material claimed for all DOD PA sys- mation may be disclosed. Do not con- tems of records; is contained in a sys- tact the record subject to obtain contem of records for which access may be sent for the disclosure to the Member denied based on some other federal of Congress, unless specifically re- statute. quested by the Member of Congress. (2) Only deny the individual access to (4) Depending on the sensitivity of those portions of the records for which the information being requested, a the denial of access serves some legiti- DON activity may choose to provide mate governmental purpose. the record directly to the constituent (3) Only a designated denial author- and notify the congressional office that ity may deny access to information this has been done without providing contained in an exempt PA system of the record to the congressional mem- records. The denial must be in writing ber. and at a minimum include the name, (h) Release of PPI. Release of PPI to title or position and signature of the individuals under the PA and/or this designated denial authority; the date subpart or subpart G is not considered of the denial; the specific reason for to be a public release of information. the denial, including specific citation (i) Verification of identity. (1) An indi- to the appropriate sections of the PA vidual shall provide reasonable or other statutes, this instruction, or verification of identity before obtain- CFR authorizing the denial; notice to ing access to records. In the case of the individual of his/her right to appeal seeking to review a record in person, the denial through the component ap- identification of the individual can be peal procedure within 60 calendar days; verified by documents they normally and, the title or position and address of carry (e.g., identification card, driver’s the PA appeals official for the DON. license, or other license, permit/pass). (l) Illegible or incomplete records. DON DON activities shall not, however, activities may not deny an individual deny access to an individual who is the access to a record solely because the subject of the record solely for refusing physical condition or format of the

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record does not make it readily avail- § 701.108 Amendment of records. able (i.e., when the record is in a dete- Amendments under this subpart and riorated state or on magnetic tape). subpart G of this part are limited to DON activities may either prepare an correcting factual or historical matters extract or recopy the document and (i.e., dates and locations of service, par- mark it ‘‘Best Copy Available.’’ ticipation in certain actions of activi- (m) Personal notes. (1) Certain docu- ties, not matters of opinion (e.g., eval- ments under the physical control of a uations of work performance and as- DON employee and used to assist him/ sessments of promotion potential con- her in performing official functions are tained in employee evaluations, fitness not considered ‘‘agency records’’ with- reports, performance appraisals, or in the meaning of this instruction. Un- similar documents)) except when such circulated personal notes and records matters of opinion are based solely on that are not disseminated or circulated inaccurate facts and the accuracy of to any person or organization (e.g., per- those facts has been thoroughly dis- sonal telephone lists or memory aids) credited. that are retained or discarded at the (a) Individual review and correction. author’s discretion and over which the Individuals are encouraged to make DON activity does not exercise direct periodic reviews of the information maintained about them in systems of control, are not considered ‘‘agency records and to avail themselves of the records.’’ However, if personnel are of- amendment procedures established by 5 ficially directed or encouraged, either U.S.C. 552a, this subpart and subpart G in writing or orally, to maintain such of this part, and other regulations to records, they may become ‘‘agency update their records. records,’’ and may be subject this sub- (b) Eligibility. An individual may re- part and subpart G of this part. quest amendment of a record retrieved (2) The personal uncirculated hand- by his/her personal identifier from a written notes of unit leaders, office su- system of records, unless the: pervisors, or military supervisory per- (1) System has been exempt from the sonnel concerning subordinates are not amendment procedure under 5 U.S.C. systems of records within the meaning 552a and/or of this instruction. Such notes are an (2) Record is covered by another pro- extension of the individual’s memory. cedure for correction, such as by the These notes, however, must be main- Board for Correction of Naval Records. tained and discarded at the discretion (c) Amendment requests. Amendment of the individual supervisor and not requests shall be in writing, except for circulated to others. Any established routine administrative changes, such requirement to maintain such notes as change of address. (such as, written or oral directives, (1) An amendment request must in- regulations, or command policy) make clude: a description of the factual or these notes ‘‘agency records’’ and they historical information to be amended; then must be made a part of a system the reason for the amendment; the type of amendment action sought (e.g., of records. If the notes are circulated, deletion, correction, or addition); and they must be made a part of a system copies of available documentary evi- of records. Any action that gives per- dence that support the request. sonal notes the appearance of official (2) The burden of proof rests with the agency records is prohibited, unless the individual. The individual must dem- notes have been incorporated into a onstrate the existence of specific evi- system of records. dence establishing the factual or his- (n) Compiled in anticipation of litiga- torical inaccuracy, and in the case of tion. An individual is not entitled to matters of opinion, must specifically access information compiled in reason- discredit the underlying facts. General able anticipation of a civil action or allegations of error are inadequate. proceeding. Accordingly, deny access (3) The individual may be required to under 5 U.S.C. 552a(d)(5) and then proc- provide identification to prevent the ess under FOIA (SECNAVINST inadvertent or intentional amendment 5740.42F) to determine releasibility. of another’s record.

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(d) Limits on attacking evidence pre- (2) Notify previous recipients. Notify viously submitted. (1) The amendment all previous recipients of the informa- process is not intended to permit the tion (as reflected in the disclosure ac- alteration of evidence presented in the counting record) that the amendment course of judicial or quasi-judicial pro- has been made and provide each a copy ceedings. Any amendments or changes of the amended record. Recipients who to these records normally are made are no longer retaining the record need through the specific procedures estab- not be advised of the amendment. If it lished for the amendment of such is known that other naval activities, records. DOD components, or Federal Agencies (2) Nothing in the amendment proc- have been provided the information ess is intended or designed to permit a that now requires amendment, or if the collateral attack upon what has al- individual requests that these agencies ready been the subject of a judicial or be notified, provide the notification of quasi-judicial determination. However, amendment even if those activities or while the individual may not attack agencies are not listed on the disclo- the accuracy of the judicial or quasi- sure accounting form. judicial determination under this in- (h) Denying an amendment request. If struction, he/she may challenge the ac- an amendment request is denied in curacy of the recording of that action. whole or in part, promptly notify the (e) Sufficiency of a request to amend. individual in writing and include the DON activities shall consider the fol- following information in the notifica- lowing factors when evaluating the suf- tion: ficiency of a request to amend: the ac- (1) Those sections of 5 U.S.C. 552a, curacy of the information itself and this subpart or subpart G of this part the relevance, timeliness, complete- upon which the denial is based; ness, and necessity of the recorded in- (2) His/her right to appeal to the head formation for accomplishing an as- of the activity for an independent re- signed mission or purpose. view of the initial denial; (f) Time limits. Within 10 working days (3) The procedures for requesting an of receiving an amendment request, the appeal, including the title and address systems manager shall provide the in- of the official to whom the appeal dividual a written acknowledgement of should be sent; and the request. If action on the amend- (4) Where the individual can receive ment request is completed within the assistance in filing the appeal. 10 working days and the individual is (i) Requests for amendment of OPM so informed, no separate acknowledg- records. The records in an OPM Govern- ment is necessary. The acknowledgment-wide system of records are only ment must clearly identify the request temporarily in the custody of DON ac- and advise the individual when to ex- tivities. See the appropriate OPM Gov- pect notification of the completed ac- ernment-wide systems notice at http:// tion. Only under exceptional cir- www.defenselink.mil/privacy/govwide for cumstances should more than 30 work- guidance on how to seek an amending days be required to complete the ment of information. The custodian action on an amendment request. DON denial authority may deny a re- (g) Granting an amendment request in quest, but all denials are subject to re- whole or in part. A record must be accu- view by the Assistant Director for rate, relevant, timely, complete, and Workforce Information, Office of Merit necessary. If the record in its present Systems Oversight and Effectiveness, state does not meet each of the cri- Office of Personnel Management, 1900 E teria, the requester’s request to amend Street, NW., Washington, DC 20415. the record should be granted to the ex- (j) Individual’s statement of disagree- tent necessary to meet them. ment. (1) If the review authority refuses (1) Notify the requester. To the extent to amend the record as requested, the the amendment request is granted, the individual may submit a concise state- systems manager shall notify the indi- ment of disagreement listing the rea- vidual and make the appropriate sons for disagreeing with the refusal to amendment. amend.

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(2) If possible, DON activities shall (c) Review authorities. ASN (M&RA), incorporate the statement of disagree- JAG, and GC are authorized to adju- ment into the record. If that is not pos- dicate appeals made to SECNAV. JAG sible, annotate the record to reflect and GC are further authorized to dele- that the statement was filed and main- gate this authority to a designated As- tain the statement so that it can be sistant JAG or Deputy Assistant JAG readily obtained when the disputed in- and the Principal Deputy General formation is used or disclosed. Counsel or Deputy General Counsel, re- (3) Furnish copies of the statement of spectively, under such terms and condi- disagreement to all individuals listed tions as they deem appropriate. on the disclosure accounting form (ex- (1) If the record is from a civilian Of- cept those no longer retaining the ficial Personnel Folder or is contained record), as well as to all other known on any other OPM forms, send the ap- holders of copies of the record. peal to the Assistant Director for (4) Whenever the disputed informa- Workforce Information, Personnel Sys- tion is disclosed for any purpose, en- tems and Oversight Group, Office of sure that the statement of disagree- Personnel Management, 1900 E Street, ment is also disclosed. NW., Washington, DC 20415. Records in (k) Statement of reasons. (1) If the in- all systems of records maintained in dividual files a statement of disagree- accordance with the OPM Government- ment, the DON activity may file a wide systems notices are only in the statement of reasons containing a con- temporary custody of the DON. cise summary of the activity’s reasons (2) If the record pertains to the em- for denying the amendment request. ployment of a present or former Navy (2) The statement of reasons shall or Marine Corps civilian employee, contain only those reasons given to the such as Navy or Marine Corps civilian individual by the appellate official and personnel records or an employee’s shall not contain any comments on the grievance or appeal file, send it to the individual’s statement of disagree- General Counsel of the Navy, 1000 Navy ment. Pentagon, Washington, DC 20350–1000. (3) At the discretion of the DON ac- (3) If the record pertains to a present tivity, the statement of reasons may be or former military member’s fitness re- disclosed to those individuals, activi- ports or performance evaluations, send ties, and agencies that receive the it to the Assistant Secretary of the statement of disagreement. Navy (Manpower and Reserve Affairs), 1000 Navy Pentagon, Washington, DC § 701.109 Privacy Act (PA) appeals. 20350–1000. (4) All other records dealing with (a) How to file an appeal. Individuals present or former military members wishing to appeal a denial of notifica- should be sent to the Office of the tion, access, or amendment of records Judge Advocate General, 1322 Patter- shall follow these guidelines: son Avenue SE., Suite 3000, Washington (1) The appeal must be received by Navy Yard, DC 20374–5066. the cognizant review authority (i.e., (d) Appeal procedures. (1) If the appeal ASN (M&RA), OJAG, OGC, or OPM) is granted, the review authority shall within 60 calendar days of the date of advise the individual that his/her ap- the response. peal has been granted and provide ac- (2) The appeal must be in writing and cess to the record being sought. requesters should provide a copy of the (2) If the appeal is denied totally or denial letter and a statement of their in part, the appellate authority shall reasons for seeking review. advise the reason(s) for denying the ap- (b) Time of receipt. The time limits for peal, citing the appropriate subsections responding to an appeal commence of 5 U.S.C. 552a or this subpart and sub- when the appeal reaches the office of part G of this part; the date of the ap- the review authority having jurisdic- peal determination; the name, title, tion over the record. Misdirected ap- and signature of the appellate author- peals should be referred expeditiously ity; and a statement informing the re- to the proper review authority and the quester of his/her right to seek judicial requester notified. relief in the Federal District Court.

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(e) Final action, time limits and docu- empt from disclosure, it must be re- mentation. (1) The written appeal notifi- leased. Note: No disclosure accounting cation granting or denying access is required. the final naval activity action on the (c) Routine use. Each DON PA system initial request for access. of records notice identifies what (2) All appeals shall be processed records may be disclosed outside DOD within 30 working days of receipt, un- without consent of the individual to less the appellate authority finds that whom the record pertains. an adequate review cannot be com- NOTE: Disclosure accounting is required. pleted within that period. If additional (1) A routine use shall be compatible time is needed, notify the applicant in with and related to the purpose for writing, explaining the reason for the which the record was compiled; iden- delay and when the appeal will be com- tify the persons or organizations to pleted. whom the record may be released; iden- (f) Denial of appeal by activity’s failure tify specifically the uses to which the to act. An individual may consider his/ information may be put by the receiv- her appeal denied if the appellate au- ing agency; and, have been published thority fails to: previously in the FEDERAL REGISTER. (1) Take final action on the appeal (2) A routine use shall be established within 30 working days of receipt when for each user of the information out- no extension of time notice was given; side the DOD who needs the informa- or (2) Take final action within the pe- tion for an official purpose. (3) A routine use may be established, riod established by the notice to the appellate authority of the need for an discontinued, or amended without the extension of time to complete action consent of the individuals involved. on the appeal. However, new or changed routine uses must be published in the FEDERAL REG- § 701.110 Conditions of disclosure. ISTER for at least 30 days before actually disclosing the records. The PA identifies 12 conditions of (4) In addition to specific routine disclosure whereby records contained uses, the DOD has identified certain in a system of records may be disclosed ‘‘Blanket Routine Uses’’ that apply to by any means of communication to any all systems, unless the systems notice person, or to another agency, except states that they do not. (See § 701.112 pursuant to a written request by, or with the prior written consent of, the regarding Blanket Routine Uses.) (d) Bureau of Census. Records may be individual to whom the record pertains. These instances are identified as: disclosed to the Bureau of Census for (a) Official need to know. Records per- purposes of planning or carrying out a taining to an individual may be dis- census or survey or related activity closed without the consent of the indi- pursuant to the provisions of Title 13. vidual to any DOD official who has NOTE: Disclosure accounting is required. need for the record in the performance (e) Statistical research and reporting. of his/her assigned duties. Rank, posi- Records may be disclosed for statis- tion, or title alone does not authorize tical research and reporting without access to PPI about others. An official the consent of the individual to whom need must exist before disclosure can they pertain. Before such disclosures, be made. For the purposes of disclo- the recipient must provide advance sure, DOD is considered a single agen- written assurance that the records will cy. be used as statistical research or re- NOTE: No disclosure accounting required. porting records; only to transferred in (b) FOIA. Records must be disclosed a form that is not individually identifi- if their release is required by FOIA. 5 able; and will not be used, in whole or U.S.C. 552 and SECNAVINST 5720.42F in part, to make any determination require that records be made available about rights, benefits, or entitlements to the public unless exempted from dis- of specific individuals. closure by one of the nine FOIA exemp- NOTE: Disclosure accounting is required. tions found in the Act. It follows, (f) National Archives and Records Ad- therefore, that if a record is not ex- ministration (NARA). Records may be

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disclosed to NARA as a record that has taining to an individual shall not be sufficient historical or other value to honored. The requesting agency must warrant its continued preservation by specify each record or portion desired the U.S. Government, or for evaluation and how each relates to the authorized by the Archivist of the U.S. or his des- law enforcement activity. ignee to determine whether the record (4) When a record is released to a law has such value. enforcement activity under this rou- NOTE: Disclosure accounting is required. tine use, DON activities shall maintain (1) Records may be disclosed to a disclosure accounting. This disclo- NARA to carry out records manage- sure accounting shall not be made ment inspections required by law. available to the individual to whom the (2) Records transferred to a Federal record pertains if the law enforcement Records Center (FRC) operated by activity requests that the disclosure NARA for storage are not within this not be released. category. Those records continue to be (5) The Blanket Routine Use for law maintained and controlled by the enforcement records applies to all DON transferring DON activity. The FRC is PA systems of records notices. Only by considered to be the agency of the DON including this routine use can a DON for this purpose. activity on its own initiative report in- (g) Disclosures for law enforcement pur- dications of violations of law found in poses. Records may be disclosed with- a system of records to a law enforce- out the consent of the individual whom ment activity without the consent of they pertain to another agency or to an the individual to whom the record per- instrumentality of any governmental tains. jurisdiction within or under the con- (h) Emergency disclosures. Records trol of the U.S. for a civil or criminal may be disclosed without the written law enforcement activity provided the consent of the individual to whom they civil or criminal law enforcement ac- pertain if disclosure is made under tivity is authorized by law; the head of compelling circumstances affecting the the law enforcement activity or a des- health or safety of any individual. The ignee has made a written request speci- affected individual need not be the sub- fying the particular records desired and ject of the record disclosed. the law enforcement purpose (such as NOTE: Disclosure accounting is required. criminal investigations, enforcement of a civil law, or a similar purpose) for (1) When such a disclosure is made, which the record is sought; and there is notify the individual who is the subject no Federal statute that prohibits the of the record. Notification sent to the disclosure of the records to the agency last known address of the individual re- which maintains the record specifying flected in the records is sufficient. the particular portion desired and the (2) In instances where information is law enforcement activity for which the requested by telephone, an attempt record is sought. will be made to verify the inquirer’s (1) Disclosure to foreign law enforce- and medical facility’s identities and ment agencies is not governed by the the caller’s telephone number. provisions of 5 U.S.C. 552a. To enable (3) The specific data to be disclosed is disclosure, a specific routine use must at the discretion of the releasing au- be published in the record system no- thority. Emergency medical informa- tice or another governing authority tion may be released by telephone. must exist. (i) Disclosure to Congress. (1) Records (2) If a DON activity discloses a may be disclosed without the consent record outside the DOD for law enforce- of the individual to whom they pertain ment purposes without the individual’s to either house of the Congress or to consent and without an adequate writ- any committee, joint committee or ten request, the disclosure must be subcommittee of Congress if the re- under an established routine use, such lease pertains to a matter within the as the ‘‘Blanket Routine Use’’ for law jurisdiction of the committee. Note: enforcement. Disclosure accounting is required. (3) Blanket requests from law en- (2) See § 701.107(g) regarding how to forcement activities for all records per- process constituent inquiry requests.

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(j) Government Accountability Office NOTE: Disclosure accounting is required. (GAO). Records may be disclosed to the Comptroller General, or any of his au- § 701.111 Disclosure accounting. thorized representatives, in the course Disclosure accounting allows the in- of the performance of the duties of the dividual to determine what agencies or GAO. persons have been provided informa- NOTE: Disclosure accounting is required. tion from the record, enable DON ac- (k) Court orders. Records may be dis- tivities to advise prior recipients of the closed without the consent of the per- record of any subsequent amendments son to whom they pertain under a or statements of dispute concerning court order signed by a judge of a court the record, and provide an audit trail of competent jurisdiction. Releases of DON’s compliance with 5 U.S.C. 552a. may also be made under the compul- Since the characteristics of various sory legal process of Federal and state records maintained within the DON bodies having authority to issue such vary widely, no uniform method for process. keeping disclosure accountings is pre- NOTE: Disclosure accounting is required. scribed. The primary criteria are that (1) The court order must bear the sig- the selected method be one which will nature of a Federal, state, or local enable an individual to ascertain what judge. Orders signed by court clerks or persons or agencies have received dis- attorneys are not deemed to be orders closures pertaining to him/her; provide of a court of competent jurisdiction. A a basis for informing recipients of sub- photocopy of the order will be suffi- sequent amendments or statements or cient evidence of the court’s exercise of dispute concerning the record; and, its authority of the minimal require- provide a means to prove, if necessary, ments of SECNAVINST 5820.8A, ‘‘Re- that the activity has complied with the lease of Official Information for Litiga- requirements of 5 U.S.C. 552a, this sub- tion Purposes and Testimony by DON part and subpart G of this part. Personnel.’’ (a) Record of disclosures made. DON ac- (2) When a record is disclosed under tivities must keep an accurate record this provision and the compulsory legal of all disclosures made from a record process becomes a matter of public (including those made with the consent record, make reasonable efforts to no- of the individual) except those made to tify the individual to whom the record DOD personnel for use in performing pertains. Notification sent to the last their official duties and those disclo- known address of the individual is suf- sures made under FOIA. Accordingly, ficient. If the order has not yet become each DON activity with respect to each a matter of public record, seek to be system of records under its control advised as to when it will become pub- must keep a record of the date of the lic. Neither the identity nor the party disclosure, a description of the infor- to whom the disclosure was made nor mation disclosed, the purpose of the the purpose of the disclosure shall be disclosure, and the name and address of made available to the record subject the person or agency to whom the dis- unless the court order has become a closure was made. OPNAV Form 5211/9, matter of public record. Disclosure Accounting Form, is (l) Disclosures to consumer reporting downloadable from http:// agencies. Certain information may be www.privacy.navy.mil and should be disclosed to a consumer reporting used whenever possible to account for agency in accordance with section disclosures. 3711(f) of Title 31. NOTE: DON activities do not have to main- NOTE: Certain information (e.g., name, ad- tain a disclosure accounting for disclosures dress, SSN, other information necessary to made under (b)(1), to those officers and em- establish the identity of the individual; ployees of an agency which maintains the amount, status, and history of the claim; and record who have a need for the record in the the agency or program under which the performance of their duties or under (b)(2)— claim arose, may be disclosed to consumer which is required under FOIA. reporting agencies (i.e., credit reference companies as defined by the Federal Claims Col- (b) Retention. Disclosure accountings lection Act of 1966, 31 U.S.C. 952d). must be kept for five years after the

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disclosure is made or for the life of the established by publishing a notice in record, whichever is longer. the FEDERAL REGISTER. This allows in- (c) Right of access. The record subject terested persons an opportunity to has the right of access to the disclosure comment. accounting except when the disclosure (c) Access. A PA exemption may not was made at the request of a civil or be used to deny an individual access to criminal law enforcement agency or information that he/she can obtain when the system of records has been under 5 U.S.C. 552. exempted from the requirement to pro- (d) Exemption status. An exempt sys- vide access to the disclosure account- tem of records that is filed in a non-ex- ing. empt system of records retains its ex- (d) Correction. A DON activity must empt status. inform any person or other agency (e) Types of exemptions. There are two about any correction or notation of types of exemptions permitted by 5 dispute made by the agency in accord- U.S.C. 552a, general and specific exemp- ance with subsection (d) of 5 U.S.C. tions. 552a of any record that has been disclosed to the person or agency if an ac- (1) General exemptions allow a sys- counting of the disclosure was made. tem of records to be exempt from all The exception is for intra-agency ‘‘need but specifically identified provisions of to know’’ and FOIA disclosures. 5 U.S.C. 552a. They are: (e) Accurate accounting. A DON activ- (i) ‘‘(j)(1)’’—this exemption is only ity that does not keep a running tab- available for use by CIA to protect ac- ulation of every disclosure at the time cess to their records. it is made, must be able to reconstruct (ii) ‘‘(j)(2)’’—this exemption protects an accurate and complete accounting criminal law enforcement records of disclosures to be able to respond to maintained by the DON. To be eligible, requests in a timely fashion. the system of records must be maintained by a DON activity that per- § 701.112 ‘‘Blanket routine uses.’’ forms, as one of its principal functions, In the interest of simplicity, econ- the enforcement of criminal laws. For omy, and to avoid redundancy, DOD example, the Naval Criminal Investiga- has established ‘‘DOD Blanket Routine tive Service and military police activi- Uses.’’ These ‘‘blanket routine uses’’ ties qualify for this exemption. Crimi- are applicable to every PA system of nal law enforcement includes police ef- records notice maintained within DOD, forts to detect, prevent, control, or re- unless specifically stated within a par- duce crime, or to apprehend criminals ticular systems notice. ‘‘DOD Blanket and the activities of prosecution, Routine Uses’’ are downloadable from court, correctional, probation, pardon, http://www.privacy.navy.mil (Notices) or parole authorities. and are published at the beginning of (A) This exemption applies to infor- the Department of the Navy’s FEDERAL mation compiled for the purpose of REGISTER compilation of record sys- identifying criminal offenders and al- tems notices. leged criminal offenders and identifying data and notations of arrests; the § 701.113 PA exemptions. nature and disposition of criminal (a) Exempt systems of records. 5 U.S.C. charges; and sentencing, confinement, 552a authorizes SECNAV to adopt rules release, parole and probation status; designating eligible systems of records information compiled for the purpose as exempt from certain requirements of a criminal investigation, including of the Act. This authorization has been reports of informants and investiga- delegated to CNO (DNS–36), who will be tors, and associated with the identifi- responsible for proposing an exemption able individual; and reports identifi- rule. Exempt systems of records are able to an individual, compiled at any identified at http:// stage of the enforcement process, from www.privacy.navy.mil. arrest, apprehension, indictment, or (b) Exemption rule. No PA exemption preferral of charges through final re- may be established for a system of lease from the supervision that re- records until the system itself has been sulted from the commission of a crime.

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(B) The exemption does not apply to tity of the source would be held in con- investigative records maintained by a fidence, or, prior to September 27, 1975, DON activity having no criminal law under an implied promise that the enforcement duties as one of its prin- identity of the source would be held in ciple functions; or investigative confidence. records compiled by any element con- (vi) ‘‘(k)(6)’’: Testing and evaluation cerning an individual’s suitability, eli- material used solely to determine indi- gibility; or, qualification for duty, em- vidual qualifications for appointment ployment, or access to classified infor- or promotion in the Federal service the mation, regardless of the principle disclosure of which would compromise functions of the DON activity that the objectivity or fairness of the test- compiled them. ing or examination process. (2) Specific exemptions permit cer- (vii) ‘‘(k)(7)’’: Evaluation material tain categories of records to be ex- used to determine potential for pro- empted from specific provisions of 5 motion in the armed services, but only U.S.C. 552a. They are: to the extent that the disclosure of (i) ‘‘(k)(1)’’: Information which is such material would reveal the iden- properly classified under E.O. in the interest of national defense or foreign tity of the source who furnished infor- policy. mation to the government under an express promise that the identity of the NOTE: All DOD systems of records that contain classified information automatically source would be held in confidence, or, qualify for (k)(1) exemption, without estab- prior to September 27, 1975, under an lishing an exemption rule. implied promise that the identity of (ii) ‘‘(k)(2)’’: Investigatory material the source would be held in confidence. compiled for law enforcement purposes, (f) Detailed analysis of PA exemptions. other than material within the scope of A detailed analysis of each exemption exemption (j)(2). If an individual is de- can be found in the Department of Jus- nied any right, privilege, or benefit tice’s (DOJ’s) ‘‘Freedom of Information that he would otherwise be eligible, as Act Guide & Privacy Act Overview’’ a result of such material, such mate- that appears on http:// rial shall be provided to such indi- www.privacy.navy.mil. vidual, except to the extent that the disclosure would reveal the identity of § 701.114 PA enforcement actions. a source who furnished information to the Government under an express (a) Administrative remedies. Any indi- promise that the identity of the source vidual who alleges that he/she has been would be held in confidence, or, prior affected adversely by a DON activity’s to 27 September 1975 under an implied violation of 5 U.S.C. 552a and this sub- promise that the identity of the source part may seek relief from SECNAV would be held in confidence. through administrative channels. It is (iii) ‘‘(k)(3)’’: Information maintained recommended that the individual first in connection with providing protec- address the issue through the PA coor- tive services to the President of the dinator having cognizance over the rel- United States or other individuals pur- evant records or supervisor (if a Gov- suant to section 3056 of Title 18. ernment employee). If the complaint is (iv) ‘‘(k)(4)’’: Information required by not adequately addressed, the indi- statute to be maintained and used sole- vidual may contact CNO (DNS–36) or ly as statistical records. CMC (ARSF), for assistance. (v) ‘‘(k)(5)’’: Investigatory material (b) Civil court actions. After exhaust- compiled solely for the purpose of de- ing administrative remedies, an indi- termining suitability, eligibility, or vidual may file a civil suit in Federal qualifications for Federal civilian em- court against a DON activity for the ployment, military service, Federal following acts: contracts, or access to classified infor- (1) Denial of an amendment request. mation, but only to the extent that the The activity head, or his/her designee disclosure of such material would re- wrongfully refuses the individual’s reveal the identity of a source who fur- quest for review of the initial denial of nished information to the Government an amendment or, after review, wrong- under an express promise that the iden- fully refuses to amend the record.

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(2) Denial of access. The activity promptly provided to CNO (DNS–36). wrongfully refuses to allow the indi- CNO (DNS–36) will apprise the DPO. vidual to review the record or wrongfully denies his/her request for a copy § 701.115 Protected personal informa- of the record. tion (PPI). (3) Failure to meet recordkeeping stand- (a) Access/disclosure. Access to and ards. The activity fails to maintain an disclosure of PPI such as SSN, date of individual’s record with the accuracy, birth, home address, home telephone relevance, timeliness, and complete- number, etc., must be strictly limited ness necessary to assure fairness in any to individuals with an official need to determination about the individual’s know. It is inappropriate to use PPI in rights, benefits, or privileges and, in group/bulk orders. Activities must take fact, makes an adverse determination action to protect PPI from being wide- based on the record. ly disseminated. In particular, PPI (4) Failure to comply with PA. The ac- shall not be posted on electronic bul- tivity fails to comply with any other provision of 5 U.S.C. 552a or any rule or letin boards because the PA strictly regulation issued under 5 U.S.C. 552a limits PPI access to those officers and and thereby causes the individual to be employees of the agency with an offi- adversely affected. cial need to know. (c) Civil remedies. In addition to spe- (b) Transmittal. In those instances cific remedial actions, 5 U.S.C. 552a where transmittal of PPI is necessary, provides for the payment of damages, the originator must take every step to court costs, and attorney fees in some properly mark the correspondence so cases. that the receiver of the information is (d) Criminal penalties. 5 U.S.C. 552a au- apprised of the need to properly protect thorizes criminal penalties against in- the information. For example, when dividuals for violations of its provi- transmitting PPI in a paper document, sions, each punishable by fines up to FAX, or E-Mail, it may be appropriate $5,000. to mark it ‘‘FOR OFFICIAL USE (1) Wrongful disclosure. Any member ONLY (FOUO)—PRIVACY SENSITIVE. or employee of DON who, by virtue of Any misuse or unauthorized disclosure his/her employment or position, has may result in both civil and criminal possession of or access to records and penalties.’’ When sending a message willfully makes a disclosure knowing that contains PPI, it should be marked that disclosure is in violation of 5 FOUO. It is also advisable to inform U.S.C. 552a, this subpart or subpart G. the recipient that the message should (2) Maintaining unauthorized records. not be posted on a bulletin board. In all Any member or employee of DON who cases, recipients of message traffic willfully maintains a system of records that contain PPI, whether marked for which a notice has not been ap- FOUO or not, must review it prior to proved and published in the FEDERAL posting it on an electronic bulletin REGISTER. board. (3) Wrongful requesting or obtaining records. Any person who knowingly and (c) Collection/maintenance. The collec- willfully requests or obtains any record tion and maintenance of information concerning an individual from an agen- retrieved by an individual’s name and/ cy under false pretenses. or personal identifier should be per- (e) Litigation notification. Whenever a formed in compliance with the appro- complaint citing the PA is filed in a priate PA systems of record notice (see U.S. District Court against the DON or http://www.privacy.navy.mil). If you any DON employee, the responsible need to collect and maintain informa- DON activity shall promptly apprise tion retrieved by an individual’s name CNO (DNS–36)) and provide a copy of and/or personal identifier, you must all relevant documents. CNO (DNS–36) have an approved PA systems notice to will in turn apprise the DPO, who will cover that collection. If you are unsure apprise the DOJ. When a court renders as to whether a systems notice exists a formal opinion or judgment, copies of or not, contact the undersigned for as- the judgment and/or opinion shall be sistance.

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(d) Best practices. PA Coordinators reads: ‘‘FOR OFFICIAL USE ONLY— should work closely with command of- PRIVACY SENSITIVE: ANY MISUSE ficials to conduct training, evaluate OR UNAUTHORIZED DISCLOSURE what PPI can be removed from routine MAY RESULT IN BOTH CIVIL AND message traffic, review Web site post- CRIMINAL PENALTIES.’’ ings, review command electronic bul- (5) Train DON military members/em- letin boards, etc., to ensure appropriate ployees who maintain PPI on their processes are in place to minimize the laptop computers/BlackBerrys, who misuse and overuse of PPI information telecommute, work from home, or take that could be used to commit identity work home, etc., to ensure information theft. PA Coordinators should also en- is properly safeguarded against loss/ sure that their PA systems of records compromise. Should a loss occur, en- managers have a copy of the appro- sure they are aware of how, what, and priate PA systems notice and under- where to report the loss. stand PA rules. DON activities shall (6) Review existing postings on activ- ensure that PPI (e.g., home address, ity Web sites and public folders to en- date of birth, SSN, credit card or sure that the PPI is removed to pre- charge card account numbers, etc.) per- vent identity theft. taining to a Service member, civilian (7) Remove PPI from documents prior employee (appropriated and non-appro- to posting or circulating information priated fund), military retiree, family to individuals without an ‘‘official need member, or another individual affili- to know.’’ ated with the activity (i.e., volunteer) (8) Evaluate risks for potential com- is protected from unauthorized disclo- promise of PPI held in activity files, sures. To this end, DON activities databases, etc., to ensure proper safe- shall: guards are in place to prevent unau- (1) Notify their personnel of this pol- thorized disclosures. Revise protocols icy. Address steps necessary to ensure as necessary. that PPI is not compromised. (9) Ensure that PPI is not left out in (2) Conduct and document privacy the open or circulated to individuals awareness training for activity per- not having an official need to know. sonnel (e.g., military, civilian, con- (10) Ensure that PA systems of tractor, volunteers, NAF employees, records are properly safeguarded and etc.) Training options include: ‘‘All that PPI is properly destroyed (http:// Hands’’ awareness briefing; memo to www.privacy.navy.mil/noticenumber/ staff; formal training; circulation of noticeindex.asp). brief sheet on Best Practices, etc. (11) Organizations that are moving or (3) Examine business practices to being disestablished need to ensure eliminate the unnecessary collection, they do not dispose of documents con- transmittal and posting on internet/ taining PPI in containers that may be intranet of PPI. DON activities shall subject to public access/compromise. reevaluate the necessity and value of (12) DON activities shall build a Pri- including an individual’s SSN and vacy Team to identify ways to preclude other PPI in messages, e-mails, and inadvertent releases of PPI. correspondence in order to conduct of- (e) Unauthorized disclosure. In the ficial business. The overuse and misuse event an unauthorized disclosure of of SSNs should be discontinued to PPI is made, DON activities shall: avoid the potential for identity theft. (1) Take immediate action to pro- For example, there is no need to in- hibit further damage/disclosure. clude an individual’s SSN in a welcome (2) Within 10 days, the DON activity aboard message. Such messages are shall notify all affected individuals by routinely posted on command bulletin letter, including the specific data in- boards that are viewable by all. If a volved and the circumstances sur- unique identifier is needed, truncate rounding the incident. If the DON ac- the SSN using only the last four digits. tivity is unable to readily identify the (4) Mark all documents that contain affected individuals, a generalized no- PPI (e.g., letters, memos, emails, mes- tice should be sent to the potentially sages, documents FAXed, etc) FOUO. affected population. As part of any no- Consider using a header/footer that tification process, individuals shall be

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informed to visit the Federal Trade or mission of the DON activity main- Commission’s (FTC’s) Web site at taining the record. http://www.consumer.gov/idtheft for guid- (3) Be timely. All information in the ance on protective actions the indi- record must be reviewed periodically to vidual can take. A synopsis of the dis- ensure that it has not changed due to closure made, number of individuals af- time or later events. fected, actions to be taken, should be e- (4) Be complete. It must be able to mailed to CNO (DNS–36) with ‘‘Identity stand alone in accomplishing the pur- Theft Notification’’ in the subject line. pose for which it is maintained. (3) If the DON activity is unable to (5) Be necessary. All information in comply with the notification require- the record must be needed to accom- ments set forth in paragraph (e)(2) of plish a mission or purpose established this section, the activity shall imme- by Federal Law or E.0. of the Presi- diately inform CNO (DNS–36) as to the dent. reasons why. CNO (DNS–36) will, in (d) Approval. CNO (DNS–36) is the ap- turn, notify the Secretary of Defense. proval authority for Navy PA systems (4) DON activities shall identify ways of records actions. CMC (ARSF) is the to preclude future incidents. approval authority for Marine Corps PA systems of records actions. Activi- § 701.116 PA systems of records notices ties wishing to create, alter, amend, or overview. delete systems should contact CNO (a) Scope. A ‘‘system of records no- (DNS–36) or CMC (ARSF), respectively. tice’’ consists of ‘‘records’’ that are Those officials will assist in electroni- routinely retrieved by the name, or cally preparing and coordinating the some other personal identifier, of an documents for DOD/Congressional ap- individual and under the control of the proval, as electronic processing is both DON. time and cost efficient. (b) Retrieval practices. How a record is (e) Publication in the FEDERAL REG- retrieved determines whether or not it ISTER. Per DOD 5400.11–R, the DPO has qualifies to be a system of records. For responsibility for submitting all rule- example, records must be retrieved by making and changes to PA system of a personal identifier (name, SSN, date records notices for publication in the of birth, etc.) to qualify as a system of FEDERAL REGISTER and CFR. records. Accordingly, a record that contains information about an indi- § 701.117 Changes to PA systems of vidual but IS NOT RETRIEVED by a records. personal identifier does not qualify as a CNO (DNS–36) is the approval author- system of records under the provisions ity for Navy/DON PA systems of of the PA. (NOTE: The ‘‘ability to re- records actions. CMC (ARSF) is the ap- trieve’’ is not sufficient to warrant the proval authority for Marine Corps PA establishment of a PA system of systems of records actions. DON activi- records. The requirement is retrieval ties wishing to create, alter, amend, or by a name or personal identifier.) delete systems should contact CNO Should a business practice change, (DNS–36) or CMC (ARSF), who will as- DON activities shall immediately consist in electronically preparing the tact CNO (DNS–36) to discuss the pend- documents for coordination and DOD/ ing change, so that the systems notice Congressional approval. can be changed or deleted as appro- (a) Creating a new system of records. (1) priate. A new system of records is one for (c) Recordkeeping standards. A record which no existing system notice has maintained in a system of records sub- been published in the FEDERAL REG- ject to this instruction must meet the ISTER. DON activities wishing to estab- following criteria: lish a new PA system of records notice (1) Be accurate. All information in the shall contact CNO (DNS–36) (regarding record must be factually correct. Navy system of records) or CMC (2) Be relevant. All information con- (ARSF) (regarding Marine Corps sys- tained in the record must be related to tem of records.) These officials will as- the individual who is the record subject sist in the preparation and approval of and must be related to a lawful purpose the notice. Once approval is obtained

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from DOD, the systems notice will be creates substantially greater use of published in the FEDERAL REGISTER for records in the system. For example, comment by the public. In the case of placing interactive computer terminals an exempt system of records, it will at regional offices when the system also be published at 32 CFR part 701. A was formerly used only at the head- listing of all DON PA systems of quarters would be an alteration. records notices is available at http:// (6) A change in the manner in which www.privacy.navy.mil. records are organized or in the method (2) A DON activity may not begin by which records are retrieved. collecting or maintaining PPI about (7) A combining of record systems individuals that is retrieved by their due to reorganization. name and/or personal identifier until a (c) Amending a system of records notice. PA system of records notice has been DON activities should apprise CNO approved and published in the FEDERAL (DNS–36) or CMC (ARSF) respectively REGISTER. Failure to comply with this when a minor change has been made to mandate could result in both criminal a system of records. and civil penalties. (d) Deleting a system of records notice. (3) In those cases where a system of When a system of records is discon- records has been cancelled or deleted tinued, incorporated into another sys- and it is later determined that it tem, or determined to be no longer sub- should be reinstated or reused, a new ject to this instruction, a deletion no- system notice must be prepared. tice must be published in the FEDERAL (4) DON activities wishing to create a REGISTER. The deletion notice shall in- new PA system of records must conclude the system identification num- duct a risk analysis of the proposed ber, system name, and the reason for system to consider the sensitivity and deleting it. If a system is deleted use of the records; present and pro- through incorporation into or merger jected threats and vulnerabilities; and with another system, identify the suc- projected cost effectiveness of safe- cessor system in the deletion notice. guards. (See § 701.118 regarding PIAs.) Systems managers who determine that (b) Altering a system of records notice. a systems notice is no longer needed A systems manager shall contact CNO should contact CNO (DNS–36)/CMC (DNS–36)/CMC (ARSF) to alter a PA (ARSF) who will prepare the deletion system of records notice when there notice and submit it electronically to has been: DOD for publication in the FEDERAL (1) A significant increase or change REGISTER. in the number or types of individuals about who records are maintained. For (e) Numbering a system of records no- example, a decision to expand a system tice. Systems of records notices are of records that originally covered per- identified with an ‘‘N’’ for a Navy sys- sonnel assigned to only one activity to tem; ‘‘M’’ for a Marine Corps system; cover personnel at several installations or an ‘‘NM’’ to identify a DON-wide would constitute an altered system. An system, followed by the subject matter increase or decrease in the number of Standard Subject Identification Code individuals covered due to normal (SSIC). growth or decrease is not an alteration. (f) Detailed information. Detailed in- (2) A change that expands the types formation on how to write, amend, or categories of information main- alter, or delete a PA system of records tained. notice is contained at http:// (3) A change that alters the purpose www.privacy.navy.mil. for which the information is used. In order to be an alteration, the change § 701.118 Privacy, IT, and PIAs. must be one that is not reasonably in- (a) Development. Privacy must be con- ferred from any of the existing pur- sidered when requirements are being poses. analyzed and decisions are being made (4) A change that adds a new routine about data usage and storage design. use. This applies to all of the development (5) A change to equipment configura- methodologies and system life cycles tion (either hardware or software) that used in the DON.

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(b) E-Government Act of 2002. The E- clude DON civilian or military per- Government Act of 2002 (Pub. L. 107– sonnel, but DOES cover family mem- 347) directs agencies to conduct reviews bers of such personnel, retirees and of how privacy issues are considered their family members, and DON con- when purchasing or creating new IT tractors.) A PIA should be prepared be- systems or when initiating new elec- fore developing, modifying, or pro- tronic collections of IIF. See DOD curing IT systems that collect, main- Memo of 28 Oct 05, subject ‘‘DOD PIA tain, or disseminate IIF from or about Guidance’’ regarding DOD PIA Guid- members of the public or initiating a ance. new electronic collection of IIF for 10 (c) Purpose. To ensure IIF is only ac- or more members of the public. A PIA quired and maintained when necessary shall also be prepared before devel- and the supporting IT that is being de- oping, modifying or procuring a gen- veloped and used protects and pre- eral support system or major applica- serves the privacy of the American tion that collects, maintains, or dis- public and to provide a means to assure seminates IIF from or about DON civil- compliance with applicable laws and ian and military personnel. regulations governing employee pri- (g) PIA not required. (1) Legacy sys- vacy. A PIA should be prepared before tems do not require completion of a developing or procuring a general sup- PIA. However, DON CIO may request a port system or major application that PIA if the automation or upgrading of collects, maintains, or disseminates these systems puts the data at risk. IIF from or about DON civilian or mili- (2) Current operational systems do tary personnel. not require completion of a PIA. How- (d) Scope. The PIA incorporates pri- ever, if privacy is a concern for a sys- vacy into the development life cycle so tem the DON CIO can request that a that all system development initia- PIA be completed. If a potential prob- tives can appropriately consider pri- lem is identified concerning a cur- vacy issues from the earliest stages of rently operational system, the DON design. During the early stages of the will use all reasonable efforts to rem- development of a system, both the sys- edy the problem. tem owner and system developer shall work together to identify, evaluate, § 701.119 Privacy and the web. and resolve any privacy risks. Accord- DON activities shall consult ingly, SECNAVINST 5720.47B for guidance on (1) System owners must address what what may be posted on a Navy Web data is to be used, how the data is to be site. used, and who will use the data. (2) System developers must address § 701.120 Processing requests that cite whether the implementation of the or imply PA, Freedom of Informa- owner’s requirements presents any tion (FOIA), or PA/FOIA. threats to privacy. Individuals do not always know what (e) Requirements. Before developing, Act(s) to cite when requesting informa- modifying or establishing an auto- tion. Nonetheless, it is DON policy to mated system of records that collects, ensure that they receive the maximum maintains, and/or disseminates IIF, access to information they are request- DON activities shall conduct a PIA to ing. Accordingly, processing guidance effectively address privacy factors. is as follows: Guidance is provided at http:// (a) Cite/imply PA. (1) Individuals who www.doncio.navy.mil. cite to the PA and/or seek access to (f) Coverage. E-Government Act of records about themselves that are con- 2002 (Pub. L. 107–347) mandates the tained in a PA system of records that preparation of a PIA either before deis retrieved by their name and personal veloping or procuring IT systems that identifier, will have their request proc- collect, maintain, or disseminate IIF essed under the provisions of the PA. from or about members of the public or (2) If there is no ‘‘Exemption Claimed initiating a new electronic collection for this System,’’ then the record will of IIF for 10 or more persons of the pub- be released to the requester unless: it lic. (NOTE: The public DOES NOT in- contains classified information ((k)(1)

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applies); was compiled in anticipation emption and process the request under of litigation ((d)(5) applies); or contains the provisions of the FOIA, ensuring information about another person. Al- the requester receives the maximum though there is no ‘‘privacy’’ exemp- release of information allowed under tion under the PA, delete any informa- the Acts. tion about other persons and explain in (d) Processing time limits. DON activi- the response letter that ‘‘information ties shall normally acknowledge re- not about you’’ was deleted from the ceipt of PA requests within 10 working response. There is no PA exemption to days and respond within 30 working claim and no appeal rights to be given. days. (b) Cite/imply FOIA. (1) Individuals who cite/imply FOIA when seeking ac- § 701.121 Processing ‘‘routine use’’ dis- cess to records about themselves will closures. have their request processed under PA, (a) ‘‘Routine use’’ disclosure. Individ- if the records they seek are contained uals or organizations may seek a ‘‘rou- in a PA system of records that is re- tine use’’ disclosure of information trieved by their name and personal from a DON PA system of records if the identifier. However, if the system of system provides for such a disclosure. records notice contains an exemption (1) The request must be in writing rule, the release of information will be and state that it is being made under a adjudicated using both PA and FOIA, ‘‘routine use’’ established by a specific ensuring that the individual receives PA system of records notice. For exam- the maximum amount of information ple: ‘‘Under the ‘‘routine use’’ provi- allowable under the Acts. sions of PA systems notice N05880–1, (2) Individuals who cite/imply FOIA Security Incident System, that allows and seek access to records about them- release of information to individuals selves that are not contained in a PA involved in base incidents, their insur- system of records that is retrieved by ance companies, and/or attorneys for their name and personal identifier will the purpose of adjudicating a claim, I have their request processed under am seeking access to a copy of my ve- FOIA. hicle accident report to submit a claim (3) Individuals who cite to the FOIA, to my insurance company. Information but do not seek access to records about needed to locate this record is as fol- themselves, will have their request lows * * *.’’ processed under FOIA. (2) The individual is provided infor- (c) Cite to PA and FOIA. Individuals mation needed to adjudicate the claim. who cite to both PA and FOIA and seek A release authority may sign the re- access to records contained in a PA sponse letter since a release of respon- system of record retrieved by their sive information is being disclosed name and personal identifier, will have under a ‘‘routine use,’’ there is no ‘‘de- their request as follows: nial’’ of information (i.e., PA/FOIA ex- (1) If the system of records does not emptions do not apply), and no appeal cite to an exemption rule, does not rights cited. contain classified information, or was (3) DON activities shall retain a copy not compiled in anticipation of litiga- of the request and maintain a disclo- tion, the entire file is considered re- sure accounting of the information releasable under the PA. However, if the leased. (See § 701.111.) file contains information about an- (b) Failure to cite to a ‘‘routine use.’’ other person, that information shall be Individuals or organizations that seek withheld and the requester apprised access to information contained in a that information about another indi- DON PA system of records under PA/ vidual has been deleted, since the in- FOIA, but who have access under a formation is not about them. Since no ‘‘routine use’’ cited in the systems no- PA exemption exists for protecting pri- tice, shall be apprised of the ‘‘routine vacy, no exemption rule can be cited use’’ access and offered the opportunity and appeal rights do not have to be to resubmit a ‘‘routine use’’ request, given. rather than having information denied (2) If the system of records does cite under PA/FOIA. DON activities shall to a PA exemption rule, claim the ex- not make a ‘‘routine use’’ disclosure

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without having a ‘‘routine use’’ re- tion with a medical practitioner. If it quest. is medically indicated that access (c) Frequent ‘‘routine use’’ requests. could have an adverse mental or phys- DON activities (e.g., security and mili- ical effect on the individual, provide tary police offices) that routinely re- the record to a medical practitioner ceive requests for information for named by the individual, along with an which a ‘‘routine use’’ has been estab- explanation of why access without lished should offer a ‘‘routine use’’ re- medical supervision could be harmful quest form. This will eliminate the un- to the individual. In any case, do not necessary burden of processing re- require the named medical practitioner quests under PA/FOIA when the lim- to request the record for the indi- ited information being sought is avail- vidual. able under a ‘‘routine use.’’ (2) If, however, the individual refuses § 701.122 Medical records. or fails to designate a medical practi- (a) Health Information Portability and tioner, access will be refused. The re- Accountability Act (HIPAA). (1) DOD Di- fusal is not considered a denial for re- rective 6025.18 establishes policies and porting purposes under the PA. assigns responsibilities for implemen- (c) Access to a minor’s medical records. tation of the standards for privacy of DON activities may grant access to a individually identifiable health infor- minor’s medical records to his/her cus- mation established by HIPAA. todial parents or legal guardians, ob- (2) DOD Directive 6025.18–R prescribes serving the following procedures: the uses and disclosures of protected (1) In the United States, the laws of health information. the State where the records are located (3) Detailed guidance on HIPAA com- may afford special protection to cer- pliance is available from the Bureau of tain medical records (e.g., drug and al- Medicine and Surgery’s Web site at cohol abuse treatment and psychiatric http://navymedicine.med.navy.mil and records.) Even if the records are main- from DOD at http://www.tricare.osd.mil/ tained by a military medical facility, hipaa/. these statutes may apply. (4) In addition to responsibilities to (2) For installations located outside comply with this subpart and subpart the United States, the custodial parent G of this part, DOD Directive 6025.18 and DOD 6025.18–R must also be com- or legal guardian of a minor shall be plied with to the extent applicable. Al- denied access if all of the following though nothing in this subpart and conditions are met: the minor at the subpart G violates DOD Directive time of the treatment or consultation 6025.18, compliance with this subpart was 15, 16, or 17 years old; the treat- and subpart G in connection with pro- ment or consultation was within a protected health information does not nec- gram authorized by law or regulation essarily satisfy all requirements of to provide confidentiality to the minor; DOD 6025.18–R. the minor indicated a desire that the (b) Disclosure. DON activities shall treatment or consultation record be disclose medical records to the indi- handled in confidence and not disclosed vidual to whom they pertain, even if a to a parent or guardian; and the custo- minor, unless a judgment is made that dial parent or legal guardian does not access to such records could have an have the written authorization of the adverse effect on the mental or phys- minor or a valid court order granting ical health of the individual. Normally, access. this determination shall be made in (3) All members of the military serv- consultation with a medical practi- ices and all married persons are not tioner. considered minors regardless of age, (1) Deny the individual access to his/ and the parents of these individuals do her medical and psychological records not have access to their medical if that access could have an adverse affect on the mental or physical health records without the written consent of of the individual. This determination the individual to whom the record per- normally should be made in consulta- tains.

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§ 701.123 PA fees. (b) Inspections. During internal in- The PA fee schedule is only applica- spections, DON inspectors shall be ble to first party requesters who are alert for compliance with this instruc- seeking access to records about them- tion and for managerial, administra- selves that are contained in a PA sys- tive, and operational problems associ- tem of record. DON activities receiving ated with the implementation of the requests under PA, FOIA, or PA/FOIA DON’s PA program. shall only charge fees that are applica- (1) DON inspectors shall document ble under the Act(s) in which the re- their findings in official reports fur- quest is being processed. nished to the responsible DON officials. (a) PA costs. PA fees shall include These reports, when appropriate, shall only the direct cost of reproducing the reflect overall assets of the activity’s requested record. There are no fees for PA program inspected, or portion search, review, or any administrative thereof, identify deficiencies, irregular- costs associated with the processing of ities, and significant problems. Also the PA request. The cost for reproduc- document remedial actions taken to tion of documents/microfiche will be at correct problems identified. the same rate as that charged under (2) Inspection reports and follow-up the FOIA schedule (see SECNAVINST reports shall be maintained in accord- 5720.42F). ance with established records disposi- (b) Fee waiver. A requester is entitled tion standards (see SECNAVINST to the first 100 pages of duplication for 5210.8D). These reports shall be made free. available to PA program officials and (1) DON activities shall waive fees to CNO (DNS–36)/CMC (ARSF) respec- automatically if the direct cost for re- tively. production of the remaining pages is (c) Retention of reports. Retain staff less than the minimum fee waiver visit reports and follow-up reports per threshold addressed under FOIA fees established records disposition stand- (see SECNAVINST 5720.42F). ards contained in SECNAVINST (2) However, DON activities should 5210.8D. Retain self-assessment reports not waive fees when it is determined until the next self-assessment is com- that a requester is seeking an exten- pleted. Make these reports available, sion or duplication of a previous re- upon request, to CNO (DNS–36) or CMC quest for which he/she was already (ARSF). granted a waiver. (3) Decisions to waive or reduce fees § 701.125 Computer matching program. that exceed the minimum fee waiver The DPO has responsibility for co- threshold are made on a case-to-case ordinating the approval of DOD’s par- basis. ticipation in Computer Matching (c) PA fee deposits. Checks or money agreements with other Federal, state, orders shall be made payable to the and local agencies. Treasurer of the United States. DON (a) Purpose. To establish or verify ini- activities will forward any remittances tial or continuing eligibility for Fed- to the Treasury Department pursuant eral benefit programs; verify compli- to the Miscellaneous Receipts Act. ance with the requirements, either statutory or regulatory, of such pro- § 701.124 PA self assessments/inspec- grams; or recoup payments or delin- tions. quent debts under such Federal benefit (a) Self assessments. DON activities programs. are encouraged to conduct annual self- (b) Record comparison. The record assessments of their PA program. This comparison must be a computerized serves to identify strengths and weak- one between two Federal Agencies or nesses and to determine training needs one Federal Agency and a state agency. of personnel who work with privacy Manual comparisons are not covered. records/information. A PA self-assess- (c) Types of programs not covered. (1) ment evaluation form is provided at State programs and programs using http://www.privacy.navy.mil (Adminis- records about subjects who are not trative Tools) for use in measuring ‘‘individuals’’ as defined in § 701.101(e) compliance with the PA. are not covered.

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(2) Statistical matches whose purpose personnel should be directed to CNO is solely to produce aggregate data (DNS–36). stripped of personal identifiers. (3) Statistical matches whose purpose Subpart G—Privacy Act is in support of any research or statis- Exemptions tical project. (4) Law enforcement investigative SOURCE: 71 FR 27536, May 11, 2006, unless matches whose purpose is to gather otherwise noted. evidence against a named person or persons in an existing investigation. § 701.126 Purpose. (5) Tax administration matches. Subparts F and G of this part contain (6) Routine administrative matches rules promulgated by the Secretary of using Federal personnel records. the Navy, pursuant to 5 U.S.C. 552a (j) (7) Internal matches using only and (k), and subpart F, § 701.113, to ex- records from DOD systems of records. empt certain systems of DON records (8) Background investigation and for- from specified provisions of 5 U.S.C. eign counterintelligence matches done 552a. in the course of performing a background check for security clearances of § 701.127 Exemption for classified Federal personnel or Federal con- records. tractor personnel or foreign counter- All systems of records maintained by intelligence. the DON shall be exempt from the re- (d) Categories of individuals covered. quirements of the access provision of Applicants for Federal benefit pro- the Privacy Act (5 U.S.C. 552a(d)) under grams (i.e., individuals initially apply- the (k)(1) exemption, to the extent that ing for benefits); program beneficiaries the system contains information prop- (i.e., individuals currently receiving or erly classified under E.O. 12,958 and formerly receiving benefits); and pro- that is required by that E.O. to be kept viders of services to support such pro- secret in the interest of national de- grams (i.e., those deriving income from fense or foreign policy. This exemption them such as health care providers). is applicable to parts of all systems of (e) Features of a computer matching records including those not otherwise program. A computer matching pro- specifically designated for exemptions gram entails not only the actual com- herein that contain isolated items of puterized comparison, but also pre- properly classified information. paring and executing a written agreement between the participants, secur- § 701.128 Exemptions for specific Navy ing approval of the Defense Data Integ- record systems. rity Board, publishing a matching no- (a) System identifier and name: tice in the FEDERAL REGISTER before (1) N01070–9, White House Support Pro- the match begins, ensuring that inves- gram. tigation and due process are completed, (2) Exemption: (i) Information specifi- and taking ultimate action, if any. cally authorized to be classified under (f) Approval/denial of agreements. The E.O. 12,958, as implemented by DOD Executive Secretary, Defense Data In- 5200.1–R, may be exempt pursuant to 5 tegrity Board, receives and processes U.S.C. 552a(k)(1). for review all requests for computer (ii) Investigatory material compiled matching agreements involving DOD for law enforcement purposes may be activities. Members of the Defense exempt pursuant to 5 U.S.C. 552a(k)(2). Data Integrity Board are provided with However, if an individual is denied any a copy of the proposed computer right, privilege, or benefit for which he matching agreement that details the would otherwise be entitled by Federal costs associated with the match, law or for which he would otherwise be length of agreement, and the number of eligible, as a result of the maintenance computer matches expected, for their of such information, the individual will approval/disapproval. be provided access to such information (g) Questions. CNO (DNS–36) rep- except to the extent that disclosure resents the DON on the Defense Data would reveal the identity of a confiden- Integrity Board. Questions from DON tial source.

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(iii) Records maintained in connec- E.O. 12,958, as implemented by DOD tion with providing protective services 5200.1–R, may be exempt pursuant to 5 to the President and other individuals U.S.C. 552a(k)(1). under 18 U.S.C. 3506, may be exempt (ii) Investigatory material compiled pursuant to 5 U.S.C. 552a(k)(3). solely for the purpose of determining (iv) Investigatory material compiled suitability, eligibility, or qualifica- solely for the purpose of determining tions for federal civilian employment, suitability, eligibility, or qualifica- military service, federal contracts, or tions for federal civilian employment, access to classified information may be military service, federal contracts, or exempt pursuant to 5 U.S.C. 552a(k)(5), access to classified information may be but only to the extent that such mate- exempt pursuant to 5 U.S.C. 552a(k)(5), rial would reveal the identity of a con- but only to the extent that such mate- fidential source. rial would reveal the identity of a con- (iii) Testing or examination material fidential source. used solely to determine individual (v) Portions of this system of records qualifications for appointment or pro- are exempt from the following sub- motion in the Federal service may be sections of the Privacy Act: (c)(3), (d), exempt pursuant to 5 U.S.C. 552a(k)(6), (e)(1), (e)(4) (G) through (I), and (f). if the disclosure would compromise the (3) Authority: 5 U.S.C. 552a(k)(1), objectivity or fairness of the test or ex- (k)(2), (k)(3), and (k)(5). amination process. (4) Reasons: Exempted portions of (iv) Evaluation material used to de- this system contain information that termine potential for promotion in the has been properly classified under E.O. Military Services may be exempt pur- 12,958, and which is required to be kept suant to 5 U.S.C. 552a(k)(7), but only to secret in the interest of national de- the extent that the disclosure of such fense or foreign policy. Exempted por- material would reveal the identity of a tions of this system may also contain confidential source. information considered relevant and (v) Portions of this system of records necessary to make a determination as are exempt from the following sub- to qualifications, eligibility, or suit- sections of the Privacy Act: (c)(3), (d), ability for access to classified informa- (e)(1), (e)(4)(G) through (I), and (f). tion, and which was obtained by pro- (3) Authority: 5 U.S.C. 552a(k)(1), viding an express or implied promise to (k)(5), (k)(6), and (k)(7). the source that his or her identity (4) Reasons: Granting individuals ac- would not be revealed to the subject of cess to portions of this system of the record. Exempted portions of this records could result in the disclosure of system may also contain information classified material, or the identifica- collected and maintained in connection tion of sources who provided informa- with providing protective services to tion to the government under an ex- the President and other individuals press or implied promise of confiden- protected pursuant to 18 U.S.C. 3056. tiality. Material will be screened to Exempted portions of this system may permit access to unclassified material also contain investigative records com- and to information that does not dis- piled for law enforcement purposes, the close the identity of a confidential disclosure of which could reveal the source. identity of sources who provide infor- (c) System identifier and name: mation under an express or implied (1) N01133–2, Recruiting Enlisted Selec- promise of confidentiality, compromise tion System. investigative techniques and proce- (2) Exemption: (i) Information specifi- dures, jeopardize the life or physical cally authorized to be classified under safety of law-enforcement personnel, or E.O. 12,958, as implemented by DOD otherwise interfere with enforcement 5200.1–R, may be exempt pursuant to 5 proceedings or adjudications. U.S.C. 552a(k)(1). (b) System identifier and name: (ii) Investigatory material compiled (1) N01131–1, Officer Selection and Ap- solely for the purpose of determining pointment System. suitability, eligibility, or qualifica- (2) Exemption: (i) Information specifi- tions for federal civilian employment, cally authorized to be classified under military service, federal contracts, or

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access to classified information may be of witnesses, and such other related exempt pursuant to 5 U.S.C. 552a(k)(5), matter in conjunction with the en- but only to the extent that such mate- forcement of criminal laws, could rial would reveal the identity of a con- interfere with the orderly investiga- fidential source. tions, with the orderly administration (iii) Testing or examination material of justice, and possibly enable suspects used solely to determine individual to avoid detection or apprehension. qualifications for appointment or pro- Disclosure of this information could re- motion in the Federal service may be sult in the concealment, destruction, exempt pursuant to 5 U.S.C. 552a(k)(6), or fabrication of evidence, and jeop- if the disclosure would compromise the ardize the safety and well-being of in- objectivity or fairness of the test or ex- formants, witnesses and their families, amination process. and law enforcement personnel and (iv) Evaluation material used to de- their families. Disclosure of this infor- termine potential for promotion in the mation could also reveal and render in- Military Services may be exempt pur- effectual investigative techniques, suant to 5 U.S.C. 552a(k)(7), but only to sources, and methods used by these the extent that the disclosure of such components and could result in the in- material would reveal the identity of a vasion of the privacy of individuals confidential source. only incidentally related to an inves- (v) Portions of this system of records tigation. The exemption of the individ- are exempt from the following sub- ual’s right of access to portions of sections of the Privacy Act: (c)(3), (d), these records, and the reasons there- (e)(1), (e)(4)(G) through (I), and (f). fore, necessitate the exemption of this (3) Authority: 5 U.S.C. 552a(k)(1), system of records from the require- (k)(5), (k)(6), and (k)(7). ment of the other cited provisions. (4) Reasons: Granting individuals ac- (ii) [Reserved] cess to portions of this system of (e) System identifier and name: records could result in the disclosure of (1) N01754–3, Navy Child Development classified material, or the identifica- Services Program. tion of sources who provided informa- (2) Exemption: (i) Investigatory mate- tion to the government under an ex- rial compiled for law enforcement pur- press or implied promise of confiden- poses may be exempt pursuant to 5 tiality. Material will be screened to U.S.C. 552a(k)(2). However, if an indi- permit access to unclassified material vidual is denied any right, privilege, or and to information that does not dis- benefit for which he would otherwise be close the identity of a confidential entitled by Federal law or for which he source. would otherwise be eligible, as a result (d) System identifier and name: of the maintenance of such informa- (1) N01640–1, Individual Correctional tion, the individual will be provided ac- Records. cess to such information except to the (2) Exemption: (i) Parts of this system extent that disclosure would reveal the may be exempt pursuant to 5 U.S.C. identity of a confidential source. 552a(j)(2) if the information is compiled (ii) Portions of this system of records and maintained by a component of the are exempt from the following sub- agency which performs as its principle sections of the Privacy Act: (c)(3) and function any activity pertaining to the (d). enforcement of criminal laws. (3) Authority: 5 U.S.C. 552a(k)(2). (ii) Portions of this system of records (4) Reasons: (i) Exemption is needed are exempt from the following sub- in order to encourage persons having sections of the Privacy Act: (c)(3), knowledge of abusive or neglectful acts (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) through toward children to report such infor- (I), (e)(5), (e)(8), (f), and (g). mation, and to protect such sources (3) Authority: 5 U.S.C. 552a(j)(2). from embarrassment or recrimination, (4) Reason: (i) Granting individuals as well as to protect their right to pri- access to portions of these records per- vacy. It is essential that the identities taining to or consisting of, but not lim- of all individuals who furnish informa- ited to, disciplinary reports, criminal tion under an express promise of con- investigations, and related statements fidentiality be protected. Additionally,

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granting individuals access to informa- poses may be exempt pursuant to 5 tion relating to criminal and civil law U.S.C. 552a(k)(2). However, if an indi- enforcement, as well as the release of vidual is denied any right, privilege, or certain disclosure accountings, could benefit for which he would otherwise be interfere with ongoing investigations entitled by Federal law or for which he and the orderly administration of jus- would otherwise be eligible, as a result tice, in that it could result in the con- of the maintenance of such informa- cealment, alteration, destruction, or tion, the individual will be provided ac- fabrication of information; could ham- cess to such information except to the per the identification of offenders and extent that disclosure would reveal the the disposition of charges; and could identity of a confidential source. jeopardize the safety and well being of (ii) Portions of this system of records parents and their children. are exempt from the following sub- (ii) [Reserved] sections of the Privacy Act: (c)(3), (d), (f) System identifier and name: (e)(4)(G) through (I), and (f). (1) N03834–1, Special Intelligence Per- (3) Authority: 5 U.S.C. 552a(k)(2). sonnel Access File. (4) Reasons: Granting individuals ac- (2) Exemption: (i) Information specifi- cess to information collected and cally authorized to be classified under maintained by these activities relating E.O. 12,958, as implemented by DOD to the enforcement of criminal laws 5200.1–R, may be exempt pursuant to 5 could interfere with orderly investiga- U.S.C. 552a(k)(1). tions, with orderly administration of (ii) Investigatory material compiled justice, and possibly enable suspects to solely for the purpose of determining avoid detection or apprehension. Dis- suitability, eligibility, or qualifica- closure of this information could result tions for Federal civilian employment, in the concealment, destruction, or military service, Federal contracts, or fabrication of evidence, and could also access to classified information may be reveal and render ineffectual investiga- exempt pursuant to 5 U.S.C. 552a(k)(5), tive techniques, sources, and methods but only to the extent that such mate- used by these activities. rial would reveal the identity of a con- (h) [Reserved] fidential source. (iii) Portions of this system of (i) System identifier and name: records are exempt from the following (1) N05041–1, Inspector General (IG) subsections of the Privacy Act: (c)(3), Records. (d), (e)(1), (e)(4) (G) through (I), and (f). (2) Exemption: (i) Information specifi- (3) Authority: 5 U.S.C. 552a(k)(1) and cally authorized to be classified under (k)(5). E.O. 12,958, as implemented by DOD (4) Reasons: (i) Exempted portions of 5200.1–R, may be exempt pursuant to 5 this system contain information that U.S.C. 552a(k)(1). has been properly classified under E.O. (ii) Investigatory material compiled 12356, and that is required to be kept for law enforcement purposes may be secret in the interest of national de- exempt pursuant to 5 U.S.C. 552a(k)(2). fense or foreign policy. However, if an individual is denied any (ii) Exempted portions of this system right, privilege, or benefit for which he also contain information considered would otherwise be entitled by Federal relevant and necessary to make a de- law or for which he would otherwise be termination as to qualifications, eligi- eligible, as a result of the maintenance bility, or suitability for access to clas- of such information, the individual will sified information and was obtained by be provided access to such information providing an express or implied assur- except to the extent that disclosure ance to the source that his or her iden- would reveal the identity of a confiden- tity would not be revealed to the sub- tial source. ject of the record. (iii) Portions of this system of (g) System identifier and name: records may be exempt from the provi- (1) N04060–1, Navy and Marine Corps sions of 5 U.S.C. 552a(c)(3); (d); (e)(1); Exchange Sales and Security Files. (e)(4)(G), (H), and (I); and (f). (2) Exemption: (i) Investigatory mate- (3) Authority: 5 U.S.C. 552a(k)(1) and rial compiled for law enforcement pur- (k)(2).

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(4) Reasons: (i) From subsection (c)(3) nesses. Although the system is exempt because the release of the disclosure from this requirement, the DON has accounting would permit individuals to published a notice in broad, generic obtain valuable information con- terms in the belief that this is all that cerning the nature of the investigation subsection (e)(4)(I) of the Act requires. and would present a serious impedi- (j) System identifier and name: ment to the orderly conduct of any in- (1) N05300–3, Faculty Professional Files. vestigative activities. Such accounting (2) Exemptions: (i) Investigatory ma- could result in the release of properly terial compiled solely for the purpose classified information which would of determining suitability, eligibility, compromise the national defense or or qualifications for Federal civilian disrupt foreign policy. employment, military service, Federal (ii) From subsections (d) and (f) be- contracts, or access to classified infor- cause access to the records would in- mation may be exempt pursuant to 5 form individuals of the existence and U.S.C. 552a(k)(5), but only to the extent nature of the investigation; provide in- that such material would reveal the formation that might result in the con- identity of a confidential source. cealment, destruction, or fabrication of (ii) Portions of this system of records evidence; possibly jeopardize the safety are exempt from the following sub- and well-being of informants, witnesses sections of the Privacy Act: (c)(3), (d), and their families; likely reveal and (e)(4)(G) and (H), and (f). render ineffectual investigatory tech- (3) Authority: 5 U.S.C. 552a(k)(5). niques and methods and sources of in- (4) Reasons: Exempted portions of formation; and possibly result in the this system contain information con- invasion of the personal privacy of sidered relevant and necessary to make third parties. Access could result in the a release determination as to qualifica- release of properly classified informa- tions, eligibility, or suitability for Fed- tion which could compromise the na- eral employment, and was obtained by tional defense or disrupt foreign policy. providing an express or implied prom- Amendment of the records would inter- ise to the source that his or her iden- fere with the ongoing investigation and tity would not be revealed to the sub- impose an impossible administrative ject of the record. burden by requiring investigations to (k) System identifier and name: be continually reinvestigated. (1) N05354–1, Equal Opportunity Infor- (iii) From subsection (e)(1) because in mation Management System. the course of the investigation it is not (2) Exemptions: (i) Information spe- always possible, at least in the early cifically authorized to be classified stages of the inquiry, to determine rel- under E.O. 12,958, as implemented by evance and or necessity as such deter- DOD 5200.1–R, may be exempt pursuant minations may only occur after the in- to 5 U.S.C. 552a(k)(1). formation has been evaluated. Informa- (ii) Investigatory material compiled tion may be obtained concerning the solely for the purpose of determining actual or potential violation of laws or suitability, eligibility, or qualifica- regulations other than those relating tions for Federal civilian employment, to the ongoing investigation. Such in- military service, Federal contracts, or formation should be retained as it can access to classified information may be aid in establishing patterns of im- exempt pursuant to 5 U.S.C. 552a(k)(5), proper activity and can provide valu- but only to the extent that such mate- able leads in the conduct of other in- rial would reveal the identity of a con- vestigations. fidential source. (iv) From subsection (e)(4)(G) and (H) (iii) Portions of this system of because this system of records is ex- records are exempt from the following empt from individual access pursuant subsections of the Privacy Act: (c)(3), to subsections (k)(1) and (k)(2) of the (d), (e)(4)(G) through (I), and (f). Privacy Act of 1974. (3) Authority: 5 U.S.C. 552a(k)(1) and (v) From subsection (e)(4)(I) because (k)(5). it is necessary to protect the confiden- (4) Reasons: Granting access to infor- tiality of sources and to protect the mation in this system of records could privacy and physical safety of wit- result in the disclosure of classified

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material, or reveal the identity of a lies; disclose investigative techniques; source who furnished information to and result in the invasion of privacy of the Government under an express or individuals only incidentally related to implied promise of confidentiality. Ma- an investigation. Material will be terial will be screened to permit access screened to permit access to unclassi- to unclassified material and to infor- fied information that will not disclose mation that will not disclose the iden- the identity of sources who provide the tity of a confidential source. information to the Government under (l) System identifier and name: an express or implied promise of con- (1) N05520–1, Personnel Security Eligi- fidentiality. bility Information System. (m) System identifier and name: (2) Exemptions: (i) Information spe- (1) N05520–4, NCIS Investigative Files cifically authorized to be classified System. under E.O. 12,958, as implemented by (2) Exemptions: (i) Parts of this sys- DOD 5200.1–R, may be exempt pursuant tem may be exempt pursuant to 5 to 5 U.S.C. 552a(k)(1). U.S.C. 552a(j)(2) if the information is (ii) Investigatory material compiled compiled and maintained by a compo- for law enforcement purposes may be nent of the agency which performs as exempt pursuant to 5 U.S.C. 552a(k)(2). its principal function any activity per- However, if an individual is denied any taining to the enforcement of criminal right, privilege, or benefit for which he laws. would otherwise be entitled by Federal (ii) Portions of this system of records law or for which he would otherwise be eligible, as a result of the maintenance are exempt from the following sub- of such information, the individual will sections of the Privacy Act: (c)(3), be provided access to such information (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) through except to the extent that disclosure (I), (e)(5), (e)(8), (f), and (g). would reveal the identity of a confiden- (3) Authority: 5 U.S.C. 552a(j)(2). tial source. (4) Reasons: (i) Granting individuals (iii) Investigatory material compiled access to information collected and solely for the purpose of determining maintained by this activity relating to suitability, eligibility, or qualifica- the enforcement of criminal laws could tions for Federal civilian employment, interfere with the orderly investiga- military service, Federal contracts, or tions, with the orderly administration access to classified information may be of justice, and possibly enable suspects exempt pursuant to 5 U.S.C. 552a(k)(5), to avoid detection or apprehension. but only to the extent that such mate- Disclosure of this information could re- rial would reveal the identity of a consult in the concealment, destruction, fidential source. or fabrication of evidence, and jeop- (iv) Evaluation material used to de- ardize the safety and well-being of in- termine potential for promotion in the formants, witnesses and their families, Military Services may be exempt pur- and law enforcement personnel and suant to 5 U.S.C. 552a(k)(7), but only to their families. Disclosure of this infor- the extent that the disclosure of such mation could also reveal and render in- material would reveal the identity of a effectual investigative techniques, confidential source. sources, and methods used by these (v) Portions of this system of records components and could result in the in- are exempt from the following sub- vasion of the privacy of individuals sections of the Privacy Act: (c)(3), (d), only incidentally related to an inves- (e)(4)(G) and (I), and (f). tigation. The exemption of the individ- (3) Authority: 5 U.S.C. 552a(k)(1), ual’s right of access to portions of (k)(2), (k)(5), and (k)(7). these records, and the reasons there- (4) Reasons: Granting individuals ac- fore, necessitate the exemption of this cess to information collected and system of records from the require- maintained in this system of records ment of the other cited provisions. could interfere with orderly investiga- (ii) [Reserved] tions; result in the disclosure of classi- (5) Exemptions: (i) Information spe- fied material; jeopardize the safety of cifically authorized to be classified informants, witnesses, and their fami- under E.O. 12,958, as implemented by

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DOD 5200.1–R, may be exempt pursuant tion of records, or the fabrication of to 5 U.S.C. 552a(k)(1). testimony. Exempt portions of this (ii) Records maintained in connec- system also contain information that tion with providing protective services has been properly classified under E.O. to the President and other individuals 12,958, and that is required to be kept under 18 U.S.C. 3506, may be exempt secret in the interest of national de- pursuant to 5 U.S.C. 552a(k)(3). fense or foreign policy. (iii) Records maintained solely for (iii) Exempt portions of this system statistical research or program evalua- also contain information considered tion purposes and which are not used to relevant and necessary to make a de- make decisions on the rights, benefits, termination as to qualifications, eligi- or entitlement of an individual except bility, or suitability for Federal civil- for census records which may be dis- ian employment, military service, Fed- closed under 13 U.S.C. 8, may be ex- eral contracts, or access to classified empt pursuant to 5 U.S.C. 552a(k)(4). information, and was obtained by pro- (iv) Investigatory material compiled viding an express or implied assurance solely for the purpose of determining to the source that his or her identity suitability, eligibility, or qualifica- would not be revealed to the subject of tions for Federal civilian employment, the record. military service, Federal contracts, or (iv) The notice of this system of access to classified information may be records published in the FEDERAL REG- exempt pursuant to 5 U.S.C. 552a(k)(5), ISTER sets forth the basic statutory or but only to the extent that such mate- related authority for maintenance of rial would reveal the identity of a con- the system. fidential source. (v) The categories of sources of (v) Testing or examination material records in this system have been pub- used solely to determine individual lished in the FEDERAL REGISTER in qualifications for appointment or pro- broad generic terms. The identity of motion in the Federal service may be specific sources, however, must be exempt pursuant to 5 U.S.C. 552a(k)(6), withheld in order to protect the con- if the disclosure would compromise the fidentiality of the source, of criminal objectivity or fairness of the test or ex- and other law enforcement informa- amination process. tion. This exemption is further nec- (vi) Portions of this system of essary to protect the privacy and phys- records are exempt from the following ical safety of witnesses and informants. subsections of the Privacy Act: (c)(3), (vi) This system of records is exempt- (d), (e)(1), (e)(4)(G) through (I), and (f). ed from procedures for notice to an in- (6) Authority: 5 U.S.C. 552a(k)(1), dividual as to the existence of records (k)(3), (k)(4), (k)(5) and (k)(6). pertaining to him/her dealing with an (7) Reasons: (i) The release of disclo- actual or potential civil or regulatory sure accountings would permit the sub- investigation, because such notice to ject of an investigation to obtain valu- an individual would be detrimental to able information concerning the nature the successful conduct and/or comple- of that investigation, and the information of an investigation, pending or fu- tion contained, or the identity of wit- ture. Mere notice of the fact of an in- nesses or informants, would therefore vestigation could inform the subject or present a serious impediment to law others that their activities are under, enforcement. In addition, disclosure of or may become the subject of, an inves- the accounting would amount to notice tigation. This could enable the subjects to the individual of the existence of a to avoid detection, to influence wit- record. nesses improperly, to destroy records, (ii) Access to the records contained or to fabricate testimony. in this system would inform the sub- (vii) Exempt portions of this system ject of the existence of material com- containing screening board reports. piled for law enforcement purposes, the (viii) Screening board reports set premature release of which could pre- forth the results of oral examination of vent the successful completion of in- applicants for a position as a special vestigation, and lead to the improper agent with the Naval Investigation influencing of witnesses, the destruc- Service Command. Disclosure of these

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records would reveal the areas pursued function any activity pertaining to the in the course of the examination and enforcement of criminal laws. thus adversely affect the result of the (ii) Portions of this system of records selection process. Equally important, are exempt from the following sub- the records contain the candid views of sections of the Privacy Act: (c)(3), the members composing the board. Re- (c)(4), (d), (e)(2), and (e)(4)(G) through lease of the records could affect the (I), (e)(5), (e)(8), (f) and (g). willingness of the members to provide (3) Authority: 5 U.S.C. 552a(j)(2). candid opinions and thus diminish the (4) Reasons: (i) Granting individuals effectiveness of a program which is es- access to information collected and sential to maintaining the high stand- maintained by this component relating ards of the Special Agent Corps., i.e., to the enforcement of criminal laws those records constituting examination could interfere with orderly adminis- material used solely to determine indi- tration of justice, and possibly enable vidual qualifications for appointment suspects to avoid detection or appre- in the Federal Service. hension. Disclosure of this information (n) System identifier and name: could result in concealment, destruc- (1) N05520–5, Personnel Security Pro- tion, or fabrication of evidence, and gram Management Records System. jeopardize the safety and well being of (2) Exemptions: (i) Information spe- informants, witnesses and their fami- cifically authorized to be classified lies, and of law enforcement personnel under E.O. 12,958, as implemented by and their families. Disclosure of this DOD 5200.1–R, may be exempt pursuant information could also reveal and to 5 U.S.C. 552a(k)(1). render ineffectual investigative tech- (ii) Investigatory material compiled niques, sources, and methods used by solely for the purpose of determining this component, and could result in the suitability, eligibility, or qualifica- invasion of privacy of individuals only tions for Federal civilian employment, incidentally related to an investiga- military service, Federal contracts, or tion. The exemption of the individual’s access to classified information may be right of access to his or her records, exempt pursuant to 5 U.S.C. 552a(k)(5), and the reason therefore, necessitate but only to the extent that such mate- the exemption of this system of records rial would reveal the identity of a con- from the requirements of other cited fidential source. provisions. (iii) Portions of this system of (ii) [Reserved] records are exempt from the following (p) [Reserved] subsections of 5 U.S.C. 552a: (d)(1–5). (q) System identifier and name: (3) Authority: 5 U.S.C. 552a(k)(1) and (1) N05800–1, Legal Office Litigation/ (k)(5). Correspondence Files. (4) Reasons: (i) Granting individuals Exemptions: (i) Information specifi- access to information collected and cally authorized to be classified under maintained in this system of records E.O. 12,958, as implemented by DOD could result in the disclosure of classi- 5200.1–R, may be exempt pursuant to 5 fied material; and jeopardize the safety U.S.C. 552a(k)(1). of informants, and their families. Fur- (ii) Investigatory material compiled ther, the integrity of the system must for law enforcement purposes may be be ensured so that complete and accu- exempt pursuant to 5 U.S.C. 552a(k)(2). rate records of all adjudications are However, if an individual is denied any maintained. Amendment could cause right, privilege, or benefit for which he alteration of the record of adjudica- would otherwise be entitled by Federal tion. law or for which he would otherwise be (ii) [Reserved] eligible, as a result of the maintenance (o) System identifier and name: of such information, the individual will (1) N05580–1, Security Incident System. be provided access to such information (2) Exemption: (i) Parts of this system except to the extent that disclosure may be exempt pursuant to 5 U.S.C. would reveal the identity of a confiden- 552a(j)(2) if the information is compiled tial source. and maintained by a component of the (iii) Investigatory material compiled agency which performs as its principal solely for the purpose of determining

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suitability, eligibility, or qualifica- may be deemed unnecessary upon as- tions for Federal civilian employment, sessment in the context of devising military service, Federal contracts, or legal strategy. Information collected access to classified information may be during civil litigation investigations exempt pursuant to 5 U.S.C. 552a(k)(5), which is not used during subject case is but only to the extent that such mate- often retained to provide leads in other rial would reveal the identity of a con- cases or to establish patterns of activ- fidential source. ity. (iv) Testing or examination material (iii) Subsections (f)(2), (3), and (4) be- used solely to determine individual cause this record system is exempt qualifications for appointment or pro- from the individual access provisions motion in the Federal service may be of subsection (d). exempt pursuant to 5 U.S.C. 552a(k)(6), (r) System identifier and name: if the disclosure would compromise the (1) N01000–5, Naval Clemency and Pa- objectivity or fairness of the test or ex- role Board Files. amination process. (2) Exemption: (i) Parts of this system (v) Evaluation material used to de- may be exempt pursuant to 5 U.S.C. termine potential for promotion in the 552a(j)(2) if the information is compiled Military Services may be exempt pur- and maintained by a component of the suant to 5 U.S.C. 552a(k)(7), but only to agency which performs as its principal the extent that the disclosure of such function any activity pertaining to the material would reveal the identity of a enforcement of criminal laws. confidential source. (ii) Portions of this system of records (vi) Portions of this system of are exempt from the following sub- records are exempt from the following sections of the Privacy Act: (c)(4), (d), subsections of the Privacy Act: (d), (e)(4)(G), and (f). (e)(1), and (f)(2), (3), and (4). (3) Authority: 5 U.S.C. 552a(j)(2). (3) Authority: 5 U.S.C. 552a(k)(1), (4) Reasons: (i) Granting individuals (k)(2), (k)(5), (k)(6), and (k)(7). access to records maintained by this (4) Reasons: (i) Subsection (d) because Board could interfere with internal granting individuals access to informa- processes by which Board personnel are tion relating to the preparation and able to formulate decisions and policies conduct of litigation would impair the with regard to clemency and parole in development and implementation of cases involving naval prisoners and legal strategy. Accordingly, such other persons under the jurisdiction of records are exempt under the attorney- the Board. Material will be screened to client privilege. Disclosure might also permit access to all material except compromise on-going investigations such records or documents as reflecting and reveal confidential informants. Ad- items of opinion, conclusion, or rec- ditionally, granting access to the ommendation expressed by individual record subject would seriously impair board members or by the board as a the Navy’s ability to negotiate settle- whole. ments or pursue other civil remedies. (ii) The exemption of the individual’s Amendment is inappropriate because right to access to portions of these the litigation files contain official records, and the reasons therefore, ne- records including transcripts, court or- cessitate the partial exemption of this ders, investigatory materials, evi- system of records from the require- dentiary materials such as exhibits, ments of the other cited provisions. decisional memorandum and other (s) System identifier and name: case-related papers. Administrative (1) N01752–1, Family Advocacy Program due process could not be achieved by System. the ‘‘ex parte’’ correction of such mate- (2) Exemptions: (i) Investigatory ma- rials. terial compiled for law enforcement (ii) Subsection (e)(1) because it is not purposes may be exempt pursuant to 5 possible in all instances to determine U.S.C. 552a(k)(2). However, if an indi- relevancy or necessity of specific infor- vidual is denied any right, privilege, or mation in the early stages of case de- benefit for which he would otherwise be velopment. What appeared relevant and entitled by Federal law or for which he necessary when collected, ultimately would otherwise be eligible, as a result

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of the maintenance of such informa- (2) Exemptions: (i) Investigatory mation, the individual will be provided ac- terial compiled solely for the purpose cess to such information except to the of determining suitability, eligibility, extent that disclosure would reveal the or qualifications for Federal civilian identity of a confidential source. employment, military service, Federal (ii) Investigatory material compiled contracts, or access to classified infor- solely for the purpose of determining mation may be exempt pursuant to 5 suitability, eligibility, or qualifica- U.S.C. 552a(k)(5), but only to the extent tions for Federal civilian employment, that such material would reveal the military service, Federal contracts, or identity of a confidential source. access to classified information may be (ii) Testing or examination material exempt pursuant to 5 U.S.C. 552a(k)(5), used solely to determine individual but only to the extent that such mate- qualifications for appointment or pro- rial would reveal the identity of a con- motion in the Federal service may be fidential source. exempt pursuant to 5 U.S.C. 552a(k)(6), (iii) Portions of this system of if the disclosure would compromise the records are exempt from the following objectivity or fairness of the test or ex- subsections of the Privacy Act: (c)(3) amination process. and (d). (iii) Portions of this system of (3) Authority: 5 U.S.C. 552a(k)(2) and records are exempt from the following (k)(5). subsections of the Privacy Act: (d), (4) Reasons: (i) Exemption is needed (e)(4)(G) and (H), and (f). in order to encourage persons having (3) Authority: 5 U.S.C. 552a(k)(5) and knowledge of abusive or neglectful acts (k)(6). toward children to report such infor- (4) Reasons: (i) Exempted portions of mation, and to protect such sources this system contain information con- from embarrassment or recrimina- sidered relevant and necessary to make tions, as well as to protect their right a determination as to qualifications, to privacy. It is essential that the iden- eligibility, or suitability for Federal tities of all individuals who furnish in- employment, and was obtained by pro- formation under an express promise of viding express or implied promise to confidentiality be protected. Addition- the source that his or her identity ally, granting individuals access to in- would not be revealed to the subject of formation relating to criminal and the record. civil law enforcement, as well as the (ii) Exempted portions of this system release of certain disclosure account- also contain test or examination mate- ing, could interfere with ongoing inves- rial used solely to determine individual tigations and the orderly administra- qualifications for appointment or pro- tion of justice, in that it could result motion in the Federal Service, the disin the concealment, alteration, de- closure of which would comprise the struction, or fabrication of informa- objectivity or fairness of the testing or tion; could hamper the identification examination process. of offenders or alleged offenders and (u) System identifier and name: the disposition of charges; and could (1) N05813–4, Trial/Government Counsel jeopardize the safety and well being of Files. parents and their children. (2) Exemption. Parts of this system (ii) Exempted portions of this system may be exempt pursuant to 5 U.S.C. also contain information considered 552a(j)(2) if the information is compiled relevant and necessary to make a de- and maintained by a component of the termination as to qualifications, eligi- agency which performs as its principle bility, or suitability for Federal em- function any activity pertaining to the ployment and Federal contracts, and enforcement of criminal laws. Portions that was obtained by providing an ex- of this system of records that may be press or implied promise to the source exempt pursuant to subsection 5 U.S.C. that his or her identity would not be 552a(j)(2) are (c)(3), (c)(4), (d), (e)(1), revealed to the subject of the record. (e)(2), (e)(3), (e)(5), (e)(4)(G), (H), and (I), (t) System identifier and name: (e)(8), (f), and (g). (1) N12930–1, Human Resources Group (3) Exemption. Information specifi- Personnel Records. cally authorized to be classified under

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E.O. 12,958, as implemented by DOD effective investigation techniques, 5200.1–R, may be exempt pursuant to 5 sources, and methods used by law en- U.S.C. 552a(k)(1). forcement personnel, and could result (4) Exemption. Investigatory material in the invasion of privacy of individ- compiled for law enforcement purposes uals only incidentally related to an in- may be exempt pursuant to 5 U.S.C. vestigation. 552a(k)(2). However, if an individual is (iii) From subsection (e)(1) because it denied any right, privilege, or benefit is not always possible in all instances for which he would otherwise be enti- to determine relevancy or necessity of tled by Federal law or for which he specific information in the early stages would otherwise be eligible, as a result of case development. Information col- of the maintenance of such informa- lected during criminal investigations tion, the individual will be provided ac- and prosecutions and not used during cess to such information except to the the subject case is often retained to extent that disclosure would reveal the provide leads in other cases. identity of a confidential source. Por- (iv) From subsection (e)(2) because in tions of this system of records that criminal or other law enforcement in- may be exempt pursuant to subsections vestigations, the requirement that in- 5 U.S.C. 552a(k)(1) and (k)(2) are (c)(3), formation be collected to the greatest (d), (e)(1), (e)(4)(G), (H), and (I), and (f). extent practicable from the subject in- (4) Authority: 5 U.S.C. 552a(j)(2), (k)(1), dividual would alert the subject as to and (k)(2). the nature or existence of an investiga- (5) Reasons: (i) From subsection (c)(3) tion, presenting a serious impediment because release of accounting of disclo- to law enforcement investigations. sure could place the subject of an in- (v) From subsection (e)(3) because vestigation on notice that he/she is compliance would constitute a serious under investigation and provide him/ impediment to law enforcement in that her with significant information con- it could compromise the existence of a cerning the nature of the investigation, confidential investigation or reveal the resulting in a serious impediment to law enforcement investigations. identity of witnesses or confidential in- (ii) From subsections (c)(4), (d), formants. (e)(4)(G), and (e)(4)(H) because granting (vi) From subsection (e)(4)(I) because individuals access to information col- the identity of specific sources must be lected and maintained for purposes re- withheld in order to protect the con- lating to the enforcement of laws could fidentiality of the sources of criminal interfere with proper investigations and other law enforcement informa- and orderly administration of justice. tion. This exemption is further nec- Granting individuals access to informa- essary to protect the privacy and phys- tion relating to the preparation and ical safety of witnesses and informants. conduct of criminal prosecution would (vii) From subsection (e)(5) because impair the development and implemen- in the collection of information for law tation of legal strategy. Amendment is enforcement purposes it is impossible inappropriate because the trial/Govern- to determine in advance what informa- ment counsel files contain official tion is accurate, relevant, timely, and records including transcripts, court or- complete. With the passage of time, ders, and investigatory materials such seemingly irrelevant or untimely infor- as exhibits, decisional memorandum mation may acquire new significance and other case-related papers. Disclo- as further investigation brings new de- sure of this information could result in tails to light and the accuracy of such the concealment, alteration or destruc- information can only be determined in tion of evidence, the identification of a court of law. The restrictions of sub- offenders or alleged offenders, nature section (e)(5) would restrict the ability and disposition of charges; and jeop- of trained investigators and intel- ardize the safety and well-being of in- ligence analysts to exercise their judg- formants, witnesses and their families, ment in reporting on investigations and law enforcement personnel and and impede the development of intel- their families. Disclosure of this infor- ligence necessary for effective law en- mation could also reveal and render in- forcement.

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(viii) From subsection (e)(8) because (4) Records are only exempt from per- compliance would provide an impedi- tinent provisions of 5 U.S.C. 552a to the ment to law enforcement by interfering extent such provisions have been iden- with the ability to issue warrants or tified and an exemption claimed for the subpoenas and by revealing investiga- original record and the purposes under- tive techniques, procedures, or evi- lying the exemption for the original dence. record still pertain to the record which (ix) From subsection (f) and (g) be- is now contained in this system of cause this record system is exempt records. In general, the exemptions from the individual access provisions were claimed in order to protect prop- of subsection (d). erly classified information relating to (x) Consistent with the legislative national defense and foreign policy, to purpose of the Privacy Act of 1974, the avoid interference during the conduct DON will grant access to nonexempt of criminal, civil, or administrative ac- material in the records being main- tions or investigations, to ensure pro- tained. Disclosure will be governed by tective services provided the President the DON’s Privacy Regulation, but will and others are not compromised, to be limited to the extent that the iden- protect the identity of confidential tity of confidential sources will not be sources incident to Federal employ- compromised; subjects of an investiga- ment, military service, contract, and tion of an actual or potential criminal security clearance determinations, and violation will not be alerted to the in- to preserve the confidentiality and investigation; the physical safety of wit- tegrity of Federal evaluation mate- nesses, informants and law enforce- rials. The exemption rule for the origi- ment personnel will not be endangered, nal records will identify the specific the privacy of third parties will not be reasons why the records are exempt violated; and that the disclosure would from specific provisions of 5 U.S.C. not otherwise impede effective law en- 552a. forcement. Whenever possible, informa- (w) System identifier and name: tion of the above nature will be deleted (1) NM05720–1, FOIA Request/Appeal from the requested documents and the Files and Tracking System. balance made available. The control- (2) Exemption: During the processing ling principle behind this limited ac- of a Freedom of Information Act recess is to allow disclosures except quest, exempt materials from other those indicated above. The decisions to systems of records may in turn become release information from these systems part of the case record in this system. will be made on a case-by-case basis. To the extent that copies of exempt (v) System identifier and name: records from those ‘other’ systems of (1) NM05211–1, Privacy Act Request records are entered into this system, Files and Tracking System. the DON hereby claims the same ex- (2) Exemption: During the processing emptions for the records from those of a Privacy Act request (which may ‘other’ systems that are entered into include access requests, amendment re- this system, as claimed for the original quests, and requests for review for ini- primary system of which they are a tial denials of such requests), exempt part. materials from other systems of (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), records may in turn become part of the (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and case record in this system. To the ex- (k)(7). tent that copies of exempt records from (4) Records are only exempt from per- those ‘‘other’’ systems of records are tinent provisions of 5 U.S.C. 552a to the entered into this system, the DON extent such provisions have been iden- hereby claims the same exemptions for tified and an exemption claimed for the the records from those ‘‘other’’ sys- original record and the purposes under- tems that are entered into this system, lying the exemption for the original as claimed for the original primary record still pertain to the record which system of which they are a part. is now contained in this system of (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), records. In general, the exemptions (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and were claimed in order to protect prop- (k)(7). erly classified information relating to

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national defense and foreign policy, to (2) and (3)(c) and (e) and is published at avoid interference during the conduct 32 CFR part 701. of criminal, civil, or administrative ac- (2) Authority: 5 U.S.C. 552a(k)(5). tions or investigations, to ensure pro- (3) The reason for asserting this ex- tective services provided the President emption is ensure the integrity of the and others are not compromised, to security and investigative material protect the identity of confidential complied for law enforcement purposes sources incident to Federal employ- by the Department of the Navy and the ment, military service, contract, and Department of Defense. security clearance determinations, and [71 FR 27536, May 11, 2006, as amended at 75 to preserve the confidentiality and in- FR 61619, Oct. 6, 2010; 76 FR 22617, Apr. 22, tegrity of Federal evaluation mate- 2011; 77 FR 56772, Sept. 14, 2012; 78 FR 69553, rials. The exemption rule for the origi- Nov. 20, 2013] nal records will identify the specific reasons why the records are exempt § 701.129 Exemptions for specific Ma- from specific provisions of 5 U.S.C. rine Corps record systems. 552a. (a) [Reserved] (x) System identifier and name: N05800– (b) System identifier and name: 2, Professional Responsibility Files. (1) MIN00001, Personnel and Security (1) Exemptions: Investigatory mate- Eligibility and Access Information System. rial compiled for law enforcement pur- (2) Exemption: poses, may be exempt pursuant to 5 (i) Investigatory material compiled U.S.C. 552(k)(2). However, if an indi- for law enforcement purposes may be vidual is denied any right, privilege, or exempt pursuant to 5 U.S.C. 552a(k)(2). benefit for which he would otherwise be However, if an individual is denied any entitled by Federal law or which he right, privilege, or benefit for which he would otherwise be eligible, as a result would otherwise be entitled by Federal of maintenance of the information, the law or for which he would otherwise be individual will be provided access to eligible, as a result of the maintenance the information except to the extent of such information, the individual will that disclosure would reveal the iden- be provided access to such information tity of a confidential source. Any por- except to the extent that disclosure tion of this record system which falls would reveal the identity of a confiden- within the provisions of 5 U.S.C. tial source. 552a(k)(2) may be exempt from the fol- (ii) Records maintained in connec- lowing subsections of 5 U.S.C. 552a: tion with providing protective services (c)(3), (d)(1) through (5), (e)(1), (e)(4)(G), to the President and other individuals (e)(4)(H), (e)(4)(I). under 18 U.S.C. 3506, may be exempt (2) Authority: 5 U.S.C. 552a(k)(2). pursuant to 5 U.S.C. 552a(k)(3). (3) The reason for asserting this ex- (iii) Investigatory material compiled emption (k)(2) is to ensure the integ- solely for the purpose of determining rity of the litigation process. suitability, eligibility, or qualifica- (y) System identifier and name: tions for Federal civilian employment, NM03800–1, Naval Global Maritime, military service, Federal contracts, or Foreign, Counterterrorism and Counter access to classified information may be Intelligence Operation Records. exempt pursuant to 5 U.S.C. 552a(k)(5), (1) Exemptions: Investigatory mate- but only to the extent that such material compiled solely for the purpose of rial would reveal the identity of a con- determining suitability, eligibility, or fidential source. qualifications for federal civilian em- (iv) Portions of this system of ployment, military service, federal records are exempt for the following contracts, or access to classified infor- subsections of the Privacy Act: (c)(3), mation may be exempt pursuant to 5 (d), (e)(1), (e)(4)(G) through (I), and (f). U.S.C. 552a(k)(5) but only to the extent (3) Authority: 5 U.S.C. 552a(k)(2), that such material would reveal the (k)(3), and (k)(5), as applicable. identity of a confidential source. An (4) Reasons: (i) Exempt portions of exemption rule for this system has this system contain information that been promulgated in accordance with has been properly classified under E.O. the requirements of 5 U.S.C. 553(b)(1), 12,958, and that is required to be kept

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secret in the interest of national de- 705.23 Guest cruises. fense or foreign policy. 705.24 Exhibits. (ii) Exempt portions of this system 705.25 Navy Exhibit Center. also contain information considered 705.26 Exhibit availability report. relevant and necessary to make a de- 705.27–705.28 [Reserved] 705.29 Navy Art Collection. termination as to qualifications, eligi- 705.30 Aerospace Education Workshop. bility, or suitability for Federal civil- 705.31 USS Arizona Memorial, Pearl Harbor. ian employment, military service, Fed- 705.32 Aviation events and parachute dem- eral contracts, or access to classified, onstrations. compartmented, or otherwise sensitive 705.33 Participation by Armed Forces bands, information, and was obtained by pro- choral groups, and troops in the public viding an expressed or implied assur- domain. ance to the source that his or her iden- 705.34 Other special events. tity would not be revealed to the sub- 705.35 Armed Forces participation in events ject of the record. in the public domain. 705.36 Government transportation of civil- (iii) Exempt portions of this system ians for public affairs purposes. further contain information that iden- 705.37 Public affairs and public service tifies sources whose confidentiality awards. must be protected to ensure that the AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031. privacy and physical safety of these witnesses and informants are pro- SOURCE: 41 FR 29101, July 15, 1976, unless tected. otherwise noted. [71 FR 27536, May 11, 2006, as amended at 72 § 705.1 Purpose. FR 64538, Nov. 16, 2007] The regulations and rules in this part prescribe policies and procedures for PART 705—PUBLIC AFFAIRS the Department of the Navy pertaining REGULATIONS to public affairs practices.

Sec. § 705.2 Chief of Information and the 705.1 Purpose. Office of Information (CHINFO). 705.2 Chief of Information and the Office of Information (CHINFO). (a) The Chief of Information is the di- 705.3 [Reserved] rect representative of the Secretary of 705.4 Communication directly with private the Navy and of the Chief of Naval Op- organizations and individuals. erations in all public affairs and inter- 705.5 Taking of photos on board naval ships, nal relations matters. As such, the aircraft and installations by members of Chief of Information has the authority the general public. to implement public affairs and inter- 705.6 Releasing public information material nal relations policies and to coordinate to the media. 705.7 Radio and television. Navy and Marine Corps public affairs 705.8 Motion pictures. and internal relations activities of mu- 705.9 Availability of motion pictures to ex- tual interest. ternal audiences. (b) The Chief of Information will 705.10 Still photography. keep Navy commands informed of De- 705.11 Supplying photographs and services partment of Defense policies and re- to other than Navy and Marine Corps. quirements. No command within the 705.12 Print media. Department of the Navy, except Head- 705.13 Commercial advertising. 705.14 Embarkation of media representa- quarters, Marine Corps, will deal di- tives. rectly with the Office of the Assistant 705.15 Employment of Navy personnel as Secretary of Defense (Public Affairs) correspondents or staff members of civil- on public affairs matters unless au- ian news media. thorized to do so by the Chief of Infor- 705.16 Navy produced public information mation. material. (c) The Chief of Information will be 705.17 Participation guidelines. consulted on all Navy public affairs 705.18 Authority and coordination. 705.19 Financing. and internal relations matters and in- 705.20 Use of Navy material and facilities. formed of all operations and proposed 705.21 Requests for Navy participation. plans and policies which have national 705.22 Relations with community groups. or international (and in the case of

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audio-visual material, regional) public Command Information Bureaus and affairs aspects. public information staffs of other naval (d) The Chief of Information heads activities as directed by the Chief of the Navy Office of Information, the Information. Navy Internal Relations Activity (vii) Advise the Chief of Information (NIRA), the Office of Information on current trends and significant prob- Branch Offices (NAVINFOs), the Navy lems relating to local media require- Public Affairs Center (NAVPACENs) ments. and the Fleet Home Town News Center (viii) Seek ways to support the long- (FHTNC). In addition, the Chief of In- range goals and immediate priorities of formation has responsibility (on behalf the Navy. of the Secretary of the Navy as Execu- (ix) Provide advice and assistance in tive Agent for the Department of De- the placement of news and feature ma- fense) for the High School News Serv- terials to the field activities of the ice and has operational control of the Navy Recruiting Command. U.S. Navy Band, Washington, DC. (e) The Navy Office of Information (x) Perform such other tasks as may Branch Offices (NAVINFOs) are located be assigned by the Chief of Informa- in Atlanta, Boston, Chicago, Dallas, tion. Los Angeles, and New York. As rep- (2) Additionally, NAVINFO Los Ange- resentatives of the Secretary of the les is the Navy representative for all Navy, Chief of Naval Operations, and appropriate liaison with motion pic- Chief of Information, the NAVINFOs ture and network television offices in have a primary mission of providing di- the Hollywood area. Naval activities rect liaison with local and regional will channel all requests for informa- mass communications media. tion or assistance from these media to (1) The function of the NAVINFOs NAVINFO Los Angeles, which will co- are as follows: ordinate with CHINFO. (i) Establish and maintain close per- (3) Additionally, NAVINFO New York sonal relationships with local tele- is the Navy representative for all ap- vision, radio, film, publishing, and propriate liaison with television and other mass-media organizations includ- radio networks in the New York area ing minority-group-oriented media. and with magazine and book publishers (ii) Seek ways through these media in that area. Requests for assistance to inform the public about naval per- originating from these media should be sonnel and activities. directed to NAVINFO New York, which (iii) Provide assistance to media or- will coordinate with CHINFO. ganizations and respond to their inter- (4) Except as specifically directed by est in Navy programs, stories, and fea- CHINFO, the Branch Offices do not tures. In this regard, maintain infor- have responsibility or authority for mal liaison with various information community relations or internal rela- offices afloat and ashore in order to re- tions. spond to requests from local media rep- (5) Direct liaison between NAVINFOs resentatives, particularly those from and Naval District public affairs of- inland areas, who desire to visit fleet fices, Navy recruiters and other naval units or activities ashore. activities afloat and ashore is encour- (iv) Provide advice on Navy coopera- aged. tion and assistance, as appropriate, to representatives of national industrial (f) Areas covered by the respective and commercial organizations, includ- offices are: ing advertising agencies. (1) NAVINFO Atlanta: Alabama, the (v) Maintain a library of Navy mo- District of Columbia, Florida, Georgia, tion picture films for use by local tele- Kentucky, Maryland, Mississippi, vision stations, distribute news films North Carolina, South Carolina, Ten- and audio material, and otherwise per- nessee, Virginia, and Southern West form normal audio-visual functions at Virginia. the local level. (2) NAVINFO Boston: Maine, Massa- (vi) Provide personnel and other as- chusetts, New Hampshire, Rhode Is- sistance as appropriate, to special land, and Vermont.

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(3) NAVINFO Chicago: Illinois, Indi- media embarkations, or any other day- ana, Iowa, Michigan, Minnesota, Ne- to-day news media services concerning braska, North Dakota, Ohio, South Da- the respective fleets. These responsibil- kota, Wisconsin, and Northern West ities remain with the Fleet Com- Virginia. mander. (4) NAVINFO Dallas: Arkansas, Colo- (3) NAVPACENs have no direct re- rado, Kansas, Louisiana, Missouri, New sponsibility or authority for commu- Mexico, Oklahoma, and Texas. nity relations or internal relations and (5) NAVINFO Los Angeles: Arizona, shall defer in these areas to the cog- California, Idaho, Montana, Nevada, nizant Naval District Commandant. Oregon, Utah, Washington, and Wyo- (4) Direct liaison with Fleet Com- ming. manders-in-Chief and NAVINFOs is ap- (6) NAVINFO New York: Connecticut, propriate and authorized. As approved Delaware, New Jersey, New York, and by the Fleet CINCs, direct liaison with Pennsylvania. forces afloat and shore activities under (g) The Navy Public Affairs Centers (NAVPACENs) are located in Norfolk the Fleet CINCs is appropriate. and San Diego. The centers have a pri- (5) NAVPACENs will carry out their mary mission of producing Navy sto- mission and functions in such a man- ries for dissemination to the media ner as not to interfere with the public through normal information channels. affairs responsibilities of the District (1) The following tasks are included Commandants. among the functions of the [44 FR 6389, Feb. 1, 1979] NAVPACENs. (i) Produce written, audio and photo- § 705.3 [Reserved] graphic feature public information material about fleet and shore personnel, § 705.4 Communication directly with units and activities, as coordinated private organizations and individ- with and approved for policy and con- uals. cept by the respective fleet and shore (a) Questions from the public and re- commander concerned. quests from groups or individuals for (ii) Serve as public affairs emergency pamphlets, photos, biographies, histor- reaction teams/resource personnel re- ical matter, etc., must be promptly an- sponsive to the requirements of the swered. (32 CFR part 701, subparts A–D CNO and CHINFO, and when feasible refers.) and appropriate and as approved by (b) Assistance within the command’s CNO or CHINFO, serve as public affairs capabilities should (and in some cases, emergency reaction teams/resource must) be given. Where an established personnel in support of Fleet Com- channel for obtaining the item exists, manders. such as a publication stocked by the (iii) Develop feature material to sup- Superintendent of Documents (Govern- port the long range goals and the immediate priorities of the Navy. Direct ment Printing Office), or photos, as ex- liaison is authorized with the Navy Re- plained in the subparagraph below, the cruiting Command, Recruiting Areas, requester may be directed to it. Under Recruiting Districts, and other Com- some circumstances, a charge may be manders as appropriate to achieve this made. (Consult part 701 or the com- function. mand’s Freedom of Information au- (iv) Perform such other tasks as may thority for details.) If a lengthy search, be assigned by the Chief of Informa- beyond the convenient manpower re- tion. sources of the command, would be re- (2) NAVPACENs will have no public quired, the requester may be offered affairs news media responsibilities the opportunity of examining the ma- which conflict with the basic public af- terial at the command instead of cop- fairs responsibilities of Fleet Com- ies being made. manders-in-Chief. Specifically, (c) If a request is refused, the reason NAVPACENs are excluded from re- must be fully and courteously ex- sponding to news media queries, releas- plained, as required by part 701 of this ing news information, arranging news chapter.

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(d) Copies of released U.S. Navy § 705.6 Releasing public information photos may be purchased by the gen- material to the media. eral public. (a) Methods of releasing information: (1) Photos made within the last 10 (1) Release at the seat of government years may be purchased from the Naval and/or as approved by the Assistant Photographic Center. Information on Secretary of Defense (Public Affairs). the conditions of sale can be obtained (i) Overall responsibility for release by writing to the Commanding Officer, of information rests with the Assistant Naval Photographic Center, Naval Sta- Secretary of Defense (Public Affairs). tion, Washington, DC 20390. The Chief of Information is responsible (2) Photos made more than 10 years for coordinating with him releases of prior to the current date may be pur- national and international interest chased from the National Archives. De- (and in the case of audiovisual mate- tails are available from: Audio-Visual rial of regional interest) and for ar- Branch National Archives and Records ranging for local release of such mate- Service, General Services Administra- rial if considered appropriate by tion, Washington, DC 20408. OASD(PA). Information of the above types and also information proposed [41 FR 29101, July 15, 1976, as amended at 44 for release at the seat of government, FR 6390, Feb. 1, 1979] with the exception of ‘‘spot news,’’ as § 705.5 Taking of photos on board described in paragraph (b) of this sec- naval ships, aircraft and installation, following. tions by members of the general (2) Releases by local commands: public. (i) News of purely local interest may (a) Visitors will not be allowed to be released by the command concerned. take photographic equipment on board Higher and coordinating authorities (such as the District Commandant) will a naval ship or aircraft or into a naval be informed, when appropriate, that activity or to take photographs within the release has been made. a naval jurisdiction unless specially (ii) News of national or other wide in- authorized by the officer in command terest may be released by a local com- or higher authority. mand under the following cir- (b) Guests of the Navy who wish to cumstances: take photos within naval jurisdictions (A) The Assistant Secretary of De- will be advised of areas where photog- fense (Public Affairs), having approved raphy is permitted. An escort will be a release, directs that it be issued by assigned to assure that security is the command concerned. maintained, unless photography is per- (B) An event of immediate and ur- mitted throughout the ship, aircraft or gent news interest, such as a installation, or the areas in which it is disasterous accident, occurs at the not permitted are appropriately guard- command, and emergency announce- ed or secured. ments must be made as delay in issuing (c) If there is reason to believe that information would be against the best film exposed by a visitor or media pho- interests of the Navy. The officer in tographer contains classified informa- command will make a ‘‘spot news’’ re- tion, the film will be processed under lease of all appropriate information Navy jurisdiction. considered releasable. (1) Classified photos, if any, will be (1) Copies of spot news releases made retained. All unclassified film will be (or a description if the announcement returned to the owner. is made orally) will be forwarded (2) When film exposed by civilian promptly to the Chief of Information. visitors or media representatives in (2) If the situation is considered crit- sensitive areas is beyond the capability ical, the spot news release will be for- of the local command to process, it warded by telephone or message. may be forwarded to the Commanding (b) Means through which information Officer, Naval Photographic Center, for is released to media: processing. Any special processing in- (1) Navy oriented information mate- structions should be sent with the film. rial (written, taped, motion picture,

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still photo) is regularly released to all Technically, this is not considered a media presumed to be interested. news conference. (2) Similar material is provided in re- (ii) When a news conference is held, it sponse to query from a news media rep- is essential that all interested media be resentative. The material may be pro- invited to attend. duced by the Navy, or the newsman (iii) A record of what is said should may be assisted in researching, film- be kept. Ideally, the news conference ing, etc. himself. should be tape recorded and a public af- (3) Exclusive releases: fairs officer should be present. (i) Information concerning naval ac- (iv) Official spokesmen will be pre- tivities may be provided on an exclu- pared to answer questions in a frank sive basis only when a specific request and candid manner. If the answer or inquiry is received from one news would compromise military security, media representative for material not the inquirer should be so advised. If the requested by other media. answer is not known to the spokesman, (ii) In such cases, and assuming that he should say so and add that the mat- the information is properly releasable, ter will be checked and any available the following rules will apply: unclassified information provided (A) If prior to the time information is later. given to the newsman making the (v) Newsmen are not normally asked original inquiry or request substan- to submit their questions in advance. If tially similar inquiries or requests are this is considered advisable, as in cases received from other newsmen, the first where highly technical answers may be inquirer will be so informed, and subse- required, the answers are prepared in quent inquirers will be advised that a advance and given to all attending prior request has been received. None newsmen (not just the questioner) at of the inquirers will be told the iden- the news conference. tity of the individuals or media who (5) Interviews. These are similar to have placed these similar inquiries. news conferences except that they in- (B) If not more than three similar re- volve a single newsman (who has usu- quests are received, the information ally requested the interview) and a sin- will be provided simultaneously to gle Navy spokesman. each inquirer. (C) If more than three requests for (i) Required procedures are essen- substantially the same information tially the same as for news con- have been received before any are an- ferences. However, a public affairs offi- swered, inquirers will be advised as cer should be present only if desired by soon as possible that the information the person being interviewed. The cannot be given on an exclusive or lim- interview may be taped, if the news- ited basis, and a general release cov- man agrees. ering the subject will be issued to all (ii) Without penalizing initiative dis- media. played by a newsman in asking perti- (4) News conferences: nent questions, care should be exer- (i) A news conference is held when a cised by the naval spokesman not to command has something specific to an- make a major revelation of news mate- nounce to the press that cannot be han- rial to a single media outlet in the dled in a news release or by phone call. course of a routine interview. A news conference should not be called (iii) If major areas of difficulty arise just to get together with the press. A in the interview, the Chief of Informa- request from the press is also a reason tion should be notified of them. for conducting a news conference. Spe- (6) Background briefings; ‘‘Not for at- cial events, significant operations or tribution’’; or ‘‘Off the record.’’ serious accidents are frequent reasons (i) Since there is a possibility or risk for calling news conferences. If re- of a misunderstanding arising in these quested, spokesmen may be made briefings, it is important that all con- available to the press for questions cerned understand and agree to the without specific subject matter in ground rules. mind, but the press should be clearly (ii) In general, information will not informed of the nature of this meeting. be made public unless it can be openly

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attributed to the Navy and dissemi- (c) Navy cooperation in productions nated without reservation. Occasion- by audiovisual media representatives ally, a backgrounder may be helpful. (nongovernment). An example is a briefing of embarked (1) The production or project must: newsmen in advance of an operation, (i) Be consistent with the goals and providing information which may not aims of the Department of Defense and/ be reported until the operation is over. or be in the national interest. The purpose is to help the newsmen un- (ii) Portray military operation, his- derstand the operation while it is tak- torical incidents, persons and places, in ing place. such a manner as to give a true portrayal and interpretation of military § 705.7 Radio and television. life. (a) Navy relationships with radio and (iii) Comply with accepted standards TV representatives are of two types: of dignity and propriety in the indus- (1) Dissemination to them of Navy try. produced tapes, photos, films, etc. (2) There will be no deviation from (This is discussed in more detail in established safety standards. § 705.17). (3) Operational readiness shall not be (2) Cooperation with them when they impaired. produce a program on a Navy subject. (4) Official activities of military per- This is discussed in the paragraph fol- sonnel assisting the production must lowing: be within the scope of normal military (b) Requirement for approval by activities. Exceptions to this policy higher authority. will be made only in unusual circumstances. (1) Commanding officers may: (5) Diversion of ships, equipment, (i) Release audiovisual material personnel and material resources from which is spot news, as defined in normal military locations or military § 705.6(a)(2)(ii) preceding, or is of purely operations will not normally be au- local interest. thorized for filming. Exceptions to (ii) Participate in local community such policy must be authorized by the audiovisual projects of benefit to the Assistant Secretary of Defense (Public Department of Defense or in the na- Affairs), through the Chief of Informa- tional interest. tion. (iii) Approve one-time, one-station (i) The production company con- participation by personnel of their cerned must reimburse the government commands (as individuals) in programs for any extra expense involved. A strict of purely local interest. accounting of the additional expenses (2) All other audiovisual material incurred and charged to the production originated by the Department of the company must be maintained by the Navy or requiring Navy cooperation designated project officer. A copy of must be approved by the Chief of Infor- this accounting will be forwarded to mation, who will effect the necessary the Chief of Information. coordination and/or approval of the As- (ii) [Reserved] sistant Secretary of Defense (Public (6) Naval material and personnel will Affairs). not be employed in such a manner as to (i) Requests for assistance from non- compete with commercial and private governmental audiovisual media will enterprise. In this regard, any person be forwarded, with the maximum avail- or agency requesting their use will fur- able details and an evaluation of the nish a noncompetitive certification. request, through the chain of command (7) Additional details on procedures to the Chief of Information. will be found in DOD Instruction (ii) No direct coordination or contact 5410.16. between local naval commands and the (8) In addition to cooperation re- Assistant Secretary of Defense (PA) is quested by the media, commands will authorized unless specifically provided be alert to the advantages of providing for by separate directives or cor- Navy programming and/or encouraging respondence. participation by Navy personnel in

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local radio and TV programming. Ex- used on Navy recordings, tran- amples are community forums, local scriptions, or films not specially pro- talent shows, educational and religious duced or authorized for radio or TV programs, children’s shows, sports pro- broadcast. grams, etc. (g) Disclaimers. A disclaimer is not (d) Participation by individual Navy necessary if a product is advertised on personnel on radio or TV programs: a program in which the Navy partici- (1) In general, such participation is pates, but there must be no stated or encouraged if it is: implied endorsement of it by the Navy (i) Dignified and considered in the in- or by naval personnel appearing on the terests of the Navy. program. (ii) Compatible with operational (h) Requests for courtesy prints of commitments. commercial television programs: (iii) Not in competition with the reg- (1) Requests will not be made directly ular employment of professional per- to the producer or network concerned, formers. but will be forwarded to the Chief of In- (2) The public affairs officer will formation by the Navy requester. screen requests for such appearances for members of his command to see (2) These courtesy prints will be ex- that the programs are in good taste, hibited only under circumstances and that neither the Navy nor its per- which cannot be construed as competi- sonnel are exposed to embarrassment tive with commercial ventures. for the sake of entertainment. (3) Approval of participation by Navy § 705.8 Motion pictures. individuals: (a) The rules and procedures given in (i) Approval is not required for per- the preceding for TV will also apply to sonnel attending audience participa- cooperation with commercial motion tion broadcasts if they are selected at picture producers. random from the audience. (b) The Navy assists in the produc- (ii) One-time, one-station participation of commercial, privately financed, tion of purely local interest may be ap- nontheatrical motion pictures of insti- proved by the officer in command con- tutional or of educational value to the cerned. public. They Navy will not: (iii) If participation will be on a net- (1) Solicit their production. work (defined as more than one sta- (2) Provide lists of subjects the Navy tion, even if local) of if the same per- considers ‘‘desirable.’’ son or program is requested by two or (3) State that the Navy will use a more unrelated stations, approval by commercially produced film. the Chief of Information must be obtained even if the show is of local in- (4) Imply endorsement of a product. terest only. (5) Permit the use of official Navy (e) Use of official footage: seals. (1) Use of official U.S. Navy stock (c) Navy assistance to motion pic- film footage on TV broadcasts is not tures and all other audio-visual prod- authorized without approval and clear- ucts produced by Navy contractors will ance by the Chief of Information and be subject to the same rules and proce- the Department of Defense. dures that apply to other non-govern- (2) Use of Navy public information ment producers. Audio-visual products motion pictures cleared for TV is au- produced by Navy contractors, with or thorized and encouraged except that without Navy assistance, will be sub- such films may be used on subscription mitted to the Chief of Information via or pay TV only when offered to the the appropriate Navy headquarters ac- viewers at no cost. tivity for coordination with the Assist- (3) Navy films will not be cut or por- ant Secretary of Defense (Public Af- tions duplicated for TV use in lieu of fairs) for clearance for public release. stock footage without prior approval They will be accompained by five cop- by the Chief of Information. ies of the script and a statement from (f) Music clearance. The Navy assumes the producer that costs were paid from no responsibility for clearance of music corporate (vice contract) funds.

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(d) When a commercial film which photographs and may confiscate film, has been produced with Navy coopera- reviewing it if it is suspected that clas- tion is screened in a community, local sified material has been photographed. commands can provide Navy exhibits In such cases, all unclassified photos for display in theater lobbies, coordi- will be returned promptly to the pho- nate displays of recruiting material, tographer. and arrange for personal appearances (2) Navy personnel have no authority of Department of Defense and Depart- to confiscate film off Navy property. If, ment of the Navy military and civilian as in an accident, classified equipment personnel, provided such cooperation is is exposed which cannot be removed or approved by the Chief of Information covered, Navy representatives will ask and the Assistant Secretary of Defense news media photographers not to pho- (Public Affairs). tograph it and will inform them of 18 [41 FR 29101, July 15, 1976, as amended at 44 U.S.C. 793(e), 795, 797, which makes it a FR 6390, Feb. 1, 1979] criminal offense to photograph classified material. Navy personnel will not § 705.9 Availability of motion pictures use force if media photographers refuse to external audiences. to cooperate, but will instead seek the (a) Public access. Navy and Marine assistance of appropriate civil authori- Corps general motion pictures and mo- ties and/or the photographer’s superior tion picture projects not previously in recovering film or photographs pre- cleared for public exhibition will resumed to be of classified nature. quire clearance by the Chief of Infor- (3) If media photographers are unco- mation or the Marine Corps Director of operative in regard to protection of Information, as appropriate, prior to classified material, an account of the public viewing. Concurrent review of matter will be forwarded to the Chief legal rights and instruments associated of Information. with the production will be carried out (d) Release of photographs: by Patent Counsel, Naval Air Systems Command (AIR-OOP). Cleared motion (1) Most unclassified photographs of pictures may also be made available interest to the public may be released for free loan as determined by the indi- to news media. However, the rights of vidual services. In addition, cleared individuals photographed and special motion pictures may be provided for constraints such as those described in rent or sale through the National section 0403 of the Public Affairs Regu- Audio-Visual Center, National Ar- lations must be taken into consider- chives and Records Service (GSA), ation before a decision is made to re- Washington, DC 20409. lease a photograph. In addition, photos (b) Foreign military training. Motion which might be harmful to recruiting pictures from the Navy inventory may or otherwise not be in the Navy’s best be made available for foreign military interests will not be used unless this training programs on approval by the failure to release them constitutes sup- Chief of Naval Operations. Classified pression of legitimate news. motion pictures selected for such use (2) Photographs of strictly local in- will also require a security review by terest can be made available by the the Chief of Naval Operations. command to local media without being submitted to review by higher author- § 705.10 Still photography. ity. (a) Policy and procedures on taking (3) If a feature type photo released lo- photos by the general public, given in cally is considered of possible interest § 705.5 apply also to media representa- elsewhere, because of its human inter- tives. est or artistic merit, a single print (b) Basic policy and procedures for should be forwarded to the Chief of In- still photos are set forth in the Manual formation, together with a notation of of Naval Photography, OPNAVINST the distribution made. 3150.6D. (4) Photographs of national interest: (c) Authority to forbid photography: (i) ‘‘Spot news’’ photos may be re- (1) On Navy property, the officer in leased by a District Commandant or command may forbid the taking of Fleet or Force Commander.

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(ii) If a photo has been released by a cumstances will be made to the Chief local command to national news of Naval Operations. media: (c) This policy does not preclude re- (A) The original negative or trans- leases to the media, news companies, parency will be forwarded by the fast- and others in accordance with estab- est available means to the Com- lished procedures, or the sale of re- manding Officer, Naval Photographic leased photographs to private agencies Center, Naval Station, Washington, DC or individuals under existing Depart- 20390. Such forwarding will be in ac- ment of Defense regulations and part cordance with the Manual of Naval 701, subparts A–D, Availability to the Photography, par. 0445, subparagraphs public of Department of the Navy In- 3 and 4. formation and Records. Normally, re- (B) One print, a copy of the letter of quests by individuals for still photo- transmittal, and the distribution list will be forwarded to the Chief of Infor- graphs and motion picture photog- mation. raphy for private use are forwarded to (C) Navy units with a Unified Com- the Commanding Officer, Naval Photo- mand will forward the photos through graphic Center, Naval Station, Wash- Unified Command channels. ington, DC 20390, for action. Procedures (D) All other commands will forward for the collection or authority for the photos to the Chief of Information waiver of fees for service and material who will effect coordination with the provided are set forth in Volume III, Office of the Assistant Secretary of De- NAVCOMPT Manual, and part 701, sub- fense (Public Affairs) and, if necessary, parts A–D. arrange for security review. (d) Navy aerial photography released (iii) Photography of research activi- for sale to the public is transferred to ties is normally considered to be of na- the United States Department of the tional interest. Interior. Inquirers regarding the pur- (iv) Still photographs of national chase of this photography should be di- news interest may be forwarded, un- rected to Chief, Map Information Of- processed, for release by the Chief of fice, Geological Survey, Department of Information by any command not sub- the Interior, Washington, DC 20025. ject to the authority of a Unified or (e) Navy training films suitable for Specified Commander. Such forwarding sale to the public are transferred to the will be in accordance with paragraph National Audio-Visual Center, Na- 0445, subparagraph 3, of the Manual of Naval Photography. All available cap- tional Archives and Records Service, tion material will be forwarded with General Services Administration, this unprocessed photography. Washington, DC 20408. Inquires regarding the sale of Navy training films § 705.11 Supplying photographs and should be addressed to the National services to other than Navy and Ma- Audio-Visual Center. rine Corps. (f) This policy does not preclude re- (a) To avoid competition with civil- leases to contractors and others prop- ian photographic organizations, naval erly engaged in the conduct of the aircraft will not be used to take photo- Navy’s business. However, when serv- graphs for, nor will photographs or mo- ices are performed for other agencies of saic maps be provided to any individ- the government, and under certain con- uals, corporations, or agencies other ditions, for other military depart- than departments or agencies of the ments, the Navy Comptroller Manual federal government, without specific prescribes that such are subject to re- permission from the Chief of Naval Op- imbursement. erations. (g) All private inquiries from foreign (b) In the case of natural catas- nationals should be returned, advising trophe, or other circumstances where the addressee to contact his local U.S. prompt action is required, the senior officer present may authorize a depar- Information Service officer for the de- ture from the preceding paragraph. In sired materials. all such cases, a report of the cir-

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§ 705.12 Print media. product has undergone Navy tests nor Requests for reprints of items pub- disclose data from any Navy tests lished in national media will be ad- which may have been made. dressed to the Chief of Information. (4) It may not promote the use of to- Commands will be careful not to repro- bacco or alcohol. duce on their own authority any copy- (e) Use of uniforms and naval insig- righted material without advance per- nias. These may be used provided it is mission from the copyright holder. done in a dignified manner. (f) Use of Naval personnel: § 705.13 Commercial advertising. (1) Personnel may receive no com- (a) The Navy encourages cooperation pensation. with advertisers. However, the layout, (2) Personnel will not be inconven- artwork and text of the proposed ad- ienced or have their training or normal vertisement must be submitted to the duties interrupted. Chief of Information for review and for (3) Written consent from the person clearance by other appropriate authorities. concerned must be obtained before a (b) Requests from commercial enter- photo may be used. prises (including those with Navy con- (4) Navy civilians and military per- tracts) for use of Navy personnel, fa- sonnel on active duty may not use cilities, equipment or supplies for ad- their position titles or ranks in connec- vertising purposes must be referred to tion with any commercial enterprise or the Chief of Information. endorsement of a commercial product. (c) Official Navy photos which have (Retired personnel and Reserves not on been cleared and are released for open active duty may use their military ti- publication may be furnished for com- tles in connection with commercial en- mercial advertising, if properly identi- terprises if this does not give rise to fied and captioned. No photos will be the appearance of sponsorship of the taken exclusively for the use of an ad- enterprise by the Navy or Department vertiser. or in any way reflect discredit upon (d) Navy cooperation in commercial them.) advertising, publicity and other pro- (5) Testimonials from naval per- motional activities will be based on the following requirements. sonnel are not banned, but the person (1) It must be in accordance with the giving the testimonial must not be spe- provisions of 32 CFR part 721. cifically identified. (2) It must be in good taste and not (i) The use of name, initials, rank or reflect discredit on the Navy or the rate of Navy personnel appearing in U.S. Government. Statements made testimonial advertising is not per- must be matters of fact, without mis- mitted, but such expressions as, ‘‘says leading information or other objection- a Navy chief,’’ may be used. able features. (ii) Care will be taken to ensure that (3) It must not indicate that a prod- testimonials from Navy personnel are uct is used by the Navy to the exclu- presented in such a way as to make sion of similar products offered by clear that the views expressed are other manufacturers or appear to en- those of the individual and not of the dorse or selectively benefit or favor (di- Department of the Navy. rectly or indirectly) any private individual, sect, fraternal organization, § 705.14 Embarkation of media rep- commercial venture or political group, resentatives. or be associated with solicitation of votes in a political election. It will not (a) General. (1) Although this para- infer Navy responsibility for the accu- graph applies primarily to embar- racy of the advertiser’s claims or for kation in ships, provisions which are his compliance with laws protecting applicable to embarkation on aircraft the rights of privacy of military per- or visits to shore installations apply sonnel whose photographs, names or also to those situations. statements appear in the advertise- (2) See also § 705.37 on transportation ment. It will neither indicate that a of non-Navy civilians.

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(b) Invitations to embark. (1) Invita- should also control the ship-to-shore tions should be extended as far in ad- press radio and teletype (RATT). vance as possible and inclusive infor- (6) When more than one representa- mation on the following should be pro- tive from the same medium is em- vided: barked, an attempt should be made to (i) Type, scope and duration of oper- have them located at separate vantage ation or cruise. points. (ii) Communications, methods of (d) Communications. (1) Every effort press transmission, and charges, if any. will be made to provide suitable com- (iii) Transportation arrangements. munication facilities for newsmen em- (iv) Approximate cost of meals and/or barked (including equipment and per- quarters, and the statement that the sonnel, if feasible). newsman will be expected to pay for (2) All persons embarked with per- these and other personal expenses in- mission of proper authority and accred- curred. ited as correspondents are eligible to file press traffic, as authorized by the (2) It should be made clear to the procedures set forth in Naval Tele- newsman that there may be limits on communication Procedures (NTP–9), movement from one participating unit ‘‘Commercial Communications.’’ to another. If helicopters or highline (3) Navy radio or wire transmission transfers are to be used, their limita- facilities, where available, may be tions and hazards should be explained. made available to news media (includ- (3) On operations where security is ing accredited civilian photographers) critical, embarkation of newsmen may when operational requirements permit, be made contingent to their agreement in accordance with instructions set to submit copy for security review. forth by the Director of Naval Commu- Under such circumstances, the reason nications. This includes making live for the review will be made clear prior broadcasts or telecasts. (A live net- to embarkation, and every effort will work broadcast or telecast must, how- be made to avoid any interpretation of ever, be approved by the Chief of Infor- such review as ‘‘censorship’’ or inter- mation.) ference with freedom of the press. (4) Messages and instructions from (c) Arrangements aboard ship. (1) editors and station managers to em- Where appropriate, a briefing should be barked newsmen will be handled as held at the earliest convenient time press traffic, as authorized in Naval after embarkation at which newsmen Telecommunication Procedures (NTP– may meet the commanding officer and 9). other key personnel and guests and at (5) Stations receiving press circuits which previously supplied information will be authorized to receipt for press is reviewed. traffic without asking for time-con- (2) If feasible, an escort officer will be suming ‘‘repeats.’’ assigned to each newsman (or group of (6) Under normal circumstances, newsmen having similar requirements). press copy will be transmitted on a (3) It should be reported in the ship’s first-come, first-served basis; however, newspaper (and on radio and closed-cir- newsmen will be informed that the pre- cuit TV, if any) that newsmen will be rogative of limiting the amount to be embarked, giving their names and the filed during any one period rests with media they represent. the Exercise Commander. (4) If a correspondent is interested in (7) If it becomes necessary for oper- home town material, personnel from ational reasons for newsmen to pool his area should be contacted in ad- copy, such messages shall be filed as vance, if possible, to determine if and ‘‘multiple address messages’’ or book when they would be available for inter- messages, as appropriate, or when reviews and photos. quested by the newsmen concerned. (5) Representatives of press associa- (8) If the locale of the exercise per- tions and radio and TV networks will mits newsfilm and press mail to be be embarked in the Exercise Com- flown ashore, flights should be sched- mander’s flagship or the Exercise Con- uled on a high priority basis to connect trol ship, when possible. This ship with scheduled commercial air traffic.

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Operational aircraft as well as sched- mands. Details on the establishment of uled government air flights should be authorized laboratories and acquisition considered for delivery of television of equipment and supplies are given in news film, radio tapes and photography the Manual of Navy Photography to the nearest commercial communica- (OPNAVINST 3150.6D). tions facility. (2) Photographic coverage of command (e) Voluntary submission of material by events. (i) If more than two photog- a newsman for security review. When a raphers are required to cover a public review is not required but is sought by event, consideration should be given to the newsman, no attempt will be made having them wear appropriate civilian to delete or change any material, attire. whether or not it appears critical of (ii) Personnel in uniform who are the Navy or of naval personnel. If any amateur photographers and who are at- classified information is included, the tending the event as spectators will newsman will be asked to delete it. In not be discouraged from taking photos. addition, his attention will be drawn to (3) Unofficial photos taken by Navy per- any inaccurate or possibly misleading sonnel. (i) The following regulations statements. apply to Navy civilian employees and [41 FR 29101, July 15, 1976, as amended at 44 to Navy personnel in transit through a FR 6390, Feb. 1, 1979] command, as well as to active duty personnel assigned to the command. § 705.15 Employment of Navy personnel as correspondents or staff (ii) Personal cameras and related members of civilian news media. equipment are permitted on Navy ships, aircraft and stations at the dis- (a) A member of the naval service on cretion of the officer in command. active duty or Navy civilian may act as (iii) An officer in command may correspondent for a news periodical or screen all photos taken by naval per- service, radio or TV station or net- sonnel with personal cameras within work, or may work part-time for such the jurisdiction of the command to pro- an organization. The Secretary of the tect classified information or to ac- Navy will, however, be immediately inquire photos for official use, including formed, via the Chief of Information. public affairs. Photographs taken by (1) See section 0307 (par. 5), section bystanders at times of accident, com- 0308 (par. 4), and section 0309 (par. 3) of bat, or similar significant events can the Navy Public Affairs Regulations be valuable for preparation of official for regulations referring to personnel report and public release. They should assigned to public affairs staffs receiv- be collected for screening and review as ing compensation for such work. (2) In time of war, only personnel as- expeditiously as possible. signed to public affairs billets and such (iv) Amateur photographers should other personnel as the Secretary of the also be encouraged to volunteer the use Navy may authorize can act as cor- of interesting or significant photos for respondents for civilian media. public affairs use. (b) Military personnel on active duty (v) Photos made by naval personnel, and Navy civilians may not serve on with either personal cameras and film, the staff of a ‘‘civilian enterprise’’ Navy equipment and film, or any com- newspaper published for personnel of a bination thereof, may be designated Navy installation or activity. ‘‘Official Navy Photo’’ if it is considered in the best interests of the Navy. § 705.16 Navy produced public infor- (A) All precautions will be taken to mation material. protect such film from loss or damage, (a) Still photo—(1) General. (i) The pol- and all unclassified personal photos not icy and procedures given for media pro- designated as ‘‘official’’ will be reduced still photos in § 705.10, apply to turned to the owner immediately after Navy produced photos. review. (ii) The Office of Information does (B) When a photo taken by an indi- not issue, nor have funds available for vidual who is not an official photog- the purchases of, any photographic rapher is selected for public affairs re- equipment or supplies for Navy com- lease:

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(1) The photographer will receive photo releases on personnel of their credit for his work in the same manner commands are regularly sent to the as an official photographer. Fleet Home Town News Center. (2) The original negative or trans- (2) Procedures, requirements and for- parency will be retained and assigned mats are contained in CHIN-FOINST an official file number. It will then be 5724.1. handled like any other official Navy [41 FR 29101, July 15, 1976, as amended at 44 photograph. FR 6390, Feb. 1, 1979] (3) At least one duplicate negative or transparency of each unclassified per- § 705.17 Participation guidelines. sonal photo which has been designated (a) The provisions of this section as ‘‘official’’ will be prepared and deliv- refer to participation by naval per- ered to the photographer. A black-and- sonnel and use of Navy facilities and white print may also be prepared for material in events sponsored by non- the photographer’s personal use. government organizations except (b) (1) The Chief of Infor- Audiovisual. where otherwise stated. mation releases TV featurettes directly (b) In accordance with the estab- to local TV stations and the Office of lished responsibilities of local officers Information’s Branch Offices (NAV in command, these officers will con- INFO’s). After such featurettes have tinue to determine whether facilities, been cleared for public release by the equipment and personnel within their Assistant Secretary of Defense (Public cognizance may be provided for such Affairs). programs (except in the Washington, (2) The Assistant Secretary of De- DC area where the Assistant Secretary fense (PA) must approve, prior to com- of Defense (Public Affairs) is the au- mitment of funds, the initiation of thorizing authority). Navy audiovisual productions intended (c) Officers in command will ensure for public release. that participation is appropriate in (3) Motion picture film. scope and type, and is limited to those (i) Film of major news value will be occasions which are: In keeping with forwarded immediately, unprocessed, the dignity of the Department of the to the Commanding Officer, U.S. Naval Navy, in good taste and in conformance Photographic Center. The package with the provisions of part 721 of this should be labeled as follows: chapter. The national, regional, state or local significance of the event and NEWS FILM—DO NOT DELAY the agency sponsoring the event will be Commanding Officer, U.S. Naval Photo- used as guides in determining the scope graphic Center (ATTN: CHINFO Liaison), and type of Navy participation to be Washington, DC 20374. authorized. NEWS FILM—DO NOT DELAY (d) Participation in community relations programs is authorized and en- The Commanding Officer of the Naval couraged to accomplish the aims and Photographic Center will be advised purposes as set forth in § 705.18 (fol- (with an information copy to the Chief lowing). Where mutually beneficial to of Information) of its forwarding, the the Department of Defense and the subject, type and amount of footage, public, support authorized and provided method of delivery, and estimated time is always subject to operational consid- of arrival in Washington. erations, availability of requested sup- (ii) The original negative of motion port and the policy guidance provided picture photography of feature value herein. (photography which will not lose its (e) Military personnel, facilities, and timeliness over a reasonable length of materiel may be used to support non- time) will be forwarded to the Naval government public affairs programs Photographic Center, and a copy of the when: forwarding letter will be sent to the (1) The use of such facilities, equip- Chief of Information. ment and personnel will not interfere (c) Fleet Home Town News Center with the military mission or the train- (FHTNC). (1) All public affairs officers ing or operational commitments of the will assure that appropirate news and command.

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(2) Such programs are sponsored by of race, creed, color, national origin, or responsible organizations. sex. (3) Such programs are known to be (1) Navy participation in a public nonpartisan in character, and there is event is not authorized if admission, no reason to believe that the views to seating and other accommodations and be expressed by the participants will be facilities are restricted in a discrimina- contrary to established national pol- tory manner. icy. (2) Exceptions for participation may (f) The sponsoring organizations or be made under certain circumstances groups will be clearly identified in all for an ethnic or ideological group when cases where naval personnel partici- they do not entertain any purpose of pate as speakers, or military support is discriminating against any other furnished. group. Any such exceptions must be re- (g) Public affairs programs sponsored ferred to the Chief of Information for by civilian organizations will not be consideration. cosponsored by a naval command un- (3) Support to nationally recognized less expressly authorized by the Chief veterans’ organizations is authorized of Information. when the participation is in support of (h) Participation will not normally positive programs which are not in be authorized in public events when the themselves discriminatory. presence of military participants de- (4) Navy support to nonpublic school prives civilians of employment. Offi- activities is authorized when the par- cers in command will screen all re- ticipation is clearly in support of edu- quests for use of material and per- cational programs or Navy recruiting. sonnel in Navy-sponsored social func- (5) Commands should ensure minor- tions held off military installations. ity participation in all community re- (i) Navy participation and coopera- lations activities and events, as appro- tion must not directly or indirectly en- priate. This includes but is not limited dorse, or selectively benefit, or appear to the following: to endorse, benefit or favor, any pri- (i) Ensure that the minority commu- vate individual, group, corporation nity is aware of the procedure for ob- (whether for profit or nonprofit), sect, taining Navy support for community quasi-religious or ideological move- events and that they are appraised of ment, fraternal, or political organiza- the use of Navy demonstration teams, tion, or commercial venture, or be as- units, and speakers. sociated with the solicitation of votes (ii) Encourage Navy involvement in, in a political election. and attention to, local minority com- (1) Providing use of government fa- munity events. cilities, such as transportation, hous- (iii) Continue to cultivate a rapport ing, or messing, at government expense with key members of all minority com- to private groups is normally inter- munities. preted as a selective benefit or favor (k) Participation is not authorized if and is not authorized as part of a com- there is fund raising of any type con- munity relations program. Therefore, nected with the event, except as pro- such provisions are normally not au- vided for in § 705.34. thorized as part of a community rela- (l) No admission charge may be lev- tions program, even though certain ied on the public solely to see an uses of facilities may be authorized Armed Forces demonstration, unit, or under directives on domestic action or exhibit. other programs. (1) When admission is charged, the (2) The above does not bar private Armed Forces activity must not be the groups from providing entertainment sole or primary attraction. on base. However, the appearance must (2) A general admission charge need be for entertainment and not for fund- not be considered prohibitory to Navy raising, or any political or promotional participation, but no specific or addi- purpose. tional charge may be made because of (j) Community relations programs Navy participation. must always be conducted in a manner (3) Participation shall be incidental free from any discrimination because to the event except for programs of a

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patriotic nature, celebration of na- (t) Maximum advantage of recruiting tional holidays, or events which are potential will be taken at appropriate open to the general public at no charge events for which Navy participation for admission. has been authorized. (4) The provisions of this paragraph (u) Navy support will not normally do not apply to the Navy’s Blue Angel be authorized for commercially-ori- Flight Demonstration Team or to the ented events such as shopping center Navy Band and other special bands en- promotions, Christmas parades, and gaged in authorized concert tours con- other such events clearly sponsored by, ducted at no additional cost to the gov- or conducted for the benefit of com- ernment. mercial interests. However, this policy (m) Some participation in or support does not preclude participation of Navy of commercially sponsored programs recruiting personnel and their organic equipment, materials and exhibits so on audio or visual media is allowable. long as their participation is not used See §§ 705.7 and 705.8. to stimulate sales or increase the flow (n) Some participation which sup- of business traffic or to give that ap- ports commercial advertising, pub- pearance. Requests for exceptions will licity and promotional activities or be considered on a case-by-case basis events is allowable. See section 0405, by the Chief of Information. par. 3 of the Navy Public Affairs Regu- (v) Questions as to appropriateness of lations. Navy participation, or as to existing (o) Navy speakers may be provided Navy and OASD (PA) policy, may be for certain events at which other forms referred to the Chief of Information. of Navy participation may not be ap- (w) Procedures for requesting partici- propriate. See section 0604, par. 8 of the pation are addressed in § 705.21. Navy Public Affairs Regulations. [41 FR 29101, July 15, 1976, as amended at 44 (p) When participation is in the mu- FR 6390, Feb. 1, 1979] tual interest of the Navy and the sponsor of the event, participation will be § 705.18 Authority and coordination. authorized at no additional cost to the (a) Each naval command will coordi- government. Additional costs to the nate its community relations program government (travel and transportation with the senior authority having re- of military personnel, meals and quar- sponsibility for community relations in ters, or standard per diem allowances, its area (District Commandant, Unified etc.) will be borne by the sponsor. Commander, or other). (q) Department of Defense policy pro- (b) Within policy limitations out- hibits payment by the Armed Forces lined in this section, the command re- for rental of exhibit space, utilities, or ceiving a request for Navy participa- janitorial costs. Other exceptions may tion, and processing the required re- be given under unusual circumstances. sources, has the authority to process (r) Navy participation in professional the request and provide the support re- sports events and post-season bowl quested. games will frequently be authorized at (c) Requests for support exceeding no additional cost to the government, local capability, or requiring approval will emphasize Joint Service activity from higher authority, or requiring an when possible, and must support re- exception to policy will be referred as cruiting programs. Chief of Informa- directed in § 705.21 for determination. tion approval is required. (d) The Assistant Secretary of De- (s) Navy participation in public fense (Public Affairs) has the overall events shall be authorized only when it responsibility for the Department of can be reasonably expected to bring Defense community relations program. credit to the individuals involved and Civilian sponsors should be advised to to the Armed Forces and their recruit- address requests for approval of the fol- ing objectives. Naval personnel will not lowing types of programs directly to be used in such capacities as ushers, the Director of Community Relations, guards, parking lot attendants, runner Office of the Assistant Secretary of De- or messengers, baggage handlers or for fense (Public Affairs), Pentagon, Wash- crowd control, or in any installations. ington, DC 20301:

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(1) National and international events, quire complete coordination through including conventions, except those appropriate channels between the Uni- taking place in overseas areas which fied Command and naval activities con- are primarily of internal concern to cerned. Unified Commanders. (4) Unified Commanders overseas re- (2) Events outside the United States quiring Navy support for a community which have an interest and impact ex- reltaions program or participation in a tending beyond the Unified Command public event should coordinate their re- areas, or which require assistance from quirements with the appropriate Navy outside the command area. component command. (3) Public events in the Washington, (f) The Secretary of the Navy will DC area. plan and execute Navy community re- (4) Aerial, parachute, or simulated lations programs and approve Navy tactical demonstrations held in the participation in public events not oth- public domain, except those held in erwise reserved or assigned to the Sec- areas assigned to overseas Unified retary of Defense. This authority may Commands. be delegated. (5) Aerial reviews on military installations within the United States if the § 705.19 Financing. review involves more than one Service. (a) The financial requirements for (6) Programmed national sports, pro- community relations purposes will be fessional athletic events, formal inter- kept to the minimum necessary to ac- national competitions, and contests be- complish Department of Defense objec- tween a Navy and professional team in tives. the public domain. See section 0605, (b) Costs of participation will nor- par. 18 of the Navy Public Affairs Regu- mally be at government expense for the lations. following types of events and programs (7) Performing Navy units appearing when they are in the primary interest on regional or national television. of the Department of Defense: (8) Overall planning for Armed Forces (1) Public observances of national Day (not including local activities). holidays. (9) Granting exceptions to policy. (e) Overseas, Unified Commanders (2) Official ceremonies and functions. are designated to act for and on behalf (3) Speaking engagements. of the Secretary of Defense in imple- (4) Programmed, scheduled tours by menting community relations pro- Navy information activity support grams within their command areas and units (e.g., an exhibit from the Navy in granting any exceptions to policy or Exhibit Center) when this method of regulations. This authority may be del- reaching special audiences is consid- egated. ered by the Secretary of the Navy to be (1) Policy, direction and guidance for the most effective and economical way Unified Command community relations of accomplishing a priority public af- programs are provided to Navy compo- fairs program. nents of these commands by the Uni- (5) Tours by units (e.g., the Navy fied Commander concerned. Band) for which appropriated funds (2) Authority of the Commander-in- have been specifically provided. Chief, Pacific extends to planning and (6) Support of recruiting. execution of community relations pro- (7) Events considered to be in the na- grams in Alaska and Hawaii. Participa- tional interest, or in the professional, tion in events held in Alaska and Ha- scientific, or technical interests of the waii will be governed by the same prin- Navy or Department of Defense, when ciples as policies applicable to other approved by the Secretary of Defense states. or the overseas Unified Commander, as (3) Community relations programs appropriate. and events taking place within the (c) Navy participation in all other United States which have an effect on public events will normally be at no a Unified or Specified Command as a additional costs to the government. whole, or are otherwise of significant (1) Continuing type costs to the gov- concern to the Unified Command, re- ernment which would have existed had

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the Navy not participated in the event the officer in command to have merit, will not be reimbursed by the sponsor. may be referred to the Chief of Infor- (2) Transportation costs may be ex- mation. cluded from the costs to be borne by [41 FR 29101, July 15, 1976, as amended at 44 the sponsor when the transportation FR 6391, Feb. 1, 1979] can be accomplished by government aircraft on a normal training flight or § 705.21 Requests for Navy participa- opportune airlift. tion. (a) Decisions will be made on a case- § 705.20 Use of Navy material and fa- by-case basis. Events which are inap- cilities. propriate for one type of participation (a) The loan of equipment and per- may be entirely appropriate for an- mission to use facilities will be depend- other type of participation. A positive ent on the following: and flexible approach should be em- (1) The program support must be ployed. within the command’s public affairs re- (b) Requests by civilian organizations sponsibility. for Navy participation in programs or (2) The loan of the equipment must events they sponsor should be ad- not interfere with the military mission dressed to the nearest naval installa- of the command. tion and should be evaluated and au- (3) Equipment must be available thorized at that level if possible. Re- within the command or obtainable quest exceeding local resoures, or re- from another Navy command in the quiring authorization from higher au- local area. thority, should be forwarded through (4) The event must be of the type for appropriate channels. which participation is considered ap- (c) Requests for Armed Forces par- propriate. ticipation in public events are to be (5) It must not be in any direct or im- submitted on official request forms plied competition with a commercial (§§ 705.33, 705.34 and 705.36) by the spon- source. sors of events occurring outside a com- (6) There must be no potential danger mand’s area of direct knowledge and to persons or private property that local capability, or involving a type or could result in a claim against the gov- level of participation unavailable lo- ernment. Safety requirements will be cally, or requiring approval of higher observed. authority. (b) Use of open mess facilities will be (d) Fact sheets expounding upon nor- permitted only under one of the fol- mally requested assets are enclosed in lowing conditions: §§ 705.33, 705.34 and 705.36 and may be re- (1) Incident to the holding of a pro- produced and distributed locally. fessional or technical seminar at the (e) The official request form is to be command. used on all requests referred to the (2) Incident to an official visit to the Chief of Information and to the Office command by a civic group. of Assistant Secretary of Defense (Pub- (3) Navy League Council luncheon or lic Affairs). dinner meetings (not to exceed one per quarter per group). § 705.22 Relations with community (4) Incident to group visits by the groups. Boy Scouts of America, Boys Clubs of (a) Naval commands will cooperate America, the Navy League Sea Cadets with and assist community groups (by virtue of their federal charters), within their capabilities, to the event Girl Scouts and the Navy League Ship- authorized by current instructions, and mates, and a few representative adult will participate in their activitis to the leaders. extent feasible. (c) Use of the official Navy flag will (b) Navy commands will encourage be in accordance with SECNAVINST membership of personnel in commu- 10520.2C and of official emblem in ac- nity organizations. cordance with OPNAVINST 5030.11B. (c) Officers in command will withhold (d) Requests not meeting the criteria approval of requests from community cited here, but which are considered by groups, organizations or individuals

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whose purposes are unclear, pending (iii) Commands will not solicit, nor advice from the Chief of Information. authorize others to solicit, contractors (d) Commands may make facilities, to provide advertising, contributions, less housing and messing, available to donations, subscriptions, etc. Where community groups, at no expense to there is a legitimate need for indus- the government, when it is in the best trial promotion items, such as scale interest of the Navy to do so. Mess fa- models, the command will contact the cilities may not be used for meetings of Chief of Information for advice as to civic groups or other asociations unless the procedure for requesting procure- all the members of the group concerned ment. are authorized participants of the mess (iv) Similarly, if Defense contractors as prescribed in NAVPERS 15951, ex- wish to distribute information mate- cept as provided below: rial through official Navy channels, the Office of Information will be queried as (1) Requests to make open mess fa- to the desirability and feasibility of cilities available to professional or undertaking the desired distribution. technical seminars or civic groups (v) Visits to contractor facilities are meeting in connection with an official governed by the provisions of DOD visit to the activity may be submitted Manual 5520.22–M (Industrial Security to the officer in charge of the mess, or Manual for Safeguarding Classified In- other appropriate authority. Such re- formation). If nationally known press quests may be approved when it is representatives will be involved, prior shown that the inspection of the activ- approval must be obtained both from ity or the holding of a professional the contractor (via the Chief of Infor- seminar is of principal importance and mation) and from the Assistant Sec- the use of mess facilities is incidental retary of Defense (Public Affairs). thereto. (3) Commands will maintain the (2) Because of the exceptional nature same relationship with labor unions as of the Navy League, as recognized by with other community groups and will the Secretary of the Navy, open mess not take action in connection with facilities may be used for luncheon or labor disputes. Personnel inadvertently dinner meetings of Navy League Coun- or incidentally involved in labor dis- cils, but not more often than once per putes will consult officers in command quarter per group. for guidance. (e) Relations with Industry and (f) Emergency Assistance to the Com- Labor in the Community (refer to munity: SECNAVINST 5370.2F and DOD Direc- (1) Navy commands will offer and tive 5500.7): provide assistance to adjacent commu- (1) Relations with Navy contractors nities in the event of disaster or other and with industry and business in gen- emergency. eral are the responsibility of the officer (2) The Chief of Information will be in command, with the assistance of his advised immediately of action when public affairs officer. taken, and copies of subsequent reports (2) Navy commands will cooperate to the Chief of Naval Operations will be with industry and its representatives forwarded to the Chief of Information. in planning and executing community (3) Navy commands will participate relations projects of mutual interest. in planning by local Civil Defense offi- (i) Visits to commands will be sched- cials. uled for industrial and employee [41 FR 29101, July 15, 1976, as amended at 44 groups under the same conditions as FR 6391, Feb. 1, 1979] for other civilian groups. (ii) A contractor may be identified in § 705.23 Guest cruises. a news release, exhibit, or the like (a) General policy. (1) The embar- whenever the major responsibility for kation of civilian guests in Navy ships the product can be clearly and fairly is appropriate in the furtherance of credited to him. In such cases, both the continuing public awareness of the manufacturer’s name for the product Navy and its mission. and the Navy designation of it will be (i) Examples of embarkations for used. public affairs purposes are (but not

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limited to): Individuals, community commanders of the Unified and Speci- service clubs, civic groups, the Navy fied Commands (and their component League, and trade and professional as- commanders, if so designated) have the sociations. authority to use Navy ships to embark (ii) Embarkation of media represent- individuals other than news media rep- atives on assignment is discussed in resentatives for public affairs purposes. § 705.14. (i) Public affairs embarkations origi- (iii) Other categories may be estab- nating within the geographical limits lished by the Secretary of the Navy, of the Unified Command will be ap- subject to the approval of the Sec- proved by and coordinated with the retary of Defense. commanders of such commands. This (2) It has also been demonstrated authority may be delegated. Requests that the occasional embarkation on for such embarkations originating with cruises of families and personal guests the subordinate fleet or force command of naval personnel has contributed ma- of a Unified Command will be sub- terially to the morale of the family cir- mitted via the operational chain of cle and has instilled in each individual command, to the appropriate com- a sense of pride in his ship. For further mander of the Unified Command, un- information see OPNAVINST 5720.2G. less delegated. (3) Embarkations should be con- (ii) Requests for public affairs embar- ducted within the framework of regu- kations originating from any Navy larly scheduled operations; underway source other than the Chairman of the periods solely to accommodate guests Joint Chiefs of Staff, or the Unified and are not authorized. Specified Commanders or their subor- (4) Commander-in-Chief, Pacific dinate commands, will be submitted to Fleet, Commander-in-Chief, Atlantic the Chief of Information, who will ef- Fleet, Commander-in-Chief, U.S. Naval fect coordination with the Chief of Forces Europe, Commander Military Naval Operations and/or the Assistant Sealift Command (and their subordi- Secretary of Defense (Public Affairs) as nate commands if so designated), Chief appropriate. of Naval Education and Training, and District Commandants may authorize (iii) When guests debark in a foreign the embarkation of female civilians for port which is in the geographic area of daylight cruises. Embarkation of civil- a Unified Command other than that in ians for overnight cruises must be au- which the cruise originated, the Chief thorized by the Chief of Naval Oper- of Information will coordinate travel ations via the Chief of Information. by obtaining concurrence of all appro- (5) All guest visits are normally au- priate commanders and the approval of thorized on an unclassified basis. the Chief of Naval Operations, and the (6) In all instances, due precautions Assistant secretary of Defense (Public must be taken for the safety of the Affairs) as appropriate. guests. (See section 0403, pars. 6(b) and, (2) Officers in command to whom au- 6(e), of the Navy Public Affairs Regula- thority to embark guests for public af- tions, for procedures to be followed in fairs purposes is delegated will make the case of death of, or injury to, civil- maximum use of this authority. ians embarked on naval ships.) (c) Secretary of the Navy Guest Cruise (7) For further information on policy, and Guest of the Navy Cruise Programs. procedures, and eligibility criteria, see (1) The objective of these two programs OPNAVINST 5720.2G. is: To expose top-level and middle-level (b) Authority. (1) Authority to estab- opinion leaders in the fields of busi- lish procedures for the conduct of the ness, industry, science, education, and embarkation of guests for public af- labor to the operation of the U.S. fairs purposes (including the Secretary Navy, in order that they may gain a of the Navy Guest Cruise and Guest of better understanding of its capabilities the Navy Cruise programs, which are and problems, the complicated nature discussed in § 705.24) is vested in the of modern sea-based equipment, and Secretary of the Navy. This authority the high levels of responsibility and is limited only insofar as the Chairman training required of Navy men and of the Joint Chiefs of Staff and the women.

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(2) In addition to policy contained in (D) Invitations will be extended by paragraph (c)(1) of this section, the fol- the District of Commandants. Invita- lowing policy guidelines apply to the tions will include: conduct of the Secretary of the Navy (1) Statement of the purpose of the Guest Cruise and the Guest of the Navy Guest of the Navy Cruise Program. Cruise Programs. (2) Authorization for embarkation (i) Secretary of the Navy Guest Cruise and, if applicable, for COD flights, with Program. (A) Only aircraft carriers and instructions for reporting on board. cruisers will be used. (3) Name and rank of the com- (B) Cruises will be conducted once manding officer and, if applicable, each quarter on each coast, contingent name and rank of embarked flag offi- upon the availability of appropriate cer. ships. (4) A caution that guests should not (C) The optimum number of guests is accept the invitation unless they are in 15. good health. (D) Guests will be drawn from top- (5) Statement to the effect that the level executives and leaders who have tempo of operations might cause not had previous exposure to the Navy. changes in scheduling which could re- ‘‘Previous exposure’’ is defined as ac- sult in the invitation having to be tive or reserve service in the U.S. Navy withdrawn. or U.S. Marine Corps within the last 10 (E) The following necessary informa- years; membership in the Navy League tion may be included separately with a or any other Navy-oriented organiza- letter of invitation: Recommended tion; or participation in a cruise on a wardrobe, passport and immunization U.S. Navy ship in the last 10 years. requirements, availability of emer- (E) Whenever feasible, Secretary of gency medical and dental facilities, the Navy Guests will be greeted by ship’s store and laundry facilities, CINCLANTFLT or CINCPACFLT, or in statement that guest’s use of a camera their absence by the SOPA. Com- will be authorized subject to certain re- prehensive unclassified briefings will strictions, and a listing of those re- be given dealing with the Navy’s mis- strictions. In addition, the following sion, fleet operations, and current statement will be included with each problems. invitation, or form part of the attached (F) Cruises will vary in length from 3 information sheets: to 7 days, when appropriate, to conform with the operating schedule of the The Department of the Navy has no spe- ship. cific authority to use its funds to defray or reimburse any personal expenses of a navy (ii) Guests of the Navy Cruise Program. guest. As a result, the Department of the (A) All types of ships will be used. This Navy cannot provide you with transpor- will include carriers when available, tation to the port of embarkation or from after selection of a cruise for the Sec- the port of debarkation back to your home. retary of the Navy Guest Cruise Pro- Your expenses for meals will be quite nomi- gram. nal while you are on board a naval ship or fa- (B) Guest of the Navy Cruise guests cility. You should make provision for any extraordinary expense which may arise. For will be drawn from middle-level execu- example, if a personal or other emergency tives and leaders who have not had pre- arises which necessitates your returning vious exposure to the Navy. Guests home during the cruise, you should be pre- should include persons who have direct pared to take commercial transportation at impact on recruiting, such as sec- your own expense from the most distant ondary school principals, guidance point on the cruise itinerary. counselors, coaches and teachers. Navy ships and aircraft, by their very na- (C) Cruises of relatively short dura- ture, present certain hazards not normally encountered on shore. These hazards require tion (3 to 5 days) are preferred, al- persons on board to exercise a high degree of though cruises up to 7 days are author- care for their own safety. ized. Protracted cruises will not be ap- Acceptance of this invitation will be con- proved except for special cir- sidered your understanding of the above ar- cumstances. rangements and limitations.

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(iii) Applicable to both programs. (A) purchase of items for immediate per- Guests will provide their own transpor- sonal use. tation from home to the ship and re- (G) Only emergency medical and den- turn, and must reimburse the Navy for tal care will be provided and then only living and incidental expenses while where civilian care is not conveniently embarked so that the program may be available. conducted at no additional expense to (1) In the event of injury to civilians the government. embarked in Navy ships and aircraft or (B) Because the number of billets visiting naval activities, commanding available to accommodate all of the po- officers will notify the Chief of infor- tential guests is limited, the guest’s mation, the appropriate Commandant, opportunity to communicate his expe- and operational commanders, by mes- rience to his associates must be consid- sage, of the injury and action taken. ered. For this reason, one of the cri- (2) In the event of an emergency not teria for selection of guests will be covered by Navy Regulations, the facts their level of activity in civic, profes- and circumstances will be reported immediately to the Secretary of the sional, and social organizations. In Navy. nominating and selecting guests, effort (H) Guests may be allotted time for will be made to ensure that minority side trips at their own expense when an citizens are included as appropriate. itinerary includes naval activities or (C) Atlantic cruises will be made on ports adjacent to recognized points of ships operating between East Coast interest. ports, or between CONUS and the U.S. (I) As a souvenir of the cruise, it is Caribbean ports of San Juan, PR, or suggested that guests be provided with Charlotte Amalie (St. Thomas), Virgin a photograph of the ship, perhaps suit- Islands. Pacific cruises will be made on ably inscribed by the commanding offi- ships operating between West Coast cer prior to debarkation. ports: Between CONUS and ports in Ha- (J) Any publicity will be limited to waii, Alaska, Mexico or Canada; or be- that initiated by the participants. tween ports within Hawaii or Alaska. Navy-sponsored publicity will be avoid- (D) Guests will be informed of secu- ed unless sought by the participants. rity restrictions. Unclassified photog- At the same time, media inquiries or raphy should be permitted on board, as inquiries from the general public will pictures renew guests’ feelings of iden- be answered fully, the purposes of the tification with a ship. Guests will be cruise program outlined and the fact advised of areas, however, where pho- stressed that no cost to the govern- tography is prohibited, and security ment is incurred. regulations will be courteously but [41 FR 29101, July 15, 1976, as amended at 44 firmly enforced. FR 6391, Feb. 1, 1979] (E) Guests will be billeted in officers quarters and normally subsisted in the § 705.24 Exhibits. wardroom. It is not necessary that (a) Navy exhibits are representations guests be assigned individual rooms. or collections of naval equipment, Billeting with ship’s officers promotes models, devices and information and mutual understanding, and guests feel orientation material placed on public more closely identified with the ship’s display for information purposes before company. They will be invited to dine audiences at conventions, conferences, at least once in each mess on board, if seminars, demonstrations, exhibits, the length of the cruise permits. fairs, or similar events. Also included Guests will be encouraged to speak are general purpose displays in public freely and mingle with the crew. buildings or public locations. Museums (F) Guests will be accorded privileges also occasionally request a Navy ex- of the cigar mess commissioned offi- hibit on a permanent or temporary cers mess (open) ashore—with the ex- loan basis. ception of package store privileges— (1) Exhibits may be displayed in any and the use of ship’s or Navy Exchange appropriate location or event (includ- laundry and tailor shops. Other Navy ing commercially owned spaces such as Exchange privileges will be limited to shopping centers, malls, etc.) provided

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it is clearly established that such areas (i) All Navy activities will forward are places the general public frequents such requests to the Chief of Informa- and that the exhibit is not for the pur- tion for coordination with the OASD pose of drawing the public to that loca- (PA). tion, and that it is determined that (ii) Subordinate commands of a Uni- participation is in the best interests of fied Command will forward exhibit re- the Department of Defense and the De- quests of the above types to the Unified partment of the Navy. Commander concerned, via the chain of (2) [Reserved] command. (b) Exhibits will be used for the fol- (3) The official OASD(PA) Request lowing purposes only: Form for Armed Forces Participation (1) To inform the public of the Navy’s will be used. See Armed Forces Request mission and operations. Form, § 705.36. (2) To disseminate technical and sci- (4) Requests for exceptions to policy entific information. for exhibit displays should be for- (3) To assist recruiting of personnel warded to the Officer in Charge, Navy for Navy military service and for civil- Recruiting Exhibit Center. ian employment in the Department of (5) Policy guidance on costs is de- the Navy. fined in § 705.19. (c) Exhibit requests and procedures: (6) Occasionally, a project officer will (1) Requests for Navy exhibits, other be assigned to coordinate use of the ex- than local exhibits may be forwarded hibit with the sponsor. to the Navy Recruiting Exhibit Center (i) Project officers are normally com- via the local Navy recruiter with an in- missioned officers, equivalent civilian formation copy to the Chief of Infor- personnel, local recruiters or reserv- mation. The primary mission of the ists, who have been assigned the re- Navy Recruiting Exhibit Center is to sponsibility of coordinating Service support local Navy recruiters. Requests participation in a special event. for exhibits for community relations (ii) The project officer should estab- events will be considered favorably lish immediate liaison with the spon- only when not in conflict with recruit- sor. ing requirements. (iii) The project officer should assist in determining the actual location of (i) Requests for exhibits must be sub- the exhibit, make arrangements for as- mitted well in advance of their pro- sembling and disassembling the exhibit posed dates of use. material, and supervise these oper- (ii) Requests for mobile exhibits re- ations. quiring tractor-trailer transportation (iv) The project officer will ensure should be forwarded prior to November Navy and Department of Defense poli- 15th previous to the year desired. A cies are followed, and will coordinate tour itinerary of mobile exhibits will local news releases concerning Navy then be established for the following participation. year. (iii) The period of time for which an [41 FR 29101, July 15, 1976, as amended at 44 exhibit is authorized will be deter- FR 6391, Feb. 1, 1979] mined by the nature of the event and § 705.25 Navy Exhibit Center. the type of exhibit (e.g., equipment from local resources used for a local (a) The center is a field activity of celebration would normally not be ex- the Chief of Information and is located hibited for more than three days; but, in the Washington Navy Yard. Its pri- a formal exhibit at an exposition might mary mission is to produce, transport remain for the duration of the event). and display U.S. Navy exhibits (2) The office of the Assistant Sec- throughout the United States. It also retary of Defense (Public Affairs) is the facilitates assignments of Navy combat approving authority for Navy exhibits artists and, additionally, produces ex- in events of international or national hibits for its own tours and for short- scope, or those requiring major coordi- term loans to naval commands. nation among the Armed Forces, or (b) [Reserved] with other agencies of the Federal Gov- [41 FR 29101, July 15, 1976, as amended at 44 ernment. FR 6391, Feb. 1, 1979]

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§ 705.26 Exhibit availability report. tional travel orders to each artist approved. (a) A center index of exhibits which (3) The following policy pertains: are available at the local level in each (i) All finished art portraying the Naval District is maintained by the ex- Navy and produced by Navy artists on hibit center. To achieve maximum ef- active duty for that purpose and by fectiveness for an overall integrated guest artists working under invita- program, an up-to-date registry of all tional travel orders becomes the prop- exhibits is required. erty of the Department of the Navy. (b) A current inventory of exhibits (ii) Civilian artists selected to paint headquartered in Washington, DC, and Navy life through cooperation of a pri- managed by the Navy Recruiting Ex- vate sponsor and the Chief of Informa- hibit Center for scheduling purposes tion may be authorized by the Chief of may be obtained by writing to: Officer- Information or the Office of the Sec- in-Charge, Navy Recruiting Exhibit retary of Defense to retain their works. Center, Washington Navy Yard, Wash- (iii) Paintings, sketches, drawings ington, DC 20374. and other forms of artwork will not be [41 FR 29101, July 15, 1976, as amended at 44 accepted by the Department of the FR 6391, Feb. 1, 1979] Navy unless all reproduction rights are surrendered and unless they become §§ 705.27–705.28 [Reserved] the permanent property of the Depart- ment of the Navy. § 705.29 Navy Art Collection. (iv) Requests for reproduction of (a) The U.S. Navy has continued to combat art for use in advertising or record its military actions, explo- publication will be directed to the rations, launchings, etc., in fine art Chief of Information. form since before World War II. The (b) Responsibilities: present Navy Combat Art Collection (1) The Chief of Information exercises contains over 4,000 paintings and supervision and control of the Navy sketches. A significant number of new Art Program and issues SECNAV invi- works is being added each year. The tational travel orders and letters of in- combat artists of World War II have vitation to artists selected for assign- been replaced by civilian artists who ment. witness today’s Navy in action, record (2) When directed by the Chief of In- their impressions, and donate their formation or other appropriate Navy works of art to the Department of the authority, a NACAL project officer will Navy. perform the following functions: (1) The voluntary services of most of (i) Act as a local liaison officer for the artists are arranged through the the NACAL Program. Navy Art Cooperation and Liaison (ii) Assist NACAL artists on assign- Committee (NACAL) which operates in ments within his area. close cooperation with the Salmagundi (3) The Curator Navy Combat Art Club of New York City and the Munic- Center, in coordination with the Chief ipal Art Department of the City of Los of Information, will: Angeles. (i) Plan trips for the NACAL Pro- (2) The Chief of Information has es- gram. tablished liaison with the Salmagundi (ii) Approve requests for art displays. Club in order to maintain a continuing (iii) Provide logistic support for the historical record of the Navy. Orga- maintenance, storage, shipment and nized in 1871, the Salmagundi Club is display of the Navy Combat Art Pro- the oldest club of professional artists gram. in the United States. The Club ap- (c) Requests for art displays should pointed a Navy Art Cooperation and be forwarded to the Director, Commu- Liaison (NACAL) Committee to advise nity Relations Division, Office of Infor- the Navy on art matters and to nomi- mation, Navy Department, Wash- nate artists for assignment to paint ington, DC 20350. Navy activities through the world. The (d) Exhibition of Navy Art: Chief of Information reviews the nomi- (1) Operation Palette I’’ is a carefully nations, and issues SECNAV invita- selected group of 75 to 100 combat art

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paintings depicting Navy and Marine (e) Navy Combat Art Lithograph Pro- Corps activities during World War II. gram: The schedule of ‘‘Operation Palette I’’ (1) This program makes available full is promulgated by the Officer-in- color, high quality lithographs which Charge, Navy Recruiting Exhibit Cen- are faithful reproductions of the origi- ter and supervised by the Chief of In- nal artwork on quality paper of se- formation, with the concurrence of Dis- lected works of art from the Navy Art trict Commandants. Schedules are ar- Collection. ranged so that the exhibition travels (2) Additional information and order- within a particular Naval District for ing details are contained in CHINFO several months at a time. District NOTICE 5605, which is issued periodi- Commandants designate project offi- cally. cers for each city where ‘‘Operation [41 FR 29101, July 15, 1976, as amended at 44 Palette I’’ is exhibited. The project of- FR 6391, Feb. 1, 1979] ficer makes all arrangements, including suitable location, publicity and § 705.30 Aerospace Education Work- personnel to assist the chief petty offi- shop. cer who travels with the collection. (a) This program is devised by the Promotional kits are provided by the Navy to give students at colleges and Officer-in-Charge, Navy Recruiting Ex- universities conducting teacher train- hibit Center. Requests for exhibitions ing a comprehensive background in the are not desired, since the collection al- field of aviation. The teachers in turn ways travels on a prearranged tour. integrate this knowledge into their (2) ‘‘Operation Palette II’’ consists of education programs. 75 to 100 paintings representative of the (b) Appropriate commands are en- worldwide operations of the contem- couraged to provide assistance to edu- porary Navy and Marine Corps * * * cational institutions sponsoring the the Navy today * * *, and travels on workshop program: Provided, That such prearranged tours similar to ‘‘Oper- support does not interfere with the ation Palette I.’’ command’s primary mission and that (3) Other exhibitions of original such cooperation involves no addi- paintings from the Combat Art Collec- tional expense to the government. tion may be scheduled on request by ei- (c) The Chief of Naval Operations has ther Navy commands or civilian art cognizance of all assistance provided groups. Requests should be directed to by the Navy to all Aerospace Edu- the Director, Community Relations Di- cation Workshop program. A summary vision, Office of Information, Navy De- report of local command participation partment, Washington, DC 20350 and in Aerospace projects will be submitted contain the following: to the Chief of Naval Operations via (i) The occasion. the appropriate chain of command. In- (ii) Inclusive dates. (Not less than 10 formation copies of such reports will be days or more than 90 days sub-cus- sent to Commander, Navy Recruiting tody.) Command and the Chief of Informa- (iii) Expected attendance and type of tion. For further information see publicity planned. OPNAVINST 5726.1C. (iv) Amount of space allotted. (v) If Navy-sponsored show, certifi- § 705.31 USS Arizona Memorial, Pearl cation that 24-hour security will be Harbor. provided for the paintings while in cus- (a) Limited space and the desirability tody. of keeping the Memorial simple and (vi) If civilian-sponsored show, state- dignified require the following prac- ment that transportation and insur- tices to be observed: ance requirements will be met. (Phys- (1) Rendering of formal ceremonies ical security must be available for ex- on the USS Arizona Memorial will be hibit, with an attendant on duty during confined to Memorial Day. open hours and locked building or (2) Observances on December 7, or other means of protecting exhibit when any other date, at the request of indi- closed to the public.) viduals or organizations, will consist of

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simple wreath-laying, or other appro- is not limited to) the provision of priate expressions conducted with dig- prime space for recruiters at the event nity. site and the provision of courtesy (3) Plaques intended for display on passes in controlled quantities to re- the Memorial may be presented by cruiters for the purpose of bringing re- headquarters of national organizations cruit prospects and recruiting advisors only. Plaques from regional, state or to view the show. local organizations cannot be accepted. (d) DOD support of air show fund Only one plaque will be accepted from raising efforts in the form of provision any organization. The overall size of of military flight and parachute dem- the plaques, including mounting, must onstration teams is limited to charities be no larger than 12 inches square. recognized by the Federal Services (b) The Commandant, Fourteenth Fund-Raising Program. These include Naval District, is designated to coordi- such agencies as the United Givers nate all formal or informal observances Fund, Community Chests, National involving the Memorial. Health Agencies (as a group), Inter- national Service Agencies and the mili- § 705.32 Aviation events and parachute tary aid societies. Armed Forces sup- demonstrations. port to fund-raising events for a single (a) Armed Forces aircraft and para- cause, even though the charity is a chutists may be authorized to partici- member of a federated or joint cam- pate in appropriate in public events paign or donates in part to one or sev- which meet basic Department of De- eral of the campaigns, is inconsistent fense criteria. This participation may with the basic position of Department be one of the officially designated mili- of Defense. The name of the nearest tary flight or parachute demonstration Combined Federal Campaign coordi- teams, flyover by aircraft, a general nator will be supplied to the sponsor, demonstration of capabilities by air- or if he chooses, he might elect to work craft, or the static display of aircraft. with the local United Givers Fund (b) Events which are appropriate for (Community Chest). As a minimum, aviation participation include: Dedica- the sponsor must agree to provide at tion of airports; aviation shows; air- least half of the profit above costs to craft exposition; air fairs; recruiting the Combined Federal or United Givers programs; civic events which con- Campaigns to receive Armed Forces tribute to the public knowledge of support. naval aviation equipment and capabili- (e) Request form. This form is used to ties and to the advancement of general request military flight and parachute aviation; public observances of certain demonstration team participation in national holidays (Armed Forces Day, public events. The information is re- Veterans Day, Memorial Day and Inde- quired to evaluate the event for appro- pendence Day); national conventions of priateness and compliance with De- major veterans organizations; memo- partment of Defense policies and for rial services for deceased, nationally coordination with the units involved. recognized dignitaries; and receptions for foreign dignitaries. GENERAL (c) Support of Armed Forces recruit- 1. Title of Event lllllllllllllll ing is the primary purpose of military Town or City: lllllll State: lllll flight and parachute demonstration Date: llllllll Time—From: lllll teams. Armed Forces recruiting teams To: llll Place: (Airport, etc.) llllll are available to assist sponsors in co- 2. Sponsor: lllllllllllllllll ordinating advance publicity and infor- 3. The sponsor (is) (is not) a civic organiza- mation coverage to insure maximum tion and the event (does) (does not) have the exposure for the demonstration team official backing of the mayor. and the event. This assistence is at no 4. The sponsoring organization (does) (does additional expense to the sponsor; how- not) exclude any person from its membership or practice any form of discrimination in its ever, the sponsor is required to give functins, based on race, creed, color or na- full support to the recruiting effort and tional origin. to cooperate fully with local service of- 5. Sponsor’s representative authorized to ficials. Such support could include (but complete arrangements for Armed Forces

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participation and responsible for reimburs- Parachute Team Demonstration ing Department of Defense for accrued ex- U.S. Army Golden Knights: (Cost penses when required: is $25.00 per day per man for each Name: llllllllllllllllllll day required to support your Address: lllllllllllllllllll event. Team consists of 10–14 per- City, State: lllllllll Zip: lllll sonnel.) ...... Telephone: (Office) llll (AC) llllll (Other) ...... llllllllllllllllllllllll 2. Flight and/or Parachute Team demonstra- (home) llllllllll (AC) lllllll tions are restricted to appropriate events llllllllllllllllllllllll at airports, over open bodies of water, or 6. Purpose of this event (explain fully): lll over suitable open areas of land. Please llllllllllllllllllllllll give the specific location of your event ll 7. Expected attendance: lllllllllll llllllllllllllllllllllll 8. Is this event being used to promote funds If an airport, name of airdrome facility and for any purpose? lllllllllllll longest usable landing runway. Airport: l 9. Admission charge: llllllllllll llllllllllllllllllllllll ‘‘Charge for seating: llllllllllll Runway data:llllllllllllllfeet. 10. Disposition of profits which may accrue: 3. Flyovers, Flight and Parachute Team 11. Will admission, seating and all other ac- demonstrations require that sponsors se- commodations and facilities connected cure FAA clearance or waiver. Will steps with the event be available to all persons be taken by sponsor to accomplish this at without regard to race, creed, color or na- least sixty days prior to the event? llll tional origin? lllllllllllllll 4. Flight and Parachute Team demonstra- 12. Will the standard Military Services al- tions must adhere to FAA regulations lowance for quarters and meals be provided which specify that spectators not be per- by the sponsor for Armed Forces partici- mitted within 1500 feet of an area over pants? lllllllllllllllllll which the flight demonstration takes 13. Will transportation at sponsor’s expense place, or 250 feet of the jump area over be proviced for Armed Forces participants which parachutists are performing. What between the site of this event and hotel? type of crowd control is planned? lllll llllllllllllllllllllllll llllllllllllllllllllllll 14. Will telephone facilities, at sponsor’s ex- 5. Flight and Parachute Team demonstra- pense, be made available for necessary offi- tions require that an ambulance and a doc- cial communications regarding the event? tor be on the site during the demonstra- llllllllllllllllllllllll tion. Will this requirement be met? lll 15. It may be necessary for representatives of 6. Flight and Parachute Team demonstra- the requested unit to visit the site prior to tions require that the sponsor provide a re- the event. Will transportation, meals and cent aerial photograph, taken vertically hotel accommodations be provided by the from an altitude of 5,000 feet or higher, to sponsor? llllllllllllllllll the team(s) giving the demonstration. Will llllllllllllllllllllllll this requirement be met? lllllllll 16. Please describe the space which will be 7. Flight Team demonstrations and Static provided to recruiters: llllllllll Aircraft displays require that the sponsor llllllllllllllllllllllll provide suitable aircraft fuel (JP jet fuel llllllllllllllllllllllll or aviation gas, as appropriate) and pay llllllllllllllllllllllll the cost of transporting and handling this 17. Designate charity beneficiary(s): llll fuel, if it is not available at the staging llllllllllllllllllllllll airport under military contract prices. FLIGHT TEAM, PARACHUTE TEAM, FLYOVERS, Will this requirement be met? llllll STATICS 8. Flight Team demonstrations and Static Aircraft displays require mobile fire- 1. This request is for (check appropriate fighting, crash and ground-to-air commu- line): nications equipment at the demonstration Flight Team Demonstration ...... site. Will this requirement be met? llll U.S. Navy Blue Angels ...... 9. Flight Teams and Static Aircraft displays U.S. Air Force Thunderbirds. (Cost require that the sponsor provide guards for for either team is $1500.00 for the aircraft that land and are parked at each day team scheduled at your the site during their entire stay. Will this event.) ...... requirement be met? lllllllllll Aircraft Flyover: (No cost to spon- 10. Parachute Team demonstrations may re- sor.) ...... quire that the sponsor arrange aircraft Static Aircraft: (Cost is $25.00 per transportation from the team’s home base day per crewmember.) ...... to the location of the event, for use as a U.S. Army Silver Eagles: (Cost for jump platform and return to the home this team is $750.00 for each day base. Will this requirement be met, if nec- team scheduled at your event.) ...... essary? llllllllllllllllll 162

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llllllllllllllllllllllll teams are not authorized. Parades are 11. Name and address of any Armed Forces not considered an appropriate event for representative or government official with authorizing flyover support. The static whom you have discussed possible participation: llllllllllllllllll display of aircraft is the ground display llllllllllllllllllllllll of any military aircraft and its related equipment, not involving flight, tax- CERTIFICATION iing or starting of engines. I certify that the information provided (g) Events which are appropriate for above is complete and correct to the best of Armed Forces aviation participation in my knowledge and belief. I understand that representatives of the Military Services will the public domain include such activi- contact me to discuss arrangements and ties as dedication of airports and facili- costs involved prior to final commitments. ties, aviation shows, expositions, and Signature: llllllllllllllllll fairs; and other civic events which con- (Sponsor’s Representative) tribute to the public knowledge of the Date of Request: llllllllllllll U.S. Military Services aviation equip- Return this form to: llllllllllll ment and capabilities. The number one (f) Definitions. A flight team dem- priority for utilization of military air- onstration is an exhibition of precision craft and parachutists in such events aerial maneuvers flown by the official in the public domain is to support the Department of Defense military flight recruiting aspects of the all-volunteer demonstration teams, the U.S. Air force concept. The approval of any such Force Thunderbirds, the U.S. Navy military demonstration will only be Blue Angels and the U.S. Army Silver authorized if a maximum recruiting Eagles. An aircraft demonstration is a benefit exists at each location. flight demonstration by aircraft other (h) Costs. (1) The cost for either the than those of the teams listed above United States Air Force Thunderbirds and designed to portray tactical capa- or the United States Navy Blue Angels bilities of aircraft by a single aircraft will be $1500 for each day a demonstra- (i.e., the U.S. Marine Corps ‘‘Harrier’’) tion is scheduled. If the United States or group of aircraft, including air-to- Army Golden Knights precision para- air refueling, helicopter hover and chute team is scheduled for your event, pick-up or rappelling capabilities, Low the cost will be $25 per man per day for Altitude Parachute Extraction System, each day required to support your maximum performance take-off, etc. A event, to include the days of travel if parachute demonstration is an exhi- required. Under normal conditions, this bition of free-fall and precision landing group is comprised of fourteen mem- techniques by the official DOD para- bers: Nine jumpers, three aircraft crew- chute team, the U.S. Army Golden men, one ground controller, and a nar- Knights. Other parachute demonstra- rator. The sponsor will be advised by tions can be performed by the U.S. the Golden Knights in advance of the Navy Parachute Team, or another un- costs related to his event for which the official team or sports parachute club government must be reimbursed. The representing the Department of De- United States Army Silver Eagles heli- fense. A flyover is a flight of not more than four aircraft over a fixed point at copter team, composed of seven heli- a specific time and does not involve copters, performs precision formation precision maneuvers or demonstra- manuevers and solo helicopter aero- tions. Flyovers are authorized for cer- batics to demonstrate the capabilities tain events when the presence of of modern helicopters and the skill of Armed Forces aircraft overhead would Army aviators. The Silver Eagles per- contribute to the effectiveness of the formance lasts about 30 minutes and is event based on a direct correlation be- conducted entirely in full view of spec- tween the event and the aircraft. Fly- tators on the crowd line. The cost for overs can also be authorized for occa- the team is $750 for each day a dem- sions primarily designed to encourage onstration is scheduled. The sponsor the advancement of aviation and which should make a check payable to the are of more than local interest. Fly- Treasurer of the United States for the overs by any of the official DOD flight required amount and present it to the

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appropriate demonstration team com- sponsor will be required to pay all mander in advance of the scheduled costs above the contract price and that event. price charged by the local supplier. (2) Costs associated with static air- However, the sponsor may choose to craft are normally $25 per day for each transport military contract fuel from a crew member plus possible fuel require- military base or a commercial airport ments discussed below. Charges for any having a U.S. Government into-plane other military parachuting demonstra- contract. In this case, his cost would be tion (i.e., U.S. Navy Parachute Team, only the transporting and handling of local Armed Forces sport parachute this fuel to the show site. clubs, etc.) will depend on the number (5) The Department of Defense no of personnel and transportation in- longer requires the sponsor to provide volved. Checks payable to the Treas- the Department with a public liability urer of the United States should be and property damage insurance policy. made available to the appropriate air- This should in no way deter the spon- craft commander for static displays or sor from obtaining such liability and parachute team commander upon ar- property damage insurance he feels is rival at the event. necessary for his own protection. Due (i) As noted in the Department of De- to the costs that could accrue to the fense request form, the sponsor is re- sponsor in case of cancellations be- quired to pay per diem costs for team cause of inclement weather, the spon- and static display crew members ex- sor may wish to consider rain insur- cept for flyovers or aircraft demonstra- ance to protect his investment. Pre- tions not involving landing. vious sponsors have advised us that (3) These costs are binding after a such insurance is available from most team or crew personnel have arrived at commercial companies. the show site, even though weather (i) Other information. (1) Flight and/or conditions or other unforeseen cir- parachute team demonstrations are re- cumstances force the event to be can- stricted to appropriate events at air- celled. These funds provided by the ports, over open bodies of water, or sponsor will be utilized by team mem- over suitable open areas of land. For bers or crew personnel for paying hous- the U.S. Air Force Thunderbirds or ing and subsistence costs. The actual U.S. Navy Blue Angels to operate from breakdown of the per diem involved is an airport show site, the following $13.20 for housing, $9.30 for subsistence, operational requirements must be met: and $2.50 for incidental expenses. In (i) Minimum useable runway length those locations where housing and sub- for the Thunderbirds is 5000 feet by 150 sistence cannot be procured for these feet in width. amounts, it will be the responsibility (ii) Minimum useable runway length of the sponsor to absorb the additional for the Blue Angels is 6000 feet by 150 cost. As stated, these costs will cover feet in width. participation but does not include cer- (iii) Minimum single landing gear tain ground support requirements (i.e., load bearing capacity for Thunderbirds ground transportation, telephone, etc.) is 45,000 pounds; for Blue Angels, 21,000 to be furnished by a sponsor as out- pounds. Tandem landing gear load lined in a team support packet. bearing capacity is 155,000 pounds for (4) Other costs that could be incurred Blue Angels and Thunderbirds. by the sponsor are in the area of the (2) A staged performance may not be sponsor’s agreement to provide suit- given if the location planned for the able aircraft fuel (defined as JP jet fuel show site does not meet these mini- or aviation gas and lubricants) at U.S. mums. The maximum distance for a Government contract prices. Where staged performance’’ under normal fuel is available from local military conditions is 50 nautical miles. It stocks—usually military installa- should be noted that staged perform- tions—or when fuel is available from ances are seldom authorized since the commercial into-plane contract loca- recruiting potential is reduced at such tions, the U.S. Government will pay all events. fuel costs. If military contract fuel is (3) The type and number of static not available at the show site, the and/or flyover aircraft which may be

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assigned is entirely dependent upon the demonstration and 250 feet from a Military Services’ capability to provide parachute demonstration. such resources at the time of your (i) In some cases, parachute dem- event. This capability is affected by onstrations require that the sponsor operational commitments and sponsors arrange for appropriate transportation are advised that confirmation of static/ for the team and equipment from its flyover aircraft cannot be made by the home station to the event and return. appropriate Service more than 15–30 (ii) Mass parachute jumps, drops of days before your event. equipment, assault aircraft demonstra- (4) The U.S. Army Silver Eagles are tions, or tactical helicopter troop land- normally restricted to performances at ings under simulated tactical condi- airports. Other open land areas may be tions, will be limited to military in- operationally suitable but require the stallations. These activities, except prior approval of the team commander those scheduled as part of regular in each case. training programs, are not authorized (5) Only one flight demonstration for public events in the civil domain. team and a parachute demonstration (8) When civilian air racing is in- team may be authorized for any one volved in an event where Armed Forces event. Military aircraft demonstra- participation has also been scheduled, tions may not be authorized for events prize monies must come from sources on the days a flight team is partici- other than admission charges. pating. A flyover is not authorized (9) Flight team, parachute and air- when a flight team is participating unless it can be provided by a locally- craft demonstrations also require that based National Guard or Reserve com- the sponsor provide: (i) Recent aerial ponent. photograph of the site; (ii) an ambu- (6) Participation by the U.S. Navy lance and doctor at the site; and (iii) Blue Angels and the U.S. Air Force Guards for the Armed Forces aircraft Thunderbirds is normally limited to during their entire stay. The aerial two consecutive years in any one photograph should be recent, taken event. This usually involves one ap- vertically from at least 5,000 feet. pearance by each of the two flight (10) Maximum advantage of Armed teams. This provision may be waived Forces recruiting will be taken at ap- when other appropriate requests have propriate events in the public domain not been received, when the team is where demonstrations by military air- performing in the same geographical craft and parachutists have been au- area and has open dates or when the thorized. event is national or international in (11) Exception to the policies con- nature and participation would be in tained herein will only be considered the best interests of Department of De- by OASD(PA) on events of national or fense. Participation in an event is nor- international significance. mally limited to two days unless a (12) Department of Defense hosts a third day can be included without pre- scheduling conference in mid-December empting other requests. each year to prepare U.S. Air Force (7) Sponsors are required to obtain a Thunderbirds, U.S. Navy Blue Angels, Federal Aviation Agency (FAA) waiver U.S. Army Golden Knights and U.S. for any demonstration by military air- Army Silver Eagles participation craft and/or parachutists in the public schedules for the ensuing year. All re- domain. The final authorization for quests for such demonstrations from such Armed Forces participation sponsors should reach OASD(PA) prior hinges upon the sponsor securing this to the middle of November each year to waiver far enough in advance to permit be considered at this conference. In adequate planning (normally not later order to accommodate many requests than 60 days prior to the event). Fur- Department of Defense receives for ther guidance on the details of obtain- other parachuting demonstrations, air- ing this waiver will be contained in the craft demonstrations, static aircraft team support packet or FAA. FAA reg- displays, and flyovers, each request ulations require that spectators be con- must be received by OASD(PA) a min- fined 1500 feet from a flight or aircraft imum of 30 days in advance of the

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event and preferably 60 days in ad- government, military and civic func- vance. tions. (13) If there are any points that a (i) Official government functions in- member of the public might wish to clude those in which senior officials of have clarified, contact Chief, Aerial the Federal government are involved in Events Branch, OASD(PA), Room the performance of their official duties. 1E790, The Pentagon, Washington, DC (ii) Official military functions in- 20301. Telephone: AC (202) 695–6795 or clude social activities held on military 695–9900. installations (or off when the Military Service certifies that suitable facilities § 705.33 Participation by Armed are not available on post) which are Forces bands, choral groups, and sponsored by the Military Services, troops in the public domain. have as their principal purpose the pro- (a) Military musical participation in motion of esprit de corps, and are con- public events which otherwise meet the ducted primarily for active duty per- criteria outlined herein will be limited sonnel and their guests. to patriotic programs as opposed to (iii) Official civic functions include pure entertainment and will not dupli- such State, county or municipal events cate a performance within the capa- as inaugurals, dedication of public bility of a civilian group. For example, buildings and projects, the convening music to accompany the presentation of legislative bodies, and ceremonies of the national colors, or a perform- for officially invited government visi- ance of military or patriotic music by tors. a military band, drum and bugle corps (2) Armed Forces musical units may or choral group may be authorized; also be authorized to provide patriotic background, dinner, dance or other so- and military programs at national con- cial music is considered ‘‘entertain- ventions and meetings of nationally- ment.’’ recognized civic, patriotic and veterans (b) Requests received for military organizations. musical participation in appropriate (d) Bands, drill teams and other units events in the civilian domain must in- can normally participate at no cost to clude an indication from the sponsor the sponsor if the event is within the that there is no conflict with the local installation’s immediate community civilian musicians concerning the ap- relations area (approximately 100-mile pearance of Navy musicians. A state- radius). ment to this effect from the cognizant (1) Normally, not more than one band local musicians’ union must be ob- or other musical unit will be author- tained by the sponsor and attached to ized for a parade in the civilian do- his request. main. This guidance intended to assure (c) Armed Forces musical units may widest possible participation in public be authorized to provide certain speci- events of local interest (particularly on fied musical programs in the public do- national holidays) does not apply to main. The performance must not place national convention of veterans’ military musicians in competition groups or other events having national with professional civilian musicians. significance. Background, dinner, dance or other so- (2) All Armed Forces participation in cial music cannot be authorized. The international and national events, and specified programs which may be au- in the Washington, DC area, must be thorized usually include a short open- authorized by the Assistant Secretary ing or closing patriotic presentation. of Defense (Public Affairs). Musical selections normally consist of (3) Requests for Armed Forces musi- a medley of military or patriotic songs, cal or troop units when no military in- honors to the President or Vice Presi- stallation is accessible, or for the dent (if he is there), or music to accom- Washington, DC-based ceremonial pany the presentation of colors by a bands or troop units (when the event is Color Detail. outside the Washington, DC area), (1) Armed Forces musical units may should be addressed to the parent Serv- be authorized to participate in official ice of the unit:

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(I) U.S. ARMY the authority of local military com- Chief of Public Information, Department of manders, and requests for participation the Army, Washington, DC 20310. should be made directly to those local military installations. All requests (II) U.S. NAVY should be submitted no earlier than 60 Chief of Information, Code OI–321, Depart- days and preferably no later than 45 ment of the Navy, Washington, DC 20350. days prior to the event.

(III) U.S. AIR FORCE § 705.34 Other special events. Director of Information, Secretary of the Air (a) Ship visits. Requests for visits gen- Force, Community Relations Division, Washington, DC 20330. erally originate with civic groups desiring Navy participation in local (IV) U.S. MARINE CORPS events. Often, members of Congress en- Commandant of the Marine Corps, Code AG, dorse these requests, advising the Navy Headquarters, U.S. Marine Corps, Wash- of their interest in a particular event. ington, DC 20380. Because of the marked increase in re- (4) Armed Forces units may not be quests for ship visits, and in order to authorized to participate when: give equal consideration to all re- (i) The event directly or indirectly quests, the Chief of Information has ar- endorses or selectively benefits or fa- ranged for quarterly meetings of rep- vors (or appears to do so) any private resentatives from CHINFO, Com- individual, commercial venture, sect, mander, Navy Recruiting Command, fraternal organization, political group, Chief of Naval Operations and Chief of or if it is associated with solicitation Legislative Affairs. Based on the im- of votes in a political election. portance of the event (nationally, re- (ii) Admission, seating and other ac- gionally, or locally) location, and pro- commodations or facilities are respective audience, recommendations stricted in any manner with regard to are consolidated and forwarded to the race, creed, color or national origin. fleet commanders prior to their quar- (iii) The sponsoring organization or terly scheduling conferences. group excludes any person from its (b) Visits to Naval activities—(1) Types membership or practices any form of of visits. (i) General visits or Open discrimination in its functions, based House are occasions when a ship or sta- on race, creed, color or national origin. tion acts as host to the general public. (iv) An admission charge is levied on These visits will be conducted in ac- the public primarily to see participa- cordance with instructions issued by tion by an Armed Forces unit. Fleet and Force Commanders, District (v) There is fund-raising of any type Commandants, or other cognizant au- connected with the event, unless all thority. profits are to be donated to a charity (ii) Casual visits are visits to ships or which is one of the consolidated pro- stations by individuals or specific grams recognized by the Federal Serv- groups, as differentiated from the gen- ices Fund-Raising Program. These are eral public. Details and procedures con- the United Givers Fund Community cerning these visits are a matter of Chest, National Health Agencies (as a command discretion. group), the International Service Agen- (iii) Tours are occasions when a ship cies, and the American Red Cross or station is host to a specific group on (when not included in a consolidated a scheduled date. Some of the larger campaign). The Military Services’ Wel- shore commands also regularly sched- fare Societies (Army Emergency Re- ule one or more sightseeing type tours lief, Navy Relief and Air Force Aid So- daily during seasons when many vaca- ciety) are also included. tioners ask to visit the command. (5) Sponsors of an event must agree (2) General rules. Prior approval for to reimburse the Military Services con- general visiting or Open House at any cerned for transportation and per diem time other than civic-sponsored public when participation is authorized at no observances and official ceremonies for additional cost to the government. Armed Forces Day, memorial Day, (6) Participation by Armed Forces Independence Day, and Veterans Day, musical units in other areas is within and for observances in overseas areas

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of similar significant holidays, will be authorized campaigns. Navy support of requested as follows: Fleet units vis- fund-raising events or projects for a iting U.S. ports, from Senior Officer single cause, even though the cause is present Afloat; fleet units visiting for- a member of one of the federated, joint eign ports, from commander ordering or authorized campaigns, or donates in the visit; shore stations and district part to one of several of the recognized vessels in the United States, from Dis- campaigns, is not authorized by De- trict Commandants; and overseas shore partment of Defense. stations, from the naval area com- (2) Navy support for a single-cause mander. fund-raising event may be authorized if (c) Official functions. (1) Navy units the event is: may be authorized by local commanding officers to participate in offi- (i) In support of Navy recruiting ob- cial government military and civic jectives; functions, except in the Washington DC (ii) Supported by a letter indicating area where OASD(PA) retains author- the local United Way representative ity. has no objection; and (2) Official government functions in- (iii) Approved by the local Navy clude those in which senior officials of Commander as a single-cause charity the federal government are involved in which has broad local benefit. the performance of their official duties. [41 FR 29101, July 15, 1976, as amended at 44 (3) Official military functions include FR 6391, Feb. 1, 1979] social activities held on military installations (or off, when it is certified § 705.35 Armed Forces participation in that suitable facilities are not avail- events in the public domain. able on base), which are sponsored by the Navy, have as their principal pur- (a) Requests for bands, troops, units, pose the promotion of esprit de corps, teams, exhibits and other Armed and are conducted primarily for active Forces participation should be ad- duty personnel and their guests. dressed to the nearest military instal- (4) Official civic functions include lation. Local commanders have re- such state, county or municipal events sources which they can commit to ap- as inaugurals, dedications of public propriate events if mission require- buildings and projects, and convening ments permit. If no military installa- of legislative bodies and ceremonies for tion is accessible, or if resources re- officially invited government visitors. quested are not available locally or re- (5) Overseas, similar functions at- quire approval by higher authorities, a tended by comparable host-country of- standard Department of Defense Re- ficials in their official capacities might quest Form should be completed. This also be considered appropriate for Navy form is used to evaluate the request, participation. determine appropriateness of the event (d) A parade which is sponsored by and compliance with Department of the community as a whole (rather than Defense policies, and eliminate re- by a single commercial venture) and peated correspondence. The request held on a Sunday or holiday or at a form should be returned to the office or time when shops are closed for business military command from which it was may be a public event for which par- received unless another address is indi- ticipation could properly be authorized; representation by individual com- cated. mercial ventures in such parades need (b) Basic criteria governing Armed not be a bar to Navy participation as Forces participation in public events long as the emphasis is planned and have been developed by the Depart- placed on the civic rather than comment of Defense to ensure compliance mercial aspects. Such participation with public law, to assure equitable will be at no additional cost to the gov- distribution of resources to as many ernment. appropriate events as possible, and to (e) Fund-raising events. (1) Navy sup- avoid excessive disruption of primary port of fund-raising events must be training and operational missions of limited to recognized, joint or other the Military Services. the following

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general rules and information are in- the Armed Forces activity must not be cluded as an aid to you in under- the sole or primary attraction. standing Department of Defense poli- (4) Armed Forces participation is au- cies and in planning programs of mu- thorized in a fund-raising event only tual benefit to the Armed Forces and when the sponsor certifies that all net your community. profits in excess of actual operating (1) When evaluating requests for costs will be donated to one of the con- Armed Forces participation in public solidated programs recognized by the events, the interests of the Department Federal Services Fund-Raising proof Defense and the public at large, gram. These include such agencies as operational requirements of the Mili- the United Givers Fund, Community tary services, and availability of re- Chests, National Health Agencies (as a sources are prime considerations. Com- group), International Service Agencies mitment of resources to specific events and the military aid societies. must be balanced with the above fac- (5) When Armed Forces participation tors and with requests for similar par- in an event is in the mutual interest of ticipation received from other sources. the Department of Defense and the (2) Department of Defense participa- sponsor of the event, participation will tion and cooperation must not directly be authorized at no additional cost to or indirectly: the government. Additional costs to (i) Endorse or selectively benefit or the government—travel and transpor- favor or appear to endorse or selec- tation of military personnel, meals and tively benefit or favor any private indi- quarters or standard per diem allow- vidual, group, corporation (whether for ance, etc.—will be borne by the spon- profit or nonprofit), sect, quasi-reli- sor. gious or ideological movement, fra- (6) Department of Defense policy pro- ternal organization, political organiza- hibits payment by the Armed Forces tion, or commercial venture. for rental of exhibit space, connection (ii) Be associated with the solicita- of electricity, or utility or janitorial tion of votes in a political election. costs. Sites such as commercial theaters or (7) The duration of participation by department stores, churches or fra- military units in any one event is lim- ternal halls; and events such as ited in the interests of proper utiliza- testimonials to private individuals or tion and equitable distribution of sectarian religious services, are gen- Armed Forces manpower and resources. erally inappropriate for Armed Forces While an exhibit might be scheduled participation. for the duration of an event, a unit (3) Participation by the Armed such as a military band is limited to Forces in any event or activity may be three days. authorized only if admission, seating (8) Armed Forces participation in and all other accommodations and fa- professional sports events and post-sea- cilities are available to all without re- son bowl games will normally be au- gard to race, creed, color or national thorized at no additional cost to the origin, and only if the sponsoring orga- government, will emphasize joint Serv- nization does not exclude any form of ice activity and must support recruit- discrimination based on race, creed, ing programs. Participation in beauty color or national origin. This does not contests, fashion shows, pageants, bar participation in events sponsored Christmas parades, and motion picture by nationally-recognized veteran’s or- premieres is not authorized since mili- ganizations when the program is ori- tary support would violate policy and ented toward the veterans’ interests, appropriateness. nor does it bar participation in nonpublic school events when the program § 705.36 Government transportation of is directed toward education or recruit- civilians for public affairs purposes. ing. (a) General policy. (1) Regulations on (i) No admission charge may be lev- transportation of civilians vary accord- ied on the public solely to see an ing to whether: Armed Forces demonstration, unit or (i) The civilians are news media rep- exhibit. When admission is charged, resentatives or not.

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(ii) The travel is local or nonlocal (b) Definition of local v. nonlocal trav- (see paragraph (b) of this section). el. (1) Local travel is travel within the (iii) The purpose of the travel is to immediate vicinity of the command get to a desired destination or is to ob- concerned in connection with a public serve the Navy at first hand. affairs program of local interest only. (2) Authority for embarkation of in- (For air travel within the continental dividuals in naval vessels and military U.S., about 150 miles or less is gen- aircraft is vested in the Chief of Naval erally considered local.) Operations by § 700.710 of this chapter. (2) Nonlocal travel is that conducted Nothing in this part shall be construed in connection with a public affairs pro- as limiting his authority in this re- gram affecting more than one Service, gard. geographic area or major command, (3) The following policy has been es- usually of primary concern to higher tablished by DOD for providing all authority. types of Navy transportation to non- (c) Transportation of news media rep- Navy civilians. resentatives. (1) This section applies to (i) Military transport facilities shall media representatives who are em- not be placed in a position of competi- barked for the purpose of news gath- tion with U.S. commercial carriers. ering or of traveling to an area in order (A) When embarkation of a newsman to cover a news event. It does not apply is necessary for him to obtain news to: material about a ship, aircraft, cargo (i) Correspondents when members of or embarked personnel, or when he is groups embarked as regular cruise invited to report on a matter of special guests of the Navy. interest to the Navy, it is not consid- (ii) Casual trips by correspondents to ered that the transportation furnished ships in port or to shore stations in him is in competition with commercial CONUS. Such visits may be authorized transport. by officers in command or higher au- (B) An exception is also made for thority in accordance with instructions short trips between an airport (or other promulgated by the Chief of Naval Op- transportation center) and the com- erations. Written orders are not re- mand. Cars and buses within the required. sources of the command may be used for meeting guests or taking them to (2) Local travel. Commanding officers make their travel connections. at all levels are authorized (under De- (ii) When authorization is requested fense Department policy) to approve for travel which is of interest to or will local travel for public affairs purposes affect more than one command or within the scope of the mission and re- Service, the approving authority will sponsibilities of their command, if: coordinate the request with all other (i) Public interest in the public af- interested commands, Services and fairs purpose involved is confined pri- Agencies. marily to the vicinity of that com- (iii) Travel in connection with any mand. public affairs program arranged by the (ii) The travel is being provided for Navy jointly with another Federal De- the benefit of local media and meets a partment or Agency or a foreign gov- naval public affairs objective. ernment will be authorized only by the (iii) Scheduled commercial air trans- Assistant Secretary of Defense (Public portation is not readily available. Affairs, or those to whom he has dele- (iv) The aircraft to be used is a heli- gated this authority. Navy commands copter, or multiengine dual piloted air- desiring authorization of such travel craft, and is within the resources of the will forward the request to the Chief of host command on a not-to-interfere Information. basis. This provision does not apply to (iv) If a request for travel for orientation flights. nonlocal public affairs purposes is dis- (3) Nonlocal travel. (i) Requests for approved, sufficient reasons should be nonlocal travel will be submitted to provided so that the action is clearly the Chief of Information, who will for- understood by the individual or group ward them with his recommendations concerned. to the Chief of Naval Operations and/or

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the Assistant Secretary of Defense have been delegated authority to ar- (Public Affairs), as appropriate. range directly with appropriate Fleet, (ii) When the proposed travel is for Force and Type commanders for em- news coverage of a major emergency barkation of civilians on a local cruise nature and the coverage will be im- basis. paired or delayed, to the serious det- (ii) Invitational travel orders may be riment of the interests of the Depart- issued. ment of Defense, if military transpor- (6) Embarkation of female correspond- tation is not provided, requests for ents in naval vessels. (i) Privileges equal such travel will be submitted to the to those given male correspondents Chief of Information, who will forward will be accorded female correspondents the request—if approved—to the Assist- whenever practicable. ant Secretary of Defense (Public Af- (ii) Female correspondents may not fairs). The most expeditious means (in- be embarked overnight in a naval ship cluding telephone) will be used by com- without prior approval of the appro- mands requesting such emergency priate Fleet Commander-in-Chief. This travel. Justification will include both authority may be delegated to the the public affairs purpose and the ne- numbered Fleet Commanders. cessity for military carriers. (7) Travel in ships of the Military Sea- (4) Travel between the U.S. and over- lift Command. Correspondents may be seas area. (i) The Chief of Naval Oper- carried in ships of the Military Sealift ations may authorize military trans- Command on either a space-required or portation for correspondents in un- space-available basis when travel is in usual circumstances, upon rec- the best interests of the Navy or the ommendations of the Chief of Informa- Department of Defense. tion and the Defense Department. (i) Space-available travel will be used (ii) Requests for government trans- when practicable. A nominal charge is portation to cover specific assignments made by the Military Sealift Command overseas should be made at least three and must be borne by the correspond- weeks prior to the date required and ents. should be addressed to the Assistant Secretary of Defense (Public Affairs) (ii) Space-required travel may be au- via the Chief of Information or Unified thorized when sufficiently in the inter- Commander, as appropriate. The re- est of the Navy, and the charge may be quests should include: borne by the Navy. (A) A statement that the cor- (iii) In either case, determination of respondent is a full-time employee, or Navy interests will be made by the has a specific assignment, and that the Chief of Information, guided by the trip is for the purpose of news gath- transportation policy of the Chief of ering. Naval Operations, whose approval of (B) Appropriate date of entry into such embarkation is required. area, port of entry, method of travel, (iv) Requests for such travel will be proposed duration of visit and travel submitted to the Chief of Information, termination date. who will coordinate with the Chief of (C) Assurance that the correspondent Naval Operations and/or the Assistant will observe currency control regula- Secretary of Defense (Public Affairs), tions, and sponsoring agency will guar- as appropriate. antee financial obligations incurred. (8) Point to point transportation (5) Embarkation of male correspondents within the continental United States between ports within CONUS. (i) Male in naval aircraft other than those oper- correspondents may be embarked in ated by the Military Airlift Command. naval ships for passage between ports (i) SECNAVINST 4630.2A contains within the area of a single Fleet com- guidance for travel in military aircraft mand for the purpose of news gathering other than those operated by the Mili- at the discretion of the Sea Frontier tary Airlift Command. Commander, Commandants of the (ii) Naval activities desiring to ar- Naval Districts, the Chief of naval Air range such transportation will address Training, Fleet, Force and Type com- requests via the chain of command to manders and flag officers afloat who the operational command of the lowest

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echelon which has been delegated au- their privileges suspended. Failure to thority to approve such requests. observe security regulations will be re- (iii) Upon approval of such a request, ported to CHINFO and interested com- the naval activity sponsoring the cor- mands. respondent shall: (d) Transportation of other civilians. (1) (A) Prepare travel orders. Although groups normally provide (B) Ensure that any waiver forms, as their own transportation to Navy com- may be required by governing direc- mands, Navy transportation may be tives, are executed. authorized when: (9) Embarkation of news media rep- (i) Commercial transport is not avail- resentatives of foreign citizenship: able. (i) Requests from foreign news media (ii) A professional group visit has representatives to cruise with units of been solicited by the Navy, such as par- the U.S. Navy are usually made to the ticipants in the Naval Academy Infor- nearest U.S. military installation mation Program (‘‘Blue and Gold’’) or known to the correspondent, and are educators invited to an Aerospace Edu- often not made in the proper chain of cation Workshop. command to the Fleet Commander un- (2) Requests for nonlocal transpor- less authorized to effect arrangements tation under the above circumstances for an underway cruise. will be made to the Chief of Naval Op- (A) if the request is received by a erations. command which is not a subordinate of (3) Carrier-on-board-delivery (COD) the Fleet Commander concerned, it flights and helicopters flights to ships will be forwarded to the U.S. Naval At- are considered local transportation. tache assigned to the foreign news- (4) When units or areas of a Unified man’s country. The Attache will then Command are involved in the public af- forward the request to the appropriate fairs program in connection with which Fleet Commander, with his rec- travel authorization is requested by a ommendations and the result of a brief Navy command which is not a compo- background check on the newsman and nent of the Unified Command con- his employer. cerned, coordination will be effected by (B) If the request is received by a the host command, through command subordinate of the appropriate Fleet channels, via the Chief of Information, Commander, it may be forwarded di- to the Assistant Secretary of Defense rectly to the latter, but the U.S. Naval (Public Affairs), who—as appropriate— Attache in the newsman’s country will will consult with the Unified Com- be given the opportunity to comment mander concerned. on the proposed embarkation. (e) Special programs. (1) Cruises are (ii) Naval commands should not in- discussed in Chapter 6, section 0604, troduce an embarked third-party (i.e., a para. 1 of the Navy Public Affairs Reg- foreign media representative) into a ulations. foreign country other than his own (2) Embarkation of news media rep- without first obtaining appropriate resentatives, especially on operations clearance from the country to be vis- and exercises, is discussed in Chapter 4, ited. Approval for entry should be for- section 0405, paragraph 4 of the Navy warded via appropriate command chan- Public Affairs Regulations. nels to the cognizant U.S. Naval Atta- (3) Other programs subject to special che. requirements or which have had excep- (10) Security considerations. (i) No tions authorized for them include: media representative known to be af- (i) Naval Air Training Command Ci- filiated with a group advocating the vilian Orientation Cruise Program, overthrow of the U.S. government will conducted by the Chief of Naval Air be permitted aboard naval ships or sta- Training. tions. (ii) Joint Civilian Orientation Con- (ii) If security review is directed, the ference, conducted by the Assistant reason will be made clear to the cor- Secretary of Defense (Public Affairs). respondent prior to embarkation. News (iii) Orientation flights in govern- media people refusing to agree to ob- ment aircraft, conducted in accordance serve security regulations may have with OPNAVINST 37107H.

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(iv) Space-available air transpor- of Defense Meritorious Award honors tation may be provided Navy League organizations. members if they are invited to accom- (2) Details, including nominating pro- pany a flag officer attending a Navy cedures, are given in SECNAVINST League convention or regional meeting 5061.12. and if the trip is economically justifi- (c) Secretary of the Navy awards. (1) able, based on military travel consider- The following awards are presented by ations and not community relations or the Secretary of the Navy: The Navy public affairs reasons. Approval in each Distinguished Public Service Award instance will be obtained in advance and Navy Meritorious Public Service from the Chief of Naval Operations. Citation to individuals; the Navy Cer- (v) Air transportation for the Naval Sea Cadet Corps of the Navy League. tificate of Commendation to members (A) Flights must be in Navy multien- of special committees and groups; and gine, transport type craft. the Navy Certificate of Merit to orga- (B) Point-to-point flights on a space- nizations and associations. required basis are governed by an an- (2) Details are given in SECNAVINST nual quota set by the Chief of Naval 5061.12. Operations. Space-available transpor- (3) Nominations for awards to mili- tation is authorized and will not be tary personnel are considered by the charged against this quota if it will not Board of Decorations and Medals, in result in delays of takeoffs or a change accordance with SECNAVINST in the itinerary planned for the pri- 1650.24A. mary mission. (4) Nominations for honorary awards (C) Flights must not interfere with to Department of the Navy civilian em- operational commitments or training ployees are considered by the Distin- or results in additional expense to the guished Civilian Service Awards Panel. government. (See Civilian Manpower Management (D) This transportation is not avail- Instruction 451.) able to other youth programs, includ- (d) Chief of Information awards—(1) ing others sponsored by the Navy Certificate of Public Relations Achieve- League. ment. (i) This certificate is signed by (f) Other instructions on transportation the Chief of Information. It honors in- of non-Navy civilians. Details on policy, dividuals who are not Navy employees, procedures, and the transportation of corporations, or associations. certain categories of people will be (ii) It was established to fill the need found in OPNAVINST 5720.2G and DOD for a civilian award for public relations Directive 4515.13. achievements which, while not meeting [41 FR 29101, July 15, 1976, as amended at 44 the criteria for public service awards FR 6391, Feb. 1, 1979] presented by the Secretary of the Navy, are of such Navy-wide signifi- § 705.37 Public affairs and public service awards. cance as to merit recognition at the Department level. Examples of these (a) General. (1) A number of public achievements might be a particularly service awards are presented by the De- well done feature article about the partment of Defense and the Navy to Navy in a nationally read newspaper or business and civic leaders, scientists an outstanding contribution to a lo- and other nongovernment civilians. cally sponsored event, which ulti- Other awards—military and civilian— mately gave national or regional rec- are presented to members of the naval establishment. ognition to the Navy. (2) These awards are of public affairs (iii) The achievement for which the interest in the locale where they are certificate is given shall meet the fol- presented and also in the home towns lowing criteria: of those who receive them. (A) Contribute to accomplishment of (b) Department of Defense awards. (1) the public information objectives of The Department of Defense Medal for the Navy. Distinguished Public Service is pre- (B) Be the result of a single out- sented to individuals. The Department standing project or program.

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(C) Have been accomplished within service personnel for letters on patri- one year of the date of the official let- otic themes. Details are carried in ship ter of nomination. and station publications, or may be ob- (iv) Nominations will be submitted tained by writing to Freedom Founda- through appropriate administrative tions, Valley Forge, PA 19481. channels to the Chief of Information, (iii) Thomas Jefferson Awards are the and will include a description of the prizes in an annual interservice com- service rendered, a statement of its rel- petition sponsored by civilian media evance to the accomplishment of the through the Department of Defense’s public affairs objectives of the Navy Office of Information for the Armed and a draft of the recommended cita- Forces. The contest is open to all tion. To avoid possible embarrassment, Armed Forces media—broadcast and nominations shall be marked ‘‘For Offi- print. Details can be obtained by writ- cial Use Only’’ and safeguarded until ing to Office of Information, Depart- final action has been taken. ment of the Navy, Washington, DC (2) CHINFO Merit Awards. (i) These 20350. awards, or certificates, are presented (iv) Navy League Awards. Several an- quarterly to Navy publications and nual awards are presented to naval per- broadcasts considered to be out- sonnel and civilians who have made a standing or to have shown improve- notable contribution to the importance ment in meeting professional standards of seapower. The awards are for inspi- of journalism. rational leadership, scientific and tech- (ii) Publications and broadcasts eligi- nical progess, operational competence, ble are those which inform the reader literary achievement, etc. Nominations concerning aspects of service life or re- should be forwarded directly to Board lated matters which contribute to the of Awards, Navy League of the United well-being of naval personnel, their de- States, 818 18th St., NW., Washington, pendents, and civilian employees of the DC 20006. Navy. Civilian enterprise periodicals (v) Nonofficial awards to outstanding are included if produced for the exclu- Navy students or training units. sive use of a naval installation. (A) Various civilian organizations (iii) Nominations are made in two and private individuals have estab- ways: lished awards to be presented to out- (A) Selection during regular review standing training units or naval stu- periodicals and broadast air-checks re- dents. ceived by the Internal Relations Activ- (B) Requests to establish an award ity. for students in the Naval Air Training (B) Nominations from the field. Such program should be forwarded to the nominations are informal and may be Chief of Naval Air Training. made by the officer-in-charge, publications editor, broadcast station man- (C) Requests to establish an award ager, or public affairs officer to the which will involve more than one chief of Information, Navy Depart- school (other than the Naval Air Train- ment, Washington, DC 20350 (ATTN: ing Program) will be forwarded to the OP–0071). Chief of Naval Personnel. (3) Other awards pertaining to public (D) All other cases may be decided by affairs/internal relations. (i) Silver Anvil the Navy authority at the school con- award is given by the Public Relations cerned. Society of America for outstanding (E) Directives in the 5061, 1650 and public relations programs carried out 3590 series issued by pertinent authori- during the preceding year. Entry ties may provide further guidance in blanks and details may be obtained by individual cases. writing directly to Public Relations (vi) Awards established by a com- Society of America, 845 Third Ave., mand to honor non-Navy civilians. New York, NY 10022. All Navy entries (A) Examples of such awards are will be forwarded via the Chief of Infor- ‘‘Good Neighbor’’ or ‘‘Honorary Crew mation. Member’’ certificates. (ii) Freedom Foundation Awards of (B) Established to honor persons who cash and medals are annually given to have been helpful to the command,

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they are a valuable community rela- in a commercial or governmental busi- tions program. They should not be ness capacity. awarded to persons or organizations [41 FR 29101, July 15, 1976, as amended at 44 with which the command is associated FR 6391, Feb. 1, 1979]

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PART 706—CERTIFICATIONS AND shown in combination with the naviga- EXEMPTIONS UNDER THE INTER- tional lights. NATIONAL REGULATIONS FOR (c) During peacetime naval maneu- PREVENTING COLLISIONS AT SEA, vers, naval ships, alone or in company, 1972 may also dispense with showing any lights, though efforts will be made to display lights on the approach of ship- Sec. ping. 706.1 Purpose of regulations. 706.2 Certifications of the Secretary of the (d) Executive Order 11964 of January Navy under Executive Order 11964 and 33 19, 1977, and 33 U.S.C. 1605 provide that U.S.C. 1605. the requirements of the International 706.3 Exemptions by the Secretary of the Regulations for Preventing Collisions Navy under Executive Order 11964. at Sea, 1972, as to the number, position, AUTHORITY: 33 U.S.C. 1605. range, or arc of visibility of lights or shapes, as well as to the disposition § 706.1 Purpose of regulations. and characteristics of sound-signalling (a) All ships are warned that, when appliances, shall not apply to a vessel U.S. naval vessels are met in inter- of the Navy where the Secretary of the national waters, certain navigational Navy shall find and certify that, by lights and sound-signalling appliances reason of special construction or pur- of some naval vessels may vary from pose, it is not possible for such vessel the requirements of the International to comply fully with the provisions Regulations for Preventing Collisions without interfering with the special at Sea, 1972 (33 U.S.C. foll. section 1602 function of the vessel. (1982)), as to number, position, range, (e) Executive Order 11964 also pro- or arc of visibility of lights, as well as vides that the Secretary of the Navy is to the disposition and characteristics authorized to exempt, in accordance of sound-signalling appliances. Those with Rule 38 of the International Regu- differences are necessitated by reason lations for preventing Collisions at of the special construction or purpose Sea, 1972, any vessel, or class of vessels, of the naval ships. An example is the the keel of which is laid, or which is at aircraft carrier where the two mast- a corresponding stage of construction, head lights are considerably displaced before July 15, 1977, from full compli- from the center or keel line of the ves- ance with the International Regula- sel when viewed from ahead. Certain tions, provided that such vessel, or other naval vessels cannot comply with class of vessels, complies with the re- the horizontal separation requirements quirements of the International Regu- for masthead lights, and the two mast- lations for Preventing Collisions at head lights on even large naval vessels Sea, 1960. will thus appear to be crowded together (f) This part consolidates and codifies when viewed from a distance. Naval certifications and exemptions granted vessels may also have unorthodox navi- by the Secretary of the Navy under Ex- gational light arrangements or characteristics when seen either underway or ecutive Order 11964 and 33 U.S.C. 1605. at anchor. It has been determined that, because of their special construction or purpose, (b) Naval vessels may also be expected to display certain other lights. the vessels and classes of vessels listed These lights include, but are not lim- in this part cannot comply fully with ited to, different colored rotating bea- all of the requirements of the Inter- cons, different colored fixed and rotary national Regulations for Preventing wing aircraft landing signal lights, red Collisions at Sea, 1972. aircraft warning lights, and red or blue [42 FR 36434, July 14, 1977, as amended at 42 contour approach lights on replenish- FR 48876, Sept. 26, 1977; 45 FR 43165, June 26, ment-type ships. These lights may be 1980; 52 FR 4770, Feb. 17, 1987]

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§ 706.2 Certifications of the Secretary TABLE ONE—Continued of the Navy under Executive Order Distance in 11964 and 33 U.S.C. 1605. meters of The Secretary of the Navy hereby forward masthead finds and certifies that each vessel list- Vessel Number light below ed in this section is a naval vessel of minimum required special construction or purpose, and height. that, with respect to the position of § 2(a)(i) Annex I the navigational lights listed in this section, it is not possible to comply USS KAUFFMAN ...... FFG 59 1.6 fully with the requirements of the pro- USS RODNEY M. DAVIS ...... FFG 60 1.6 USS INGRAHAM ...... FFG 61 1.37 visions enumerated in the Inter- USS FREEDOM ...... LCS 1 5.99 national Regulations for Preventing USS INDEPENDENCE ...... LCS 2 4.14 Collisions at Sea, 1972, without inter- USS FORT WORTH ...... LCS 3 5.965 USS CORONADO ...... LCS 4 4.20 fering with the special function of the USS MILWAUKEE ...... LCS 5 6.75 vessel. The Secretary of the Navy fur- USS JACKSON ...... LCS 6 4.91 ther finds and certifies that the naviga- USS DETROIT ...... LCS 7 6.80 USS MONTGOMERY ...... LCS 8 4.91 tional lights in this section are in the USS LITTLE ROCK ...... LCS 9 6.0 closest possible compliance with the USS GABRIELLE GIFFORDS ...... LCS 10 4.91 applicable provisions of the Inter- USS SIOUX CITY ...... LCS 11 5.98 national Regulations for Preventing USS OMAHA ...... LCS 12 4.27 USS OGDEN ...... LPD 5 4.15 Collisions at Sea, 1972. USS DULUTH ...... LPD 6 4.4 USS DUBUQUE ...... LPD 8 4.2 TABLE ONE USS DENVER ...... LPD 9 4.4 USS JUNEAU ...... LPD 10 4.27 Distance in USS NASHVILLE ...... LPD 13 4.38 meters of USS TRIPOLI ...... LPH 10 3.3 forward LCAC (class) ...... LCAC 1 1 6.51 masthead light below through Vessel Number minimum LCAC 100 required LCAC (class) ...... LCAC 1 7.84 height. through (Temp.) 2 § 2(a)(i) LCAC 100 Annex I USS INCHON ...... MCS 12 3.0 NR–1 ...... NR 1 2.7 USS DOLPHIN ...... AGSS 555 0.8 USS SEAWOLF ...... SSN 21 4.62 USS ZUMWALT ...... DDG 1000 2.55 USS CONNECTICUT ...... SSN 22 4.62 USS MC INERNY ...... FFG 8 1.6 USS JIMMY CARTER ...... SSN 23 4.32 USS CLARK ...... FFG 11 1.6 USS PARCHE ...... SSN 683 3.58 USS GEORGE PHILIP ...... FFG 12 1.6 USS SAMUEL ELIOT MORISON .. FFG 13 1.6 USS KAMEHAMEHA ...... SSN 642 3.58 USS SIDES ...... FFG 14 1.6 USS MENDEL RIVERS ...... SSN 686 2.40 USS ESTOCIN ...... FFG 15 1.6 USS LOS ANGELES ...... SSN 688 6.10 USS JOHN A. MOORE ...... FFG 19 1.6 USS PHILADELPHIA ...... SSN 690 6.10 USS BOONE ...... FFG 28 1.6 USS MEMPHIS ...... SSN 691 6.10 USS STEPHEN W. GROVES ...... FFG 29 1.6 USS BREMERTON ...... SSN 698 3.49 USS JOHN L. HALL ...... FFG 32 1.6 USS JACKSONVILLE ...... SSN 699 3.35 USS JARRETT ...... FFG 33 1.6 USS DALLAS ...... SSN 700 3.5 USS UNDERWOOD ...... FFG 36 1.6 USS LA JOLLA ...... SSN 701 3.5 USS CROMMELIN ...... FFG 37 1.6 USS CITY OF CORPUS CHRISTI SSN 705 3.5 USS CURTS ...... FFG 38 1.6 USS ALBUQUERQUE ...... SSN 706 3.5 USS DOYLE ...... FFG 39 1.6 USS PORTSMOUTH ...... SSN 707 3.5 USS HALYBURTON ...... FFG 40 1.6 USS MINNEAPOLIS-ST. PAUL .... SSN 708 3.5 USS MCCLUSKY ...... FFG 41 1.6 USS HYMAN G. RICKOVER ...... SSN 709 3.5 USS KLAKRING ...... FFG 42 1.6 USS AUGUSTA ...... SSN 710 3.5 USS THACH ...... FFG 43 1.6 USS SAN FRANCISCO ...... SSN 711 3.5 USS DEWERT ...... FFG 45 1.6 USS HOUSTON ...... SSN 713 3.5 USS RENTZ ...... FFG 46 1.6 USS NORFOLK ...... SSN 714 3.5 USS NICHOLAS ...... FFG 47 1.6 USS BUFFALO ...... SSN 715 3.5 USS VANDEGRIFT ...... FFG 48 1.6 USS SALT LAKE CITY ...... SSN 716 3.5 USS ROBERT G. BRADLEY ...... FFG 49 1.6 USS OLYMPIA ...... SSN 717 3.5 USS TAYLOR ...... FFG 50 1.6 USS HONOLULU ...... SSN 718 3.5 USS GARY ...... FFG 51 1.6 USS PROVIDENCE ...... SSN 719 3.5 USS CARR ...... FFG 52 1.6 USS PITTSBURGH ...... SSN 720 3.5 USS HAWES ...... FFG 53 1.6 USS CHICAGO ...... SSN 721 3.5 USS FORD ...... FFG 54 1.6 USS KEY WEST ...... SSN 722 3.5 USS ELROD ...... FFG 55 1.6 USS OKLAHOMA CITY ...... SSN 723 3.5 USS SIMPSON ...... FFG 56 1.6 USS LOUISVILLE ...... SSN 724 3.5 USS REUBEN JAMES ...... FFG 57 1.6 USS HELENA ...... SSN 725 3.5 USS SAMUEL B. ROBERTS ...... FFG 58 1.6 USS NEWPORT NEWS ...... SSN 750 3.5

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TABLE ONE—Continued TABLE ONE—Continued

Distance in Distance in meters of meters of forward forward masthead masthead Vessel Number light below light below minimum Vessel Number minimum required required height. height. § 2(a)(i) § 2(a)(i) Annex I Annex I

USS SAN JUAN ...... SSN 751 3.5 USS CALIFORNIA ...... SSN 781 2.76 USS PASADENA ...... SSN 752 3.5 USS MISSISSIPPI ...... SSN 782 2.76 USS ALBANY ...... SSN 753 3.5 USS MINNESOTA ...... SSN 783 2.76 USS TOPEKA ...... SSN 754 3.5 USS NORTH DAKOTA ...... SSN 784 2.76 USS MIAMI ...... SSN 755 3.5 USS JOHN WARNER ...... SSN 785 2.76 USS SCRANTON ...... SSN 756 3.5 USS ILLINOIS ...... SSN 786 2.76 USS ALEXANDRIA ...... SSN 757 3.5 USS WASHINGTON ...... SSN 787 2.76 USS ASHEVILLE ...... SSN 758 3.5 USS HENRY M. JACKSON ...... SSBN 730 3.70 USS JEFFERSON CITY ...... SSN 759 3.4 USS ALABAMA ...... SSBN 731 3.70 USS ANNAPOLIS ...... SSN 760 3.5 USS ALASKA ...... SSBN 732 3.70 USS SPRINGFIELD ...... SSN 761 3.5 USS NEVADA ...... SSBN 733 3.70 USS COLUMBUS ...... SSN 762 3.5 USS TENNESSEE ...... SSBN 734 3.70 USS SANTA FE ...... SSN 763 3.5 USS PENNSYLVANIA ...... SSBN 735 3.70 USS BOISE ...... SSN 764 3.5 USS WEST VIRGINIA ...... SSBN 736 3.70 USS MONTPELIER ...... SSN 765 3.5 USS CHARLOTTE ...... SSN 766 3.5 USS KENTUCKY ...... SSBN 737 3.70 USS HAMPTON ...... SSN 767 3.5 USS MARYLAND ...... SSBN 738 3.70 USS HARTFORD ...... SSN 768 3.5 USS NEBRASKA ...... SSBN 739 3.70 USS TOLEDO ...... SSN 769 3.5 USS RHODE ISLAND ...... SSBN 740 3.70 USS TUCSON ...... SSN 770 3.5 USS MAINE ...... SSBN 741 3.70 USS COLUMBIA ...... SSN 771 3.5 USS WYOMING ...... SSBN 742 3.70 USS GREENEVILLE ...... SSN 772 3.5 USS LOUISIANA ...... SSBN 743 3.70 USS CHEYENNE ...... SSN 773 3.5 USS OHIO ...... SSGN 726 3.70 USS VIRGINIA ...... SSN 774 2.9 USS MICHIGAN ...... SSGN 727 3.70 USS TEXAS ...... SSN 775 2.90 USS FLORIDA ...... SSGN 728 3.70 USS HAWAII ...... SSN 776 2.90 USS GEORGIA ...... SSGN 729 3.70 USS NORTH CAROLINA ...... SSN 777 2.90 1 The permanent masthead light is 5.26 meters athwartship USS NEW HAMPSHIRE ...... SSN 778 2.90 to port of centerline, 5.49 meters above the main deck. USS NEW MEXICO ...... SSN 779 2.76 2 The temporary masthead light is 3.98 meters athwartship USS MISSOURI ...... SSN 780 2.76 to starboard of centerline, 4.16 meters above the main deck.

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...... 0.7 ...... 6 ...... 2.9 98.6 2.97 88.80 ...... 3.1 91.1 3.0 90.9 AFT an- distance 30(a)(ii) dk in meters; Rule chor light, 21(e), Rule below flight ...... 2.01 ...... 3.93 Rule ber of; anchor 30(a)(i) Forward light, num-

ters; tance § 2(K), anchor Forward WO Annex I light, dis- dk in me- ...... below flight T

4 2 ABLE T 21(a) (Perm.) stbd of (Temp.) tance to ters; Rule Masthead lights, dis- keel in me- Vessel Number USS INCHON ...... SLWT (class) ...... MCS 12 SLWT 1 10.6 ...... 1.62 ...... 1 2.2 2 0.4 47.5 ...... LCAC (class) ...... LCAC 1 through 100 3.98 CFPM (class) ...... CFPM–1 through CFPM–2 2.32 ...... CSP (class) ...... USS KITTY HAWK ...... USS CONSTELLATION CSP–101 through CSP–182 ...... USS JOHN F. KENNEDY ...... USS ENTERPRISE ...... USS NIMITZ ...... 1.62 USS DWIGHT D. EISENHOWER ...... USS CARL VINSON ...... USS THEODORE ROOSEVELT ...... USS ABRAHAM LINCOLN ...... USS GEORGE WASHINGTON ...... USS JOHN C. STENNIS ...... CV 63 USS HARRY S. TRUMAN ...... CV 64 CV 67 CVN 65 27.8 CVN 68 ...... 28.2 CVN 69 ...... CVN 70 27.5 28.0 ...... CVN 71 ...... 31.0 CVN 72 ...... 31.0 ...... CVN 73 30.1 1 ...... CVN 74 ...... 30.0 1 ...... CVN 75 30.0 1 ...... 30.0 ...... 30.0 ...... 30.02 ...... 1 ...... 1 ...... 9.0 ...... 1 ...... 0.2 ...... 1 0.4 2 ...... 1 ...... 0.53 0.4 ...... 1 ...... SLWT (class) ...... 0.46 ...... SLWT 2 1.62 ...... USS RONALD REAGAN ...... USS GEORGE H. W. BUSH ...... USS GERALD R. FORD ...... USS TARAWA ...... USS SAIPAN ...... CVN 76 CVN 77 CVN 78 31.09 ...... LHA 1 31.09 ...... LHA 2 31.57 ...... 10.0 ...... 10.1 ...... 1 ...... 1 ...... 1 1 2.4 2.8 71.0 ...... 72.1 .... USS BELLEAU WOOD ...... USS NASSAU ...... USS PELELIU ...... USS AMERICA ...... USS WASP ...... USS ESSEX ...... USS KEARSARGE ...... USS BOXER ...... USS BATAAN ...... USS BONHOMME RICHARD ...... USS IWO JIMA ...... LHA 3 USS MAKIN ISLAND ...... LHA 4 USS TRIPOLI ...... LHA 5 LCAC (class) ...... LHA 6 10.0 LHD 1 ...... 10.0 ...... 10.13 LCAC 1 through 100 ...... LHD 2 ...... LHD 3 ...... 9.00 ...... LHD 4 ...... 9.0 ...... LHD 5 ...... 5.26 ...... LHD 6 ...... 8.9 LHD 7 ...... 4 ...... LHD 8 ...... LPH 10 ...... 9.0 ...... 8.97 ...... 10.6 ...... 1 2.2 2 0.4 47.5 ......

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...... 6 ...... 3.93 ay be obstructed from the right ahead on certain naval ships as AFT an- distance 30(a)(ii) dk in meters; Rule ...... 2.01 chor light, 21(e), Rule below flight ...... 3.93 ...... 3.93 3.93 Rule ber of; anchor 30(a)(i) Forward light, num-

6 ters; tance § 2(K), anchor Forward Annex I light, dis- dk in me- below flight —Continued 0.40 ...... WO T 21(a) stbd of tance to ters; Rule Masthead lights, dis- keel in me- ABLE T 11MUC0603, 11MUC0604 . ′ 17 ° Vessel Number [Reserved] The permanent masthead light is 5.26 meters athwartship to port of centerline, at frame 3, 5.49 above the main deck. The sidelights are on top of the port and starboard deckhouses 3.28 meters above hull. The temporary masthead light is 3.98 meters athwartship to starboard of centerline, 4.16 above the main deck. Port sidelight only. On the following ships arc of visibility after masthead light required by Rule 23(a)(ii) and Annex I, section 2(f) m 1 2 3 4 5 6 USV ...... 11MUC0601, 11MUC0602, SLWT (class) ...... SLWT 3 1.62 ...... SLWT (class) ...... SLWT (class) ...... SLWT (class) ...... SLWT (class) SLWT–8 through SLWT–19 ...... SLWT–22 through SLWT–24 USS BREMERTONPROVIDENCE...... SLWT–26 through SLWT–65 USS DALLAS ...... USS SAN FRANCISCO 1.62 ...... 1.62 ...... USS NORFOLK ...... 1.62 USS 0.41 X ...... SLWT–6 USS PITTSBURGH719 ...... USS CHICAGO ...... USS KEY WEST ...... 1.62 USS OKLAHOMA CITY ...... SSN 698 SSN USS LOUISVILLE ...... SSN 700 USS HELENA ...... SSN 711 USS NEWPORT NEWS ...... SSN 714 0.41 WT (class) ...... 0.41 ...... SSN 720 0.41 ...... 0.41 .... SSN 721 ...... SSN 722 ...... 0.41 WT–1 through WT–4 SSN 723 ...... SSN 724 0.41 ...... SSN 725 0.41 ...... 2.32 SSN 750 ... 0.41 ...... 0.41 ...... 0.41 ...... 0.41 ...... follows: USS MAKIN ISLAND (LHD 8)—5

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TABLE THREE

Side Forward lights dis- Stern anchor Anchor Masthead Side Stern tance in- light, dis- light, lights rela- lights arc lights arc light arc board of tance for- height tionship of Vessel No. of visi- of visi- of visi- ship’s ward of above aft light to bility; rule bility; rule bility; rule sides in stern in hull in forward 21(a) 21(b) 21(c) meters meters; meters; light in me- 3(b) rule 21(c) 2(K) ters 2(K) annex 1 annex 1 annex 1

USS GERALD R. CVN 78 ...... 115.6 ...... FORD. USS ZUMWALT ...... DDG 1000 ...... 5.3 2.99 below USS PELELIU ...... LHA 5 214.5 ...... USS SAN ANTONIO ... LPD 17 ...... 1.3 below USS NEW ORLEANS LPD 18 ...... 2.36 below USS MESA VERDE .... LPD 19 ...... 1.42 below USS GREEN BAY ...... LPD 20 ...... 1.29 below USS NEW YORK ...... LPD 21 ...... 1.75 below USS SAN DIEGO ...... LPD 22 ...... 1.88 below USS ANCHORAGE .... LPD 23 ...... 1.19 below USS ARLINGTON ...... LPD 24 ...... 1.62 below USS SOMERSET ...... LPD 25 ...... 1.64 below USS JOHN P MUR- LPD 26 ...... 1.72 below THA. USS PORTLAND ...... LPD 27 ...... 1.55 below USS ASHLAND ...... LSD 48 ...... 2.60 below USS CYCLONE ...... PC 1 ...... 1 25.5 3.0 1.0 USS TEMPEST ...... PC 2 (2) ...... 1 28.3 3.0 1.1 below USS HURRICANE ...... PC 3 (2) ...... 1 28.5 3.0 1.1 below USS MONSOON ...... PC 4 (2) ...... 1 28.3 3.0 1.1 below USS TYPHOON ...... PC 5 (2) ...... 1 28.5 3.0 1.1 below USS SIROCCO ...... PC 6 (2) ...... 1 28.5 3.0 1.1 below USS SQUALL ...... PC 7 (2) ...... 1 28.5 3.0 1.1 below USS CHINOOK ...... PC 9 (2) ...... 1 28.5 3.0 1.1 below USS FIREBOLT ...... PC 10 (2) ...... 1 28.5 3.0 1.1 below USS WHIRLWIND ...... PC 11 (2) ...... 1 28.5 3.0 1.1 below USS THUNDERBOLT PC 12 (2) ...... 1 28.5 3.0 1.1 below USS SHAMAL ...... PC 13 ...... 1 28.26 3.01 1.1 below USS TORNADO ...... PC 14 ...... 1 27.8 3.01 1.1 below USS DOLPHIN ...... AGSS 555 227.51⁄2 1191⁄2 1911⁄2 2.1 10.8 1.8 0.5 above NR–1 ...... NR 1 238.51⁄2 114° 136.5° 1.5 4.1 2.1 USS SEAWOLF ...... SSN 21 225° 111.5° 205° 5.1 10.7 2.8 1.8 below USS CONNECTICUT SSN 22 232° 112.8° 207° 5.1 10.7 2.8 1.63 below USS JIMMY CARTER SSN 23 ...... 211° 5.12 10.7 2.8 1.63 below USS KAMEHAMEHA .. SSN 642 236° 117° 252° 3.8 7.6 2.1 same height USS PARCHE ...... SSN 683 232° 112.5° 209° 4.1 6.8 2.2 0.2 below USS L. MENDEL RIV- SSN 686 236° 113° 252° 3.8 5.2 3.4 1.4 below ERS. USS LOS ANGELES .. SSN 698 236° 115° 252° 4.2 6.1 2.0 1.6 below USS PHILADELPHIA .. SSN 690 238° 115° 252° 4.2 6.1 2.0 1.6 below USS MEMPHIS ...... SSN 691 236° 115° 252° 4.3 6.1 2.0 1.6 below USS BREMERTON ..... SSN 698 ...... 209° 4.2 6.1 3.5 1.7 below USS JACKSONVILLE SSN 699 ...... 211° 4.2 6.1 3.5 1.7 below USS DALLAS ...... SSN 700 ...... 4.1 6.5 3.4 1.7 below USS LA JOLLA ...... SSN 701 ...... 4.2 6.1 3.5 1.7 below USS CITY OF COR- SSN 705 ...... 209° 4.2 6.1 3.5 1.7 below PUS CHRISTI. USS ALBUQUERQUE SSN 706 ...... 114° ...... 4.2 6.1 3.5 1.7 below USS PORTSMOUTH .. SSN 707 ...... 209° 4.2 6.1 3.5 1.7 below USS MINNEAPOLIS- SSN 708 ...... 209° 4.2 6.2 3.5 1.7 below ST. PAUL. USS HYMAN G. RICK- SSN 709 ...... 209° 4.2 6.1 3.4 1.7 below OVER. USS AUGUSTA ...... SSN 710 ...... 209° 4.2 6.1 3.4 1.7 below USS SAN FRAN- SSN 711 ...... 4.1 6.5 3.4 1.7 below CISCO. USS HOUSTON ...... SSN 713 ...... 209° 4.3 6.1 3.4 1.7 below USS NORFOLK ...... SSN 714 ...... 209° 4.3 6.1 3.4 1.7 below USS BUFFALO ...... SSN 715 ...... 209° 4.2 6.1 3.5 1.7 below USS SALT LAKE CITY SSN 716 ...... 209° 4.2 6.1 3.5 1.7 below USS OLYMPIA ...... SSN 717 ...... 209° 4.2 6.1 3.4 1.7 below USS HONOLULU ...... SSN 718 ...... 209° 4.2 6.1 3.4 1.7 below USS PROVIDENCE .... SSN 719 ...... 209° 4.2 6.1 3.4 1.7 below

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TABLE THREE—Continued

USS PITTSBURGH .... SSN 720 ...... 209° 4.2 6.1 3.4 1.7 below USS CHICAGO ...... SSN 721 ...... 209° 4.3 6.1 3.4 1.7 below USS KEY WEST ...... SSN 722 ...... 209° 4.2 6.1 3.4 1.7 below USS OKLAHOMA SSN 723 ...... 209° 4.3 6.1 3.4 1.7 below CITY. USS LOUISVILLE ...... SSN 724 ...... 113° 209° 4.2 6.1 3.5 1.7 below USS HELENA ...... SSN 725 ...... 207° 4.2 6.2 3.5 1.7 below USS NEWPORT SSN 750 ...... 209° 4.3 6.1 3.4 1.7 below NEWS. USS SAN JUAN ...... SSN 751 229° 113° 208° 4.2 6.1 3.5 1.7 below USS PASADENA ...... SSN 752 255° 112.5° 206° 4.2 6.1 3.5 1.7 below USS ALBANY ...... SSN 753 225° 112.5° 209° 4.3 6.1 3.4 1.7 below USS TOPEKA ...... SSN 754 ...... 206° 4.2 6.2 3.5 1.7 below USS MIAMI ...... SSN 755 ...... 206° 4.2 6.2 3.5 1.7 below USS SCRANTON ...... SSN 756 ...... 209° 4.3 6.1 3.4 1.7 below USS ALEXANDRIA ..... SSN 757 ...... 205° 4.2 6.2 3.5 1.7 below USS ASHEVILLE ...... SSN 758 ...... 209° 4.3 6.1 3.4 1.7 below USS JEFFERSON SSN 759 ...... 209° 4.3 6.1 3.4 1.7 below CITY. USS ANNAPOLIS ...... SSN 760 ...... 205° 4.2 6.2 3.5 1.7 below USS SPRINGFIELD .... SSN 761 ...... 205° 4.2 6.2 3.5 1.7 below USS COLUMBUS ...... SSN 762 ...... 205° 4.2 6.2 3.5 1.7 below USS SANTA FE ...... SSN 763 ...... 205° 4.2 6.2 3.5 1.7 below USS BOISE ...... SSN 764 ...... 209° 4.3 6.1 3.4 1.7 below USS MONTPELIER .... SSN 765 ...... 209° 4.3 6.1 3.4 1.7 below USS CHARLOTTE ...... SSN 766 ...... 209° 4.3 6.1 3.4 1.7 below USS HAMPTON ...... SSN 767 ...... 209° 4.3 6.1 3.4 1.7 below USS HARTFORD ...... SSN 768 ...... 205° 4.2 6.2 3.5 1.7 below USS TOLEDO ...... SSN 769 ...... 209° 4.4 6.1 3.4 1.7 below USS TUCSON ...... SSN 770 ...... 209° 4.4 6.1 3.4 1.7 below USS COLUMBIA ...... SSN 771 ...... 205° 4.2 6.2 3.5 1.7 below USS GREENEVILLE ... SSN 772 ...... 209° 4.4 6.1 3.4 1.7 below USS CHEYENNE ...... SSN 773 ...... 209° 4.4 6.1 3.4 1.7 below USS VIRGINIA ...... SSN 774 ...... 205° 4.37 11.05 2.8 0.30 below USS TEXAS ...... SSN 775 ...... 210.2° 4.37 11.05 2.8 0.30 below USS HAWAII ...... SSN 776 ...... 205° 4.37 11.05 2.8 0.30 below USS NORTH CARO- SSN 777 ...... 205.6° 4.37 11.05 2.8 0.30 below LINA. USS NEW HAMP- SSN 778 ...... 205.6° 4.37 11.05 2.8 0.30 below SHIRE. USS NEW MEXICO .... SSN 779 ...... 206.4° 4.37 11.05 2.8 0.30 below USS MISSOURI ...... SSN 780 ...... 210.5° 4.37 11.05 2.8 0.30 below USS CALIFORNIA ...... SSN 781 ...... 205.1° 4.37 11.05 2.8 0.30 below USS MISSISSIPPI ...... SSN 782 ...... 209.0° 4.37 11.05 2.8 0.30 below USS MINNESOTA ...... SSN 783 ...... 205.1° 4.37 11.05 2.8 0.30 below USS NORTH DAKOTA SSN 784 ...... 210.0° 4.37 11.05 2.8 0.30 below USS JOHN WARNER SSN 785 ...... 206.4° 4.37 11.05 2.8 0.30 below USS ILLINOIS ...... SSN 786 ...... 205.0° 4.37 11.05 2.8 0.30 below USS WASHINGTON ... SSN 787 ...... 206.8° 4.37 11.05 2.8 0.30 below USS HENRY M. SSBN 730 ...... 209° 5.3 9.0 3.8 4.0 below JACKSON. USS ALABAMA ...... SSBN 731 ...... 209° 5.3 9.0 3.8 4.0 below USS ALASKA ...... SSBN 732 ...... 209° 5.3 9.0 3.8 4.0 below USS NEVADA ...... SSBN 733 ...... 209° 5.3 9.0 3.8 4.0 below USS TENNESSEE ...... SSBN 734 ...... 209° 5.3 9.0 3.8 4.0 below USS PENNSYLVANIA SSBN 735 ...... 211.5° 5.3 9.0 3.8 4.0 below USS WEST VIRGINIA SSBN 736 ...... 211.5° 5.3 9.0 3.8 4.0 below USS KENTUCKY ...... SSBN 737 ...... 209° 5.3 9.0 3.8 4.0 below USS MARYLAND ...... SSBN 738 ...... 209° 5.3 9.0 3.8 4.0 below USS NEBRASKA ...... SSBN 739 ...... 209° 5.3 9.0 3.8 4.0 below USS RHODE ISLAND SSBN 740 ...... 209° 5.3 9.0 3.8 4.0 below USS MAINE ...... SSBN 741 ...... 209° 5.3 9.0 3.8 4.0 below USS WYOMING ...... SSBN 742 ...... 209° 5.3 9.0 3.8 4.0 below USS LOUISIANA ...... SSBN 743 ...... 209° 5.3 9.0 3.8 4.0 below USS OHIO ...... SSGN 726 225° 112.5° 209° 5.3 9.0 3.8 4.0 below

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TABLE THREE—Continued

USS MICHIGAN ...... SSGN 727 225° 112.5° 209° 5.3 9.0 3.8 4.0 below USS FLORIDA ...... SSGN 728 ...... 209° 5.3 9.0 3.8 4.0 below USS GEORGIA ...... SSGN 729 225° 112.5° 209° 5.3 9.0 3.8 4.0 below YTB (class) ...... YTB 769 ...... 2.77 14.02 ...... KEOKUK ...... YTB 771 ...... 3.11 13.00 ...... YTB 781 ...... YTB 781 ...... 2.56 13.41 ...... YTB (class) ...... YTB 789 ...... 2.50 14.99 ...... YTB 806 ...... YTB 806 ...... 2.79 10.97 ...... YTB 812 ...... YTB 812 ...... 3.03 14.02 ...... YTB 813 ...... YTB 813 ...... 2.63 19.2 ...... YTB 820 ...... YTB 820 ...... 3.08 14.20 ...... SHABONEE ...... YTB 833 ...... 2.77 13.34 ...... YTB 835 ...... YTB 835 ...... 3.00 14.02 ...... 1 Only when towing 2 Lower forward masthead light (used for towing) is partially blocked at angles plus or minus 8.5 degrees off centerline; this light is used only when tow exceeds 200 meters from the stern of the ship to aft end of tow.

TABLE FOUR erations also may not exhibit the stern light required by Rule 27(b)(iii). 1. Ships other than aircraft carrier types 2. To provide all-round visibility, the lights (CV, CVN, LHA, LHD, and LPH) may not si- required by Rules 27 (a) and (b) will consist multaneously exhibit the masthead lights re- of two lights, one light port and one light quired by Rule 27(b)(iii) and the lights re- starboard on the mast or superstructure at quired by Rule 27(b)(i) for vessels restricted in their ability to maneuver when such si- each location in the vertical array. multaneous exhibition will present a hazard 3. The second masthead light required by to their own safe operations. In those in- Rule 23(a)(ii) and the lights and shapes re- stances, the lights required by Rule 27(b)(i) quired by Rules 24, 27, and 30(d)(i) are not will be exhibited. Ships conducting flight op- displayed by submarines.

4. On mine warfare type ships the masthead lights will not always be above and clear of the minesweeping lights, as is required by Annex I, Section 2(f). The positions of the masthead lights with relation to the minesweeping lights are as follows:

Relationship of forward Relationship of after mast- Relationship of after mast- Vessel MSO No. masthead light to all mine- head light to lower mine- head light to upper minesweeping lights sweeping lights sweeping lights

MSB ...... 15 below ...... MSB ...... 16 do ...... MSB ...... 25 do ...... MSB ...... 28 do ...... MSB ...... 29 do ...... MSB ...... 41 do ...... MSB ...... 51 do ...... MSB ...... 52 do ......

5. The masthead light required by Rule tain naval ships as follows: USS MAKIN IS- 23(a)(i) and Annex I, Paragraph 3(d), is not LAND (LHD 8)—5°17′. located in the forward part of the vessel on 7. On the following ships the arc of visi- the CFPM Class, CSP Class, SLWT Class, and bility of the forward masthead light required WT Class. by Rule 23(a)(i) may be obstructed through 6. On the following ships the arc of visi- 1.6° arc of visibility at the points 021° and bility of the after masthead light required by 339° relative to the ship’s head. Rule 23(a)(ii) and Annex I, section 2(f) may USS MCINERNEY ...... FFG 8 be obstructed from the right ahead on cer- USS CLARK ...... FFG 11

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USS GEORGE PHILIP ...... FFG 12 Distance of USS SAMUEL ELIOT MORISON ...... FFG 13 sidelights USS SIDES ...... FFG 14 Vessel Number forward of USS ESTOCIN ...... FFG 15 masthead USS JOHN A. MOORE ...... FFG 19 light in meters USS BOONE ...... FFG 28 USS STEPHEN W. GROVES ...... FFG 29 USS SAMUEL B. ROBERTS ...... FFG 58 2.75 USS JOHN L. HALL ...... FFG 32 USS KAUFFMAN ...... FFG 59 2.75 USS JARRETT ...... FFG 33 USS RODNEY M. DAVIS ...... FFG 60 2.75 USS UNDERWOOD ...... FFG 36 USS INGRAHAM ...... FFG 61 2.19 USS CROMMELIN ...... FFG 37 USS CURTS ...... FFG 38 9. On LCAC-class amphibious vessels, full USS DOYLE ...... FFG 39 USS HALYBURTON ...... FFG 40 compliance with Rules 21(a), 21(b), and 22(b), USS MCCLUSKY ...... FFG 41 and Annex I, section 2(a)(i), 72 COLREGS, USS KLAKRING ...... FFG 42 cannot be obtained. Tables One and Two of USS THACH ...... FFG 43 section 706.2 provide the dimensions of clos- USS DEWERT ...... FFG 45 est possible compliance of LCAC-class am- USS RENTZ ...... FFG 46 phibious vessels with the aforementioned USS NICHOLAS ...... FFG 47 rules. The following paragraph details the USS VANDERGRIFT ...... FFG 48 USS ROBERT G. BRADLEY ...... FFG 49 specific dimensions of closest possible com- USS TAYLOR ...... FFG 50 pliance and the basis for certification by the USS GARY ...... FFG 51 Secretary of the Navy that full compliance USS CARR ...... FFG 52 with the aforementioned rules is not obtain- USS HAWES ...... FFG 53 able. USS FORD ...... FFG 54 In LCAC-class amphibious vessels, there USS ELROD ...... FFG 55 are permanent and temporary masts. The USS SIMPSON ...... FFG 56 USS REUBEN JAMES ...... FFG 57 permanent masthead light is located 5.26 me- USS SAMUEL B. ROBERTS ...... FFG 58 ters athwartship to port of centerline 5.49 USS KAUFFMAN ...... FFG 59 meters above the hull. The temporary mast- USS RODNEY M. DAVIS ...... FFG 60 head light is located 3.98 meters athwartship USS INGRAHAM ...... FFG 61 to starboard of centerline, 4.16 meters in 8. Sidelights on the following ships do not height above the hull. The temporary mast- comply with Annex 1, Section 3(b): head light is displayed in lieu of the permanent masthead light only when LCAC-class Distance of amphibious vessels are operating with am- sidelights forward of phibious assault vessels. When operating in Vessel Number masthead this mode, the sidelights are displayed at a light in me- height greater than three-quarters of the ters height of the temporary masthead light. The USS MCINERNEY ...... FFG 8 2.75 sidelights are located on top of the port and USS CLARK ...... FFG 11 2.75 starboard deckhouses to permit the required USS GEORGE PHILIP ...... FFG 12 2.75 unobstructed arcs of visibility and are 3.28 USS SAMUEL ELIOT MORISON .. FFG 13 2.75 meters above the hull, resulting in a vertical USS SIDES ...... FFG 14 2.75 separation between those lights and the tem- USS ESTOCIN ...... FFG 15 2.75 porary masthead light of 0.78 meters. Be- USS JOHN A. MOORE ...... FFG 19 2.75 cause of the minimal vertical separation be- USS BOONE ...... FFG 28 2.75 USS STEPHEN W. GROVES ...... FFG 29 2.75 tween the sidelights and the temporary USS JOHN L. HALL ...... FFG 32 2.75 masthead light and the luminous intensity USS JARRETT ...... FFG 33 2.69 of the temporary light, the sidelights on USS UNDERWOOD ...... FFG 36 2.75 these vessels may not be distinguishable by USS CROMMELIN ...... FFG 37 2.75 the naked eye at the 2-mile range required USS CURTS ...... FFG 38 2.75 by Rule 22(b). USS DOYLE ...... FFG 39 2.75 USS HALYBURTON ...... FFG 40 2.75 The arc of visibility of the temporary USS MCCLUSKY ...... FFG 41 2.75 masthead light required by rule 21(a) may be USS KLAKRING ...... FFG 42 2.75 obstructed at the following angles relative to USS THACH ...... FFG 43 2.75 the LCAC’s heading, from 37.00 degrees thru USS DEWERT ...... FFG 45 2.75 90.00 degrees up to a distance of 112.5 meters USS RENTZ ...... FFG 46 2.75 from the craft and from 276.75 degrees thru USS NICHOLAS ...... FFG 47 2.75 277.25 degrees. USS VANDEGRIFT ...... FFG 48 2.75 USS ROBERT G. BRADLEY ...... FFG 49 2.75 10. [Reserved] USS TAYLOR ...... FFG 50 2.75 11. On USS DOLPHIN (AGSS 555) the mast- USS GARY ...... FFG 51 2.75 head light will be visible at a distance of 4.3 USS CARR ...... FFG 52 2.75 nautical miles and the sidelights will be visi- USS HAWES ...... FFG 53 2.75 ble at a distance of 2 nautical miles. USS FORD ...... FFG 54 2.75 12.–13. [Reserved] USS ELROD ...... FFG 55 2.75 USS SIMPSON ...... FFG 56 2.75 14. The following harbor tugs are equipped USS REUBEN JAMES ...... FFG 57 2.75 with a hinged mast. When the mast is in the 184

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lowered position as during a towing along- Horizontal dis- side or pushing operation, the two masthead tance from the lights required by Rule 24(c), and the all fore and aft Vessel Number centerline of around lights required by Rule 27(b)(i) will the vessel in not be shown; however, an auxiliary mast- the athwart- head light not meeting with Annex I, section ship direction 2(a)(i) height requirement will be exhibited. USS MASON ...... DDG 87 ... 1.87 meters USS PREBLE ...... DDG 88 ... 1.93 meters Distance in meters of USS MUSTIN ...... DDG 89 ... 1.93 meters aux. masthead light Vessel No. below minimum re- USS CHAFEE ...... DDG 90 ... 1.90 meters quired height. Annex USS PINCKNEY ...... DDG 91 ... 1.87 meters I, sec. 2(a)(i) USS MOMSEN ...... DDG 92 ... 1.88 meters USS CHUNG-HOON ...... DDG 93 ... 1.95 meters YTB 769 ...... 3 .86 USS NITZE ...... DDG 94 ... 1.90 meters YTB 771 ...... 3 .89 USS JAMES E. WILLIAMS ..... DDG 95 ... 1.89 meters YTB 781 ...... 3 .66 USS BAINBRIDGE ...... DDG 96 ... 1.90 meters YTB 789 ...... 3 .30 USS HALSEY ...... DDG 97 ... 1.93 meters YTB 806 ...... 3 .58 USS FORREST SHERMAN .... DDG 98 ... 1.87 meters YTB 812 ...... 4 .04 USS FARRAGUT ...... DDG 99 ... 1.84 meters YTB 813 ...... 6 .15 USS KIDD ...... DDG 100 1.89 meters YTB 820 ...... 3 .30 USS GRIDLEY ...... DDG 101 1.86 meters YTB 833 ...... 3 .68 USS SAMPSON ...... DDG 102 1.88 meters YTB 835 ...... 4 .04 USS TRUXTUN ...... DDG 103 1.86 meters USS STERETT ...... DDG 104 1.88 meters 15. Task (restricted maneuverability) USS DEWEY ...... DDG 105 1.85 meters lights on the following ships do not comply USS STOCKDALE ...... DDG 106 1.90 meters with Annex I, section 3(c). USS GRAVELY ...... DDG 107 1.83 meters USS WAYNE E. MEYER ...... DDG 108 1.84 meters Horizontal dis- USS JASON DUNHAM ...... DDG 109 1.89 meters tance from the USS WILLIAM P. LAWRENCE DDG 110 1.86 meters fore and aft USS SPRUANCE ...... DDG 111 1.90 meters Vessel Number centerline of USS MICHAEL MURPHY ...... DDG 112 1.90 meters the vessel in USS JOHN FINN ...... DDG 113 1.90 meters the athwart- USS RAFAEL PERALTA ...... DDG 115 1.88 meters ship direction USS ZUMWALT ...... DDG 1000 FWD Lower: 1 USS ARLEIGH BURKE ...... DDG 51 ... 1.85 meters 0.31 meters USS BARRY ...... DDG 52 ... 1.94 meters FWD Middle: 1 USS JOHN PAUL JONES ...... DDG 53 ... 1.89 meters 0.31 meters USS CURTIS WILBUR ...... DDG 54 ... 1.90 meters FWD Upper: 1 USS STOUT ...... DDG 55 ... 1.90 meters 0.29 meters USS JOHN S. MCCAIN ...... DDG 56 ... 1.88 meters AFT Lower: 1 USS MITSCHER ...... DDG 57 ... 1.93 meters 1.04 meters USS LABOON ...... DDG 58 ... 1.90 meters AFT Middle: 1 USS RUSSELL ...... DDG 59 ... 1.91 meters 1.05 meters USS PAUL HAMILTON ...... DDG 60 ... 1.88 meters AFT Upper: 1 USS RAMAGE ...... DDG 61 ... 1.91 meters 1.06 meters USS FITZGERALD ...... DDG 62 ... 1.90 meters USS INDEPENDENCE ...... LCS 2 ...... 1.31 meters USS STETHEM ...... DDG 63 ... 1.91 meters USS CORONADO ...... LCS 4 ...... 0.18 meters USS CARNEY ...... DDG 64 ... 1.90 meters USS JACKSON ...... LCS 6 ...... Upper—0.10 USS BENFOLD ...... DDG 65 ... 1.90 meters meters USS GONZALES ...... DDG 66 ... 1.90 meters Middle—1.31 USS COLE ...... DDG 67 ... 1.90 meters meters USS THE SULLIVANS ...... DDG 68 ... 1.87 meters Lower—1.31 USS MILIUS ...... DDG 69 ... 1.93 meters meters USS HOPPER ...... DDG 70 ... 1.83 meters USS MONTGOMERY ...... LCS 8 ...... 1.31 meters USS ROSS ...... DDG 71 ... 1.96 meters USS GABRIELLE GIFFORDS LCS 10 .... Upper—0.16 USS MAHAN ...... DDG 72 ... 1.90 meters Middle—1.2 USS DECATUR ...... DDG 73 ... 1.87 meters Lower—1.2 USS MCFAUL ...... DDG 74 ... 1.91 meters USS OMAHA ...... LCS 12 .... Upper—0.17 USS DONALD COOK ...... DDG 75 ... 1.90 meters meters USS HIGGINS ...... DDG 76 ... 1.92 meters Middle—1.3 USS O’KANE ...... DDG 77 ... 1.92 meters meters USS PORTER ...... DDG 78 ... 1.92 meters Lower—1.3 USS OSCAR AUSTIN ...... DDG 79 ... 1.89 meters meters USS ROOSEVELT ...... DDG 80 ... 1.90 meters 1 On DDG 1000, the ship does not have a traditional mast. USS WINSTON S. CHURCH- DDG 81 ... 1.87 meters To achieve the effect of a ‘‘single, all-around light,’’ multiple ILL. sets of task lights are embedded into each of the four faces of USS HOWARD ...... DDG 83 ... 1.88 meters the ship’s superstructure. Except when viewing the ship from USS LASSEN ...... DDG 82 ... 1.93 meters dead ahead, dead astern or broadside, two deckhouse surfaces are visible; consequently, two sets of task lights are visi- USS BULKELEY ...... DDG 84 ... 1.90 meters ble simultaneously. Because the deckhouse surfaces are USS MCCAMPBELL ...... DDG 85 ... 1.85 meters sloped, unless the lights are viewed dead-on, the three task USS SHOUP ...... DDG 86 ... 1.90 meters lights do not present as being in a vertical line.

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16. On the following ships, the arc of visibility of the forward masthead light, required by rule 21(a), may be obstructed at the following angles relative to ship’s heading:

Obstruction angle relative Vessel Number ship’s headings

USS ARLEIGH BURKE ...... DDG 51 ...... 100.00 thru 112.50° USS JOHN PAUL JONES ...... DDG 53 ...... 103.29 thru 112.50° USS CURTIS WILBUR ...... DDG 54 ...... 102.61 thru 112.50° USS JOHN S. MCCAIN ...... DDG 56 ...... 102.53 thru 112.50° USS MITSCHER ...... DDG 57 ...... 109.66 thru 112.50° USS RUSSELL ...... DDG 59 ...... 103.66 thru 112.50° USS RAMAGE ...... DDG 61 ...... 103.66 thru 112.50° USS FITZGERALD ...... DDG 62 ...... 108.30 thru 112.50° USS STETHEM ...... DDG 63 ...... 108.5 thru 112.50° USS GONZALES ...... DDG 66 ...... 101.69 thru 112.50° USS COLE ...... DDG 67 ...... 101.83 thru 112.50° USS HOPPER ...... DDG 70 ...... 102.25 thru 112.50° USS ROSS ...... DDG 71 ...... 104.05 thru 112.50° USS MAHAN ...... DDG 72 ...... 102.11 thru 112.50° USS MCFAUL ...... DDG 74 ...... 102.00 thru 112.50E° USS DONALD COOK ...... DDG 75 ...... 108.78 thru 112.50° USS HIGGINS ...... DDG 76 ...... 108.60 thru 112.50° USS O’KANE ...... DDG 77 ...... 102.00 thru 112.50° USS PORTER ...... DDG 78 ...... 108.43 thru 112.50° USS OSCAR AUSTIN ...... DDG 79 ...... 107.94 thru 112.50° USS ROOSEVELT ...... DDG 80 ...... 109.34 thru 112.50° USS WINSTON S. CHURCHILL ...... DDG 81 ...... 103.72 thru 112.50° USS LASSEN ...... DDG 82 ...... 109.11 thru 112.50° USS HOWARD ...... DDG 83 ...... 109.11 thru 112.50° USS BULKELEY ...... DDG 84 ...... 109.60 thru 112.50° USS MCCAMPBELL ...... DDG 85 ...... 108.61 thru 112.50° USS SHOUP ...... DDG 86 ...... 190.46 thru 112.50° USS MASON ...... DDG 87 ...... 108.03 thru 112.50° USS PREBLE ...... DDG 88 ...... 109.20 thru 112.50° USS MUSTIN ...... DDG 89 ...... 107.83 thru 112.50° USS CHAFEE ...... DDG 90 ...... 108.88 thru 112.50° USS PINCKNEY ...... DDG 91 ...... 107.07 thru 112.50° USS MOMSEN ...... DDG 92 ...... 108.10 thru 112.50° USS CHUNG-HOON ...... DDG 93 ...... 108.38 thru 112.50° USS NITZE ...... DDG 94 ...... 108.75 thru 112.50° USS JAMES E. WILLIAMS ...... DDG 95 ...... 108.79 thru 112.50° USS BAINBRIDGE ...... DDG 96 ...... 108.75 thru 112.50° USS HALSEY ...... DDG 97 ...... 107.00 thru 112.50° USS FORREST SHERMAN ...... DDG 98 ...... 105.59 thru 112.50° USS FARRAGUT ...... DDG 99 ...... 109.12 thru 112.50° USS KIDD ...... DDG 100 ...... 107.67 thru 112.50° USS GRIDLEY ...... DDG 101 ...... 107.25 thru 112.50° USS SAMPSON ...... DDG 102 ...... 107.27 thru 112.50° USS TRUXTUN ...... DDG 103 ...... 110.02 thru 112.50° USS STERETT ...... DDG 104 ...... 106.82 thru 112.50° USS DEWEY ...... DDG 105 ...... 109.52 thru 112.50° USS STOCKDALE ...... DDG 106 ...... 107.08 thru 112.50° USS GRAVELY ...... DDG 107 ...... 108.66 thru 112.50° USS WAYNE E. MEYER ...... DDG 108 ...... 106.71 thru 112.50° USS JASON DUNHAM ...... DDG 109 ...... 107.09 thru 112.50° USS WILLIAM P. LAWRENCE ...... DDG 110 ...... 107.86 thru 112.50° USS SPRUANCE ...... DDG 111 ...... 107.48 thru 112.50° USS MICHAEL MURPHY ...... DDG 112 ...... 109.60 thru 112.50° USS INDEPENDENCE ...... LCS 2 ...... 71 thru 73° 76 thru 78° 287 thru 289° USS CORONADO ...... LCS 4 ...... 71 thru 73° 76 thru 78°. 287 thru 289° USS JACKSON ...... LCS 6 ...... 71 thru 73° 76 thru 78° 287 thru 289° USS MONTGOMERY ...... LCS 8 ...... 71 thru 73° 76 thru 78° 287 thru 289° USS GABRIELLE GIFFORDS ...... LCS 10 ...... 71 thru 73° 76 thru 78° 287 thru 289° USS OMAHA ...... LCS 12 ...... 72 thru 74° 286 thru 288°

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Obstruction angle relative Vessel Number ship’s headings

USV ...... 11MUCO601, 11MUCO602, 11MUC0603, 271 thru 278° 11MUC0604.

17. The second masthead light required by Angle in degrees of task Rule 23(a)(ii) will not be displayed on the PC Vessel Number lights off vertical as 1 Class. viewed from directly ahead or astern 18. On the following mine warfare type ships, the arc of visibility of the lower all- USS ANCHORAGE LPD 23 10 round minesweep lights required by Rule USS ARLINGTON ... LPD 24 10 27(f), may be obstructed through the fol- USS SOMERSET .... LPD 25 10 lowing angles relative to the ship’s heading: USS JOHN P MUR- LPD 26 10 THA. Obscured angles relative to USS PORTLAND ..... LPD 27 10 ship’s heading Vessel Number 21. On the following ships, the forward tow- Port STBD ing light array and Restricted Maneuvering OSPREY ...... MHC 51 59.5° to 78.3° 281.7° to 300.5° light array do not meet the vertical spacing HERON ...... MHC 52 59.5° to 78.3° 281.7° to 300.5° requirements described by Annex I, para- PELICAN ...... MHC 53 59.5° to 78.3° 281.7° to 300.5° graph 2(i)(i). ROBIN ...... MHC 54 59.5° to 78.3° 281.7° to 300.5° ° ° ° ° ORIOLE ...... MHC 55 65.0 to 75.6 284.1 to 294.6 Forward Restricted CORMORANT MHC 57 59.5° to 78.3° 281.7° to 300.5° towing light maneu- BLACK HAWK MHC 58 65.0° to 75.6° 284.1° to 294.6° array, vering light ° ° ° ° Vessel array, USS FALCON MHC 59 65.0 to 75.6 284.1 to 294.6 vertical vertical CARDINAL ..... MHC 60 65.0° to 75.6° 284.1° to 294.6° spacing spacing (meters) (meters) 19. Sidelights on the following ships do not comply with Annex I, Section 2 (g): CFPM–1 through CFPM–2 ...... 1.00 1.00 WT–1 through WT–4 ...... 1.00 1.00 Distance in meters of Vessel Number sidelights above max- 22. On the following ships the vertical sepa- imum allowed height. ration of the task lights do not meet the USS ZUMWALT ...... DDG 1000 2.55 PORT vertical spacing requirements described by 2.52 STBD Annex I, 2(i)(iii). USS OGDEN ...... LPD 5 3.40 USS DUBUQUE ...... LPD 8 1.2 Vertical separation USS DENVER ...... LPD 9 4.9 of the task light USS JUNEAU ...... LPD 10 1.6 array is not equal- USS NASHVILLE ..... LPD 13 5.37 ly spaced, the separation between the middle 20. On the following ships, the all-round Vessel No. and lower task task lights (not under command or restricted light exceed the in ability to maneuver) required by Rule separation between the upper 27(a) and (b) are unable to be mounted in a and middle light vertical line. Instead, the lights deviate from by a vertical line by the indicated amount. USS THEODORE CVN 71 ...... 0.18 meter Angle in degrees of task ROOSEVELT. USS HARRY S. CVN 75 ...... 0.18 meter Vessel Number lights off vertical as viewed from directly TRUMAN. ahead or astern USS ZUMWALT .... DDG 1000 ...... FWD: 0.01 meter AFT: 0.178 meter USS SAN ANTONIO LPD 17 10 PORT: 0.64 meter USS NEW ORLE- LPD 18 10 STBD: 0.01 meter ANS. USS FREEDOM .... LCS 1 ...... 0.39 meter USS MESA VERDE LPD 19 10 USS FORT LCS 3 ...... 0.41 meter USS GREEN BAY ... LPD 20 10 WORTH. USS NEW YORK ..... LPD 21 10 USS PELELIU ...... LHA 5 ...... 0.18 meter USS SAN DIEGO .... LPD 22 10

23. On the following ships the verticality of the restricted maneuvering light array do not meet verticality requirements described in Rule 27(b)(i).

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Verticality of lights, when Verticality of lights, when viewed directly from the viewed directly from the port or starboard, the bow or stern, the lower Vessel Number lower task light is out of task light is with out of alignment with the upper alignment the upper and and middle task light in middle task light in meters by: meters by:

USV ...... 11MUCO601 ...... 0.85 ...... 11MUCO602 ...... 0.85 ...... 11MUCO603 ...... 0.85 ...... 11MUCO604 ...... 0.85 ...... USS FORT WORTH ...... LCS 3 ...... 0.21

24. On the following ships the vertical separation of the Restricted Maneuvering Light Array lights do not meet requirements described in Annex I, paragraph 2(i)(ii).

Restricted maneuvering Vessel Number light array, vertical spacing in meters

USV ...... 11MUCO601, 11MUCO602, 11MUC0603, 11MUC0604 ...... 0.49

25. On the following ships the masthead light is located 0.81 meters below the submarine identification lights and does not meet the requirement described by Annex I, 2(f)(i).

Distance in meters of masthead light Vessel No. below the submarine identification lights

USS VIRGINIA ...... SSN 774 ...... 0.81 USS TEXAS ...... SSN 775 ...... 0.81 USS HAWAII ...... SSN 776 ...... 0.81 USS NORTH CAROLINA ...... SSN 777 ...... 0.81 USS NEW HAMPSHIRE ...... SSN 778 ...... 0.81 USS NEW MEXICO ...... SSN 779 ...... 0.81 USS MISSOURI ...... SSN 780 ...... 0.81 USS CALIFORNIA ...... SSN 781 ...... 0.81 USS MISSISSIPPI ...... SSN 782 ...... 0.81 USS MINNESOTA ...... SSN 783 ...... 0.81 USS NORTH DAKOTA ...... SSN 784 ...... 2.76 USS JOHN WARNER ...... SSN 785 ...... 0.81 USS ILLINOIS ...... SSN 786 ...... 0.81 USS WASHINGTON ...... SSN 787 ...... 0.81

26. On the following ships the arc of visibility required by Rule 30(a) and Rule 21(e), for the forward and after lights may be obstructed through the following angles relative to the ship’s heading due to the ship’s sail.

Obstruction angle relative to ship’s heading Vessel No. Aft anchor Forward anchor light light

USS VIRGINIA ...... SSN 774 ...... 172° to 188° ...... 359° to 1° USS TEXAS ...... SSN 775 ...... 172° to 188° ...... 359° to 1° USS HAWAII ...... SSN 776 ...... 172° to 188° ...... 359° to 1° USS NORTH CAROLINA ...... SSN 777 ...... 172° to 188° ...... 359° to 1° USS NEW HAMPSHIRE ...... SSN 778 ...... 172° to 188° ...... 359° to 1° USS NEW MEXICO ...... SSN 779 ...... 172° to 188° ...... 359° to 1° USS MISSOURI ...... SSN 780 ...... 172° to 188° ...... 359° to 1° USS CALIFORNIA ...... SSN 781 ...... 172° to 188° ...... 359° to 1° USS MISSISSIPPI ...... SSN 782 ...... 172° to 188° ...... 359° to 1° USS MINNESOTA ...... SSN 783 ...... 172° to 188° ...... 359° to 1° USS NORTH DAKOTA ...... SSN 784 ...... 172° to 188° ...... 359° to 1° USS JOHN WARNER ...... SSN 785 ...... 172° to 188° ...... 359° to 1° USS ILLINOIS ...... SSN 786 ...... 172° to 188° ...... 359° to 1° USS WASHINGTON ...... SSN 787 ...... 172° to 188° ...... 359° to 1°

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TABLE FIVE

Masthead Forward After mast- lights not masthead head light less than 1⁄2 Percentage over all light not in ship’s length horizontal Vessel No. other lights forward quar- aft of forward separation at- and obstruc- ter of ship. masthead tained tions. annex annex I, sec. light. annex I, sec. 2(f) 3(a) I, sec. 3(a)

USS FLINT ...... AE 32 ...... X 98 USS SHASTA ...... AE 33 ...... X 98 USS NIAGARA FALLS ...... AFS 3 ...... X 97.9 USS CONCORD ...... AFS 5 ...... X 97 USS SAN JOSE ...... AFS 7 ...... X 98.1 USS LA SALLE ...... AGF 3 ...... X 54 USS CORONADO ...... AGF 11 ...... X 55 USS TICONDEROGA ...... CG 47 ...... X X 38.3 USS YORKTOWN ...... CG 48 ...... X X 38.0 USS VINCENNES ...... CG 49 ...... X X 38 USS VALLEY FORGE ...... CG 50 ...... X X 38 USS THOMAS S. GATES ...... CG 51 ...... X X 38 USS BUNKER HILL ...... CG 52 ...... X X 36.98 USS MOBILE BAY ...... CG 53 ...... X X 36.8 USS ANTIETAM ...... CG 54 ...... X X 36.8 USS LEYTE GULF ...... CG 55 ...... X X 36.9 USS SAN JACINTO ...... CG 56 ...... X X 38 USS LAKE CHAMPLAIN ...... CG 57 ...... X X 36.9 USS PHILIPPINE SEA ...... CG 58 ...... X X 36.8 USS PRINCETON ...... CG 59 ...... 36.9 USS NORMANDY ...... CG 60 ...... X X 38 USS MONTEREY ...... CG 61 ...... X X 38 USS CHANCELLORSVILLE ...... CG 62 ...... X X 36.8 USS COWPENS ...... CG 63 ...... X X 38 USS GETTYSBURG ...... CG 64 ...... X X 38 USS CHOSIN ...... CG 65 ...... X X 38 USS HUE CITY ...... CG 66 ...... X X 38 USS SHILOH ...... CG 67 ...... X X 38 USS ANZIO ...... CG 68 ...... X X 38 USS VICKSBURG ...... CG 69 N/A X X 38 USS LAKE ERIE ...... CG 70 N/A X X 38 USS CAPE ST. GEORGE ...... CG 71 N/A X X 38 USS VELLA GULF ...... CG 72 N/A X X 38 USS PORT ROYAL ...... CG 73 N/A X X 38 USS KITTY HAWK ...... CV 63 ...... X USS CONSTELLATION ...... CV 64 ...... X USS ENTERPRISE ...... CVN 65 ...... X USS NIMITZ ...... CVN 68 ...... X USS DWIGHT D. EISENHOWER ...... CVN 69 ...... X USS CARL VINSON ...... CVN 70 ...... X USS THEODORE ROOSEVELT ...... CVN 71 ...... X USS ABRAHAM LINCOLN ...... CVN 72 ...... X USS GEORGE WASHINGTON ...... CVN 73 ...... X USS JOHN C. STENNIS ...... CVN 74 ...... X USS HARRY S. TRUMAN ...... CVN 75 ...... X USS RONALD REAGAN ...... CVN 76 ...... X USS GEORGE H. W. BUSH ...... CVN 77 ...... X USS GERALD R. FORD ...... CVN 78 ...... X USS SPRUANCE ...... DD 963 ...... X X 46 USS PAUL F. FOSTER ...... DD 964 ...... X X 46.4 USS KINKAID ...... DD 965 ...... X X 46.4 USS HEWITT ...... DD 966 ...... X X 46.4 USS ELLIOT ...... DD 967 ...... X X 46.4 USS PETERSON ...... DD 969 ...... X X 46.4 USS ARTHUR W. RADFORD ...... DD 968 ...... X X 46.4 USS CARON ...... DD 970 ...... X X 46.4 USS DAVID R. RAY ...... DD 971 ...... X X 46.4 USS OLDENDORF ...... DD 972 N/A X X 45 USS JOHN YOUNG ...... DD 973 ...... X X 46 USS O’BRIEN ...... DD 975 ...... X X 46.1 USS BRISCOE ...... DD 977 ...... X X 46.4 USS STUMP ...... DD 978 ...... X X 46 USS MOOSBRUGGER ...... DD 980 ...... X X 46 USS JOHN HANCOCK ...... DD 981 ...... X X 46.4

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TABLE FIVE—Continued

USS NICHOLSON ...... DD 982 ...... X X 46.4 USS CUSHING ...... DD 985 ...... X X 46 USS O’BANNON ...... DD 987 ...... X X 46 USS THORN ...... DD 988 ...... X X 46 USS DEYO ...... DD 989 ...... X X 46 USS FIFE ...... DD 991 ...... X X 48 USS FLETCHER ...... DD 992 ...... X X 46 USS HAYLER ...... DD 997 N/A X X 44 USS ARLEIGH BURKE ...... DDG 51 X X X 19.0 USS BARRY ...... DDG 52 ...... X X 14.7 USS JOHN PAUL JONES ...... DDG 53 X X X 18.9 USS CURTIS WILBUR ...... DDG 54 X X X 19.6 USS STOUT ...... DDG 55 ...... X X 20.3 USS JOHN S. McCAIN ...... DDG 56 X X X 19.8 USS MITSCHER ...... DDG 57 ...... X X 12.4 USS LABOON ...... DDG 58 X X X 20.3 USS RUSSELL ...... DDG 59 X X X 20.6 USS PAUL HAMILTON ...... DDG 60 ...... X X 21.2 USS RAMAGE ...... DDG 61 X X X 19.2 USS FITZGERALD ...... DDG 62 X X X 21.2 USS STETHEM ...... DDG 63 X X X 20.9 USS CARNEY ...... DDG 64 ...... X X 14.4 USS BENFOLD ...... DDG 65 X X X 14.8 USS GONZALES ...... DDG 66 X X X 20.4 USS COLE ...... DDG 67 X X X 14.0 USS The SULLIVANS ...... DDG 68 ...... X X 21.2 USS MILIUS ...... DDG 69 ...... X X 14.7 USS HOPPER ...... DDG 70 X X X 20.4 USS ROSS ...... DDG 71 X X X 20.6 USS MAHAN ...... DDG 72 X X X 13.9 USS DECATUR ...... DDG 73 N/A X X 15.0 USS MCFAUL ...... DDG 74 X X X 13.9 USS DONALD COOK ...... DDG 75 X X X 14.8 USS HIGGINS ...... DDG 76 X X X 14.8 USS O’KANE ...... DDG 77 X X X 14.0 USS PORTER ...... DDG 78 X X X 14.4 USS OSCAR AUSTIN ...... DDG 79 X X X 14.7 USS ROOSEVELT ...... DDG 80 X X X 14.6 USS WINSTON S. CHURCHILL ...... DDG 81 X X X 14.0 USS LASSEN ...... DDG 82 X X X 14.5 USS HOWARD ...... DDG 83 X X X 14.6 USS BULKELEY ...... DDG 84 X X X 14.7 USS MCCAMPBELL ...... DDG 85 X X X 14.6 USS SHOUP ...... DDG 86 X X X 14.6 USS MASON ...... DDG 87 X X X 14.5 USS PREBLE ...... DDG 88 X X X 14.7 USS MUSTIN ...... DDG 89 X X X 14.4 USS CHAFEE ...... DDG 90 X X X 14.6 USS PINCKNEY ...... DDG 91 X X X 14.4 USS MOMSEN ...... DDG 92 X X X 14.5 USS CHUNG-HOON ...... DDG 93 X X X 14.4 USS NITZE ...... DDG 94 X X X 14.5 USS JAMES E. WILLIAMS ...... DDG 95 X X X 14.6 USS BAINBRIDGE ...... DDG 96 X X X 14.5 USS HALSEY ...... DDG 97 X X X 14.3 USS FORREST SHERMAN ...... DDG 98 X X X 14.1. USS FARRAGUT ...... DDG 99 X X X 14.5 USS KIDD ...... DDG 100 X X X 14.4. USS GRIDLEY ...... DDG 101 X X X 14.5. USS SAMPSON ...... DDG 102 X X X 14.5 USS TRUXTUN ...... DDG 103 X X X 14.6 USS STERETT ...... DDG 104 X X X 14.5 USS DEWEY ...... DDG 105 X X X 14.5 USS STOCKDALE ...... DDG 106 X X X 14.5 USS GRAVELY ...... DDG 107 X X X 14.6

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TABLE FIVE—Continued

USS WAYNE E. MEYER ...... DDG 108 X X X 14.5 USS JASON DUNHAM ...... DDG 109 X X X 14.5 USS WILLIAM P. LAWRENCE ...... DDG 110 X X X 14.7 USS SPRUANCE ...... DDG 111 X X X 14.9 USS MICHAEL MURPHY ...... DDG 112 X X X 14.5 USS JOHN FINN ...... DDG 113 ...... X X 14.5 USS RAFAEL PERALTA ...... DDG 115 X X X 14.5 USS ZUMWALT ...... DDG 1000 X X X 76.94 USS BLUE RIDGE ...... LCC 19 N/A N/A X 84 USS MOUNT WHITNEY ...... LCC 20 ...... X 84 USS FREEDOM ...... LCS 1 ...... X X 23 USS INDEPENDENCE ...... LCS 2 ...... X X 15.2 USS FORT WORTH ...... LCS 3 ...... X X 23 USS CORONADO ...... LCS 4 ...... X X 16.5 USS MILWAUKEE ...... LCS 5 ...... X X 22.3 USS JACKSON ...... LCS 6 ...... X X 18.6 USS DETROIT ...... LCS 7 ...... X X 23.0 USS MONTGOMERY ...... LCS 8 ...... X X 17.9 USS LITTLE ROCK ...... LCS 9 ...... X X 23 USS GABRIELLE GIFFORDS ...... LCS 10 ...... X X 17.9 USS SIOUX CITY ...... LCS 11 ...... X X 23 USS OMAHA ...... LCS 12 ...... X X 17.3 USS TARAWA ...... LHA 1 ...... X X 13 USS SAIPAN ...... LHA 2 ...... X X 10.2 USS BELLEAU WOOD ...... LHA 3 ...... X X 13 USS NASSAU ...... LHA 4 ...... X X 13 USS PELELIU ...... LHA 5 ...... X X 13 USS AMERICA ...... LHA 6 ...... X X 31.6 USS WASP ...... LHD 1 ...... X X 41 USS ESSEX ...... LHD 2 ...... X X 39 USS KEARSARGE ...... LHD 3 ...... X X 39.5 USS BOXER ...... LHD 4 ...... X X 39.3 USS BATAAN ...... LHD 5 ...... X X 39.7 USS BONHOMME RICHARD ...... LHD 6 ...... X X 39.8 USS IWO JIMA ...... LHD 7 ...... X X 41.5 USS MAKIN ISLAND ...... LHD 8 ...... X X 40.9 USS AUSTIN ...... LPD 4 ...... X 37 USS OGDEN ...... LPD 5 N/A N/A X 56.6 USS DULUTH ...... LPD 6 N/A N/A X 56.8 USS CLEVELAND ...... LPD 7 ...... X 49 USS DUBUQUE ...... LPD 8 ...... X 57 USS DENVER ...... LPD 9 N/A N/A X 54.7 USS JUNEAU ...... LPD 10 N/A N/A X 54.8 USS SHREVEPORT ...... LPD 12 ...... X 49 USS NASHVILLE ...... LPD 13 ...... N/A X 54.7 USS TRENTON ...... LPD 14 ...... X 41 USS PONCE ...... LPD 15 ...... X 55 USS SAN ANTONIO ...... LPD 17 ...... X 71.0 USS NEW ORLEANS ...... LPD 18 ...... X 70.7 USS MESA VERDE ...... LPD 19 ...... X 70.9 USS GREENBAY ...... LPD 20 ...... X 70.9 USS NEW YORK ...... LPD 21 ...... X 71.0 USS SAN DIEGO ...... LPD 22 ...... X 71 USS ANCHORAGE ...... LPD 23 ...... X 71 USS ARLINGTON ...... LPD 24 ...... X 71 USS SOMERSET ...... LPD 25 ...... X 71 USS JOHN P MURTHA ...... LPD 26 ...... X 71 USS PORTLAND ...... LPD 27 ...... X 71 USS TRIPOLI ...... LPH 10 ...... X X 12 USS ANCHORAGE ...... LSD 36 ...... X 46 USS PORTLAND ...... LSD 37 ...... X 46 USS MOUNT VERNON ...... LSD 39 ...... X 46 USS WHIDBEY ISLAND ...... LSD 41 ...... X 65 USS GERMANTOWN ...... LSD 42 ...... X 65 USS FORT McHENRY ...... LSD 43 ...... X 64

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TABLE FIVE—Continued

USS GUNSTON HALL ...... LSD 44 ...... X 64 USS COMSTOCK ...... LSD 46 ...... X 64 USS TORTUGA ...... LSD 46 ...... X 64 USS RUSHMORE ...... LSD 47 ...... X 64 USS ASHLAND ...... LSD 48 ...... X 63.6 USS HARPERS FERRY ...... LSD 49 ...... X 63.9 USS CARTER HALL ...... LSD 50 ...... X 63.9 USS OAK HILL ...... LSD 51 ...... X 63.9 USS PEARL HARBOR ...... LSD 52 ...... X 63.9 USS FREDERICK ...... LST 1184 ...... X 90 USS CAYUGA ...... LST 1186 ...... X 89 USS SAN BERNARDINO ...... LST 1189 ...... X 89 USS LA MOURE COUNTY ...... LST 1194 ...... X 88 USS HARLAN COUNTY ...... LST 1196 ...... X 89 USS BARNSTABLE COUNTY ...... LST 1197 ...... X 88 USS AVENGER ...... MCM 1 ...... X 63 USS DEFENDER ...... MCM 2 ...... X 62 USS SENTRY ...... MCM 3 ...... X 62 USS CHAMPION ...... MCM 4 ...... X 64 USS GUARDIAN ...... MCM 5 ...... X 63 USS DEVASTATOR ...... MCM 6 ...... X 64 USS PATRIOT ...... MCM 7 ...... X 64 USS SCOUT ...... MCM 8 ...... X 64 USS PIONEER ...... MCM 9 ...... 64 USS WARRIOR ...... MCM 10 ...... X 64 USS GLADIATOR ...... MCM 11 ...... X 64 USS ARDENT ...... MCM 12 ...... X 64 USS DEXTROUS ...... MCM 13 ...... X 64 USS CHIEF ...... MCM 14 ...... X 64 USS INCHON ...... MCS 12 ...... X X 11 USNS KILAUEA ...... T-AE 26 ...... X 94.1

[42 FR 36434, July 14, 1977] International Regulations for Pre- EDITORIAL NOTE: For FEDERAL REGISTER ci- venting Collisions at Sea, 1960. tations affecting § 706.2, see the List of CFR TABLE ONE Sections Affected, which appears in the [The following vessels and classes of vessels, less than 150 Finding Aids section of the printed volume meters in length, are permanently exempted pursuant to rule 38(d)(i) from repositioning of masthead lights resulting and at www.fdsys.gov. from the prescriptions of Annex I, section 3(a)]

§ 706.3 Exemptions by the Secretary of Vessel or class the Navy under Executive Order 11964. USNS HAYES (T-AG-195) T-AGOR 3 Class The Secretary of the Navy hereby ex- T-AGS 26 Class empts, in accordance with Rule 38 of T-AOG 77 Class the International Regulations for Pre- T-ATF 166 Class DDG 2 Class venting Collisions at Sea, 1972, the ves- FF 1040 Class sels and classes of vessels listed in this FF 1052 Class section, from full compliance with the FFG 7 Class LCU 1610 Class Regulations, where an exemption is al- LCU 1648 Class lowed by, and for the periods specified USS DOLPHIN (AGSS 555) in, Rule 38. The Secretary of the Navy SSN 594 Class further finds that the vessels and class- SSN 637 Class SSN 688 Class es of vessels listed have had their keels SSBN 726 Class laid or are in corresponding stages of YFU (Ex-LCU 1466 Class) construction before July 15, 1977, and that such vessels and classes of vessels comply with the requirements of the

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[42 FR 36434, July 14, 1977, as amended at 55 sequences to convey the intended sig- FR 27818, July 9, 1990; 60 FR 22506, May 8, nal. 1995; 65 FR 79742, Dec. 20, 2000] § 707.4 Aircraft warning lights. PART 707—SPECIAL RULES WITH RE- Naval vessels may display, as a SPECT TO ADDITIONAL STATION means of indicating the presence of an AND SIGNAL LIGHTS obstruction to low flying aircraft, one all round red light on each obstruction. Sec. 707.1 Purpose of regulations. § 707.5 Underway replenishment con- 707.2 Man overboard lights. tour lights. 707.3 Yard arm signaling lights. Naval vessels may display, as a 707.4 Aircraft warning lights. 707.5 Underway replenishment contour means of outlining the contour of the lights. delivery ship during nighttime under- 707.6 Minesweeping station keeping lights. way replenishment operations, either 707.7 Submarine identification light. red or blue lights at delivery-ship- 707.8 Special operations lights. deck-edge extremities. 707.9 Convoy operations stern light. 707.10 Wake illumination light. [42 FR 61596, Dec. 6, 1977, as amended at 44 707.11 Flight operations lights. FR 27991, May 14, 1979] 707.12 Amphibious operations lights. § 707.6 Minesweeping station keeping AUTHORITY: 33 U.S.C. 182 and 1606, E.O. lights. 11964. Naval vessels engaged in mine- SOURCE: 42 FR 61596, Dec. 6, 1977, unless sweeping operations may display, as an otherwise noted. aid in maintaining prescribed intervals § 707.1 Purpose of regulations. and bearings, two white lights in a vertical line visible from 070° through All ships are warned that when U.S. 290° relative. naval vessels are met in international and inland waters, some of the naviga- § 707.7 Submarine identification light. tional lights displayed by them may be special lights for naval purposes. When Submarines may display, as a dis- used, they may be displayed simulta- tinctive means of identification, an neously with the ordinary navigational intermittent flashing amber beacon lights required by the International with a sequence of operation of one Regulations for Preventing Collisions flash per second for three (3) seconds at Sea, 1972, or the Inland Navigational followed by a three (3) second off-pe- Rules. The lights are located and char- riod. The light will be located where it acterized in such a fashion that, as far can best be seen, as near as practicable, as possible, they cannot be mistaken all around the horizon. It shall not be for any light authorized by either set located less than two (2) feet above or of rules. This part publishes the special below the masthead lights. rules with respect to these additional [48 FR 4284, Jan. 31, 1983] station and signal lights promulgated by the Secretary of the Navy for ves- § 707.8 Special operations lights. sels of the Navy. Naval vessels may dispay, as a means of coordinating certain special oper- § 707.2 Man overboard lights. ations, a revolving beam colored red, Naval vessels may display, as a green, or amber, located on either yard means of indicating man overboard, arm or the mast platform from where two pulsating, all round red lights in it can best be seen all around the hori- the vertical line located on a mast zon. from where they can best be seen. § 707.9 Convoy operations stern light. § 707.3 Yard arm signaling lights. Naval vessels may display, during pe- Naval vessels may display, as a riods of convoy operations, a blue light means of visual signaling, white all located near the stern with the same round lights at the ends of the yard characteristics as, but in lieu of, the arms. These lights will flash in varying normal white stern light.

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§ 707.10 Wake illumination light. vessel type and the nature of the flight operations being conducted. Naval vessels may display a white spot light located near the stern to il- § 707.12 Amphibious operations lights. luminate the wake. Naval vessels engaged in night am- § 707.11 Flight operations lights. phibious operations may display various arrangements of light systems Naval vessels engaged in night flight containing combinations of different operations may display various ar- colored lights as a means of assisting rangements of light systems con- in the launch and recovery of assault taining combinations of different col- craft and enhancing the safety of the ored lights as a means of assisting in amphibious operation. These light sys- the launch and recovery of aircraft and tems will be located at various points enhancing flight safety. These light on the vessel, depending on the vessel systems will be located at various type and the nature of the amphibious points on the vessels, depending on the operations being conducted.

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PART 716—DEATH GRATUITY § 716.2 Definitions. For the purposes of this part, terms Subpart A—Provisions Applicable to the are defined as follows: Navy and the Marine Corps (a) Member of the naval service. This Sec. term includes: 716.1 Principal rule. (1) A person appointed, enlisted, or 716.2 Definitions. inducted into the Regular Navy, Reg- 716.3 Special situations. ular Marine Corps, Naval Reserve or 716.4 Eligible survivors. Marine Corps Reserve, and includes a 716.5 Delegation of authority. midshipman at the United States 716.6 Death occurring after active service. Naval Academy; 716.7 Payment of the death gratuity. (2) Enlisted members of the Fleet Re- 716.8 Payments excluded. serve and Fleet Marine Corps Reserve 716.9 Erroneous payment. and retired members; (3) A member of the Naval Reserve Subpart B—Provisions Applicable to the Navy Officers Training Corps when ordered to annual training duty for 14 days or 716.10 Procedures. more, and while performing authorized travel to and from that duty; and Subpart C—Provisions Applicable to the (4) Any person while en route to or Marine Corps from, or at a place for final acceptance 716.11 Procedures. for entry upon active duty in the naval service who has been ordered or di- AUTHORITY: Sec. 301, 80 Stat. 379, 1(32)(A), rected to go to that place, and who has 72 Stat. 1452; 5 U.S.C. 301, 10 U.S.C. 1475–1480, been provisionally accepted for such Pub. L. 89–554. duty. SOURCE: 24 FR 7523, Sept. 18, 1959, unless (b) Active duty. This term is defined otherwise noted. as (1) full-time duty performed by a member of the naval service, other Subpart A—Provisions Applicable than active duty for training, or (2) as to the Navy and the Marine Corps a midshipman at the United States Naval Academy, and (3) authorized § 716.1 Principal rule. travel to or from such duty or service. Under title 10 U.S.C., section 1475, the (c) Active duty for training. Such term Secretary of the Navy shall have a means: death gratuity paid immediately upon (1) Full-time duty performed by a official notification of the death of a member of a Reserve component of the member of the naval service who dies naval service for training purposes; while on active duty, active duty for (2) Annual training duty performed training, or inactive duty training. The for a period of 14 days or more by a death gratuity shall equal six months’ member of the Naval Reserve Officers basic pay (plus special, incentive, and Training Corps; and proficiency pay) at the rate to which (3) Authorized travel to or from such the deceased member was entitled on duty. the date of his death but shall not be (d) Inactive-duty training. Such term less than $800 nor more than $3,000. A is defined as any of the training, in- kind of special pay included is the 25% struction, appropriate duties, or equiv- increase in pay to which a member alent training, instruction, duty, ap- serving on a naval vessel in foreign propriate duties, or hazardous duty waters is entitled under 10 U.S.C. 5540 performed with or without compensa- when retained beyond expiration of en- tion by a member of a Reserve compo- listment because such retention was nent prescribed by the Secretary of the essential to the public interest. Navy pursuant to sections 206, 309, and

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1002 of title 37 U.S.C. or any other pro- his home by the most direct route. vision of law. The term does not in- That period may not end before mid- clude: night of the day on which the member (1) Work or study performed by a is discharged or released. member of a Reserve component in connection with correspondence [24 FR 7523, Sept. 18, 1959, as amended at 25 FR 7792, Aug. 16, 1960] courses in which he is enrolled, or (2) Attendance at an educational in- § 716.4 Eligible survivors. stitution in an inactive status under the sponsorship of the Navy or Marine (a) The death gratuity shall be paid Corps. to or for the living survivor or survivors of the deceased member first [24 FR 7523, Sept. 16, 1959, as amended at 37 listed below: FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, 1979] (1) The lawful spouse. (For purpose of this part, a man or woman shall be § 716.3 Special situations. considered to be the spouse if legally married to the member at the time of (a) Service without pay. Any member of a Reserve component who performs the member’s death.) active duty, active duty for training, (2) His children (without regard to or inactive-duty training without pay their age or marital status) in equal shall, for purposes of a death gratuity shares. payment, be considered as being enti- (3) Parent(s), brother(s) or sister(s) or tled to basic pay, including special pay any combination of them, when des- and incentive pay if appropriate, while ignated by the deceased member. performing such duties. (4) Undesignated parents in equal (b) Death occurring while traveling to shares. and from active duty for training and in- (5) Undesignated brothers and sisters active-duty training. Any member of a in equal shares. In paragraphs (a)(2), (3) Reserve component who, when author- and (4), respectively, of this section, ized or required by competent author- the terms ‘‘child’’ and ‘‘parent’’ have ity, assumes an obligation to perform the meanings assigned to them by title active duty for training or inactive- 10 U.S.C. section 1477 and the term duty training and who dies from an in- ‘‘parents’’ includes persons in loco jury incurred on or after January 1, parentis as indicated by that section. 1957 while proceeding directly to or di- The terms ‘‘brother’’ and ‘‘sister’’ in rectly from such active duty for train- paragraphs (a) (3) and (5) of this section ing or inactive-duty training, shall be include brothers and sisters of the half deemed to have been on active duty for blood and those through adoption. training or inactive-duty training as (b) Designation of payee by service the case may be. member. Where the service member has (c) Hospitalization. A member of a Re- designated a beneficiary and is not sur- serve component who suffers disability vived by a spouse, child, or children, while on active duty, active duty for the payment will be made to the spe- training, or inactive-duty training, and cific person designated by him provided who is placed in a new status while he the designee falls within the class of is receiving hospitalization or medical beneficiaries permitted as set forth in care (including out-patient care) for paragraph (a)(3) of this section. If more such disability, shall be deemed, for than one person is so designated on the purposes of death gratuity payment to Record of Emergency, payment will be have continued on active duty, active made in equal shares unless the mem- duty for training, or inactive-duty ber designated a proportionate share to training, as the case may be, in the each beneficiary. Frivolous designa- event of his death in such status. tions, such as one per centum to a par- (d) Discharge or release from a period of ticular beneficiary, should not be active duty. A person who is discharged made. or released from active duty (other (c) Death of survivor prior to receipt of than for training) is considered to con- gratuity. (1) If a survivor dies before re- tinue on that duty during the period of ceiving payment, or if a designated time required for that person to go to beneficiary predeceases the member

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(and there is no other designated bene- (1) Cases in which a doubt may exist ficiary) such amount shall be paid to as to the identity of the legal bene- the then living survivor or survivors ficiary; and listed first under paragraph (a) of this (2) Cases in which the widow or des- section. ignated beneficiary(ies) of the deceased (2) In case one of the beneficiaries service member was not residing with (parents or brothers or sisters) des- him at or near his place of duty at the ignated by a member, pursuant to time of his death. paragraph (a)(3) of this section, to re- [24 FR 7523, Sept. 18, 1959, as amended at 44 ceive death gratuity payment dies FR 25647, May 2, 1979] prior to the member’s death, or after his death but prior to the time pay- § 716.6 Death occurring after active ment is made, the share which would service. have been paid to the deceased des- (a) Under title 10 U.S.C., section 1476, ignee may be paid to the other person the death gratuity will be paid in any or persons designated. case where a member or former member dies on or after January 1, 1957, [24 FR 7523, Sept. 18, 1959, as amended at 37 during the 120-day period which begins FR 6471, Mar. 30, 1972] on the day following the date of his dis- § 716.5 Delegation of authority. charge or release from active duty, active duty for training, on inactive duty (a) Pursuant to the authority con- training, if the Administrator of Vet- tained in title 10 U.S.C., section 1479, as erans’ Affairs determines that: to deaths described in section 1475 (1) The decedent was discharged or thereof, the Secretary of the Navy has released, as the case may be, from the delegated to commanding officers of service under conditions other than naval commands, installations, or dis- dishonorable from the last period of tricts, with respect to naval personnel, the duty or training performed; and and to Marine Corps commanding gen- (2) Death resulted from disease or in- erals and officers in command of regi- jury incurred or aggravated while on ments, battalions or equivalent units such active duty or active duty for and of separate or detached commands training; or while performing author- who have custody of service records, ized travel to or from such duty; or with respect to Marine Corps per- (3) Death resulted from injury in- sonnel, authority to certify for the curred or aggravated while on such in- payment of death gratuity the lawful active-duty training or while traveling spouse or designated beneficiary(ies) of directly to or from such duty or train- the deceased service member who was ing. residing with him at or near his place (b) For purposes of computing the of duty at the time of his death, except amount of the death gratuity in such in cases in which a doubt may exist as instances, the deceased person shall be to the identity of the legal beneficiary. deemed to be entitled on the date of his Disbursing officers are authorized to death to basic pay (plus any special, in- make payment of the death gratuity centive and proficiency pay) at the rate upon receipt of certification from the to which he was entitled on the last Commanding Officer. day he performed such active duty, ac- (b) The Secretary of the Navy has tive duty for training, or inactive duty delegated authority to the Chief of training. A kind of special pay included Naval Personnel as to naval personnel, is a pay increase under 10 U.S.C. 5540; and to the Commandant of the Marine see § 716.1. Corps (Code MSPA–1) as to Marine (c) The Department of the Navy is Corps personnel, the authority to cer- precluded from making payment of the tify the beneficiary(ies) for receipt of death gratuity pending receipt of the payment of death gratuity in all appro- determinations described in paragraph priate cases of payment of death gra- (a) of this section. In view of this, com- tuity under the Servicemen’s and Vet- mands should insure that the medical erans’ Survivor Benefits Act (now reen- records and reports of investigations acted in 10 U.S.C. 1475–1480), including, by fact-finding bodies be submitted to but not limited to: the Navy Department at the earliest

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possible date. The Veterans’ Adminis- the check is delivered. Under no cir- tration is promptly notified of all cumstances will the check be delivered deaths of this category reported, and to the payee until this action has been upon the request of that agency all per- accomplished. The payee will retain tinent data is forwarded. the copy of the voucher, DD Form 397, and the signed original voucher will be § 716.7 Payment of the death gratuity. returned by hand to the disbursing offi- (a) Claim certification and voucher for cer by the person designated to deliver the death gratuity payment. The Comp- the check. troller General of the United States [24 FR 7523, Sept. 18, 1959, as amended at 44 has approved DD Form 397 as the form FR 25647, May 2, 1979] to be used hereafter for claim certification and voucher for the death gra- § 716.8 Payments excluded. tuity payment. (a) No payment shall be made if the (b) Active duty deaths (Navy). To ef- deceased member suffered death as a fect immediate payment of death gra- result of lawful punishment for a crime tuity the following actions will be or for a military or naval offense, ex- taken: cept when death was so inflicted by (1) The commanding officer will as- any hostile force with which the Armed certain that the deceased member died Forces of the United States have en- while on active duty, active duty for gaged in armed conflict. training, or inactive-duty training, and (b) No payment will be made to a sur- will obtain the name, relationship, and vivor implicated in the homicide of the address of the eligible survivor from deceased in the absence of evidence the Service Record of the deceased. clearly absolving such survivor of any The Dependency Application/Record of felonious intent. Emergency Data (NAVPERS 1070/602) or Record of Emergency Data (DD (c) Unless the laws of the place where Form 93), will normally contain this a minor beneficiary resides provide information. In addition, in the case of that such a payment would grant a enlisted personnel, the Application for valid acquittance of the Government’s Dependents Allowance (BAQ [Basic Al- obligation to make a payment of death lowance for Quarters]), NAVPERS gratuity to or for a minor, a death gra- Form 668, may serve as a source of cor- tuity of more than $1,000 may not be roboration. He will, with the coopera- paid in whole or in part to a parent as tion of the disbursing officer, initiate natural guardian of a minor or to any preparation of a Claim Certification other person who is not a legal guard- and Voucher for Death Gratuity Pay- ian appointed by the civil court to ment, DD Form 397, in original and five manage the minor’s financial affairs. copies, completing blocks 5 through 14 [24 FR 7523, Sept. 18, 1959, as amended at 37 inclusive, and the administrative state- FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, ment in block 18. The administrative 1979] statement in block 18 will be signed by the commanding officer or acting com- § 716.9 Erroneous payment. manding officer. Where through administrative mis- (2) The disbursing officer will, upon take of fact or law, payment of the receipt of the DD Form 397, draw a death gratuity is made to a person check to the order of the eligible sur- clearly not entitled thereto, and it is vivor named in block 5, complete equally clear that another person is en- blocks 2, 3, 4, and the check payment titled to the death gratuity, the Chief data portion of block 18. of Naval Personnel (Pers–732) or the (3) Under arrangements made by the Commandant of the Marine Corps commanding officer, the check and the (Code MSPA–1), as appropriate, will original and one copy of the voucher, certify payment to the proper payee, DD Form 397, will be delivered to the irrespective of recovery of the erro- payee. The payee will be required to neous payment. On the other hand, complete block 15, sign in block 17a, where a payment of the death gratuity and have two witnesses complete block has been made to an individual on the 17 on the original voucher at the time basis of representations of record made

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by the deceased member as to his mar- guardianship must be provided for the ital and dependency status, and the protection of the decedent’s children, Government otherwise has no informa- or wherein a technicality exists which tion which would give rise to doubt makes immediate certification legally that such status is as represented, the unsound, will be considered question- payment is not to be regarded as ‘‘er- able. roneous.’’ The Government has a good (3) Exception. Where the entitlement acquittance in such cases even though of the survivor who is living with the it may subsequently develop that the deceased at the time of his death is payee is not the proper statutory payee questionable and such survivor is in of the gratuity and no second payment dire financial circumstances, the Chief is authorized. of Naval Personnel (Pers-G23) shall be requested by message to make an adju- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979] dication of entitlement. If it is determined that the survivor is entitled to the payment, the commanding officer Subpart B—Provisions Applicable will be authorized by message to exe- to the Navy cute DD Form 397. (b) Action by Casualty Assistance Calls § 716.10 Procedures. Program (CACP) officers; Potential bene- (a) Action by commanding officers. See ficiary not residing with member—(1) § 716.7(b)—(1) Immediate payment—Eligi- Widow(er). The CACP officer, on his or ble beneficiary residing with deceased her initial visit to a widow(er), deter- member. Commanding officers, in order mines, propriety permitting, whether to expedite the payment of the death there is an urgent need for financial as- gratuity, will, upon official notifica- sistance. If there is an urgent need for tion of death, ascertain the duty status financial assistance, the CACP officer of the deceased, and determine the eli- should obtain DD Form 397 from any gibility of the spouse or designated military disbursing office and, on his beneficiary who was residing with the or her second visit to the widow(er), deceased member on or near his duty have him or her sign it and obtain the station at the time of his death. The signatures of two witnesses on the services of a staff or district legal offi- form. It should be noted that the fol- cer will be utilized as required. Every lowing procedure is confined to cases in effort should be made to effect prompt which the decedent’s eligible survivor payment (within 24 hours, if possible). for the death gratuity is a widow(er), It is the intent that determinations of and efforts to effect immediate pay- entitlement by commands in the field ment in accordance with the intent of will be confined largely to spouses and the governing statute are appropriate. parents designated by the service mem- In such cases, the CACP officer, upon ber who were living with him at the learning that a widow(er), not residing time of his death. with his or her spouse at or near the (2) Questionable cases. If entitlement spouse’s duty station, is in urgent need to the death gratuity payment is ques- of financial assistance, shall advise the tionable after seeking advice of the Chief of Naval Personnel (Pers-732) of staff or district legal officer, such case the need by message. The CACP officer will be forwarded promptly to the Chief shall send a copy of this message to the of Naval Personnel (Pers–732) with a decedent’s duty station, if known. brief statement relative to the facts Upon receipt, the disbursing officer which raised the issue of doubt. Every will furnish the Navy Finance Center, effort will be made to expedite action Cleveland, Ohio 44199, with the dece- by a review of the official records of dent’s basic monthly pay [plus any spe- the decedent in the Bureau of Naval cial (see § 716.1), incentive, and pro- Personnel and the Family Allowance ficiency pay] in the event the pay ac- Activity at Cleveland, Ohio. Those count has not been forwarded pre- cases wherein the service member was viously to that center sufficiently in a deserter status, absent without early to have reached there. The CACP leave, or in the custody of civil au- officer shall also send a copy of his thorities at the time of death, wherein message to the Navy Finance Center

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with the request that payment of the which maintains his service record is death gratuity be made upon receipt of in the immediate vicinity and certifi- the certification of beneficiary entitle- cates the beneficiary eligible to receive ment from the Chief of Naval Per- payment on the proper voucher (DD sonnel (Pers-732). Form 397). Otherwise the pay record (2) Navy Relief. In cases where there will be sent to the Army Finance Cen- is immediate need prior to receipt of ter, Air Force Finance Center, Com- the death gratuity, the Navy Relief So- mandant of the Marine Corps (Code ciety will be contacted by the Casualty CDB), the Navy Finance Center, of the Assistance Calls Program officer. Commandant, U.S. Coast Guard, as ap- (c) Action by the Chief of Naval Per- propriate. sonnel. (1) In all cases where death gratuity is not authorized to be paid lo- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979; 45 FR 43165, June 26, cally and in cases where authority ex- 1980] ists to pay locally but entitlement is questionable (see paragraph (a)(2) of this section), the Chief of Naval Per- Subpart C—Provisions Applicable sonnel (Pers–732) will expedite adju- to the Marine Corps dication of claims. As indicated in § 716.11 Procedures. paragraph (b)(1) of this section CACP officers will refer cases of urgent finan- (a) Action. Commanding officers will cial need to the Chief of Naval Per- direct immediate payment of the gra- sonnel (Pers–732) by message for ac- tuity where the deceased member’s tion. spouse was, in fact, residing with the (2) If a minor is entitled to a death member on or near the station of duty gratuity under 10 U.S.C. 1477 not ex- at the time of the member’s death ceeding $1,000, such death gratuity may while on active duty, active duty for be paid to the father or mother as nat- training, or inactive-duty training. ural guardian on behalf of the minor, Every effort should be made to effect provided a legally appointed guardian such payment promptly (within 24 has not been appointed, upon substan- hours, if possible). In cases where the tiation by a sworn (notarized) state- eligible survivor residing with the ment of the natural guardian: member on or near the duty station is (i) That no legal guardian has been other than a spouse, commanding offi- appointed and that such an appoint- cers may direct the payment of death ment is not contemplated; gratuity when the case can be properly (ii) The relationship of the natural determined, and an urgent need exists guardian to the minor; for immediate payment. Proper deter- (iii) That the minor is in the actual mination is imperative. custody of the natural guardian; (b) Qualifications. (1) Where any doubt (iv) That an amount paid to the nat- exists as to the legal recipient of the ural guardian will be held for, or ap- gratuity, the case will be referred to plied to, the use and benefit of the the Commandant of the Marine Corps minor. (Code MSPA–1) for determination. If the death gratuity to which a minor (2) [Reserved] is entitled exceeds $1,000, the appoint- [24 FR 7523, Sept. 18, 1959, as amended at 44 ment of a legal guardian on behalf of FR 25648, May 2, 1979] the minor is requested. Certification of the minor eligible to receive the death PART 718—MISSING PERSONS ACT gratuity is made by the Chief of Naval Personnel (Pers–732) and payment is ef- Sec. fected by the Navy Finance Center, 718.1 General provisions. Cleveland, OH 44199; 718.2 Allotments. (d) Cross-servicing procedure. Payment 718.3 Transportation of dependents. of the death gratuity may be made by 718.4 Delegations. a disbursing officer who is maintaining the pay record of a member of another § 718.1 General provisions. service, provided the command to (a) Under the provisions of the Miss- which the member is attached and ing Persons Act, as amended, a finding

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of presumptive death is made by the to the expiration of 12 months when Secretary of the Navy when a survey of the evidence received is considered to all available sources of information in- establish conclusively the fact of death dicates beyond doubt that the pre- and settlement of accounts is made to sumption of continuance of life has the date established as the date of re- been overcome. When a finding of pre- ceipt of evidence on which the fact of sumptive death is made, a man’s pay death is established. accounts are closed as of the day fol- (Sec. 301, 80 Stat. 379; 5 U.S.C. 301. Interpret lowing the expiration of the 12 months’ or apply 80 Stat. 112–117, 248–254; 5 U.S.C. absence or a longer period when justi- 5561–5568, 37 U.S.C. 551–558) fied, and the various benefits, such as [17 FR 5390, June 14, 1952] the six months’ gratuity, become payable. A finding of presumptive death § 718.2 Allotments. concerning an officer or enlisted man During such period as a person is in a of the Navy means simply that as of status of missing, missing in action, in- the date thereof he is for the purposes terned in a foreign country, captured of Naval administration no longer by a hostile force, beleaguered by a alive. It does not mean that death oc- hostile force, or besieged by a hostile curred on that or on any other certain force, allotments from his pay and al- date. lowances may be initiated, continued, (b) Findings of presumptive death are discontinued, increased, decreased, sus- never made when the ‘‘missing’’ status pended or resumed in behalf of his de- has not continued for at least 12 pendents and for such other purposes months. Whenever, subsequent to the as are justified by the circumstances expiration of the 12th month, cumu- and are in the interests of the person lative or other evidence establishes by or of the Government. its preponderance that a ‘‘missing’’ person is no longer alive, a prompt (R.S. 161, sec. 5031, 70A Stat. 278, as amended; finding of presumptive death will be 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– made. Also, such a finding will be made 1015) whenever justified by the lapse of time [26 FR 12658, Dec. 29, 1961] beyond the 12 months’ absence without specific information being received. § 718.3 Transportation of dependents. (c) The Secretary of the Navy, or (a) Whenever a person in active serv- such subordinate as he may designate, ice is officially reported as dead, in- has authority to make all determina- jured, (Only when the anticipated pe- tions necessary in the administration riod of hospitalization or treatment is of the act, and for the purposes of the expected to be of prolonged duration as act determinations so made shall be shown by a statement of the com- conclusive as to death or finding or manding officer at the receiving hos- death, as to any other status dealt with pital), missing for a period of 29 days or by the act, and as to any essential date more, interned in a foreign country, or including that upon which evidence or captured by a hostile force, his depend- information is received in the Depart- ents, household and personal effects in- ment. The determination of the Sec- cluding one privately owned motor ve- retary of the Navy, or of such subordi- hicle may be moved (including pack- nate as he may designate, is conclusive ing, crating, drayage, temporary stor- as to whether information received age, and unpacking of household and concerning any person is to be con- personal effects) to the official resi- strued and acted upon as an official re- dence of record for any such person or port of death. When any information to the residence of his dependent, next deemed to establish conclusively the of kin, or other person entitled to re- death of any person is received in the ceive custody of the effects in accord- department, action shall be taken ance with the provisions of paragraph thereon as an official report of death, (d) of this section; or, upon application notwithstanding any prior action relat- by such dependent, next of kin, heir or ing to death or other status of such legal representative, or other person person. Under the foregoing provisions determined in accordance with para- a determination of death is made prior graph (d) of this section, or upon the

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person’s application if injured, to such graphs (a) and (b) of this section who location as may have been determined may receive the effects or proceeds. in advance or as may be subsequently (1) If no duly appointed legal rep- approved, except that a reasonable re- resentative of the owner of the per- lationship must exist between the con- sonal effects makes demand upon the dition and circumstances of the de- Department of the Navy for the effects, pendents and the destination to which the determination by naval authorities transportation is requested. In the case as to the next of kin or heirs of the of a person in an injured status, trans- owner of the personal effects may be portation of his dependents or house- made on the basis of the following: hold and personal effects may be au- (i) Personnel records; or thorized only when the hospitalization (ii) Other documents applicable to or treatment of the injured person will the case; or be of prolonged duration. Payment in (iii) Title 10 U.S.C., section 2771, to money of amounts equal to such com- the extent that it prescribes an order mercial transportation costs or a mon- of precedence among next of kin or etary allowance in lieu of transpor- heirs, namely, the widow or widower of tation as authorized by law for the the owner; if no widow or widower, whole or such part of the travel for which transportation in kind is not then the child or children of the owner furnished, may be authorized, when and descendants of deceased children, such travel has been completed. by representation; if none of the above, (b) When the Secretary of the Navy the parents of the owner or the sur- or his designee determines that an vivor of them; or if none of the above, emergency exists and that such sale other persons determined to be eligible would be in the best interests of the under the laws of the domicile of the Government, he may provide for the owner. disposition of the motor vehicles and (2) Such determination should be re- other bulky items of such household garded as administrative rather than and personal effects of the person by legal, as the determination does not public or private sale. Prior to any vest title to effects or proceeds in the such sale, and if practicable, a reason- next of kin, heirs, or legal representa- able effort shall be made to determine tive to whom the effects are delivered. the desires of the interested persons. Therefore, delivery of the personal ef- The net proceeds received from such fects to other than the owner will be sale shall be transmitted to the owner, made subject to the following advisory next of kin, heir or legal representa- note which should be written on a copy tive, or other person determined in ac- of the inventory or in a letter: cordance with paragraph (d) of this sec- Delivery of the personal effects into the tion; but if there be no such persons or custody of other than the owner thereof, by if such persons or their addresses are the Department of the Navy, does not in any not ascertainable within one year from way vest title to the effects in the recipient. the date of sale, the net proceeds may Delivery of the effects to the recipient is be covered into the Treasury as mis- made so that distribution may be made in cellaneous receipts. accordance with the laws of the state in (c) The Secretary of the Navy or his which the owner of the effects was legally designee is authorized to store the domiciled or to restore the effects to the owner in the event of his return from a miss- household and personal effects of the ing status. person until such time as proper disposition can be made. The cost of such (3) When it is impracticable to divide storage and transportation, including the personal effects of a person into packing, crating, drayage, temporary equal shares, and two or more persons storage, and unpacking of household within a class, as provided in 10 U.S.C. and personal effects, will be charged section 2771, are entitled to receive the against appropriations currently avail- effects but cannot agree among them- able. selves as to which one of them shall re- (d) The following provisions apply to ceive the effects, then all of the effects the determination of the ‘‘other per- will be retained by either the Personal son’’ or persons referred to in para- Effects Distribution Center at Norfolk,

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VA, or the Personal Effects Distribu- 719.155 Application under 10 U.S.C. 874(b) for tion Center at Oakland, CA, for a pe- the substitution of an administrative riod of two years from the date of form of discharge for a punitive dis- death of the member. At the expiration charge or dismissal. of the two-year period such effects will AUTHORITY: 3 U.S.C. 301; 5 U.S.C. 301; 10 be sold. U.S.C. 815, 5013, 5148; 32 CFR 700.206 and 700.1202. (R.S. 161, sec. 5031, 70A Stat. 278, as amended; 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– 1015; Pub. L. 89–554, 80 Stat. 379 (5 U.S.C. 301) Subparts A–B [Reserved] [26 FR 12659, Dec. 29, 1961, as amended at 37 Subpart C—Trial Matters FR 6472, Mar. 30, 1972; 44 FR 22456, Apr. 16, 1979] § 719.112 Authority to grant immunity from prosecution. § 718.4 Delegations. (a) General. In certain cases involving The Secretary of the Navy has dele- more than one participant, the inter- gated to the Director, Personal Serv- ests of justice may make it advisable ices Division, Bureau of Naval Per- to grant immunity, either trans- sonnel with respect to personnel in the actional or testimonial, to one or more Navy, and to the Head, Personal Af- of the participants in the offense in fairs Branch Manpower Department consideration for their testifying for (Code MSPA), United States Marine the Government or the defense in the Corps, with respect to personnel in the investigation and/or the trial of the Marine Corps, authority to make all principal offender. Transactional im- determinations to administer the act. munity, as that term is used in this (Pub. L. 89–554, 80 stat. 379 (5 U.S.C. 301)) section, shall mean immunity from prosecution for any offense or offenses [17 FR 5391, June 14, 1952, as amended at 19 FR 7959, Dec. 2, 1954; 44 FR 22456, Apr. 16, to which the compelled testimony re- 1979] lates. Testimonial immunity, as that term is used in this section, shall mean immunity from the use, in aid of future PART 719—REGULATIONS prosecution, of testimony or other in- SUPPLEMENTING THE MANUAL formation compelled under an order to FOR COURTS-MARTIAL testify (or any information directly or indirectly derived from such testimony Subparts A–B [Reserved] or other information). The authority to grant either transactional or testi- Subpart C—Trial Matters monial immunity to a witness is re- Sec. served to officers exercising general 719.112 Authority to grant immunity from court-martial jurisdiction. This au- prosecution. thority may be exercised in any case 719.113–719.114 [Reserved] whether or not formal charges have 719.115 Release of information pertaining to been preferred and whether or not the accused persons; spectators at judicial matter has been referred for trial. The sessions. approval of the Attorney General of the United States on certain orders to Subpart D [Reserved] testify may be required, as outlined Subpart E—Miscellaneous Matters below. (b) Procedure. The written rec- 719.138 Fees of civilian witnesses. ommendation that a certain witness be 719.139–719.141 [Reserved] granted either transactional or testi- 719.142 Suspension of counsel. monial immunity in consideration for 719.143 Petition for new trial under 10 U.S.C. testimony deemed essential to the Gov- 873. ernment or to the defense shall be for- 719.144 Application for relief under 10 U.S.C. 869, in cases which have been finally re- warded to an officer competent to con- viewed. vene a general court-martial for the 719.145–719.150 [Reserved] witness for whom immunity is re- 719.151 Furnishing of advice and counsel to quested, i.e., any officer exercising gen- accused placed in pretrial confinement. eral court-martial jurisdiction. Such

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recommendation will be forwarded by partment of Justice. See section 0126 of the trial counsel or defense counsel in the Manual of the Judge Advocate Gen- cases referred for trial, the pretrial in- eral regarding relations between the vestigating officer conducting an in- Departments of Defense and Justice. vestigation upon preferred charges, the The cognizant officer exercising gen- counsel or recorder of any other fact- eral court-martial jurisdiction may ob- finding body, or the investigator when tain approval by the Attorney General no charges have yet been preferred. of a proposed grant of immunity by di- The recommendation shall state in de- recting a letter requesting the assist- tail why the testimony of the witness ance of the Judge Advocate General is deemed so essential or material that (Code 20) in the form prescribed in the interests of justice cannot be paragraph (e) of this section. served without the grant of immunity. (e) Content of immunity requests. In all The officer exercising general court- cases in which approval of the Attor- martial jurisdiction shall act upon ney General of the United States is re- such request after referring it to his quired prior to the issuance of a grant staff judge advocate for consideration of immunity, whether under paragraph and advice. If approved, a copy of the (c) or (d) of this section, the cognizant written grant of immunity must be officer exercising general court-martial served upon the accused or his defense jurisdiction shall forward by message counsel within a reasonable time be- or letter the proposed order to testify fore the witness testifies. Additionally, and grant of immunity to the Judge if any witness is expected to testify in Advocate General (Code 20). The order response to a promise of leniency, the to testify should be substantially in terms of the promise of leniency must the form set forth in appendix A-1-i(3) be reduced to writing and served upon of the Manual of the Judge Advocate the accused or his defense counsel in General. Requests for assistance shall the same manner as a grant of immu- be in writing, should allow at least nity. three weeks for consideration, and (c) Civilian witnesses. Pursuant to 18 must contain the following informa- U.S.C. 6002 and 6004, if the testimony or tion: other information of a civilian witness (1) Name, citation, or other identi- at a court-martial may be necessary in fying information of the proceeding in the public interest, and if the civilian which the order is to be used. witness has refused or is likely to (2) Name of the witness for whom the refuse to testify or provide other infor- immunity is requested. mation on the basis of a privilege (3) Name of the employer or company against self-incrimination, then the ap- with which a witness is associated or proval of the Attorney General of the the military unit or organization to United States, or his designee, must be which a witness is assigned. obtained prior to the execution or (4) Date and place of birth, if known, issuance of an order to testify to such of the witness. civilian witness. The cognizant officer (5) FBI or local police file number, if exercising general court-martial juris- any, and if known. diction may obtain the approval of the (6) Whether any State or Federal Attorney General in such a cir- charges are pending against the wit- cumstance by directing a message or ness and the nature of the charges. letter requesting the assistance of the (7) Whether the witness is currently Judge Advocate General (Code 20) in incarcerated, under what conditions, the form prescribed in paragraph (e) of and for what length of time. this section. (8) A brief resume of the background (d) Cases involving national security. In of the investigation or proceeding be- all cases involving national security or fore the agency or department. foreign relations of the United States, (9) A concise statement of the rea- the cognizant officer exercising general sons for the request, including: court-martial jurisdiction shall for- (i) What testimony the witness is ex- ward any proposed grant of immunity pected to give; to the Judge Advocate General for the (ii) How this testimony will serve the purpose of consultation with the De- public interest;

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(iii) Whether the witness: pating in the grant of immunity would (A) Has invoked the privilege against not be so disqualified under those cir- self-incrimination; or cumstances. (B) Is likely to invoke the privilege; (h) Form of grant. In any case in (iv) If paragraph (e)(9)(iii)(B) of this which a military witness is granted section is applicable, then why it is an- transactional immunity, the general ticipated that the prospective witness court-martial convening authority will invoke the privilege. should execute a written grant, sub- (10) An estimate as to whether the stantially in the form set forth in ap- witness is likely to testify in the event pendix section A-1-i(1) of the Manual of immunity is granted. the Judge Advocate General. In any (f) Post-testimony procedure. After a case in which a military witness is witness immunized in accordance with granted testimonial immunity, the paragraphs (c) and (d) of this section general court-martial convening au- has testified, the following information thority should execute a written grant should be provided to the United States substantially in the form set forth in Department of Justice, Criminal Divi- appendix section A-1-i(2) of the Manual sion, Immunity Unit, Washington, DC of the Judge Advocate General. 20530, via the Judge Advocate General [56 FR 57803, Nov. 14, 1991] (Code 20). (1) Name, citation, or other identi- §§ 719.113–719.114 [Reserved] fying information, of the proceeding in which the order was requested. § 719.115 Release of information per- (2) Date of the examination of the taining to accused persons; spec- witness. tators at judicial sessions. (3) Name and residence address of the (a) Release of information—(1) General. witness. There are valid reasons for making in- (4) Whether the witness invoked the formation available to the public con- privilege. cerning the administration of military (5) Whether the immunity order was justice. The task of striking a fair bal- used. ance among the protection of individ- (6) Whether the witness testified pur- uals accused of offenses, improper or suant to the order. unwarranted publicity pertaining to (7) If the witness refused to comply their cases, public understanding of the with the order, whether contempt pro- problems of controlling misconduct in ceedings were instituted, or are con- the military service, and the workings templated, and the result of the con- of military justice requires the exer- tempt proceeding, if concluded. A ver- cise of sound judgment by those re- batim transcript of the witness’ testi- sponsible for administering military mony, authenticated by the military justice and by representatives of the judge, should be provided to the Judge press and other news media. At the Advocate General at the conclusion of heart of all guidelines pertaining to the the trial. No testimony or other infor- furnishing of information concerning mation given by a civilian witness pur- an accused or the allegations against suant to such an order to testify (or him is the mandate that no statements any information directly or indirectly or other information shall be furnished derived from such testimony or other to news media for the purpose of influ- information) may be used against him encing the outcome of an accused’s in any criminal case, except a prosecu- trial, or which could reasonably be ex- tion for perjury, giving a false state- pected to have such an effect. ment, or otherwise failing to comply (2) Applicability of regulations. These with the order. regulations apply to all persons who (g) Review. Under some cir- may obtain information as the result cumstances, the officer granting im- of duties performed in connection with munity to a witness may be disquali- the processing of accused persons, the fied from taking reviewing action on investigation of suspected offenses, the the record of the trial before which the imposition of nonjudicial punishment, witness granted immunity testified. A or the trial of persons by court-mar- successor in command not partici- tial. These regulations are applicable

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from the time of apprehension, the of the accused, including the time and preferral of charges, or the commence- place of apprehension, resistance, pur- ment of an investigation directed to suit, and use of weapons. make recommendations concerning (vi) The type and place of custody, if disciplinary action, until the imposi- any. tion of nonjudicial punishment, com- (vii) Information which has become a pletion of trial (court-martial sessions) part of the record of proceedings of the or disposition of the case without trial. court-martial in open session. These regulations also prescribe guide- (viii) The scheduling of any stage in lines for the release or dissemination the judicial process. of information to public news agencies, (ix) The denial by the accused of any to other public news media, or to other offense or offenses of which he may be persons or agencies for unofficial pur- accused or suspected (when release of poses. such information is approved by the (3) Release of information. (i) As a gen- counsel of the accused). eral matter, release of information per- (5) Prohibited information. The fol- taining to accused persons should not lowing information concerning a per- be initiated by persons in the naval son accused or suspected of an offense service. Information of this nature or offenses generally may not be re- should be released only upon specific leased, except as provided in paragraph request therefor, and, subject to the (a)(6) of this section. following guidelines, should not exceed (i) Subjective opinions, observations, the scope of the inquiry concerned. or comments concerning the accused’s (ii) Except in unusual circumstances, character, demeanor at any time (ex- information which is subject to release cept as authorized in paragraph (4)(v) under the regulation should be released of this section), or guilt of the offense by the cognizant public affairs officer; or offenses involved. requests for information received from (ii) The prior criminal record (includ- representatives of news media should ing other apprehensions, charges or be referred to the public affairs office trials) or the character or reputation of for action. When an individual is sus- the accused. pected or accused of an offense, care (iii) The existence or contents of any should be taken to indicate that the in- confession, admission, statement, or dividual is alleged to have committed alibi given by the accused, or the re- or is suspected or accused of having fusal or failure of the accused to make committed an offense, as distinguished any statement. from stating or implying that the ac- (iv) The performance of any examina- cused has committed the offense or of- tion or test, such as polygraph exami- fenses. nations, chemical tests, ballistics (4) Information subject to release. On tests, etc., or the refusal or the failure inquiry, the following information con- of the accused to submit to an exam- cerning a person accused or suspected ination or test. of an offense or offenses may generally (v) The identity, testimony, or credi- be released except as provided in para- bility of possible witnesses, except as graph (6) of this section: authorized in paragraph (4)(iii), of this (i) The accused’s name, grade, age, section. unit, regularly assigned duties, duty (vi) The possibility of a plea of guilty station, and sex. to any offense charged or to a lesser of- (ii) The substance of the offenses of fense and any negotiation or any offer which the individual is accused or sus- to negotiate respecting a plea of guilty. pected. (vii) References to confidential (iii) The identity of the victim of any sources or investigative techniques or alleged or suspected offense, except the procedures. victim of a sexual offense. (viii) Any other matter when there is (iv) The identity of the apprehending a reasonable likelihood that the dis- and investigative agency, and the iden- semination of such matter will affect tity of accused’s counsel, if any. the deliberations of an investigative (v) The factual circumstances imme- body or the findings or sentence of a diately surrounding the apprehension court-martial or otherwise prejudice

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the due administration of military jus- part of an Article 32 investigation tice either before, during, or after trial. under 10 U.S.C. 832 be held in closed (6) Exceptional cases. The provisions session and that all persons not con- of this section are not intended to re- nected with the hearing be excluded strict the release of information de- therefrom. The decision to exclude signed to enlist public assistance in ap- spectators may be based on the need to prehending an accused or suspect who protect classified information, to pre- is a fugitive from justice or to warn the vent disclosure of matters that will be public of any danger that a fugitive ac- inadmissible in evidence at a subse- cused or suspect may present. Further, quent trial by Courts-Martial and are since the purpose of this section is to of such a nature as to interfere with a prescribe generally applicable guide- fair trial by an impartial tribunal, or lines, there may be exceptional cir- consistent with appellate case law, for cumstances which warrant the release a reason deemed appropriate by the of information prohibited under para- commander ordering the investigation graph (a)(5) of this section or the non- or the investigating officer. The rea- release of information permitted under sons for closing an Article 32 investiga- paragraph (a)(4) of this section. Atten- tion, and any objections thereto, shall tion should be given to the Secretary be memorialized and included as an at- of the Navy instructions implementing tachment to the report of investiga- the Freedom of Information Act tion. Ordinarily, the proceedings of a (5720.42 series) and the Privacy Act pretrial investigation should be open to (5211.5C series). Consultation with the spectators. In cases dealing with classi- command judge advocate, if one is as- fied information, the investigating offi- signed, or with the cognizant Naval cer will ensure that any part of a pre- Legal Service Office concerning inter- trial investigation (e.g., rights advise- pretation and application of these in- ment) that does not involve classified structions is encouraged. information will remain open to spec- (b) Spectators. (1) The sessions of tators. courts-martial shall be open to the [38 FR 5997, Mar. 6, 1973, as amended at 47 FR public, which includes members of both 49644, Nov. 2, 1982; 50 FR 23800, June 6, 1985; the military and civilian communities. 69 FR 20540, Apr. 16, 2004] In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may Subpart D [Reserved] reasonably limit the number of spectators in, and the means of access to, Subpart E—Miscellaneous Matters the courtroom, exclude specific persons from the courtroom, and close a ses- § 719.138 Fees of civilian witnesses. sion. Video and audio recording and (a) Method of Payment. The fees and taking of photographs, except for the mileage of a civilian witness shall be purpose of preparing the record of trial, paid by the disbursing officer of the in the courtroom during the pro- command of a convening authority or ceedings and radio or television broad- appointing authority or by the dis- casting of proceedings from the court- bursing officer at or near the place room shall not be permitted. The mili- where the tribunal sits or where a dep- tary judge may, as a matter of discre- osition is taken when such disbursing tion, permit contemporaneous closed- officer is presented a properly com- circuit video or audio transmission to pleted public voucher for such fees and permit viewing or hearing by an ac- mileage, signed by the witness and cer- cused removed from the courtroom or tified by one of the following: by spectators when courtroom facili- (1) Trial counsel or assistant trial ties are inadequate to accommodate a counsel of the court-martial; reasonable number of spectators. (2) Summary court officer; (2) At pretrial investigations. Con- (3) Counsel for the court in a court of sistent with Rules for Courts-Martial inquiry; 405(h)(3), Manual for Courts-Martial, (4) Recorder or junior member of a the Convening Authority or inves- board to redress injuries to property, tigating officer may direct that all or or

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(5) Military or civil officer before with a certificate of the appropriate whom a deposition is taken. person named in paragraph (a) of this The public voucher must be accom- section, to the effect that the payment panied by a subpoena or invitational was necessary. orders (Joint Travel Regulations, vol. (d) Certificate of person before whom 2, chap. 6), and by a certified copy of deposition is taken. The certificate of the order appointing the court-martial, the person named in paragraph (a) of court of inquiry, or investigation. If, this section, before whom the witness however, a deposition is taken before gave his deposition, will be evidence of charges are referred for trial, the fees the fact and period of attendance of the and mileage of the witness concerned witness and the place from which sum- shall be paid by the disbursing officer moned. at or near the place where the deposi- (e) Payment of accrued fees. The wit- tion is taken upon presentation of a ness may be paid accrued fees at his republic voucher, properly completed as quest at any time during the period of hereinbefore prescribed, and accom- attendance. The disbursing officer will panied by an order from the officer who make such interim payment(s) upon re- authorized the taking of the deposi- ceipt of properly executed certifi- tion, subscribed by him and directing cate(s). Upon his discharge from at- the disbursing officer to pay to the wit- tendance, the witness will be paid, ness the fees and mileage supported by upon the execution of a certificate, a the public voucher. When the civilian final amount covering unpaid fees and witness testifies outside the United travel, including an amount for return States, its territories and possessions, travel. Payment for return travel will the public voucher must be accom- be made upon the basis of the actual panied by a certified copy of the order fees and mileage allowed for travel to appointing the court-martial, court of the court, or place designated for tak- inquiry, or investigation, and by an ing a deposition. order from the convening authority or (f) Computation. Travel expenses shall appointing authority, subscribed by be determined on the basis of the him and directing the disbursing offi- shortest usually traveled route in ac- cer to pay to the witness the fees and cordance with official schedules. Rea- mileage supported by the public vouch- sonable allowance will be made for un- er. avoidable detention. (b) Obtaining money for advance tender (g) Nontransferability of accounts. Ac- or payment. Upon written request by counts of civilian witnesses may not be one of the officers listed in paragraph transferred or assigned. (a) of this section, the disbursing offi- (h) Signatures. Signatures of wit- cer under the command of the con- nesses signed by mark must be wit- vening or appointing authority, or the nessed by two persons. disbursing officer nearest the place (i) Rates for civilian witnesses pre- where the witness is found, will, at scribed by law—(1) Civilian witnesses not once, provide any of the persons listed in Government employ. A civilian not in in paragraph (a) of this section, or any Government employ, who is compelled other officer or person designated for or required to testify as a witness be- the purpose, the required amount of fore a Naval tribunal at a specified money to be tendered or paid to the place or to appear at a place where his witness for mileage and fees for one deposition is to be taken for use before day of attendance. The person so re- a court or fact-finding body, will receiving the money for the purpose ceive fees, subsistence, and mileage as named shall furnish the disbursing offi- provided in 28 U.S.C. 1821. Witness and cer concerned with a proper receipt. subsistence fees are not prorated. In- (c) Reimbursement. If an officer stead any fractional part of a calendar charged with serving a subpoena pays day expended in attendance or quali- from his personal funds the necessary fying for subsistence entitles the wit- fees and mileage to a witness, taking a ness to payment for a full day. Fur- receipt therefor, he is entitled to reim- ther, nothing in this paragraph shall be bursement upon submitting to the dis- construed as authorizing the payment bursing officer such receipt, together of attendance fees to witnesses for:

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(i) Attendance or travel which is not R.C.M. 703(d), may be paid compensa- performed either as a direct result of tion at the rate prescribed in advance being compelled to testify pursuant to by the official empowered to authorize a subpoena or as a direct result of invi- his employment (11 Comp. Gen. 504). In tational orders; or the absence of such authorization, no (ii) For travel which is performed fees other than ordinary witness fees prior to being duly summoned as a wit- may be paid for the employment of an ness; or individual as an expert witness. After (iii) For travel returning to their an expert witness has testified pursu- places of residence if the travel from ant to such employment, the certifi- their places of residence does not qual- cate of one of the officers listed in sub- ify for payment under this paragraph. section a above, when presented to the (2) Civilian witnesses in Government disbursing officer, shall also enclose a employ. When summoned as a witness, a certified copy of the authorization of civilian in the employ of the Govern- the convening authority. ment shall be paid as authorized by (l) Payment of witness fees to foreign Joint Travel Regulations. nationals: Officers exercising general (j) Supplemental construction of sec- court-martial jurisdiction in areas tion. Nothing in this paragraph shall be other than a State of the United States construed as permitting or requiring shall establish rates of compensation the payment of fees to those witnesses for payment of foreign nationals who not requested or whose testimony is testify as witnesses, including expert determined not to meet the standards witnesses, at courts-martial convened of relevancy and materiality set forth in such areas. in accordance with MCM, 1984, R.C.M. 703. [38 FR 5997, Mar. 6, 1973, as amended at 47 FR (k) Expert witnesses. (1) The convening 49644, Nov. 2, 1982; 50 FR 23801, June 6, 1985] authority will authorize the employment of an expert witness and will fix §§ 719.139–719.141 [Reserved] the limit of compensation to be paid § 719.142 Suspension of counsel. such expert on the basis of the normal compensation paid by United States at- (a) Report of Allegations of Misconduct torneys for attendance of a witness of or Disability. When information comes such standing in United States courts to the attention of a member of a in the area involved. Information con- court-martial, a military judge, trial cerning such normal compensation or defense counsel, staff judge advo- may be obtained from the nearest offi- cate, member of the Navy-Marine cer exercising general court-martial ju- Corps Court of Military Review or risdiction having a judge advocate as- other directly interested or concerned signed in other than an additional party that a judge advocate or civilian duty, temporary duty, or temporary who is acting or is about to act as additional duty capacity. Convening counsel before a proceeding conducted authorities at overseas commands will under the UCMJ or MCM is or has been adhere to fees paid such witnesses in unable to discharge properly all the du- the Hawaiian area and may obtain in- ties of his or her position by reason of formation as to the limit of such fees mental or physical disability or has from the Commander, Naval Base, been engaged in professional or per- Pearl Harbor. See paragraph (l) of this sonal misconduct of such a serious na- section for fees payable to foreign nature as to demonstrate that he or she is tionals. lacking in integrity or is failing to (2) The provisions of paragraph (i) of meet the ethical standards of the pro- this section are applicable to expert fession or is otherwise unworthy or un- witnesses. However, the expert witness qualified to perform the duties of a fee prescribed by the convening author- judge advocate or attorney, such infor- ity will be paid in lieu of ordinary at- mation should be reported to the com- tendance fees on those days the witness manding officer of that judge advocate is required to attend the court. or, in the case of civilian counsel, to (3) An expert witness employed in the officer exercising general court- strict accordance with MCM, 1984, martial jurisdiction over the command

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convening the proceedings or to the measures short of suspension or decer- Judge Advocate General. tification are not appropriate or will (b) Form of report. The report shall: not be effective, forward the original (1) Be in writing, under oath or affir- complaint, a written report of the in- mation, and made and signed by the inquiry or investigation, all other rel- dividual reporting the information. evant information, and his or her com- (2) State that the individual report- ments and recommendations to the of- ing the information has personal ficer in the chain of command exer- knowledge or belief or has otherwise cising general court-martial authority. received reliable information indi- (2) Action by officer exercising general cating that: court-martial authority. (i) Upon receipt (i) The counsel is, or has been, unable of a report of an allegation of mis- to discharge properly all the duties of conduct or disability of a counsel, the his or her office by reason of mental or officer exercising general court-martial physical disability; or convening authority: (ii) The counsel is or has been en- (A) May take the action authorized gaged in professional or personal mis- by subsections (c)(1)(i), (ii) or (iii); or conduct of such a serious nature as to (B) Shall, if he or she considers that demonstrate that he or she is lacking evidence of disability or professional or in integrity or is failing to meet the personal misconduct exists and that ethical standards of the profession; or other remedial measures short of sus- (iii) The counsel is unworthy or un- pension or decertification are not ap- qualified to perform his or her duties; propriate or will not be effective, ap- (3) Set forth the grounds of the alle- point a board of officers to investigate gation together with all relevant facts; the matter and to report its findings and and its recommendations. This board (4) Be forwarded to the appropriate shall be comprised of at least three of- authority as set forth in paragraph (a). ficers, each an Article 27(b), Uniform (c) Consideration of the Report—(1) Ac- Code of Military Justice, certified tion by the Commanding Officer of a judge advocate. If practicable, each of judge advocate. Upon receipt of the re- the officers of the board should be sen- port, the commanding officer: ior to the judge advocate under inves- (i) Shall dismiss any report relating tigation. If the counsel is a member of to the performance of a judge advocate the Marine Corps, a majority of the more properly appealed under law or members of the board should be Marine any report that is frivolous, unfounded, Corps judge advocates. The senior offi- or vague and return it to the reporting cer of the board shall cause notice to individual; be given to the counsel, judge advocate (ii) May make further inquiry into or civilian (respondent), informing him the report at his or her discretion to or her of the misconduct or other dis- determine the merits of the report. The qualification alleged and affording him commanding officer may appoint an of- or her the opportunity to appear before ficer to investigate informally the alle- the board for a hearing. The respondent gations of the report to determine shall be permitted at least ten (10) whether further action is warranted. days’ notice prior to the hearing. Fail- Any officer so appointed should be a ure to appear on a set date after notice judge advocate senior in rank to the shall constitute waiver of appearance, judge advocate being investigated; absent good cause shown. The respond- (iii) May take appropriate action to ent shall be generally afforded the address and dispose of the matter being rights of a party as set out in section mindful of such measures as warning, 0304 of this Manual, except that, in the counseling, caution, instruction, pro- event the judge advocate respondent ceedings in contempt, therapy, and wishes to have military counsel ap- other punitive or administrative ac- pointed, he or she shall not have the tion; or right to select or identify a particular (iv) Shall, if the commanding officer military counsel. A civilian respondent is of the opinion that evidence of dis- may not be represented by military ability or professional or personal mis- counsel, but may be represented by ci- conduct exists, and that remedial vilian counsel at no expense to the

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Government. Upon ascertaining the port. Further, if the Judge Advocate relevant facts after notice and hearing, General suspends counsel, the Judge a written report of the findings and Advocates General of the other armed recommendations of the board shall be forces will be notified. made to the officer who convened the (d) Grounds justifying suspension of board. In all cases, a written copy of counsel or suspension or decertification of the board’s findings and recommenda- a Judge Advocate. (1) Suspension or de- tions shall be provided to the respond- certification is to be employed only ent. The respondent shall be given an after it has been established that a opportunity to comment on the report counsel has been unable to discharge in writing. properly all the duties of his or her of- (ii) Upon receipt of the report of the fice by reason of mental or physical board of investigation, the officer exer- disability or has been engaged in pro- cising general court-martial authority fessional or personal misconduct of shall: such a serious nature as to dem- (A) Return the report to the board for onstrate that he or she is lacking in in- further investigation, if the investiga- tegrity or is failing to meet the ethical tion is determined to be incomplete; or standards of the profession or is other- (B) Forward the report of the board wise unworthy or unqualified to per- of investigation to the Judge Advocate form the duties of a counsel Action to General together with comments and suspend or decertify should not be ini- recommendations concerning suspen- tiated because of personal prejudice or sion of the counsel involved. hostility toward counsel, nor should (3) Action by the Judge Advocate Gen- such action be initiated because coun- eral. (i) Upon receipt of a report of an sel has initiated an aggressive, zealous allegation of misconduct or disability or novel defense, or the apparent mis- of a counsel, the Judge Advocate Gen- conduct stems from inexperience or eral: lack of instruction. (A) May take the action authorized (2) Specific grounds for suspension or by subsections (c)(1)(i), (ii), or (iii); decertification include, but are not (B) May appoint a board of officers limited to, the following: for investigation and hearing in ac- (i) Demonstrated incompetence while cordance with subsections (c)(2)(i)(B) acting as counsel before, during or or after a court-martial. (C) May request the officer exercising (ii) Preventing or obstructing justice, general court-martial jurisdiction over including the deliberate use of frivo- the command of the respondent (if lous or unwarranted dilatory tactics. judge advocate counsel) or over the (iii) Fabricating papers or other evi- proceedings (if civilian counsel) to take dence. the matter for investigation and hear- (iv) Tampering with a witness. ing in accordance with subsection (v) Abusive conduct toward the (c)(2)(i)(B). court-martial, the Navy-Marine Corps (ii) Upon receipt of the report of the Court of Military Review, the military investigating board, the Judge Advo- judge, or opposing counsel. cate General: (vi) Flagrant or repeated violations (A) May determine whether the re- of any specific rules of conduct pre- spondent is to be suspended or decerti- scribed for counsel in the Manual for fied and, if so, whether for a stated Courts-Martial. term or indefinitely; (vii) Conviction of an offense involv- (B) May determine that the findings ing moral turpitude or conviction for of the board do not warrant further ac- violation of article 48, UCMJ. tion; or (viii) Disbarment by a State Bar, (C) May return the report to the Federal Court, or the United States sending officer with appropriate in- Court of Military Appeals. structions for further inquiry or ac- (ix) Suspension as counsel by the tion. The Judge Advocate General may, Judge Advocate General of the Navy, sua sponte, or upon petition of the re- Army, or Air Force or the General spondent, modify or revoke any prior Counsel of the Department of Trans- order of suspension or dismissal of a re- portation.

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(x) Flagrant or repeated violations of mitted by the accused personally, or by the Uniform Rules of Practice Before accused’s counsel, regardless of wheth- Navy-Marine Corps Courts-Martial as er the accused has been separated from outlined in appendix A–1-p(1) of the the service. A petition may not be sub- Manual of the Judge Advocate General. mitted after the death of the accused. (xi) Flagrant or repeated violations (c) Contents of petitions: The form and of the provisions of section 0134 of this contents of petitions for new trial are Manual of the Judge Advocate General specified in MCM, 1984, R.C.M. 1210(c). dealing with the Release of Information The petition for a new trial shall be Pertaining to Accused Persons; Spectators written and shall be signed under oath at Judicial Sessions. or affirmation by the accused, by a per- (xii) Failure to meet the rules set son possessing the power of attorney of forth in the ABA Code of Professional the accused for that purpose, or by a Responsibility and the ABA Standards person with the authorization of an ap- on Fair Trial and Free Press and The propriate court to sign the petition as Prosecution Function and the Defense the representative of the accused. The Function. In view of the unique mission petition shall contain the following in- and personal requirements of the mili- formation, or an explanation why such tary, many of the rules and principles matters are not included: of the ABA Code or Standards are not (1) The name, service number, and applicable to the military lawyer. Ac- current address of the accused; cordingly, the rules are to be used as a (2) The date and location of the trial; guide only, and a failure to comply (3) The type of court-martial and the with the specific wording of a rule is title or position of the convening au- not to be construed as a violation of thority; the rule where common sense would in- (4) The request for the new trial; dicate to a reasonable person that (5) The sentence or a description there is a distinction between the civil- thereof as approved or affirmed, with ian context, which the codes were any later reduction thereof by clem- drafted to embrace, and the unique ency or otherwise, concerns of the military setting, where (6) A brief description of any finding the codes serve as a general guide. or sentence believed to be unjust; [50 FR 23801, June 6, 1985] (7) A full statement of the newly discovered evidence or fraud on the court- § 719.143 Petition for new trial under martial which is relied upon for the 10 U.S.C. 873. remedy sought; (a) Statutory provisions. 10 U.S.C. 873, (8) Affidavits pertinent to the mat- provides, ‘‘At any time within 2 years ters in subsection (6)i; and after approval by the convening au- (9) Affidavit of each person whom the thority of a court-martial sentence, accused expects to present as a witness the accused may petition the Judge in the event of a new trial. Each affi- Advocate General for a new trial on the davit should set forth briefly the rel- grounds of newly discovered evidence evant facts within the personal knowl- or fraud on the court. If the accused’s edge of the witness. case is pending before a Court of Mili- (d) Who may act on petition. If the tary Review or before the Court of accused’s case is pending before a Military Appeals, that Judge Advocate Court of Military Review or the Court General shall refer the petition to the of Military Appeals, the Judge Advo- appropriate court for action. Otherwise cate General shall refer the petition to the Judge Advocate General shall act the appropriate court for action. Other- upon the petition.’’ wise, the Judge Advocate shall act on (b) Submission procedures: At any time the petition. within 2 years after approval by the (e) Ground for new trial. A new trial convening authority of a court-martial may be granted only on grounds of sentence, the accused may petition the newly discovered evidence or fraud on Judge Advocate General for a new trial the court-martial. on the ground of newly discovered evi- (1) A new trial shall not be granted dence or fraud on the court-martial. on the grounds of newly discovered evi- The petition for new trial may be sub- dence unless the petition shows that;

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(i) The evidence was discovered after Advocate General on the ground of the trial, newly discovered evidence, fraud on the (ii) The evidence is not such that it court, lack of jurisdiction over the ac- would have been discovered by the peti- cused or the offense, error prejudicial tioner at the time of trial in the exer- to the substantial rights of the ac- cise of due diligence; and cused, or the appropriateness of the (iii) The newly discovered evidence, if sentence. If such a case is considered considered by a court-martial in the upon application of the accused, the light of all other pertinent evidence, application must be filed in the Office would probably produce a substantially of the Judge Advocate General by the more favorable result for the accused. accused on or before the last day of the (2) No fraud on the court-martial two-year period beginning on the date warrants a new trial unless it had a the sentence is approved under section substantial contributing effect on a 860(c) of this title (article 60(c)), unless finding of guilty or the sentence ad- the accused establishes good cause for judged. failure to file within that time.’’ (f) Action on the petition. (1) The authority considering the petition may (b) Time limitations. In order to be cause such additional investigation to considered by the Judge Advocate Gen- be made and such additional informa- eral, an application for relief must be tion to be secured as that authority be- placed in military channels if the ap- lieves appropriate. Upon written re- plicant is on active duty, or be depos- quest, and in his discretion, the au- ited in the mail if the applicant is no thority considering the petition may longer on active duty, on or before the permit oral argument on the matter. last day of the two-year period begin- (2) When a petition is considered by ning on the date the sentence is ap- the Judge Advocate General, any hear- proved by the convening authority. An ing may be before the Judge Advocate application not filed in compliance General or before an officer or officers with these time limits may be consid- designated by the Judge Advocate Gen- ered if the Judge Advocate General de- eral. termines, in his or her sole discretion, (3) If the Judge Advocate General be- that ‘‘good cause’’ for failure to file lieves meritorious grounds for relief within the time limits has been estab- under Article 74, Uniform Code of Mili- lished by the applicant. tary Justice have been established but (c) Submission procedures. Applica- that a new trial is not appropriate, the tions for relief may be submitted to the Judge Advocate General may act under Judge Advocate General by letter. If article 74, Uniform Code of Military the accused is on active duty, the ap- Justice, if authorized, or transmit the plication shall be submitted via the ap- petition and related papers to the Sec- plicant’s commanding officer, and the retary concerned with a recommenda- command that convened the court, and tion. the command that reviewed the case (4) The Judge Advocate may also, in under 10 U.S.C. 864(a) or (b). If the cases which have been finally reviewed original record of trail is held by the but have not been reviewed by a Court command that reviewed the case under of Military Review, act under article 10 U.S.C. 864(a) or (b), it shall be for- 69, Uniform Code of Military Justice. warded as an enclosure to the endorse- [50 FR 23803, June 6, 1985] ment. If the original record of trial has been filed in the National Personnel § 719.144 Application for relief under Records Center, the endorsement will 10 U.S.C. 869, in cases which have include all necessary retrieval data been finally reviewed. (accession number, box number, and (a) Statutory provisions. 10 U.S.C. 869 shelf location) obtained from the re- provides in pertinent part, ‘‘The find- ceipt returned from the National Per- ings or sentence, or both, in a court- sonnel Records Center to the sending martial case not reviewed under sub- activity. This endorsement shall also section (a) or under section 866 of this include information and specific com- title (article 66) may be modified or set ment on the grounds for relief asserted aside, in whole or in part, by the Judge in the application, and an opinion on

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the merits of the application. If the ap- requested by the Judge Advocate Gen- plicant is no longer on active duty, the eral. application may be submitted directly (e) Signatures on applications. Unless to the Judge Advocate General. incapable of making application, the (d) Contents of applications. All appli- applicant shall personally sign the ap- cations for relief shall contain: plication under oath before an official (1) Full name of the applicant; authorized to administer oaths. If the (2) Social Security number and applicant is incapable of making appli- branch of service, if any; cation, the application may be signed (3) Present grade if on active duty or under oath and submitted by the appli- retired, or ‘‘civilian’’ or ‘‘deceased’’ as cant’s spouse, next of kin, executor, applicable; guardian or other person with a proper (4) Address at time the application is interest in the matter. In this regard, forwarded; one is considered incapable of making (5) Date of trial; application for purposes of this section (6) Place of trial; when unable to sign the application (7) Command title of the organization under oath due to physical or mental at which the court-martial was con- incapacity. vened (convening authority); (8) Command title of the officer exer- [50 FR 23804, June 6, 1985] cising review authority in accordance with 10 U.S.C. 864 over the applicant at §§ 719.145–719.150 [Reserved] the time of trial, if applicable; (9) Type of court-martial which con- § 719.151 Furnishing of advice and counsel to accused placed in pre- victed the applicant, and sentence ad- trial confinement. judged; (10) General grounds for relief which The Department of the Navy Correc- must be one or more of the following: tions Manual, SECNAVINST 1640.9, re- (i) Newly discovered evidence; iterates the requirement of Article 10, (ii) Fraud on the court; UCMJ, that, when a person is placed in (iii) Lack of jurisdiction over the ac- pretrial confinement, immediate steps cused or the offense; should be taken to inform the confinee (iv) Error prejudicial to the substan- of the specific wrong of which he is ac- tial rights of the accused; cused and try him or to dismiss the (v) Appropriateness of the sentence; charges and release him. The Correc- (11) An elaboration of the specific tions Manual requires that this infor- prejudice resulting from any error mation normally will be provided with- cited. (Legal authorities to support the in 48 hours along with advice as to the applicant’s contentions may be in- confinee’s right to consult with lawyer cluded, and the format used may take counsel and his right to prepare for the form of a legal brief if the appli- trial. Lawyer counsel may be either a cant so desires.); civilian lawyer provided by the (12) Any other matter which the ap- confinee at his own expense or a mili- plicant desires to submit; tary lawyer provided by the Govern- (13) Relief requested; and ment. If a confinee requests to confer (14) Facts and circumstances to es- with a military lawyer, such lawyer tablish ‘‘good cause’’ for a failure to should normally be made available for file the application within the time consultation within 48 hours after the limits prescribed in paragraph (b) of request is made. this section, if applicable; and (15) If the application is signed by a [39 FR 18437, May 28, 1974] person other than the applicant pursuant to subsection e, an explanation of § 719.155 Application under 10 U.S.C. the circumstances rendering the appli- 874(b) for the substitution of an ad- cant incapable of making application. ministrative form of discharge for a The applicant’s copy of the record of punitive discharge or dismissal. trial will not be forwarded with the ap- (a) Statutory provisions. 10 U.S.C. plication for relief, unless specifically 874(b) provides that the ‘‘Secretary

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concerned may, for good cause, sub- (13) Applicant’s full employment stitute an administrative form of dis- record since the punitive discharge or charge for a discharge or dismissal exe- dismissal was executed; cuted in accordance with the sentence (14) The specific type and character of a court-martial.’’ of administrative discharge requested (b) Submission procedures. Applica- pursuant to 10 U.S.C. 874(b) (a more fa- tions for relief will be submitted to the vorable administrative discharge than Secretary using the following address: that requested will not be approved); Secretary of the Navy (Judge Advocate (15) At least three but not more than General, Code 20), 200 Stovall Street, six character affidavits, (The character Alexandria, VA 22332–2400. Except in affidavits must be notarized, must indi- unusual circumstances, applications cate the relationship of the affiant to will not normally be considered if re- the applicant, and must include the ad- ceived within five (5) years of the exe- dress of the affiant as well as specific cution of the punitive discharge or dis- reasons why the affiant believes the ap- missal, or within five (5) years of dis- plicant to be of good character. The af- approval of a prior request under 10 fidavits should discuss the applicant’s U.S.C. 874(b). character primarily as reflected in the (c) Contents of the application. All ap- civilian community subsequent to the plications shall contain: punitive discharge or dismissal which (1) Full name of the applicant; is the subject of the application); (2) Social Security Number, service (16) Any matters, other than the number (if different), and branch of character affidavits, supporting the service of the applicant; considerations described in subpara- (3) Present age and date of birth of graph (18) below; the applicant; (4) Present residence of the applicant; (17) Any other relief sought within (5) Date and place of the trial, and the Department of the Navy and out- type of court-martial which resulted in side the Department of the Navy in- the punitive discharge or dismissal; cluding dates of application and final (6) Command title of the convening dispositions; authority of the court-martial which (18) A statement by the applicant, resulted in the punitive discharge or setting forth the specific consider- dismissal; ations which the applicant believes (7) Offense(s) of which the applicant constitute ‘‘good cause,’’ so as to war- was convicted, and sentence finally ap- rant the substitution of an administra- proved from the trial which resulted in tive form of discharge for the punitive the punitive discharge or dismissal; discharge or dismissal previously exe- (8) Date the punitive discharge or dis- cuted. (In this connection, 10 U.S.C. missal was executed; 874(b) does not provide another regular (9) Applicant’s present marital sta- or extraordinary procedure for the re- tus, and number and ages of depend- view of a court-martial. Questions of ents, if any; guilt or innocence, or legal issues at- (10) Applicant’s civilian criminal tendant to the court-martial which re- record (arrest(s) with disposition, and sulted in the punitive discharge or dis- conviction(s)), both prior and subse- missal, are neither relevant nor appro- quent to the court-martial which re- priate for consideration under 10 U.S.C. sulted in the punitive discharge or dis- 874(b). As used in the statute, ‘‘good missal; cause’’ was envisioned by Congress to (11) Applicant’s entire court-martial encompass only Secretarial exercise of record (offense(s) of which convicted clemency and ultimate control of sen- and finally approved sentence(s)), and tence uniformity. Accordingly, in de- nonjudicial punishment record (includ- termining what constitutes ‘‘good ing offense(s) and punishment(s) award- cause’’ under 10 U.S.C. 874(b), the pri- ed); mary Secretarial concern will be with (12) Any military administrative dis- the applicant’s record in the civilian charge proceedings (circumstances and community subsequent to his or her disposition) initiated against the appli- punitive separation. Material sub- cant; mitted by the 10 U.S.C. 874(b) applicant

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should be consistent with the fore- 720.9 Circumstances in which delivery is re- going.) fused. (d) Signature on application. Unless in- 720.10 Members released by civil authorities capable of making application himself on bail or on their own recognizance. or herself, the applicant shall person- 720.11 Interviewing servicemembers or civil- ally sign the application, under oath, ian employees by Federal civilian inves- before a notary or other official au- tigative agencies. thorized to administer oaths. If the ap- 720.12 Request for delivery of members serv- plicant is incapable of executing the ing sentence of court-martial. application, the application may be 720.13 Request for delivery of members serv- signed under oath and submitted by ing sentence of a State court. 720.14–720.19 [Reserved] the applicant’s spouse, next of kin, executor, guardian and other person rec- Subpart B—Service of Process and ognized as a personal representative by Subpoenas Upon Personnel the law of the applicant’s domicile. One is considered incapable of exe- 720.20 Service of process upon personnel. cuting an application for purposes of 720.21 Members or civilian employees sub- this paragraph only when the applicant poenaed as witnesses in State courts. is unable to sign the application under 720.22 Members or civilian employees sub- oath due to physical or mental inca- poenaed as witnesses in Federal courts. pacity. When an application is signed 720.23 Naval prisoners as witnesses or par- by a person other than the applicant, ties in civilian courts. the circumstances rendering the appli- 720.24 Interviews and depositions in connec- cant incapable of making sworn appli- tion with civil litigation in matters per- cation shall be set forth in the applica- taining to official duties. tion, with appropriate documentation. 720.25 Repossession of personal property. (e) Privacy Act Statement. Disclosure 720.26–720.29 [Reserved] of personal information requested by paragraph (c) of this section is vol- Subpart C—Production of Official Records untary; however, failure to accurately 720.30 Production of official records in re- provide all requested information may sponse to court order. result in the application being denied 720.31 Production of official records in the because of inadequate documentation absence of court order. of good cause. 720.32 Certificates of full faith and credit. [47 FR 49645, Nov. 2, 1982, as amended at 50 FR 23804, June 6, 1985] Subpart D—Compliance With Court Orders by Department of the Navy Members, PART 720—DELIVERY OF PER- Employees, and Family Members Out- SONNEL; SERVICE OF PROCESS side the United States AND SUBPOENAS; PRODUCTION 720.40 Purpose. OF OFFICIAL RECORDS 720.41 Definitions. 720.42 Policy. Subpart A—Delivery of Personnel 720.43 Points of contact. 720.44 Responsible officials. Sec. 720.45 Procedures. 720.1 Delivery of persons requested by State 720.46 Overseas screening programs. authorities in criminal cases. 720.47 Report. 720.2 Delivery when persons are within the territorial limits of the requesting State. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and 720.3 Delivery when persons are beyond ter- 5148; 32 CFR 700.206 and 700.1202. ritorial limits of the requesting State. 720.4 Persons stationed outside the United States. Subpart A—Delivery of Personnel 720.5 Authority of the Judge Advocate Gen- eral and the General Counsel. SOURCE: 57 FR 5228, Feb. 13, 1992, unless 720.6 Agreement required prior to delivery otherwise noted. to State authorities. 720.7 Delivery of persons to Federal authorities. 720.8 Delivery of persons to foreign authorities.

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§ 720.1 Delivery of persons requested ian law enforcement. When a command by State authorities in criminal has determined that a person is to be cases. delivered in response to a valid war- Subpart A of this part deals with re- rant, the following guidance should be quests by State authorities for the sur- considered. If the person to be deliv- render of members or civilians pursu- ered is a military member, the member ant to arrest warrants or similar proc- may be ordered to report to a location ess, generally in connection with a designated by the commanding officer criminal prosecution. Responding to and surrendered to civil authorities such requests by a State for delivery of under Article 14, UCMJ (10 U.S.C. 814). members or civilian employees in- If the person to be delivered is a civil- volves balancing the Federal interest ian, the person may be invited to rein preserving sovereign immunity and port to the designated space for deliv- the productivity, peace, good order, ery. If the civilian refuses, the civilian and discipline of the installation authorities may be escorted to a place against the right of the State to exer- where the civilian is located in order cise its jurisdiction. Additionally, by that delivery may be effected. A civil- regulation, naval and Marine authori- ian may be directed to leave a classi- ties are limited in the extent to which fied area. All should be done with min- they can directly assist such an act. imum interference to good order and Commands should respond to such re- discipline. quests as set out below, generally using the minimum authority necessary to § 720.3 Delivery when persons are be- preserve the Federal interests without yond territorial limits of the re- unduly restricting State jurisdiction. questing State.

§ 720.2 Delivery when persons are (a) General. When State civil authori- within the territorial limits of the ties request delivery of any member of requesting State. the Navy or Marine Corps for an al- When the delivery of any member or leged crime or offense punishable under civilian is requested by local civil au- the law of the jurisdiction making the thorities of a State for an offense pun- request, and such member is not at- ishable under the laws of that jurisdic- tached to a Navy or Marine Corps action, and such person is located at a tivity within the requesting State or a Navy or Marine Corps installation ship within the territorial waters within the requesting jurisdiction, or thereof, the following action will be aboard a ship within the territorial taken. Any officer exercising general waters of such jurisdiction, com- court-martial jurisdiction, or officer manding officers are authorized to and designated by him, or any commanding normally will deliver such person when officer, after consultation with a judge a proper warrant is issued. In the case advocate of the Navy or Marine Corps, of a member, delivery will only be ef- is authorized (upon compliance with fected upon compliance with § 720.6, the provisions of this section and subject to the exceptions in § 720.9. A § 720.6, and subject to the exceptions in judge advocate of the Navy or Marine § 720.9) to deliver such member to make Corps should be consulted before deliv- the member amenable to prosecution. ery is effected. The rule discussed The member may be delivered upon above applies equally to civilian em- formal or informal waiver of extra- ployees and civilian contractors and dition in accordance with § 720.3(b), or their employees when located on a upon presentation of a fugitive war- Navy or Marine Corps installation, ex- rant, in which case the procedures of cept that compliance with § 720.6 and § 720.3(c) apply. The rule discussed consideration of § 720.9 are not required above applies equally to civilian em- (for purposes of this part, ‘‘State’’ in- ployees and civilian contractors and cludes the District of Columbia, terri- their employees when located on a De- tories, commonwealths, and all posses- partment of the Navy installation not sions or protectorates of the United within the requesting State, except States). Commands should normally that compliance with § 720.6 and consid- not become actively involved in civil- eration of § 720.9 are not required.

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(b) Waiver of extradition. (1) Any the courts of the State in which he is member may waive formal extradition. located. A waiver must be in writing and be (4) No delivery of a member by Navy witnessed. It must include a statement or Marine Corps officers pursuant to a that the member signing it has re- fugitive warrant or waiver of extra- ceived counsel of either a military or dition shall be effected without com- civilian attorney prior to executing the pletion of the agreement required by waiver, and it must further set forth § 720.6 and execution of such agreement the name and address of the attorney either: consulted. (i) By authorities of both the request- (2) In every case where there is any ing State and the State in which the doubt as to the voluntary nature of a member is located, or waiver, such doubt shall be resolved (ii) By authorities of the State in against its use and all persons con- which the member is located if such cerned will be advised to comply with authorities, on behalf of the requesting the procedures set forth in § 720.3(c). State, accept the full responsibility for (3) Executed copies of all waivers will returning the number to a command be mailed to the Judge Advocate Gen- designated by the Department of the eral immediately after their execution. Navy. (4) When a member declines to waive (d) Members stationed outside the extradition, the nearest Naval Legal United States. When the member sought Service Office or Marine Corps staff by State authorities is not located judge advocate shall be informed and within the United States, see § 720.4. shall confer with the civil authorities as appropriate. The member concerned § 720.4 Persons stationed outside the shall not be transferred or ordered out United States. of the State in which he is then located (a) Persons desired by local U.S. au- without the permission of the Sec- thorities. When delivery of any member retary of the Navy (Judge Advocate in the Navy or Marine Corps, or any ci- General), unless a fugitive warrant is vilian employee or dependent, is de- obtained as set forth in § 720.3(c). sired for trial by state authorities and (c) Fugitive warrants. (1) A fugitive the individual whose presence is sought warrant, as used in this chapter, is a is stationed outside the United States, warrant issued by a State court of the provisions of subpart D of this part competent jurisdiction for the arrest of will be followed. In all such cases, the a member. Normally, a State request- nearest judge advocate of the Navy or ing delivery of a member from another Marine Corps shall be consulted before State will issue a fugitive warrant to any action is taken. the State where the member is then lo- (b) Members desired by U.S. Federal au- cated. thorities. When delivery of any member (2) Upon issuance of a fugitive war- of the Navy or Marine Corps is desired rant by the requesting State to the for trial in a Federal district court, State in which the member is located, upon appropriate representation by the the latter State will normally request Department of Justice to the Secretary delivery of the member to local State of the Navy (Judge Advocate General), authorities. Delivery to local State au- the member will be returned to the thorities should be arranged by Navy United States at the expense of the De- or Marine Corps officers designated in partment of the Navy and held at a § 720.3(a), upon compliance with the military facility convenient to the De- provisions of § 720.6, and subject to the partment of the Navy and to the De- conditions of §§ 720.9 and 720.3(c) (3) and partment of Justice. Delivery may be (4). accomplished as set forth in § 720.7, sub- (3) Upon receipt of a request for de- ject to the exceptions in § 720.9. livery of a member under fugitive warrant to State authorities, if the mem- § 720.5 Authority of the Judge Advo- ber voluntarily waives extradition, the cate General and the General Coun- provisions of § 720.3(b) apply. If the sel. member is delivered to local authori- (a) Authority of the Judge Advocate ties but refuses to waive extradition in General. The Judge Advocate General,

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the Deputy Judge Advocate General, pleting the agreement must show that and the Assistant Judge Advocates he is authorized to bind the State to General are authorized to act for the the terms of the agreement. When indi- Secretary of the Navy in performance cating in the agreement the naval or of functions under this chapter. Marine Corps activity to which the (b) Authority of the General Counsel. member delivered is to be returned by The authority of the General Counsel the State, care should be taken to des- of the Navy is prescribed by Navy Reg- ignate the closest appropriate activity ulation (32 CFR 700.203 (a) and (g)) and (to the command to which the member by appropriate departmental directives is attached) that possesses special and instructions (e.g., SECNAVINST court-martial jurisdiction. The Depart- 5430.25D). 1 The principal areas of re- ment of the Navy considers this agree- sponsibility of the Office of the General ment substantially complied with Counsel (OGC) are commerical law, in- when: cluding maritime contract matters; ci- (1) The member is furnished transpor- vilian employee law; real property law; tation (under escort in cases of deliv- and Freedom of Information Act and ery in accordance with § 720.12) to a Privacy Act matters as delineated in 32 naval or Marine Corps activity as set CFR part 701. The Office of the General forth in the agreement; Counsel shares responsibility with the (2) The member is provided cash to Judge Advocate General for environ- cover incidental expenses en route mental law cases. thereto; and (c) Points of contact. Commanding of- (3) The Department of the Navy is so ficers are advised to contact their local informed. area judge advocates for assistance in As soon as practicable, a copy of the referring matters to the appropriate of- delivery agreement shall be forwarded fice of the Judge Advocate General or to the Judge Advocate General. General Counsel. (b) Delivery under Interstate Agreement (d) Coordination with the Commandant on Detainers Act. Special forms are used of the Marine Corps. Marine Corps com- when delivering prisoners under the mands shall inform the Commandant of Interstate Agreement on Detainers the Marine Corps (CMC) of all matters Act. The Act is infrequently used and referred to the Judge Advocate General most requests are pursuant to Article or the Office of General Counsel. Copies 14, UCMJ. See § 720.12 for a detailed dis- of all correspondence and documents cussion of the Detainers Act. shall also be provided to CMC. The Staff Judge Advocate to the Com- § 720.7 Delivery of persons to Federal mandant (CMC (JAR)) shall be advised authorities. of all matters referred to the Judge Ad- (a) Authority to deliver. When Federal vocate General. Counsel to the Com- law enforcement authorities display mandant shall be advised of matters re- proper credentials and Federal war- ferred to the Office of General Counsel. rants for the arrest of members, civilian employees, civilian contractors and § 720.6 Agreement required prior to their employees, or dependents resid- delivery to State authorities. ing at or located on a Department of (a) Delivery under Article 14, UCMJ. the Navy installation, commanding of- When delivery of any member of the ficers are authorized to and should Navy or Marine Corps to the civilian allow the arrest of the individual authorities of a State is authorized, sought. The exceptions in § 720.9 may be the member’s commanding officer applied to members. A judge advocate shall, before making such delivery, ob- of the Navy or Marine Corps should be tain from the Governor or other duly consulted before delivery is effected. authorized officer of such State a writ- (b) Agreement not required of Federal ten agreement. The State official com- authorities. The agreement described in § 720.6 is not a condition to the delivery 1 Copies may be obtained if needed, from of members to Federal law enforce- the Commanding Officer, Naval Publication ment authorities. Regardless of wheth- and Forms Center, 5801 Tabor Avenue, Phila- er the member is convicted or acquit- delphia, PA 19120. ted, after final disposition of the case,

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the member will be returned to the or by message if telephone is imprac- Naval Service (provided that naval au- tical. The initial report shall be con- thorities desire his return) and the nec- firmed by letter setting forth a full essary expenses will be paid from an statement of the facts. A copy of the appropriation under the control of the report shall be forwarded to the re- Department of Justice. gional coordinator.

§ 720.8 Delivery of persons to foreign § 720.10 Members released by civil au- authorities. thorities on bail or on their own re- Except when provided by agreement cognizance. between the United States and the for- A member of the Navy or Marine eign government concerned, com- Corps arrested by Federal or State au- manding officers are not authorized to thorities and released on bail or on his deliver members or civilian employees own recognizance has a duty to return of the Department of the Navy, or their dependents residing at or located on a to his parent organization. Accord- naval or Marine Corps installation, to ingly, when a member of the Navy or foreign authorities. When a request for Marine Corps is arrested by Federal or delivery of these persons is received in State authorities and returns to his a country with which the United States ship or station on bail, or on his own has no agreement or when the com- recognizance, the commanding officer, manding officer is in doubt, advice upon verification of the attesting facts, should be sought from the Judge Advo- date of trial, and approximate length of cate General. Detailed information time that should be covered by the ab- concerning the delivery of members, ci- sence, shall grant liberty or leave to vilian employees, and dependents to permit appearance for trial, unless this foreign authorities when a status of would have a serious negative impact forces agreement is in effect is con- on the command. In the event that lib- tained in DoD Directive 5525.1 of 9 erty or leave is not granted, a judge ad- April 1985 and SECNAVINST 5820.4F. 2 vocate of the Navy or Marine Corps should immediately be requested to act § 720.9 Circumstances in which deliv- as liaison with the court. Nothing in ery is refused. this section is to be construed as per- (a) Disciplinary proceedings pending. mitting the member arrested and re- When disciplinary proceedings involv- leased to avoid the obligations of bond ing military offenses are pending, com- or recognizance by reason of the mem- manding officers should obtain legal ber’s being in the military service. guidance from a judge advocate of the Navy or Marine Corps prior to delivery § 720.11 Interviewing servicemembers of members to Federal or State au- or civilian employees by Federal ci- thorities. vilian investigative agencies. (b) When delivery may be refused. De- livery may be refused only in the fol- Requests by the Federal Bureau of lowing limited circumstances: Investigation, Naval Investigative (1) Where the accused has been re- Service Command, or other Federal ci- tained for prosecution; or vilian investigative agencies to inter- (2) When the commanding officer de- view members or civilian employees of termines that extraordinary cir- the Department of the Navy suspected cumstances exist which indicate that or accused of crimes should be prompt- delivery should be refused. ly honored. Any refusal of such a re- (c) Delivery under Detainers Act. When quest shall be immediately reported to the accused is undergoing sentence of a the Judge Advocate General, or the Of- court-martial, see § 720.12. fice of General Counsel, as appropriate, (d) Reports required. When delivery by telephone, or by message if tele- will be refused, the commanding officer phone is impractical. When the em- shall report the circumstances to the ployee in question is a member of an Judge Advocate General by telephone, exclusive bargaining unit, a staff judge advocate or General Counsel attorney 2 See footnote 1 of § 720.5(b). will be consulted to determine whether

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the employee has a right to have a bar- CFR 0.96(n). There has been no further gaining unit representative present delegation to military authority. The during the interview. prisoner should be informed that he may request the Director of the Bureau § 720.12 Request for delivery of mem- of Prisons, Washington, DC 20537, with- bers serving sentence of court-mar- in 30 days after such request is re- tial. ceived, to deny the request. Upon the (a) General. Article 14, UCMJ (10 expiration of such 30-day period or U.S.C. 814), provides authority to honor upon the Director of the Bureau of requests for delivery of members serv- Prisons’ denial of the prisoner’s re- ing a sentence of a court-martial. Al- quest, whichever occurs first, the pris- though seldom utilized, additional au- oner shall be delivered to the request- thority and mandatory obligation to ing authority. deliver such members are provided by (2) Prisoner request. The obligation to the Interstate Agreement on Detainers grant temporary custody under the Act Act (18 U.S.C. app. 9, hereinafter ‘‘the also applies to prisoners’ requests to be Act’’), which applies to the Federal delivered to State authority. Section 2, agency holding the prisoner. The De- Article III(c) of the Act requires the partment of the Navy, as an agency of custodial official to inform the pris- the Federal Government, shall comply oner of the existence of any detainer with the Act. The Act is designed to and of the prisoner’s right to request avoid speedy-trial issues and to aid in disposition. The prisoner’s request is rehabilitation efforts by securing a directed to the custodial official who greater degree of certainty about a must forward it to the appropriate prisoner’s future. The Act provides a prosecuting official and court, with a way for a prisoner to be tried on certificate of prisoner status as pro- charges pending before State courts, ei- vided by Article III of the Act. ther at the request of the State where (c) Article 14, UCMJ. When a request the charges are pending or the pris- for custody does not invoke the Inter- oner’s request. When refusal of delivery state Agreement on Detainers Act, de- under Article 14, UCMJ, is intended, livery of custody shall be governed by comply with § 720.9(d). Article 14, UCMJ, and §§ 720.2 through (b) Interstate Agreement on Detainers 720.9. The request shall be honored un- Act. Upon request under the Act by ei- less, in the exercise of discretion, there ther State authorities or the prisoner, is an overriding reason for retaining the cognizant Navy or Marine Corps the accused in military custody, e.g., staff judge advocate, as appropriate, additional courts-martial are to be shall communicate with the appro- convened or the delivery would se- priate State officials, and monitor and verely prejudice the prisoner’s appel- ensure that the cognizant commander late rights. Execution of the agreement acts on all such requests. The Act pro- discussed in § 720.6 is a condition prece- vides that court-martial sentences con- dent to delivery to State authorities. It tinue to run during temporary custody. is not required before delivery to Fed- This section does not cover requests eral authorities. See § 720.7. Unlike de- between Federal authorities. The pro- livery under the Act, delivery of cus- cedure set forth in § 720.12(c) shall be tody pursuant to Article 14, UCMJ, applied in such cases. interrupts execution of the court-mar- (1) State request. State officials may tial sentence. request delivery of prisoners in military custody under section 2, Article § 720.13 Request for delivery of mem- IV, of the Act. Where a detainer has bers serving sentence of a State been lodged against the prisoner, and court. the prisoner is serving a sentence (re- (a) General. Ordinarily, members gardless of whether an appeal is in serving protracted sentences resulting process), delivery is mandatory unless from a State criminal conviction will the request is disapproved by the Di- be processed for administrative dis- rector of the Bureau of Prisons, Wash- charge by reason of misconduct. It ington, DC, 20537 as the designee of the may, however, be in the best interest of Attorney General for this purpose. 28 the Naval Service to retain a member

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charged with a serious offense, subject should coordinate any further action to military jurisdiction, to try the with the Judge Advocate General. member by court-martial. The Navy (3) Responsibilities. The cognizant may obtain temporary custody of in- command shall ensure that the respon- carcerated members for prosecution sibilities of a receiving jurisdiction, de- with a request to the State under the lineated in section 2, Article IV of the Interstate Agreement on Detainers Act, are discharged. In particular, the Act. 18 U.S.C. app. 9. The Department Act requires that the receiving juris- of the Navy may use the Act in the diction: same manner in which State authori- (i) Commence the prisoner’s trial ties may request members purusant to within 120 days of the prisoner’s ar- § 720.12. rival, unless the court, for good cause (b) Interstate Agreement on Detainers shown during an Article 39(a), UCMJ, Act. Military authorities may use the session, grants a continuance nec- Act to obtain temporary custody of a essary or reasonable to promote the member incarcerated in a State insti- ends of justice; tution, pursuant to conviction by a (ii) Hold the prisoner in a suitable State court, to resolve criminal jail or other facility regularly used for charges against the member before a persons awaiting prosecution, except court-martial. for periods during which the prisoner (1) Detainer. If a command requests attends court or travels to or from any temporary custody under the Act, the place at which his presence may be re- commanding officer of the cognizant quired; naval legal service office or the Marine (iii) Return the prisoner to the send- Corps staff judge advocate, shall file a ing jurisdiction at the earliest prac- detainer with the warden, commis- tical time, but not before the charges sioner of corrections, or other State of- that underlie the request have been re- ficial having custody of the member. solved (prematurely returning the pris- The detainer shall identify the member oner will result in dismissal of the with particularity, enumerate the mili- charges); and tary charges pending, and request the (iv) Pay all costs of transporting, command be notified in advance of any caring for, keeping, and returning the intention to release the member from prisoner to the sending jurisdiction, confinement. unless the command and the State (2) Request for delivery. As soon as agree on some other allocation of the practical after filing the detainer, the costs or responsibilities. commanding officer of the cognizant naval legal service office or the Marine §§ 720.14–720.19 [Reserved] Corps staff judge advocate, shall prepare a written request for temporary Subpart B—Service of Process and custody of the member addressed to Subpoenas Upon Personnel the State official charged with administration of the State penal system. SOURCE: 57 FR 5232, Feb. 13, 1992, unless The request shall designate the per- otherwise noted. son(s) to whom the member is to be delivered and shall be transmitted via the § 720.20 Service of process upon per- military judge to whom the member’s sonnel. case has been assigned. If the request is (a) General. Commanding officers properly prepared, the military judge afloat and ashore may permit service shall approve, record, and transmit the of process of Federal or State courts request to the addressee official. The upon members, civilian employees, de- Act provides the State with a 30-day pendents, or contractors residing at or period after receipt of the request be- located on a naval installation, if lo- fore the request is to be honored. With- cated within their commands. Service in that period of time, the governor of will not be made within the command the State may disapprove the request, without the commanding officer’s con- either unilaterally or upon the pris- sent. The intent of this provision is to oner’s request. If the governor dis- protect against interference with mis- approves the request, the command sion accomplishment and to preserve

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good order and discipline, while not un- that where the command is located, necessarily impeding the court’s work. the person named is not required to ac- Where practical, the commanding offi- cept process. Accordingly, the process cer shall require that the process be server from the out-of-State jurisdic- served in his presence, or in the pres- tion need not be brought face-to-face ence of a designated officer. In all with the person named in the process. cases, individuals will be advised to Rather, the process server should re- seek legal counsel, either from a legal port to the designated command loca- assistance attorney or from personal tion while the person named is con- counsel for service in personal matters, tacted, apprised of the situation, and and from Government counsel for serv- advised that he may accept service, but ice in official matters. The com- also may refuse. In the event that the manding officer is not required to act person named refuses service, the proc- as a process server. The action required ess server should be so notified. If serv- depends in part on the status of the in- ice of process is attempted from out-of- dividual requested and which State State by mail and refused, the refusal issued the process. should be noted and the documents re- (1) In-State process. When a process turned to the sender. Questions should server from a State or Federal court be referred to the staff judge advocate, from the jurisdiction where the naval command counsel, or the local naval station is located requests permission legal service office. to serve process aboard an installation, (b) Service of process arising from offi- the command ordinarily should not cial duties. (1) Whenever a member or prevent service of process so long as de- civilian employee of the Department of livery is made in accordance with rea- the Navy is served with process be- sonable command regulations and is cause of his official position, the Judge consistent with good order and dis- Advocate General or the Associate cipline. Withholding service may be General Counsel (Litigation), as appro- justified only in the rare case when the priate, shall be notified by telephone, individual sought is located in an area or by message if telephone is imprac- under exclusive Federal jurisdiction tical. Notification shall be confirmed not subject to any reservation by the by a letter report by the nearest appro- State of the right to serve process. priate command. The letter report Questions on the extent of jurisdiction shall include the detailed facts which should be referred to the staff judge ad- give rise to the action. vocate, command counsel, or local (2) Any member or civilian employee naval legal service office. If service is served with Federal or State court civil permitted, an appropriate location or criminal process or pleadings (in- should be designated (for example, the cluding traffic tickets) arising from ac- command legal office) where the proc- tions performed in the course of offi- ess server and the member or employee cial duties shall immediately deliver can meet privately in order that proc- all such process and pleadings to the ess may be served away from the work- commanding officer. The commanding place. A member may be directed to re- officer shall ascertain the pertinent port to the designated location. A civil- facts and notify the Judge Advocate ian may be invited to the designated General or Associate General Counsel location. If the civilian does not co- (Litigation), as appropriate, by tele- operate, the process server may be es- phone or by message if telephone is im- corted to the location of the civilian in practical, of the service and imme- order that process may be served. A ci- diately forward the pleadings and proc- vilian may be required to leave a clas- ess to the relevant office. The member sified area in order that the process or civilian employee will be advised of server may have access to the civilian. the right to remove civil or criminal If unusual circumstances require that proceedings from State to Federal the command not permit service, see court under 28 U.S.C. 1442, 1442a, rights § 720.20(e). under the Federal Employees Liability (2) Out-of-State process. In those cases Reform and Tort Compensation Act (28 where the process is to be served by au- U.S.C. 2679b), if applicable, and the thority of a jurisdiction other than right of a Federal employee to request

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representation by Department of Jus- hand, must always be processed in ac- tice attorneys in Federal (civil) or cordance with the applicable inter- State (civil or criminal) proceedings national agreement or treaty, regard- and in congressional proceedings in less of whether the suit involves acts which that person is sued in an indi- performed in the course of official du- vidual capacity, as delineated in 28 ties. The Judge Advocate General or CFR 50.15. Requests for representation the Associate General Counsel (Litiga- shall be addressed to the Judge Advo- tion), as appropriate, will arrange cate General or Associate General through the Department of Justice for Counsel (Litigation), as appropriate, defense of the suit against the United and shall be endorsed by the com- States or an official acting within the manding officer, who shall provide all scope of official duties, or make other necessary data relating to the ques- arrangements, and will issue instructions of whether the person was acting tions. within the course of official duty or (2) Usually, the persons described in scope of employment at the time of the § 720.20(c)(1) are not required to accept incident out of which the suit arose. service of process outside the geo- (3) If the service of process involves a graphic limits of the jurisdiction of the potential claim against the Govern- court from which the process issued. In ment, see 32 CFR 750.12(a), 750.12(b), such cases, acceptance of the service is and 750.24. The right to remove to Fed- not compulsory, but service may be eral Court under 28 U.S.C. 1442 and voluntarily accepted in accordance 1442a must be considered where the with § 720.20(b). In exceptional cases outcome of the State court action may when the United States has agreed that influence a claim or potential claim service of process will be accepted by against the United States. Questions such persons when located outside the should be directed to the Judge Advo- geographic limits of the jurisdiction of cate General or the Associate General the court from which the process Counsel (Litigation). issued, the provisions of the agreement (c) Service of process of foreign courts. and of § 720.20(a) will govern. (1) Usually, the amenability of mem- (3) Under the laws of some countries bers, civilian employees, and their de- (such as Sweden), service of process is pendents stationed in a foreign coun- effected by the document, in original try, to the service of process from or certified copy, being handed to the courts of the host country will have person for whom the service is in- been settled by an agreement between tended. Service is considered to have the United States and the foreign coun- taken place even if the person refuses try concerned (for example, in the to accept the legal documents. There- countries of the signatory parties, fore, if a commanding officer or other amenability to service of civil process officer in the military service person- is governed by paragraphs 5(g) and 9 of ally hands, or attempts to hand, that Article VIII of the NATO Status of person the document, service is consid- Forces Agreement, TIAS 2846). When ered to have been effected, permitting service of process on a person described the court to proceed to judgment. Upon above is attempted within the com- receipt of foreign process with a re- mand in a country in which the United quest that it be served upon a person States has no agreement on this sub- described in § 720.20(c)(1), a com- ject, advice should be sought from the manding officer shall notify the person Judge Advocate General or the Asso- of the fact that a particular foreign ciate General Counsel (Litigation), as court is attempting to serve process appropriate. When service of process is and also inform that person that the upon the United States Government or process may be ignored or received. If one of its agencies or instrumentalities the person to be served chooses to ig- as the named defendant, the doctrine of nore the service, the commanding offi- sovereign immunity may allow the cer will return the document to the service of process to be returned to the embassy or consulate of the foreign court through diplomatic channels. country with the notation that the Service of process directed to an offi- commanding officer had the document, cial of the United States, on the other that the person chose to ignore it, and

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that no physical offer of service had § 720.21 Members or civilian employ- been made. The commanding officer ees subpoenaed as witnesses in will advise the Judge Advocate General State courts. or the Associate General Counsel (Liti- Where members or civilian employ- gation), as appropriate, of all requests ees are subpoenaed to appear as wit- for service of process from a foreign nesses in State courts, and are served court and the details thereof. as described in §§ 720.20, 720.20(d) ap- (d) Leave or liberty to be granted per- plies. If these persons are requested to sons served with process. When members appear as witnesses in State courts or civilian employees are either served when the interests of the Federal Gov- with process, or voluntarily accept ernment are involved (e.g., Medical service of process, in cases where the Care Recovery Act cases), follow the United States is not a party to the liti- procedures described in § 720.22. If State gation, the commanding officer nor- authorities are attempting to obtain mally will grant leave or liberty to the the presence of a member or a civilian person served to permit compliance employee as a witness in a civil or with the process, unless to do so would criminal case, and such person is un- have an adverse impact on naval oper- available because of an overseas as- ations. When a member or civilian em- signment, the command should imme- ployee is a witness for a nongovern- diately contact the Judge Advocate mental party because of performance General, or the Associate General of official duties, the commanding offi- Counsel (Litigation), as appropriate. cer may issue the person concerned permissive orders authorizing attend- § 720.22 Members or civilian employ- ance at the trail at no expense to the ees subpoenaed as witnesses in Fed- Government. The provisions of 32 CFR eral courts. part 725 must also be considered in (a) Witnesses on behalf of Federal Gov- such cases. Members or civilian em- ernment. When members or civilian employees may accept allowances and ployees of the Department of the Navy mileage tendered; however, any fees are required to appear as witnesses in a tendered for testimony must be paid to Federal Court to testify on behalf of the Department of the Navy unless the the Federal Government in cases in- member or employee is on authorized volving Department of the Navy activi- leave while attending the judicial pro- ties, the Chief of Naval Personnel or ceeding. When it would be in the best the Commandant of the Marine Corps, interests of the United States Govern- as appropriate, will issue temporary ment (for example, in State criminal additional duty orders to that person. trails), travel funds may be used to The charges for such orders will be provide members and civilian employ- borne by the activity to which the re- ees as witnesses as provided in the quired witness is attached. Payment to Joint Federal Travel Regulations. Re- witnesses will be as provided by the sponsibility for the payment of the Joint Federal Travel Regulations and member’s mileage and allowances will U.S. Navy travel instructions. If the re- be determined pursuant to the Joint quired witness is to appear in a case in Federal Travel Regulations, Volume 1, which the activities of the Department paragraph M6300, subsections 1–3. 3 of the Navy are not involved, the De- (e) Report where service not allowed. partment of the Navy will be reim- Where service of process is not per- bursed in accordance with the proce- mitted, or where the member or civil- dures outlined in the Navy Comptroller ian employee is not given leave, lib- Manual, section 046268. erty, or orders to attend a judicial pro- (b) Witnesses on behalf of nongovern- ceeding, a report of such refusal and mental parties—(1) Criminal actions. the reasons therefor shall be made by When members or civilian employees telephone, or message if telephone is are served with a subpoena to appear as impractical, to the Judge Advocate a witness for a defendant in a criminal General or the Associate General Coun- action and the fees and mileage re- sel (Litigation), as appropriate. quired by rule 17(d) of the Federal Rules of Criminal Procedure are ten- 3 See footnote 1 of § 720.5(b). dered, the commanding officer may

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issue the person subpoenaed permissive will be required, and should specify the orders authorizing attendance at the mode of transport by which it intends trial at no expense to the Government, to return the prisoner. Upon receipt of unless the person’s absence would have such a request, authority by the Judge an adverse impact on naval operations. Advocate General will be given, in a In such a case, a full report of the cir- proper case, for the production of the cumstances will be made to the Judge requested naval prisoner in court with- Advocate General or, in the case of ci- out resort to a writ of habeas corpus ad vilian employees, to the Associate Gen- testificandum (a writ which requires eral Counsel (Litigation). In those the production of a prisoner to testify cases where fees and mileage are not before a court of competent jurisdic- tendered as required by rule 17(d) of the tion). Federal Rules of Criminal Procedure, (b) Civil actions. The Department of but the person subpoenaed still desires the Navy will not authorize the attend- to attend, the commanding officer also ance of a naval prisoner in a Federal or may issue permissive orders at no cost State court, either as a party or as a to the Government. Such persons, how- witness, in private litigation pending ever, should be advised that an agree- before such a court. The deposition of a ment as to reimbursement for any ex- naval prisoner may be taken in such a penses incident to travel, lodging, and case, subject to reasonable conditions subsistence should be effected with the or limitations imposed by the com- party desiring their attendance and mand concerned. that no reimnbursement should be expected from the Government. § 720.24 Interviews and depositions in (2) Civil actions. When members or ci- connection with civil litigation in vilian employees are served with a sub- matters pertaining to official du- poena to appear as a witness on the be- ties. half of a nongovernmental party in a Requests to interview, depose, or call civil action brought in a Federal court, as witnesses, current or former mem- the provisions of § 720.20 apply. bers or civilian employees of the De- partment of the Navy, regarding infor- § 720.23 Naval prisoners as witnesses mation obtained in the course of their or parties in civilian courts. official duties, including expert testi- (a) Criminal actions. When Federal or mony related thereto, shall be proc- State authorities desire the attendance essed in accordance with 32 CFR part of a naval prisoner as a witness in a 725. criminal case, they should submit a written request for such person’s at- § 720.25 Repossession of personal tendance to the Judge Advocate Gen- property. eral. The civilian authority should in- Repossession of personal property, lo- clude the following averments in its re- cated on a Navy or Marine Corps in- quest: stallation, belonging to a member or to (1) That the evidence to be derived any dependent residing at or located on from the prisoner’s testimony is un- a Department of the Navy installation, available from any other source: may be permitted in the discretion of (2) That the civilian authority will the commanding officer of the installa- provide adequate security arrange- tion where the property is located, sub- ments for the prisoner and assume reject to the following. The documents sponsibility for the prisoner while he is purporting to authorize repossession in its custody; and and the procedures for repossessing the (3) that the civilian authority will as- property must comply with State law. sume all costs of transporting the pris- Prior to permitting physical reposses- oner from the brig, of maintaining that sion of any property, the commanding prisoner while in civilian custody, and officer shall cause an informal inquiry of returning the prisoner to the brig into the circumstances and then deter- from which he was removed. mine whether to allow the reposses- The civilian authority should also in- sion. If repossession is to be allowed, clude in its request an estimate of the the person whose property is to be re- length of time the prisoner’s services possessed should be asked if he wishes

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to relinquish the property voluntarily. section. In determining whether or not Repossession must be carried out in a a record contained in a ‘‘system of manner prescribed by the commanding records’’ will be furnished in response officer. In the case of property owned to a written request for that record, by civilian employees of the Depart- consideration shall be given to the pro- ment of the Navy or civilian contrac- visions of the Secretary of the Navy In- tors or their employees or dependents, struction 5720.42 series. If the record is the commanding officer should direct in a ‘‘system of records,’’ it may be that the disputed property be removed produced upon written request of one from the installation until the com- or more parties in interest or their re- manding officer is satisfied that the spective attorneys in the absence of a dispute is resolved. court order only if the individuals to §§ 720.26–720.29 [Reserved] whom the record pertains give written consent to the production or if the pro- Subpart C—Production of Official duction is otherwise authorized under the Privacy Act and the Secretary of Records the Navy Instruction 5211.5 series. § 720.30 Production of official records Whenever compliance with a court in response to court order. order for production of Department of (a) General. Where unclassified naval the Navy records is deemed inappro- records are desired by or on behalf of priate for any reason, such as when litigants, the parties will be informed they contain privileged or classified in- that the records desired, or certified formation, the records and subpoena copies thereof, may be obtained by for- may be forwarded to the Secretary of warding to the Secretary of the Navy, the Navy (Judge Advocate General) for Navy Department, Washington, DC, or appropriate action, and the parties to other custodian of the records, a court the suit so notified. Any release of order calling for the particular records classified information for civil court desired or copies thereof. Compliance proceedings (whether civil or criminal with such court order will be effected in nature) must also be coordinated by transmitting certified copies of the within the office of the Chief of Naval records to the clerk of the court out of Operations (OP–009D) in accordance which the process issues. See the provi- with the Chief of Naval Operations In- sions in the Secretary of the Navy In- struction 5510.1 series. struction 5211.5 series which set forth (b) Records in the custody of National the additional requirement that rea- Personnel Records Center. Court orders, sonable efforts be made to notify all in- subpoenas duces tecum, and other legal dividuals to whom the record pertains documents demanding information of (1) the disclosure, and (2) the nature from, or the production of, service or of the information provided, when the medical records in the custody of the court order has become a matter of National Personnel Records Center in- public record and the record is con- volving former (deceased or discharged) tained in a system of records as defined Navy and Marine Corps personnel shall in the Secretary of the Navy Instruc- be served upon the General Services tion 5211.5 series. If an original record Administration, 9700 Page Boulevard; is produced by a naval custodian, it will not be removed from the custody St. Louis, MO 63132, rather than the of the person producing it, but copies Department of the Navy. In the fol- may be placed in evidence. Upon writ- lowing situations, the request shall be ten request of one or more parties in forwarded to the Secretary of the Navy interest or their respective attorneys, (Judge Advocate General). records which would be produced in re- (1) When the United States (Depart- sponse to a court order as set forth ment of the Navy) is one of the liti- above may be furnished without court gants. order when such records are not in a (2) When the case involves a person ‘system of records’ as defined by the or persons who are or have been senior Privacy Act (5 U.S.C. 552a) except as officers or officials within the Depart- noted in paragraphs (b) and (c) of this ment of the Navy; and

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(3) In other cases considered to be of that custody of the records may be special significance to the Judge Advo- maintained. cate General or the Secretary of the Navy. [38 FR 6021, Mar. 6, 1973, as amended at 48 FR 4466, Feb. 1, 1983] (c) Exceptions. Where not in conflict with the foregoing restrictions relative § 720.31 Production of official records to personal information, the release of in the absence of court order. which would result in a clearly unwarranted invasion of personal privacy, (a) General. Release of official records the production in Federal, State, terri- outside the Department of the Navy in torial, or local courts of evidentiary the absence of a court order is gov- material from investigations con- erned by the Privacy Act (5 U.S.C. 552a) ducted pursuant to this Manual, and and the Freedom of Information Act (5 the service, employment, pay or med- U.S.C. 552). The following sources per- ical records (including medical records tain: SECNAVINST 5211.5 series (Pri- of dependents) of persons in the naval vacy) and SECNAVINST 5720.42 series service is authorized upon receipt of a (Freedom of Information). court order, without procuring specific (b) Release of JAG Manual Investiga- authority from the Secretary of the tions, Court-Martial Records, Articles 69 Navy. When the request for production and 73 Petitions, and Article 138 Com- involves material related to claims in plaints of Wrongs. Except as provided in favor of the Government, notification this section, only the Assistant Judge should be made to the affirmative Advocates General (Civil Law) and claims office at the naval legal service (Military Law) shall make determina- office having territorial responsibility tions concerning the release of the in the area. Where travel is involved, it records covered herein if less than a re- must be without expense to the Gov- lease of the complete requested record ernment. will result. In all other instances the (d) Medical and other records of civilian Deputy Assistant Judge Advocates employees. Production of medical cer- General, who have cognizance of the tificates or other medical reports con- record(s) in issue, may release such cerning civilian employees is con- records. Local record holders are re- trolled by the provisions of Executive minded that the authority to release Order 10561, 19 FR 5963, as implemented records does not necessarily include de- by Federal Personnel Manual, chapter nial authority. 294, and chapter 339.1–4 (reprinted in (1) JAG Manual Investigations (includ- MANMED article 23–255(6)). Records of ing enclosures). Any request for release civilian employees other than medical outside the Department of the Navy records may be produced upon receipt shall be forwarded to the Assistant of a court order without procuring spe- Judge Advocate General (Military Law) cific authority from the Secretary of for determination, except that Privacy the Navy, provided there is not in- Act requests for release shall be for- volved any classified or For-Official- warded to the Assistant Judge Advo- Use-Only information, such as loyalty cate General (Civil Law) for determina- or security records. Records relating to tion. compensation benefits administered by (2) Court-martial records and Articles 69 the Bureau of Employees’ Compensa- and 73 petitions. These are matters of tion may not be disclosed except upon public record and may be released by the written approval of that Bureau (20 any local holder. Court-martial records CFR 1.21). In case of doubt, the matter should be released only following prop- should be handled in accordance with er authentication. the provisions of subsection a above. (3) Article 138 Complaints of Wrongs. Where information is furnished here- Forward as in paragraph (b)(1) of this under in response to a court order, it is section. advisable that certified copies rather (c) Affirmative claims files. Affirmative than originals be furnished and that, claims files (including Medical Care where original records are to be pro- Recovery Act files), except to the ex- duced, the assistance of the U.S. Attor- tent that such files contain copies of ney or U.S. Marshal be requested so reports of investigations prepared

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under the Manual of the Judge Advo- § 720.40 Purpose. cate General, or classified or privileged This instruction: information, may be released by local (a) Implements 32 CFR part 146. holders to insurance companies to sup- (b) Establishes policy and procedures port claims; to civilian attorneys rep- for requesting the return to the United resenting the injured party’s and the States of, or other action affecting, De- Government’s interests; and to other partment of the Navy (DON) personnel components of the Department of De- and employees serving outside the fense, without the prior approval of the United States, and family members ac- Judge Advocate General, provided that companying them, in compliance with the amount of the claim is within the court orders. monetary settlement authority of the releaser. When the request for produc- § 720.41 Definitions. tion involves material related to Court. Any judicial body in the claims in favor of the Government, no- United States with jurisdiction to im- tification should be made to the af- pose criminal sanctions on a Depart- firmative claims office at the naval ment of the Navy member, employee, legal service office having territorial or family member. responsibility for the area. Employee. A civilian employed by the (d) Accounting for disclosures of records Department of the Navy or a compo- from systems of records. When records lo- nent service, including an individual cated in a ‘‘system of records’’ are re- paid from non-appropriated funds, who leased, the official responsible for re- is a citizen or national of the United leasing the records shall consult States. SECNAVINST 5211.5 series regarding Family member. A spouse, natural or the requirement that accountings of adopted child, or other lawful depend- the disclosures be maintained. Appen- ent of a Department of the Navy em- dix A–3–a of the Manual of the Judge ployee or member accompanying the Advocate General is recommended for Department of the Navy member or this purpose. employee assigned to duty outside the United States. (1 CFR 18.14, and part 21, subpart B) Felony. A criminal offense that is [45 FR 8599, Feb. 8, 1980, as amended at 48 FR punishable by incarceration for more 4466, Feb. 1, 1983] than one year, regardless of the sentence that is imposed for commission § 720.32 Certificates of full faith and of that offense. credit. Member. An individual on active duty The Judge Advocate General, the in the Navy, Naval Reserve, Marine Deputy Judge Advocate General, or Corps, or Marine Corps Reserve. any Assistant Judge Advocate General Request for return. Any request or is authorized to execute certificates of order received from a court, or from full faith and credit certifying the sig- federal, state or local authorities con- natures and authority of officers of the cerning a court order, for the return to Department of the Navy. the United States of members, employees, or family members, for any reason [38 FR 6021, Mar. 6, 1973] listed in § 720.42. Respondent. A member, employee, or Subpart D—Compliance With family member whose return to the Court Orders by Department United States has been requested, or of the Navy Members, Em- with respect to whom other assistance ployees, and Family Members has been requested under this instruc- Outside the United States tion. Responsible official. Officials designated in this instruction to act on a AUTHORITY: DoD Directive 5525.9, 54 FR 296, request to return, or take other action 32 CFR part 146. affecting, members, employees or fam- SOURCE: 55 FR 47876, Nov. 16, 1990, unless ily members to the United States otherwise noted. under this instruction.

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United States. The 50 states, the Dis- the custody of a parent or other person trict of Columbia, Puerto Rico, Guam, awarded custody by a court order will the Northern Mariana Islands, Amer- normally require processing for adverse ican Samoa, and the Virgin Islands. action, up to and including removal from federal service. Failure to comply § 720.42 Policy. with other court orders may require (a) It is Department of the Navy pol- adverse action, depending on the cir- icy to cooperate, as prescribed in this cumstances of the individual case. instruction, with courts and federal, (2) Family members will be strongly state and local officials in enforcing encouraged to comply with court or- court orders. The Department of the ders. Family members who fail to com- Navy will cooperate with requests ply with court orders involving felonies when such action is consistent with or contempt involving unlawful or con- mission requirements (including oper- temptuous removal of a child from the ational readiness), the provisions of applicable international agreements, and jurisdiction of the court or the custody ongoing Department of Defense (DoD) of a parent or other person awarded investigations and courts-martial. custody by a court order will normally (b) Every reasonable effort will be have their command sponsorship re- made to resolve the matter without the moved. Failure to comply with other respondent returning to the United court orders may also result in re- States, or other action being taken moval of command sponsorship, de- against the respondent under this in- pending on the circumstances of the instruction. dividual case. (c) Requests to return members for (g) To facilitate prompt resolution of felonies or for contempt involving un- requests for return of members, mini- lawful or contemptuous removal of a mize the burden on operating units, child from the jurisdiction of a court or and to provide consistency during ini- the custody of a parent or other person tial implementation of this new pro- awarded custody by a court order will gram, a limited number of responsible normally be granted, but only if the officials, designated in § 720.44, will re- member cannot resolve the issue with spond to requesting officials. the court without return to the United States. When the member’s return is § 720.43 Points of contact. inconsistent with mission requirements, applicable international agree- (a) Authorities issuing requests for ments, or ongoing DoD investigations return or for other action under this or courts-martial, DoD approval of de- instruction may contact the following nial will be requested. activities: (d) For all other requests involving (1) Chief of Naval Personnel (Pers–14), members, return will be based on the Washington, DC 20370–5000 (For Navy circumstances of the individual case as members and their family members). provided in this instruction. (2) Commandant, U.S. Marine Corps (e) Members will normally be re- (Code JAR), Washington, DC 20380–0001 turned on a temporary additional duty (For Marine Corps members and their (TAD) basis unless there are compel- family members). ling reasons the return should be a per- (3) Director, Office of Civilian Per- manent change of duty station (PCS). sonnel Management (Code OOL), 800 N. (f) The involuntary return of employ- Quincy Street, Arlington, VA 22203–1998 ees or family members in response to a (For civilian personnel, including non- request for return is not authorized. appropriated fund employees and their However, the following action will be family members). taken: (1) Employees will be strongly urged (b) Upon receipt of a request for ac- to comply with court orders. Failure to tion under this instruction, the Office comply with court orders involving of Civilian Personnel Management will felonies or contempt involving unlaw- forward the request to the appropriate ful or contemptuous removal of a child responsible official for action in ac- from the jurisdiction of the court or cordance with § 720.44.

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§ 720.44 Responsible officials. and civilian family members to with- The following officials are designated drawal of command sponsorship. responsible officials for acting on re- (b) For all other requests when the quests to return or to take other action matter cannot be resolved with the affecting members, employees or fam- court without returning the respondent ily members to the United States. to the United States, the responsible (a) The Chief of Naval Personnel official shall take the action described (CHNAVPERS) for requests involving in this instruction when deemed appro- Navy members and their family mem- priate with the facts and cir- bers who are not employees. The cumstances of each particular case, fol- CHNAVPERS may delegate this au- lowing consultation with legal staff. thority within his headquarters, not (c) When a member’s return is incon- below the 0–6 level for routine matters sistent with mission requirements, the and not lower than the flag officer provisions of applicable international level for decisions to deny the request agreements, or ongoing DoD investiga- for return. tions and courts-martial, the Depart- (b) The Commandant of the Marine ment of the Navy will ask DoD to ap- Corps (CMC) for requests involving Ma- prove denial of the request for the mili- rine Corps members and their family tary members’s return. To initiate this members who are not employees. The action, there must be an affirmative CMC may delegate this authority with- showing of articulable harm to the in his headquarters, not below the 0–6 unit’s mission or violation of an inter- level for routine matters and no lower national agreement. that the general officer level for deci- (d) When a responsible official has de- sions to deny the request for return. termined a request for return is appar- (c) The local commanding officer or ently based on an order issued by a officer in charge for requests involving court of competent jurisdiction, the re- employees and their family members sponsible official shall complete action who are not active duty military mem- on the request for return within 30 days bers. of receipt of the request for return by (d) The Assistant Secretary of the the responsible official, unless a delay Navy (Manpower and Reserve Affairs) is authorized by the ASN(M&RA). (ASN(M&RA)) for requests not covered (e) When a delay to complete the ac- by §§ 720.44 (a) through (c). tion is warranted, the ASN(M&RA) will grant a 45 day delay, and provide a § 720.45 Procedures. copy of that approval to the Assistant (a) If the request pertains to a felony Secretary of Defense (Force Manage- or to contempt involving the unlawful ment & Personnel (ASD(FM&P)) and or contemptuous removal of a child the General Counsel, DoD. The 45 day from the jurisdiction of a court or the period begins upon request by the re- custody of a parent or another person sponsible official of the request for re- awarded custody by court order, and turn. Conditions which, when accom- the matter cannot be resolved with the panied by full supporting justification, court without the respondent returning will warrant the granting of the 45 day to the United States: delay are: (1) For members: The responsible of- (1) Efforts are in progress to resolve ficial shall direct the commanding offi- the matter to the satisfaction of the cer or officer in charge to order the court without the respondent’s return member to return to the United States. to the United States. Failure to comply will normally be the (2) To provide sufficient time for the basis for disciplinary action against respondent to provide evidence to show the member. legal efforts to resist the request or to (2) For employees, military and civil- show legitimate cause for noncompli- ian family members: The responsible ance. official shall strongly encourage the (3) To provide commanding officers respondent to comply. Failure to com- an opportunity to detail the specific ef- ply may subject employees to adverse fect on command mission and oper- action, to include removal from the ational readiness anticipated from the Federal service, and subject military loss of the member or Department of

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the Navy employee, and to present (4) Monitor, and update as necessary, facts relating to any international information provided to the respon- agreement, or ongoing DoD investiga- sible official. tion or courts-martial. (h) The responsible official shall: (f) A commanding officer or officer in (1) Determine whether the request is charge who receives a request for the based on an order issued by a court of return of, or other action affecting, a apparent competent jurisdiction and if member, family member, or employee so, complete action on the request no not of his/her command will forward later than 30 days after its receipt by the request to the appropriate com- the responsible official. If a conflicts of manding officer or officer in charge, law issue is presented between com- copy to the responsible official, and ad- peting state interests, or between a vise both of them by message that a re- state and a foreign host-nation, or be- quest for return or other action has tween two different foreign nations, been forwarded to them. the matter shall be referred to the (g) A commanding officer or officer ASN(M&RA) on the first issue and to in charge who receives a request for the Judge Advocate General (Code 10) the return of, or other action affecting, on the second and third issues. a member, family member, or employee of his/her command will: (2) Encourage the respondent to attempt to resolve the matter to the sat- (1) Notify the respondent of the right isfaction of the court or other request- to provide evidence to show legal efforts to resist the request, or to show ing authority without return of or legitimate cause for noncompliance for other action affecting the member, em- inclusion in the submission to the re- ployee, or family member. sponsible official. (3) When a delay to complete action (2) For members and their family under this section is warranted, re- members who are not employees, for- quest the delay from ASN(M&RA) with ward the request immediately to the full supporting justification. appropriate responsible official, to- (4) Examine all information the re- gether with: spondent desires to provide to show (i) Any information the individual legal efforts to resist the request, or desires to provide to show legal efforts otherwise to show legitimate cause for to resist the request, or otherwise to noncompliance. show legitimate cause for noncompli- (5) Requests for exception from the ance. requirements of this instruction shall (ii) Facts detailing the specific im- be submitted, with supporting jus- pacts on command missions and readi- tification, to the ASN(M&RA) for sub- ness anticipated from loss of the mem- mission to the ASD(FM&P). ber. (6) If a member will be ordered to re- (iii) Facts relating to any inter- turn to the United States, determine if national agreements or ongoing DoD the member will be ordered TAD or investigations or courts-martial in- PCS and advise the member’s com- volving the respondent. manding officer of the determination. (iv) Information regarding conditions (7) If a member will be ordered to re- expected to interfere with a member’s turn to an appropriate port of entry to return to the command after comple- comply with a request, ensure: tion of proceedings. If, in the opinion of (i) The requesting officer has given the commanding officer, there are compelling reasons for the member to be official notification to the responsible returned to the United States PCS, official that the requesting official or provide full justification to support other appropriate party will initiate that recommendation to the cognizant action with the receiving jurisdiction officer. to secure the member’s delivery/extra- (3) If a delay in processing is war- dition, as appropriate, per chapter 6 of ranted under § 720.42 or § 720.45(e), make the Manual of the Judge Advocate Gen- a recommendation with supporting jus- eral, and provide for all costs incident tification to the responsible official. thereto, including any escort if desired.

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(ii) If applicable, the necessary ac- § 720.46 Overseas screening programs. counting data are provided to the com- The Chief of Naval Operations (CNO) manding officer of the member or or- and the CMC shall incorporate proce- ders are issued. dures requiring members and employ- (iii) The member has arranged satis- ees to certify they have legal custody factory foster care for any lawful of all minor dependents accompanying minor dependents who will be left un- them outside the United States into accompanied overseas upon the mem- service overseas screening programs. ber’s return to the United States. (8) Notify the requesting official at § 720.47 Report. least 10 days before the member’s re- The report requirement in this in- turn to the selected port of entry. struction is exempt from reports con- (9) In the case of an employee or of a trol by SECNAVINST 5214.2B. family member, the commanding officer or officer in charge of the activity to which the family member’s sponsor PARTS 721–722 [RESERVED] is attached, or by which the employee is employed, will carry out the fol- PART 723—BOARD FOR lowing steps: CORRECTION OF NAVAL RECORDS (i) An employee shall be strongly encouraged to comply with the court Sec. order or other request for return. Fail- 723.1 General provisions. ure to comply may be the basis for ad- 723.2 Establishment, function and jurisdic- verse action to include removal from tion of the Board. 723.3 Application for correction. Federal service. Adverse action should 723.4 Appearance before the board; notice; only be taken after coordination with counsel; witnesses; access to records. the cognizant civilian personnel office 723.5 Hearing. and legal counsel and in compliance 723.6 Action by the Board. with Civilian Personnel Instruction 723.7 Action by the Secretary. 752. 723.8 Staff action. (ii) If a family member of either a 723.9 Reconsideration. 723.10 Settlement of claims. member or an employee is the subject 723.11 Miscellaneous provisions. of a request for return, the family member shall be strongly encouraged AUTHORITY: 10 U.S.C. 1034, 1552. to comply with the court order. Failure SOURCE: 62 FR 8166, Feb. 24, 1997, unless to respond may be the basis for with- otherwise noted. drawal of command sponsorship of the family member. § 723.1 General provisions. (10) Report promptly to the This part sets up procedures for cor- ASN(M&RA) any actions taken under rection of naval and marine records by § 720.45 (a) or (b). the Secretary of the Navy acting (i) The ASN(M&RA): through the Board for Correction of (1) May grant delays of up to 45 days Naval Records (BCNR or the Board) to from the date of a request for delay in remedy error or injustice. It describes accordance with § 720.45(e). how to apply for correction of naval (2) Will report promptly all delays of and marine records and how the BCNR requests for the return of members to considers applications. It defines the the ASD(FM&P) and to the General Board’s authority to act on applica- Counsel of the Department of Defense. tions. It directs collecting and main- (3) Will request from the taining information subject to the Pri- ASD(FM&P), when warranted, excep- vacy Act of 1974 authorized by 10 U.S.C. tion to the policies and procedures of 1034 and 1552. DoD Directive 5525.9 of December 27, 1988. § 723.2 Establishment, function and ju- (4) Consolidate and forward reports of risdiction of the Board. action taken under § 720.45 (a) or (b) to (a) Establishment and composition. the ASD(FM&P) and the General Coun- Under 10 U.S.C. 1034 and 1552, the Board sel, DoD as required by DoD Directive for Correction of Naval Records is es- 5525.9 of December 27, 1988. tablished by the Secretary of the Navy.

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The Board consists of civilians of the shall be submitted with the applica- executive part of the Department of tion. the Navy in such number, not less than (b) Time limit for filing application. Ap- three, as may be appointed by the Sec- plications for correction of a record retary and who shall serve at the pleas- must be filed within 3 years after dis- ure of the Secretary. Three members covery of the alleged error or injustice. present shall constitute a quorum of Failure to file within the time pre- the Board. The Secretary of the Navy scribed may be excused by the Board if will designate one member as Chair. In it finds it would be in the interest of the absence or incapacity of the Chair, justice to do so. If the application is an Acting Chair chosen by the Execu- filed more than 3 years after discovery tive Director shall act as Chair for all of the error or injustice, the applica- purposes. tion must set forth the reason why the (b) Function. The Board is not an in- Board should find it in the interest of vestigative body. Its function is to con- justice to excuse the failure to file the sider applications properly before it for application within the time prescribed. the purpose of determining the exist- (c) Acceptance of applications. An ap- ence of error or injustice in the naval plication will be accepted for consider- records of current and former members ation unless: of the Navy and Marine Corps, to make (1) The Board lacks jurisdiction. recommendations to the Secretary or (2) The Board lacks authority to to take corrective action on the Sec- grant effective relief. retary’s behalf when authorized. (3) The applicant has failed to comply (c) Jurisdiction. The Board shall have with the filing requirements of para- jurisdiction to review and determine graphs (a)(l), (a)(2), or (a)(3) of this sec- all matters properly brought before it, tion. consistent with existing law. (4) The applicant has failed to exhaust all available administrative rem- § 723.3 Application for correction. edies. (a) General requirements. (1) The appli- (5) The applicant has failed to file an cation for correction must be sub- application within 3 years after dis- mitted on DD 149 (Application for Cor- covery of the alleged error or injustice rection of Military Record) or exact and has not provided a reason or rea- facsimile thereof, and should be ad- sons why the Board should find it in dressed to: Board for Correction of the interest of justice to excuse the Naval Records, Department of the failure to file the application within Navy, 2 Navy Annex, Washington, DC the prescribed 3-year period. 20370–5100. Forms and other explana- (d) Other proceedings not stayed. Fil- tory matter may be obtained from the ing an application with the Board shall Board upon request. not operate as a stay of any other pro- (2) Except as provided in paragraph ceedings being taken with respect to (a)(3) of this section, the application the person involved. shall be signed by the person request- (e) Consideration of application. (1) ing corrective action with respect to Each application accepted for consider- his/her record and will either be sworn ation and all pertinent evidence of to or will contain a provision to the ef- record will be reviewed by a three fect that the statements submitted in member panel sitting in executive ses- the application are made with full sion, to determine whether to author- knowledge of the penalty provided by ize a hearing, recommend that the law for making a false statement or records be corrected without a hearing, claim. (18 U.S.C. 287 and 1001) or to deny the application without a (3) When the record in question is hearing. This determination will be that of a person who is incapable of made by majority vote. making application, or whose where- (2) The Board may deny an applica- abouts is unknown, or when such per- tion in executive session if it deter- son is deceased, the application may be mines that the evidence of record fails made by a spouse, parent, heir, or legal to demonstrate the existence of prob- representative. Proof of proper interest able material error or injustice. The

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Board relies on a presumption of regu- statement; rather, unclassified or non- larity to support the official actions of privileged summaries of such material public officers and, in the absence of will be so used and written expla- substantial evidence to the contrary, nations for the substitution will be will presume that they have properly provided to the applicant and counsel. discharged their official duties. Appli- cants have the burden of overcoming § 723.4 Appearance before the board; this presumption but the Board will notice; counsel; witnesses; access to not deny an application solely because records. the record was made by or at the direc- (a) General. In each case in which the tion of the President or the Secretary Board determines a hearing is war- in connection with proceedings other ranted, the applicant will be entitled to than proceedings of a board for the cor- appear before the Board either in per- rection of military or naval records. son or by counsel of his/her selection or Denial of an application on the grounds in person with counsel. Additional proof insufficient evidence to demonstrate visions apply to cases processed under the existence of probable material the Military Whistleblower Protection error or injustice is final subject to the Act (10 U.S.C. 1034). provisions for reconsideration con- (b) Notice. (1) In each case in which a tained in § 723.9. hearing is authorized, the Board’s staff (3) When an original application or a will transmit to the applicant a writ- request for further consideration of a ten notice stating the time and place of previously denied application is denied hearing. The notice will be mailed to without a hearing, the Board’s deter- the applicant, at least 30 days prior to mination shall be made in writing and the date of hearing, except that an ear- include a brief statement of the lier date may be set where the appli- grounds for denial. cant waives his/her right to such notice (4) The brief statement of the in writing. grounds for denial shall include the (2) Upon receipt of the notice of hear- reasons for the determination that re- ing, the applicant will notify the Board lief should not be granted, including in writing at least 15 days prior to the the applicant’s claims of constitu- date set for hearing as to whether he/ tional, statutory and/or regulatory vio- she will be present at the hearing and lations that were rejected, together will indicate to the Board the name of with all the essential facts upon which counsel, if represented by counsel, and the denial is based, including, if appli- the names of such witnesses as he/she cable, factors required by regulation to intends to call. Cases in which the ap- be considered for determination of the plicant notifies the Board that he/she character of and reason for discharge. does not desire to be present at the Further the Board shall make a deter- hearing will be considered in accord- mination as to the applicability of the ance with § 723.5(b)(2). provisions of the Military Whistle- (c) Counsel. As used in this part, the blower Protection Act (10 U.S.C. 1034) if term ‘‘counsel’’ will be construed to in- it is invoked by the applicant or rea- clude members in good standing of the sonably raised by the evidence. At- federal bar or the bar of any state, ac- tached to the statement shall be any credited representatives of veterans’ advisory opinion considered by the organizations recognized by the Sec- Board which is not fully set out in the retary of Veterans Affairs under 38 statement. The applicant will also be U.S.C. 3402, or such other persons who, advised of reconsideration procedures. in the opinion of the Board, are consid- (5) The statement of the grounds for ered to be competent to present equi- denial, together with all attachments, tably and comprehensively the request shall be furnished promptly to the ap- of the applicant for correction, unless plicant and counsel, who shall also be barred by law. Representation by coun- informed that the name and final vote sel will be at no cost to the govern- of each Board member will be furnished ment. or made available upon request. Classi- (d) Witnesses. The applicant will be fied or privileged material will not be permitted to present witnesses in his/ incorporated or attached to the Board her behalf at hearings before the

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Board. It will be the responsibility of Board, the applicant or representative the applicant to notify his/her wit- fails to appear at the time and place nesses and to arrange for their appear- set for the hearing or fails to provide ance at the time and place set for hear- the notice required by § 723.4(b)(2), the ing. Appearance of witnesses will be at Board may consider the case in accord- no cost to the government. ance with the provisions of paragraph (e) Access to records. (1) It is the re- (b)(2) of this section, or make such sponsibility of the applicant to procure other disposition of the case as is ap- such evidence not contained in the offi- propriate under the circumstances. cial records of the Department of the (4) All testimony before the Board Navy as he/she desires to present in shall be given under oath or affirma- support of his/her case. tion. The proceedings of the Board and (2) Classified or privileged informa- the testimony given before it will be tion may be released to applicants only recorded verbatim. by proper authorities in accordance (c) Continuance. The Board may con- with applicable regulations. tinue a hearing on its own motion. A (3) Nothing in this part authorizes request for continuance by or in behalf the furnishing of copies of official of the applicant may be granted by the records by the Board. Requests for cop- Board if a continuance appears nec- ies of these records should be sub- essary to insure a full and fair hearing. mitted in accordance with applicable regulations governing the release of in- § 723.6 Action by the Board. formation. The BCNR can provide a re- (a) Deliberations, findings, conclusions, questor with information regarding and recommendations. (1) Only members procedures for requesting copies of of the Board and its staff shall be these records from the appropriate represent during the deliberations of the tention agency. Board. (2) Whenever, during the course of its § 723.5 Hearing. review of an application, it appears to (a) Convening of board. The Board will the Board’s satisfaction that the facts convene, recess and adjourn at the call have not been fully and fairly disclosed of the Chair or Acting Chair. by the records or by the testimony and (b) Conduct of hearing. (1) The hearing other evidence before it, the Board may shall be conducted by the Chair or Act- require the applicant or military au- ing Chair, and shall be subject to his/ thorities to provide such further infor- her rulings so as to ensure a full and mation as it may consider essential to fair hearing. The Board shall not be a complete and impartial determina- limited by legal rules of evidence but tion of the facts and issues. shall maintain reasonable bounds of (3) Following a hearing, or where the competency, relevancy, and materi- Board determines to recommend that ality. the record be corrected without a hear- (2) If the applicant, after being duly ing, the Board will make written find- notified, indicates to the Board that ings, conclusions and recommenda- he/she does not desire to be present or tions. If denial of relief is rec- to be represented by counsel at the ommended following a hearing, such hearing, the Board will consider the written findings and conclusions will case on the basis of all the material be- include a statement of the grounds for fore it, including, but not limited to, denial as described in § 723.3(e)(4). The the application for correction filed by name and final vote of each Board the applicant, any documentary evi- member will be recorded. A majority dence filed in support of such applica- vote of the members present on any tion, any brief submitted by or in be- matter before the Board will constitute half of the applicant, and all available the action of the Board and shall be so pertinent records. recorded. (3) If the applicant, after being duly (4) Where the Board deems it nec- notified, indicates to the Board that essary to submit comments or rec- he/she will be present or be represented ommendations to the Secretary as to by counsel at the hearing, and without matters arising from but not directly good cause and timely notice to the related to the issues of any case, such

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comments and recommendations shall (2) The following categories of peti- be the subject of separate communications for relief are reserved for decision tion. Additionally, in Military Whistle- by the Secretary of the Navy: blower Protection Act cases, any rec- (i) Petitions involving records pre- ommendation by the Board to the Sec- viously reviewed or acted upon by the retary that disciplinary or administra- Secretary wherein the operative facts tive action be taken against any Navy remained substantially the same; official based on the Board’s deter- (ii) Petitions by former commis- mination that the official took reprisal sioned officers or midshipmen to action against the applicant will not be change the character of, and/or the rea- made part of the Board’s record of pro- son for, their discharge; or, ceedings or furnished the applicant but will be transmitted to the Secretary as (iii) Such other petitions as, in the a separate communication. determination of Office of the Sec- (b) Minority report. In case of a dis- retary or the Executive Director, war- agreement between members of the rant Secretarial review. Board a minority report will be sub- (3) The Executive Director after en- mitted, either as to the findings, con- suring compliance with this section, clusions or recommendation, including will announce final decisions on appli- the reasons therefor. cations decided under this section. (c) Record of proceedings. Following a hearing, or where the Board determines § 723.7 Action by the Secretary. to recommend that the record be cor- (a) General. The record of pro- rected without a hearing, a record of ceedings, except in cases finalized by proceedings will be prepared. Such the Board under the authority dele- record shall indicate whether or not a gated in § 723.6(e), and those denied by quorum was present, and the name and the Board without a hearing, will be vote of each member present. The forwarded to the Secretary who will di- record shall include the application for rect such action as he or she deter- relief, a verbatim transcript of any testimony, affidavits, papers and docu- mines to be appropriate, which may in- ments considered by the Board, briefs clude the return of the record to the and written arguments, advisory opin- Board for further consideration. Those ions, if any, minority reports, if any, cases returned for further consider- the findings, conclusions and rec- ation shall be accompanied by a brief ommendations of the Board, where ap- statement setting out the reasons for propriate, and all other papers, docu- such action along with any specific in- ments, and reports necessary to reflect structions. If the Secretary’s decision a true and complete history of the pro- is to deny relief, such decision shall be ceedings. in writing and, unless he or she ex- (d) Withdrawal. The Board may per- pressly adopts in whole or in part the mit an applicant to withdraw his/her findings, conclusions and recommenda- application without prejudice at any tions of the Board, or a minority re- time before its record of proceedings is port, shall include a brief statement of forwarded to the Secretary. the grounds for denial. See § 723.3(e)(4). (e) Delegation of authority to correct (b) Military Whistleblower Protection certain naval records. (1) With respect to Act. The Secretary will ensure that de- all petitions for relief properly before cisions in cases involving the Military it, the Board is authorized to take final Whistleblower Protection Act are corrective action on behalf of the Sec- issued 180 days after receipt of the case retary, unless: and will, unless the full relief re- (i) Comments by proper naval author- quested is granted, inform applicants ity are inconsistent with the Board’s recommendation; of their right to request review of the (ii) The Board’s recommendation is decision by the Secretary of Defense. not unanimous; or Applicants will also be informed: (iii) It is in the category of petitions (1) Of the name and address of the of- reserved for decision by the Secretary ficial to whom the request for review of the Navy. must be submitted.

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(2) That the request for review must the Board shall communicate the deci- be submitted within 90 days after re- sion to the applicant. The applicant is ceipt of the decision by the Secretary entitled, upon request, to receive a of the Navy. copy of the Board’s findings, conclu- (3) That the request for review must sions and recommendations. be in writing and include: (b) Transmittal of final decisions deny- (i) The applicant’s name, address and ing relief. If the final decision of the telephone number; Secretary or the Board is to deny re- (ii) A copy of the application to the lief, the following materials will be Board and the final decision of the Sec- made available to the applicant: retary of the Navy; and (iii) A statement of the specific rea- (1) A statement of the findings, con- sons the applicant is not satisfied with clusions, and recommendations made the decision of the Secretary of the by the Board and the reasons therefor; Navy. (2) Any advisory opinions considered (4) That the request must be based on by the Board; the Board record; request for review (3) Any minority reports; and based on factual allegations or evi- (4) Any material prepared by the Sec- dence not previously presented to the retary as required in § 723.7. Moreover, Board will not be considered under this applicant shall also be informed that paragraph but may be the basis for re- the name and final vote of each Board consideration by the Board under member will be furnished or made § 723.9. available upon request and that he/she may submit new and material evidence § 723.8 Staff action. or other matter for further consider- (a) Transmittal of final decisions grant- ation. ing relief. (1) If the final decision of the Secretary is to grant the applicant’s § 723.9 Reconsideration. request for relief the record of pro- After final adjudication, further con- ceedings shall be returned to the Board for disposition. The Board shall trans- sideration will be granted only upon mit the finalized record of proceedings presentation by the applicant of new to proper naval authority for appro- and material evidence or other matter priate action. Similarly final decisions not previously considered by the of the Board granting the applicant’s Board. New evidence is defined as evi- request for relief under the authority dence not previously considered by the delegated in § 723.6(e), shall also be for- Board and not reasonably available to warded to the proper naval authority the applicant at the time of the pre- for appropriate action. vious application. Evidence is material (2) The Board shall transmit a copy if it is likely to have a substantial ef- of the record of proceedings to the fect on the outcome. All requests for proper naval authority for filing in the further consideration will be initially applicant’s service record except where screened by the Executive Director of the effect of such action would be to the Board to determine whether new nullify the relief granted. In such cases and material evidence or other matter no reference to the Board’s decision (including, but not limited to, any fac- shall be made in the service record or tual allegations or arguments why the files of the applicant and all copies of relief should be granted) has been sub- the record of proceedings and any re- mitted by the applicant. If such evi- lated papers shall be forwarded to the dence or other matter has been sub- Board and retained in a file maintained mitted, the request shall be forwarded for this purpose. to the Board for a decision. If no such (3) The addressees of such decisions shall report compliance therewith to evidence or other matter has been sub- the Executive Director. mitted, the applicant will be informed (4) Upon receipt of the record of pro- that his/her request was not considered ceedings after final action by the Sec- by the Board because it did not contain retary, or by the Board acting under new and material evidence or other the authority contained in § 723.6(e), matter.

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§ 723.10 Settlement of claims. which active duty pay and allowances (a) Authority. (1) The Department of are payable will be deducted from the the Navy is authorized under 10 U.S.C. settlement. To the extent authorized 1552 to pay claims for amounts due to by law and regulation, amounts found applicants as a result of corrections to due may be reduced by the amount of their naval records. any existing indebtedness to the Gov- (2) The Department of the Navy is ernment arising from military service. not authorized to pay any claim here- (2) Prior to or at the time of pay- tofore compensated by Congress ment, the person or persons to whom through enactment of a private law, or payments are to be made shall be ad- to pay any amount as compensation for vised by the disbursing activity of the any benefit to which the claimant nature and amount of the various bene- might subsequently become entitled fits represented by the total settlement under the laws and regulations admin- and shall be advised further that ac- istered by the Secretary of Veterans ceptance of such settlement shall con- Affairs. stitute a complete release by the (b) Application for settlement. (1) Set- claimants involved of any claim tlement and payment of claims shall be against the United States on account made only upon a claim of the person of the correction of the record. whose record has been corrected or (d) Report of settlement. In every case legal representative, heirs at law, or where payment is made, the amount of beneficiaries. Such claim for settle- such payment and the names of the ment and payment may be filed as a payee or payees shall be reported to separate part of the application for cor- the Executive Director. rection of the record. (2) When the person whose record has § 723.11 Miscellaneous provisions. been corrected is deceased, and where no demand is presented by a duly ap- (a) Expenses. No expenses of any na- pointed legal representative of the es- ture whatsoever voluntarily incurred tate, payments otherwise due shall be by the applicant, counsel, witnesses, or made to the surviving spouse, heir or by any other person in the applicant’s beneficiaries, in the order prescribed behalf, will be paid by the Government. by the law applicable to that kind of (b) Indexing of decisions. (1) Docu- payment, or if there is no such law cov- ments sent to each applicant and coun- ering order of payment, in the order set sel in accordance with § 723.3(e)(5) and forth in 10 U.S.C. 2771; or as otherwise § 723.8(a)(4), together with the record of prescribed by the law applicable to the votes of Board members and all that kind of payment. other statements of findings, conclu- (3) Upon request, the applicant or ap- sions and recommendations made on plicants shall be required to furnish final determination of an application requisite information to determine by the Board or the Secretary will be their status as proper parties to the indexed and promptly made available claim for purposes of payment under for public inspection and copying at applicable provisions of law. the Armed Forces Discharge Review/ (c) Settlement. (1) Settlement of Correction Boards Reading Room lo- claims shall be upon the basis of the cated on the Concourse of the Pen- decision and recommendation of the tagon Building in Room 2E123, Wash- Board, as approved by the Secretary or ington, DC. his designee. Computation of the (2) All documents made available for amounts due shall be made by the ap- public inspection and copying shall be propriate disbursing activity. In no indexed in a usable and concise form so case will the amount found due exceed as to enable the public to identify the amount which would otherwise those cases similar in issue together have been paid or have become due with the circumstances under and/or under applicable laws had no error or reasons for which the Board and/or Sec- injustice occurred. Earnings received retary have granted or denied relief. from civilian employment, self employ- The index shall be published quarterly ment or any income protection plan for and shall be available for public inspec- such employment during any period for tion and distribution by sale at the

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Reading Room located on the Con- 724.203 Broad objectives of naval discharge course of the Pentagon Building in review. Room 2E123, Washington, DC. Inquiries 724.204 Eligibility for naval discharge review. concerning the index or the Reading 724.205 Authority for review of naval dis- Room may be addressed to the Chief, charges; jurisdictional limitations. Micromation Branch/Armed Forces 724.206 Jurisdictional determinations. Discharge Review/Correction Boards 724.207 Disposition of applications for dis- Reading Room, Crystal Mall 4, 1941 Jef- charge review. ferson Davis Highway, Arlington, Vir- 724.208 Implementation of NDRB decisions. ginia 22202. 724.209 Evidence supporting applications. 724.210 Review action in instances of un- (3) To the extent necessary to pre- available records. vent a clearly unwarranted invasion of 724.211 Regularity of government affairs. personal privacy, identifying details of 724.212 Availability of records. the applicant and other persons will be 724.213 Attendance of witnesses. deleted from the documents made 724.214 Applicant’s expenses. available for public inspection and 724.215 Military representation. copying. Names, addresses, social secu- 724.216 Failure to appear at a hearing or respond to a scheduling notice. rity numbers and military service 724.217 Limitation—Reconsiderations. numbers must be deleted. Deletions of 724.218 Limitation—Continuance and Post- other information which is privileged ponements. or classified may be made only if a 724.219 Withdrawal of application. written statement of the basis for such 724.220 Review on motion of the NDRB. deletion is made available for public 724.221 Scheduling of discharge reviews. inspection. 724.222 Personal appearance discharge hearing sites. 724.223 NDRB support and augmentation by PART 724—NAVAL DISCHARGE regular and reserve activities. REVIEW BOARD 724.224 Court-martial specifications, presumption concerning.

Subpart A—Definitions Subpart C—Director, Secretary of the Navy Sec. Council of Review Boards and Presi- 724.101 Naval Service. dent Naval Discharge Review Board; 724.102 Naval Discharge Review Board. Responsibilities in Support of the Naval 724.103 NDRB panel. Discharge Review Board 724.104 NDRB Traveling Panel. 724.105 President of the NDRB. 724.301 Mission. 724.106 Presiding Officer, NDRB Panel. 724.302 Functions: Director, Secretary of 724.107 Discharge. the Navy Council of Review Boards. 724.108 Administrative discharge. 724.303 Functions: President, Naval Dis- 724.109 Types of administrative discharges. charge Review Board. 724.304 Responsibility for Department of the 724.110 Reason/basis for administrative dis- Navy support of the Naval Discharge Re- charge. view Board. 724.111 Punitive discharge. 724.305 Functions of the CMC and CNO. 724.112 Clemency discharge. 724.306 Functions of the Commander, Naval 724.113 Application. Medical Command. 724.114 Applicant. 724.307 Functions of the Commander, Naval 724.115 Next of kin. Reserve Force. 724.116 Counsel/Representative. 724.117 Discharge review. Subpart D—Principal Elements of the Navy 724.118 Documentary discharge review. Department Discharge Review System 724.119 Personal appearance discharge review. 724.401 Applicants. 724.120 National Capital Region (NCR). 724.402 Naval Discharge Review Board. 724.121 Decisional document. 724.403 President, Naval Discharge Review 724.122 Recorder, NDRB Panel. Board. 724.123 Complainant. 724.404 Director, Naval Council of Personnel Boards. Subpart B—Authority/Policy for 724.405 Commandant of the Marine Corps or Departmental Discharge Review the Commander, Naval Military Per- sonnel Command. 724.201 Authority. 724.406 Commander, Naval Medical Com- 724.202 Statutory/Directive Authority. mand.

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724.407 Commander, Naval Reserve Force. APPENDIX B TO PART 724—OATH OR 724.408 Secretary of the Navy. AFFIRMATIONT BE ADMINISTERED TO DIS- CHARGE REVIEW BOARD MEMBERS Subpart E—Procedural Rights of the Appli- APPENDIX C TO PART 724—SAMPLES OF FOR- cant and Administrative Actions Pre- MATS EMPLOYED BY THE NAVAL DIS- liminary to Discharge Review CHARGE REVIEW BOARD APPENDIX D TO PART 724—VETERANS’ BENE- 724.501 Procedural rights of the applicant. FITS 724.502 Actions to be taken by the applicant AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1553. preliminary to discharge review. 724.503 NDRB response to application for SOURCE: 50 FR 10943, Mar. 19, 1985, unless discharge review. otherwise noted. 724.504 NDRB actions preliminary to dis- EDITORIAL NOTE: Nomenclature changes to charge review. part 724 appear at 65 FR 62616, Oct. 19, 2000.

Subpart F—Naval Discharge Review Board Subpart A—Definitions Mission and Functions § 724.101 Naval Service. 724.601 General. 724.602 Mission. The Naval Service is comprised of the 724.603 Functions. uniformed members of the United States Navy and the United States Ma- Subpart G—Organization of the Naval rine Corps, including active and inac- Discharge Review Board tive reserve components.

724.701 Composition. § 724.102 Naval Discharge Review 724.702 Executive management. Board. 724.703 Legal counsel. An administrative board, referred to Subpart H—Procedures of the Naval as the ‘‘NDRB’’ established by the Sec- Discharge Review Board retary of the Navy pursuant to title 10 U.S.C., section 1553, for the review of 724.801 Matters to be considered in dis- discharges of former members of the charge review. Naval Service. 724.802 Applicant’s responsibilities. 724.803 The decisional document. § 724.103 NDRB panel. 724.804 Decision process. An element of the NDRB, consisting 724.805 Response to items submitted as issues by the applicant. of five members, authorized to review 724.806 Decisional issues. discharges. In plenary review session, 724.807 Record of NDRB proceedings. an NDRB panel acts with the authority 724.808 Issuance of decisions following dis- delegated by the Secretary of the Navy charge review. to the Naval Discharge Review Board. 724.809 Final disposition of the record of proceedings. § 724.104 NDRB Traveling Panel. 724.810 Availability of Naval Discharge Re- An NDRB Panel that travels for the view Board documents for public inspec- purpose of conducting personal appear- tion and copying. 724.811 Privacy Act information. ances discharge review hearings at lo- 724.812 Responsibilities of the Reading cations outside of the National Capital Room. Region (NCR). 724.813 The recommendation of the NDRB president. § 724.105 President of the NDRB. 724.814 Secretarial Review Authority (SRA). A senior officer of the Naval Service 724.815 Complaints. designated by the Secretary of the Navy who is responsible for the direct Subpart I—Standards for Discharge Review supervision of the discharge review 724.901 Objective of discharge review. function within the Naval Service. (See 724.902 Propriety of the discharge. subpart E). 724.903 Equity of the discharge. § 724.106 Presiding Officer, NDRB APPENDIX A TO PART 724—POLICY STATEMENT Panel. BY THE SECRETARY OF DEFENSE—AD- DRESSING CERTAIN CATEGORIES OF DIS- The senior member of an NDRB CHARGES Panel shall normally be the Presiding

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Officer. He/she shall convene, recess sufficiently meritorious to warrant an and adjourn the NDRB Panel as appro- Honorable Discharge. priate. (3) Under Other Than Honorable Condi- tions (formerly termed Undesirable Dis- § 724.107 Discharge. charge). A separation from the naval In the context of the review function service under conditions other than prescribed by 10 U.S.C. 1553, a discharge honorable. It is issued to terminate the or dismissal is a complete separation service of a member of the naval serv- from the Naval Service, other than one ice for one or more of the reasons/basis pursuant to the sentence of a general listed in the Naval Military Personnel court-martial. By reason of usage, the Manual, Marine Corps Separation and term ‘‘discharge’’ is predominantly ap- Retirement Manual and their prede- plicable to the separation of enlisted cessor publications. personnel for any reason, and the term (4) Entry Level Separation. (i) A sepa- ‘‘dismissal’’ to the separation of offi- ration initiated while a member is in cers as a result of Secretarial or gen- entry level status will be described as eral court-martial action. In the con- an Entry Level Separation except in text of the mission of the NDRB, the the following circumstances: term ‘‘discharge’’ used here shall, for (a) When characterization under purpose of ease of expression, include Other Than Honorable Conditions is any complete separation from the authorized and is warranted by the cir- naval service other than that pursuant cumstances of the case; or to the sentence of general court-mar- (b) When characterization of service tial. The term ‘‘discharge’’ also in- as Honorable is clearly warranted by cludes the type of discharge and the the presence of unusual circumstances reason/basis for that discharge, e.g., including personal conduct and per- Other Than Honorable/Misconduct formance of naval duty and is approved (Civil Conviction). on a case-by-case basis by the Sec- § 724.108 Administrative discharge. retary of the Navy. This characterization will be considered when the mem- A discharge upon expiration of enlist- ber is separated by reason of Selected ment or required period of service, or Changes in Service Obligation, Conven- prior thereto, in a manner prescribed ience of the Government, or Disability. by the Commandant of the Marine Corps or the Commander, Naval Per- (ii) With respect to administrative sonnel Command, but specifically ex- matters outside the administrative cluding separation by sentence of a separation system that require a char- general court-martial. acterization of service as Honorable or General, an Entry Level Separation [65 FR 62616, Oct. 19, 2000] shall be treated as the required characterization. An Entry Level Separation § 724.109 Types of administrative dis- for a member of a Reserve component charges. separated from the Delayed Entry Pro- (a) A determination reflecting a gram is under honorable conditions. member’s military behavior and per- (b) [Reserved] formance of duty during a specific period of service. The three characteriza- [50 FR 10943, Mar. 19, 1985, as amended at 51 tions are: FR 44909, Dec. 15, 1986; 65 FR 62616, Oct. 19, (1) Honorable. A separation from the 2000] naval service with honor. The issuance of an Honorable Discharge is contin- § 724.110 Reason/basis for administra- gent upon proper military behavior and tive discharge. performance of duty. The terms ‘‘reason for discharge’’ and (2) Under Honorable Conditions (also ‘‘basis for discharge’’ have the same termed General Discharge). A separa- meaning. The first is a Navy term and tion from the naval service under hon- the second is a Marine Corps term. orable conditions. The issuance of a These terms identify why an adminis- discharge under honorable conditions trative discharge was issued, e.g., Con- is contingent upon military behavior venience of the Government, Mis- and performance of duty which is not conduct. Reasons/basis for discharge

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are found in the Naval Military Per- § 724.113 Application. sonnel Manual and Marine Corps Sepa- In the context of this Manual, a writ- ration and Retirement Manual as well ten application to the NDRB for the re- as predecessor publications. view of a discharge submitted by a former member of the naval service or, § 724.111 Punitive discharge. where a former member is deceased or A discharge awarded by sentence of a incompetent, by spouse, next of kin or court-martial. There are two types of legal representative. Department of punitive discharges: Defense Form 293 must be used for the (a) Bad conduct. A separation from application. the naval service under conditions other than honorable. It may be ef- § 724.114 Applicant. fected only as a result of the approved A former member of the naval serv- sentence of a general or special court- ice who has been discharged adminis- martial. tratively in accordance with the direc- (b) Dishonorable. A separation from tives of the naval service or by sen- the naval service under dishonorable tence of a special court-martial under conditions. It may be effected only as a title 10 U.S.C. 801 et seq. (Uniform Code result of the approved sentence of a of Military Justice) and, in accordance general court-martial. with statutory and regulatory provisions: § 724.112 Clemency discharge. (a) Whose case is considered by the (a) The clemency discharge was cre- NDRB at the request of the former ated by the President on September 16, member, of, if authorized under 1974, in his Proclamation 4313, ‘‘An- § 724.113, the surviving spouse, next-of- nouncing a Program for the Return of kin or legal representative, or Vietnam Era Draft Evaders and Mili- (b) Whose case is considered on the tary Deserters.’’ Upon issuance to indi- NDRB’s own motion. viduals who have an undesirable discharge or a punitive discharge, a clem- § 724.115 Next of kin. ency discharge serves as a written tes- The person or persons in the highest timonial to the fact that the individual category of priority as determined by has satisfied the requirements of the the following list (categories appear in President’s program, and has fully descending order of priority): Sur- earned his/her return to the main- viving legal spouse; children (whether stream of American society in accord- by current or prior marriage) age 18 ance with that program. years or older in descending precedence (b) The clemency discharge is a neu- by age; father or mother, unless by tral discharge, neither honorable nor court order custody has been vested in less than honorable. It does not effect a another (adoptive parent takes prece- change in the characterization of the dence over natural parent); siblings individual’s military service as having (whole or half) age 18 years or older in been under other than honorable condi- descending precedence by age; grand- tion, nor does it serves to change, seal, father or grandmother; any other rel- erase or in any way modify the individ- ative (precedence to be determined in ual’s past military record. Therefore, if accordance with the civil law of de- the underlying discharge was issued as scent of the deceased former member’s a result of a general court-martial, the state of domicile at time of death). issuance of a Clemency Discharge does not subject the underlying character- § 724.116 Counsel/Representative. ization to review under 10 U.S.C. 1553. An individual or agency designated Clemency discharges are issued by the by the applicant who agrees to rep- Commander, Naval Military Personnel resent the applicant in a case before Command or the Commandant of the the NDRB. It includes, but is not lim- Marine Corps when an individual has ited to: a lawyer who is a member of met the requirements of the Presi- the bar of a Federal Court or of the dential Proclamation. highest court of a State; an accredited

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representative designated by an organi- § 724.121 Decisional document. zation recognized by the Administrator The written recordation of the appli- of Veterans Affairs; a representative cant’s summary of service, the issue or from a State agency concerned with issues presented together with any evi- veterans affairs; or a representative dence offered in support of the applica- from private organizations or local tion, the NDRB’s response to the issue Government agencies. or issues, the votes of the members of the panel, and any recommendations or § 724.117 Discharge review. responses by the President of the A nonadversary administrative re- NDRB or the Secretarial Reviewing appraisal at the level of the Navy De- Authority (SRA). The decisional docu- partment of discharges from the naval ment is promulgated by the ‘‘en bloc service. The object of the reappraisal is letter’’. to determine whether the discharge § 724.122 Recorder, NDRB Panel. should be changed, and if so, the nature of the change. This reappraisal in- A panel member responsible for brief- cludes the type and reason/basis for ing an applicant’s case from the docu- separation, the procedures followed in mentary evidence available prior to a discharge review, presenting the brief accomplishing separation, and the to the panel considering the applica- characterization of service. This term tion, performing other designated func- includes determinations made under tions during personal appearance dis- the provisions of 38 U.S.C. 3103(2). charge hearings, and drafting the decisional document subsequent to the § 724.118 Documentary discharge review. hearing. A formal session of the NDRB con- § 724.123 Complainant. vened for the purpose of reviewing, on A former member of the Armed the basis of documentary data, an ap- Forces (or the former member’s coun- plicant’s discharge. The Documentary sel) who submits a complaint under 32 data shall include the application to- CFR part 70 with respect to the gether with all information accom- decisional document issued in the panying that application, available former member’s own case; or a former service records, and any other informa- member of the Armed Forces (or the tion considered relevant by the NDRB. former member’s counsel) who submits a complaint under reference (b) stating [50 FR 10943, Mar. 19, 1985, as amended at 75 that correction of the decisional docu- FR 747, Jan. 6, 2010] ment will assist the former member in preparing for an administrative or judi- § 724.119 Personal appearance discharge review. cial proceeding in which the former member’s own discharge will be at A formal session of the NDRB con- issue. vened for the purpose of reviewing an applicant’s discharge on the basis of a Subpart B—Authority/Policy for personal appearance, as well as docu- Departmental Discharge Review mentary data. The personal appearance may be by the applicant or by a rep- § 724.201 Authority. resentative of the applicant, or both. The Naval Discharge Review Board, established pursuant to 10 U.S.C. 1553, § 724.120 National Capital Region (NCR). is a component of the Secretary of the Navy Council of Review Boards. On De- The District of Columbia; Prince cember 6, 2004, the Assistant Secretary Georges and Montgomery Counties in of the Navy (Manpower & Reserve Af- Maryland; Arlington, Fairfax, fairs) approved the change in name Loudoun, and Prince William Counties from Naval Council of Personnel in Virginia; and all cities and towns in- Boards to Secretary of the Navy Coun- cluded within the outer boundaries of cil of Review Boards. By SECNAVINST the foregoing counties. 5730.7 series, the Assistant Secretary of

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the Navy (Manpower and Reserve Af- charge or dismissal, or issue a new dis- fairs) is authorized and directed to act charge, to reflect its findings. for the Secretary of the Navy within (3) A review by the board established his/her assigned area of responsibility under this section shall be based on the and exercises oversight over the Sec- records of the armed forces concerned retary of the Naval Council of Review and such other evidence as may be pre- Boards. SECNAVINST 5420.135 series sented to the board. A witness may states the organization, mission, duties present evidence to the board in person and responsibilities of the Secretary of or by affidavit. A person who requests the Naval Council of Review Boards to a review under this section may appear include the Naval Discharge Review before the board in person or by coun- Board. The Chief of Naval Operations sel or an accredited representative or established the Office of Naval Dis- an organization recognized by the Ad- ability Evaluation and the Navy Coun- ministrator of Veterans’ Affairs under cil of Personnel Boards on 1 October title 38 U.S.C. 3401 et seq.’’. 1976 (OPNAVNOTE 5450 Ser 09b26/535376 (b) Pub. L. 95–126. See appendix D. of 9 Sep 1976 (Canc frp: Apr 77)). The (c) 32 CFR part 70. This provides for Chief of Naval Operations approved the uniform standards and procedures for change in name of the Office of Naval review of discharges from the military Disability Evaluation and Navy Coun- services of the Department of Defense. cil of Personnel Boards to Naval Coun- The provisions of 32 CFR part 70 are in- cil of Personnel Boards on 1 February corporated in this Manual. 1977 (OPNAVNOTE 5450 Ser 099b26/32648 (d) The Secretary of Defense memo- of 24 Jan 1977 (Canc frp: Jul 77)) with randa dated August 13, 1971 and April 28, the following mission Statement: 1972 (NOTAL). These directed a review To administer and supervise assigned for recharacterization of (1) adminis- boards and councils. trative discharges under other than [75 FR 747, Jan. 6, 2010] honorable conditions issued solely on the basis of personal use of drugs or § 724.202 Statutory/Directive Author- possession of drugs for the purpose of ity. such use, and (2) punitive discharges The NDRB, in its conduct of dis- and dismissals issued solely for convic- charge review, shall be guided by the tion of personal use of drugs and pos- applicable statutes, regulations, and session for the purpose of such use for manuals and directives of the Depart- those discharges executed as a result of ment of the Navy, and other written a case completed or in process on or be- public expressions of policy by com- fore July 7, 1971. (See appendix B). petent authority: (e) 32 CFR part 41. This prescribes pol- (a) 10 U.S.C. 1553, Review of discharge icy, standards and procedures which or dismissal: govern the administrative separation (1) ‘‘The Secretary concerned shall, of enlisted persons from the Armed after consulting the Administrator of Forces. Veterans’ Affairs, establish a board of review, consisting of five members, to § 724.203 Broad objectives of naval dis- review the discharge or dismissal charge review. (other than a discharge or dismissal by Naval discharge review shall have as sentence of a general court-martial) of its broad objectives: any former member of an armed force (a) The furtherance of good order and under the jurisdiction of his/her depart- discipline. ment upon its own motion or upon the (b) The correction of injustice or in- request of the former member or, if he/ equity in the discharge issued. she is dead, his/her surviving spouse, (c) The correction of administrative next of kin, or legal representative. A or clerical errors. motion or request for review must be made within 15 years after the date of § 724.204 Eligibility for naval dis- the discharge or dismissal.’’ charge review. (2) A board established under this Any former member of the Naval section may, subject to review by the Service, eligible for review under ref- Secretary concerned, change a dis- erence (a) or surviving spouse, next of

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kin or legal representative, shall upon (a) The application may be rejected submission of an application be af- for reason of: forded a review of the member’s dis- (1) Absence of jurisdiction; charge from the Naval Service as pro- (2) Previous review on the same evi- vided in §§ 724.205 and 724.206. Discharge dence; or review may also be initiated on the (b) The application may be with- motion of the NDRB (See § 724.220). drawn by the applicant; or (c) The application may be accepted § 724.205 Authority for review of naval discharges; jurisdictional limita- and the discharge reviewed by the tions. NDRB, resulting in, (1) Change to the discharge, or (a) The Board shall have no authority (2) No change. to: (1) Review a discharge or dismissal § 724.208 Implementation of NDRB de- resulting from a general court-martial; cisions. (2) Alter the judgment of a court- The Commandant of the Marine martial, except the discharge or dis- Corps and the Chief of Naval Oper- missal awarded may be changed for ations are responsible for imple- purposes of clemency; menting Naval Discharge Review Board (3) Revoke any discharge or dis- decisions within their respective serv- missal; ices. The Commandant of the Marine (4) Reinstate a person in the naval Corps shall be notified of decisions in service; each discharge review case and shall (5) Recall a former member to active implement the decisions within the duty; Marine Corps. The Commander, Naval (6) Change a reenlistment code; Military Personnel Command, acting (7) Make recommendations for reen- for the Chief of Naval Operations and listment to permit entry in the naval Chief of Naval Personnel, shall be noti- service or any other branch of the fied of decisions in each discharge re- Armed Forces; view case and shall implement the de- (8) Cancel or void enlistment con- cisions within the Navy. tracts; or (9) Change the reason for discharge § 724.209 Evidence supporting applica- from or to a physical disability tions. (b) Review of naval discharges shall In the absence of law, evidence or not be undertaken in instances where policy to the contrary, naval dis- the elapsed time between the date of charges shall be considered just, equi- discharge and the date of receipt of ap- table and proper as issued. When hear- plication for review exceeds fifteen ings are scheduled, applicants must be years. prepared to present their case at the scheduled time. In the absence of any § 724.206 Jurisdictional determina- other evidence, naval discharge review tions. shall be undertaken by examination of The determination as to whether the available service and health records of NDRB has jurisdiction in any case the applicant. Normally, the responsi- shall be predicated on the policy stated bility for presenting evidence from out- in § 724.205. Decisions shall be made by side available service and health administrative action without referral records shall rest with the applicant. to the NDRB. Normally, they shall be Applications in which elements of rel- made by the Executive Secretary of the evant information are obviously omit- NDRB, or they may be referred to the ted will be returned for completion and President, NDRB. resubmission.

§ 724.207 Disposition of applications § 724.210 Review action in instances of for discharge review. unavailable records. One of three dispositions will be (a) In the event that Department of made of an application for review of a the Navy personnel or health records discharge: associated with a requested review of

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discharge are not located at the custo- quested records are sent to an appro- dial activity, the following action shall priate location for copying, are copied, be taken by the NDRB prior to consid- and are returned to the headquarters of eration of the request for discharge re- the NDRB. Processing of the applica- view. tion shall then be resumed at whatever (1) A certification that the records stage of the discharge review process is are unavailable shall be obtained from practicable. Applicants are encouraged the custodial activity. to submit any request for their mili- (2) The applicant shall be notified of tary records before applying for dis- the situation and requested to provide charge review rather than after sub- such information and documents as mitting DD Form 293 to avoid delays in may be desired in support of the re- processing of applications and sched- quest for discharge review. A period of uling of reviews. Applicants and their not less than 60 days shall be allowed counsel may also examine their mili- for such documents to be submitted. At tary personnel records at the site of the expiration of this time period, the their scheduled review before the hear- review may be conducted with informa- ing. The NDRB shall notify applicants tion available to the NDRB. of the dates the records are available (3) The presumption of regularity in for examination in their standard the conduct of government affairs may scheduling information. be applicable in instances of unavailable records depending on the cir- (b) If the NDRB is not authorized to cumstances of the case. (See § 724.211) provide copies of documents that are (b) [Reserved] under the cognizance of another government department, office, or activ- [50 FR 10943, Mar. 19, 1985, as amended at 65 ity, applications for such information FR 62616, Oct. 19, 2000] must be made by the applicant to the § 724.211 Regularity of government af- cognizant authority. The NDRB shall fairs. advise the applicant of the mailing address of the government department, There is a presumption of regularity office, or activity to which the request in the conduct of governmental affairs. should be submitted. This presumption can be applied in any review unless there is substantial cred- (c) [Reserved] ible evidence to rebut the presumption. (d) The NDRB may take steps to obtain additional evidence that is rel- § 724.212 Availability of records. evant to the discharge under consider- (a) Before applying for discharge re- ation beyond that found in the official view, potential applicants or their des- military records or submitted by the ignated representatives may obtain applicant, if a review of available evi- copies of their military personnel dence suggests that it would be incom- records by submitting a General Serv- plete without the additional informa- ices Administration Standard Form tion, or when the applicant presents 180, ‘‘Request Pertaining to Military testimony or documents that require Records,’’ to the National Personnel additional information to evaluate Records Center (NPRC), 9700 Page Bou- properly. Such information shall be levard, St. Louis, MO 63132. Once the made available to the applicant, upon application for discharge review (DD request, with appropriate modifica- Form 293) is submitted, an applicant’s tions regarding classified material. military records are forwarded to the (1) In any case heard on request of an NDRB where they cannot be repro- applicant, the NDRB shall provide the duced. Submission of a request for an applicant and counsel or representa- applicant’s military records, including tive, if any, at a reasonable time before a request under the Freedom of Infor- initiating the decision process, a notice mation Act (5 U.S.C. 552) or Privacy of the availability of all regulations Act (5 U.S.C. 552a) after the DD Form and documents to be considered in the 293 has been submitted, shall result discharge review, except for documents automatically in the temporary sus- in the official personnel or medical pension of processing of the application records and any documents submitted for discharge review until the re- by the applicant. The NDRB shall also

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notify the applicant or counsel or rep- on behalf of an applicant in the presen- resentative: (a) of the right to examine tation of a case before an NDRB Panel such documents or to be provided with are advised to consult legal counsel be- copies of the documents upon request; fore undertaking such representation. (b) of the date by which such requests Such representation may be prohibited must be received; and (c) of the oppor- by 18 U.S.C. 205. tunity to respond within a reasonable period of time to be set by the NDRB. § 724.216 Failure to appear at a hear- (2) When necessary to acquaint the ing or respond to a scheduling no- applicant with the substance of a clas- tice. sified document, the classifying au- (a) Except as otherwise authorized by thority, on the request of the NDRB, the Secretary concerned, further op- shall prepare a summary of or an ex- portunity for a hearing shall not be tract from the document, deleting all made available in the following cir- references to sources of information cumstances to an applicant who has re- and other matters, the disclosure of quested a hearing: which, in the opinion of the classifying (1) When the applicant has been sent authority, would be detrimental to the a letter containing the month and loca- national security interests of the tion of a proposed hearing and fails to United States. Should preparation of make a timely response; or such summary be deemed impracti- (2) When the applicant, after being cable by the classifying authority, in- notified by letter of the time and place formation from the classified source of the hearing, fails to appear at the shall not be considered by the NDRB in appointed time, either in person or by its review of the case. representative, without having made a (e) Regulations of a military depart- prior, timely request for a continu- ment may be obtained at many instal- ation, postponement, or withdrawal. lations under the jurisdiction of the (b) In such cases, the applicant shall Military Department concerned or by be deemed to have waived the right to writing to the following address: DA a hearing, and the NDRB shall com- Military Review Boards Agency, Atten- plete its review of the discharge. Fur- tion: SFBA (Reading Room), Room ther request for a hearing shall not be 1E520, The Pentagon, Washington, DC granted unless the applicant can dem- 20310. onstrate that the failure to appear or [50 FR 10943, Mar. 19, 1985, as amended at 65 respond was due to circumstances be- FR 62616, Oct. 19, 2000] yond the applicant’s control.

§ 724.213 Attendance of witnesses. § 724.217 Limitation—Reconsider- Arrangement for attendance of wit- ations. nesses testifying in behalf of the appli- A discharge review shall not be sub- cant at discharge review hearings is ject to reconsideration except: the responsibility of the applicant. The (a) When the only previous consider- NDRB is not authorized to subpoena or ation of the case was on the motion of otherwise require their presence. the NDRB; (b) When the original discharge re- § 724.214 Applicant’s expenses. view did not involve a personal hearing Unless otherwise specified by law or and a hearing is now desired, and the regulation, expenses incurred by the provisions of § 724.216 do not apply; applicant, witnesses, or counsel/rep- (c) When changes in discharge policy resentative will not be paid by the De- are announced after an earlier review partment of Defense. The NDRB is not of an applicant’s discharge, and the authorized to issue orders or other new policy is made expressly retro- process to enable the applicant to ap- active; pear in person. (d) When the NDRB determines that policies and procedures under which § 724.215 Military representation. the applicant was discharged differ in Military officers, except those acting material respects from policies and pursuant to specific detailing by appro- procedures currently applicable on a priate authorities desiring to act for or service-wide basis to discharges of the

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type under consideration, provided for a scheduled hearing shall not be that such changes in policies or proce- construed or accepted as a withdrawal. dures represent a substantial enhancement of the rights afforded an appli- § 724.220 Review on motion of the cant in such proceedings; NDRB. (e) When an individual is to be rep- Reviews of Naval discharges may be resented by counsel or representative, initiated by the NDRB on its own mo- and was not so represented in any pre- tion (10 U.S.C. 1553) which includes re- vious consideration of the case by the views requested by the Veterans Ad- NDRB; ministration under 38 U.S.C. 101, 3103 as (f) When the case was not previously amended by Pub. L. 95–126 of October 8, considered under uniform standards published pursuant to Pub. L. 95–126 1977 (See Pub. L. 98–209). and such application is made within 15 § 724.221 Scheduling of discharge re- years after the date of discharge; or views. (g) On the basis of presentation of new, substantial, relevant evidence not (a) If an applicant requests a personal available to the applicant at the time appearance discharge review, or to be of the original review. The decision represented in absentia, the NDRB whether evidence offered by an appli- shall provide a hearing in the NCR or cant in support of a request for recon- at another site within the forty-eight sideration is in fact new, substantial, contiguous states. relevant, and was not available to the (b) The NDRB shall subsequently no- applicant at the time of the original tify the applicant and representative review will be based on a comparison of (if any) in writing of the proposed per- such evidence with the evidence con- sonal appearance hearing time and sidered in the previous discharge replace. This notice shall normally be view. If this comparison shows that the mailed thirty to sixty days prior to the evidence submitted would have had a date of the hearing. If the applicant probable effect on matters concerning elects, this time limit may be waived the propriety or equity of the dis- and an earlier date set. charge, the request for reconsideration shall be granted. (c) When an applicant requests a documentary review, the NDRB shall un- § 724.218 Limitation—Continuance and dertake the review as soon as prac- Postponements. ticable. Normally, documentary re- (a) A continuance of a discharge reviews shall be conducted in the order in view hearing may be authorized by the which they are received. President of the NDRB or presiding officer of the panel concerned, provided § 724.222 Personal appearance dis- that such continuance is of reasonable charge hearing sites. duration and is essential to achieving a (a) The NDRB shall be permanently full and fair hearing. When a proposal located, together with its administra- for continuance is indefinite, the pend- tive staff, in the NCR. The NDRB shall ing application shall be returned to the routinely conduct personal appearance applicant with the option to resubmit discharge reviews and documentary re- when the case is fully ready for review. views at this, its permanent office. (b) Postponements of scheduled re- (b) In addition, as permitted by avail- views normally shall not be permitted able resources, NDRB Panels shall other than for demonstrated good and travel to other selected sites within sufficient reason set forth by the appli- the contiguous 48 states for the pur- cant in a timely manner or for the con- pose of conducting reviews. The selec- venience of the government. tion of sites and frequency of visits § 724.219 Withdrawal of application. shall be predicated on the number of An applicant shall be permitted to requests pending within a region and withdraw an application without preju- the availability of resources. dice at any time before the scheduled review, except that failure to appear

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§ 724.223 NDRB support and aug- can presume the truth of such facts, mentation by regular and reserve unless there is a substantial credible activities. evidence to rebut this presumption; or (a) When an NDRB Panel travels for (2) If the discharge in lieu of court- the purpose of conducting hearings, it martial only required a valid preferral, shall normally select Navy or Marine the NDRB may presume that the signer Corps installations in the area visited either had personal knowledge of, or as review sites. had investigated the matters set forth, (b) The NDRB Traveling Board shall and that the charges were true in fact normally consist of members from the to the best of the signer’s knowledge NCPB and augmentees from regular and belief. 1 The weight to be given this and reserve Navy and Marine Corps presumption in determining whether sources, as required. the facts stated in the charge sheet are (c) Navy and Marine Corps activities true is a matter to be determined by in the geographical vicinity of selected the NDRB. To the extent that the dis- review sites shall provide administra- charge proceeding reflects an official tive support and augmentation to an determination that the facts stated in NDRB Panel during its visit where the charge sheet are true; that the ap- such assistance can be undertaken plicant/accused admitted the facts without interference with mission ac- stated in the charge sheet; or that the complishment. The NDRB shall coordi- applicant/accused admitted guilt of the nate requests for augmentees and ad- offense(s), then the presumption is ministrative support through Com- strengthened. In accordance with para- mandant of the Marine Corps or the graph B12f of enclosure (3) to 32 CFR Chief of Naval Reserve, as appropriate. part 70 the presumption may be rebut- (d) The administrative staff of the ted by ‘‘substantial credible evidence.’’ NDRB shall undertake all arrangements for NDRB Traveling Panel visits and shall process associated review Subpart C—Director, Secretary of documents. the Navy Council of Review [50 FR 10943, Mar. 19, 1985, as amended at 75 Boards and President Naval FR 747, Jan. 6, 2010] Discharge Review Board; Re- sponsibilities in Support of the § 724.224 Court-martial specifications, Naval Discharge Review presumption concerning. Board (a) Relevant and material facts stated in a court-martial specification, § 724.301 Mission. shall be presumed by the NDRB Panel as established facts. With respect to a To administer and supervise assigned discharge or dismissal adjudged by a boards and councils within the Depart- court-martial case tried under the Uni- ment of the Navy. form Code of Military Justice, the action may extend only to change in the § 724.302 Functions: Director, Sec- retary of the Navy Council of Re- discharge or dismissal for purposes of view Boards. clemency. This policy only applies to cases filed with the discharge review (a) Make recommendations to the board after December 6, 1983. Secretary of the Navy regarding orga- (b) Relevant and material facts stat- nization, tasking and resources of the ed in a court-martial specification, in the face of which the applicant re- 1 Charges may be preferred by any person quested a discharge for the good of the subject to the Uniform Code of Military Jus- service to avoid trial by court-martial, tice. The charges must be signed and sworn shall be considered in accordance with to before a commissioned officer authorized the following: to administer oaths, and shall state that the (1) If the applicant/accused was re- signer has personal knowledge of, or has investigated the matters set forth therein; and quired to admit the facts contained in that the charges are true in fact to the best the charge sheet, or if the discharge of the signer’s knowledge and belief. 10 authority was required to find that the U.S.C. 830 (1976) (Art. 30 Uniform Code of stated facts were true, then the NDRB Military Justice).

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NDRB and its associated administra- (g) Convene the NDRB as authorized tive support. by the Secretary of the Navy. (b) Submit recommendations to the (h) Direct the movement of the Secretary of the Navy regarding policy NDRB Traveling Panel(s) on the basis and procedures for discharge review. of regional hearing requests. (c) Provide administrative and cler- (i) Monitor the performance of the ical support for NDRB. naval discharge review system. Make (d) Inform the Secretary of the Navy recommendations for changes and im- of matters of interest to him. provements. Take action to avoid (e) Maintain a system of records, in- delays in processing of individual dis- cluding as a minimum: charge review actions. (1) Records specified for the NDRB as (j) Provide NDRB inputs for the stipulated in the procedures prescribed maintenance of a public reading file in subpart H of this Manual. and maintain associated NDRB indexes (2) Records required for the adminis- updated quarterly. tration of military and civilian per- [50 FR 10943, Mar. 19, 1985, as amended at 75 sonnel. FR 747, Jan. 6, 2010] (3) Files of correspondence received and issued. § 724.304 Responsibility for Depart- (f) Establish billet/position assignment of the Navy support of the ment criteria for the NDRB. Naval Discharge Review Board. (g) Propose to the Secretary of the The Commandant of the Marine Navy, changes to this instruction. Corps; Commander, Naval Military (h) Issue requisite precepts and re- Personnel Command; Commander, move or add members to the NDRB Naval Reserve Force; Commander, from personnel detailed to serve on the Naval Medical Command; and chiefs of Secretary of the Navy Council of Re- other bureaus and offices of the De- view Boards, or from personnel other- partment of the Navy shall provide wise made available. support, as requested, to the Naval dis- [50 FR 10943, Mar. 19, 1985, as amended at 75 charge review process. FR 747, Jan. 6, 2010] § 724.305 Functions of the CMC and § 724.303 Functions: President, Naval CNO. Discharge Review Board. In the case of Navy, CNMPC, under (a) Exercise primary cognizance the CNP, shall discharge responsibil- within the Department of the Navy for ities of the CNO. matters relating to discharge review. (a) Provide and facilitate access by (b) Supervise and direct the activi- the NDRB to service/health records and ties of the NDRB. other data associated with performance (c) Maintain appropriate liaison with of duty of applicants. discharge review activities in other (b) Advise the NDRB of developments services (use Army Discharge Review in personnel management which may Board as focal point for service coordi- have a bearing on discharge review nation). judgments. (d) Maintain coordination with the (c) Implement the discharge review Commandant of the Marine Corps decisions of the NDRB and those of (Code M) and the Commander, Naval higher authority within respective Military Personnel Command in mat- areas of cognizance. ters associated with discharge review. (d) Include the record of NDRB pro- (e) In conformance with ceedings as a permanent part of the SECNAVINST 5211.5 series, protect the service record of the applicant in each privacy of individuals in connection case. with discharge review. (e) Where appropriate, recommend (f) Assure that NDRB functions are cases for the NDRB to review on its administered in accordance with the own motion. appropriate Secretary of the Navy in- (f) Provide qualified personnel as structions dealing with privacy and ac- NDRB members, recorders and admin- cess to information. istrative staff.

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(g) Establish administrative proce- § 724.404 Director, Naval Council of dures to ensure that if a member is sep- Personnel Boards. arated from the Navy or the Marine Exercises adminstrative control and Corps under other than fully honorable oversight of the Naval discharge review conditions, the member is advised of: process. (See subpart C). (1) The right to a review of his or her discharge under provisions of 10 U.S.C. § 724.405 Commandant of the Marine 1553, and Corps or the Commander, Naval (2) The procedures for applying for Military Personnel Command. such a review. Personnel managers of the Marine (h) Provide Navy and Marine Corps Corps and the Navy; responsible for units and activities with information providing limited support to the Naval on the mission of the Naval Discharge Discharge Review Board and for imple- Review Board through entries in appro- mentation of departmental discharge priate personnel administration direc- review decisions. (See subpart C). tives. § 724.406 Commander, Naval Medical § 724.306 Functions of the Commander, Command. Naval Medical Command. Custodian of Navy and Marine Corps Under the CNO the health records. (See subpart C). COMNAVMEDCOM shall facilitate, as required, access by the NDRB to health § 724.407 Commander, Naval Reserve records of applicants. Force. Manages Naval Reserve resources. § 724.307 Functions of the Commander, Responsible for providing limited sup- Naval Reserve Force. port to the Naval Discharge Review In the case of Navy, the Board. (See subpart C). COMNAVRESFOR shall discharge the responsibilities of the CNO— § 724.408 Secretary of the Navy. (a) Upon request and within available The final authority within the De- resources, provide qualified inactive partment of the Navy in discharge re- duty reservists to serve as members of view. the NDRB. (b) Upon request, provide appropriate Subpart E—Procedural Rights of accommodations to the NDRB Trav- eling Panels for purposes of conducting the Applicant and Administra- reviews at Naval and Marine Corps Re- tive Actions Preliminary To serve Centers and aviation facilities. Discharge Review § 724.501 Procedural rights of the ap- Subpart D—Principal Elements of plicant. the Navy Department Dis- Each applicant has the following pro- charge Review System cedural rights: § 724.401 Applicants. (a) Within 15 years after the date of discharge, to make a written request As defined in § 724.114. for review of the applicant’s discharge if the discharge was other than the re- § 724.402 Naval Discharge Review sult of a general court-martial. The re- Board. quest may include such other state- As defined in § 724.102. ments, affidavits, or documentation as desired. § 724.403 President, Naval Discharge (b) To have that review conducted by Review Board. the NDRB either in the NCR or other Supervises the Naval Discharge Re- designated location, when a personal view Board. (See subpart C). appearance discharge review is desired.

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(c) To appear before the NDRB in per- person before the NDRB, arguments son, with or without counsel/represent- may be presented orally. ative; with counsel/representative con- (m) To state clearly and specifically currence, to have counsel/representa- the issue or issues which the applicant tive present the applicant’s case in the desires the NDRB to answer in writing. absence of the applicant; or to have the These must be presented in writing on review conducted based on records and DD Form 293 by the applicant or coun- any additional documentation sub- sel/representative. mitted by the applicant or counsel/rep- (n) To have the applicant’s discharge resentative. reviewed under the standards of equity (d) To request copies of any docu- and propriety outlined in subpart I. ments or other evidence to be consid- (o) To be provided with a written de- ered by the NDRB in the review of the cision on the applicant’s review. applicant’s discharge or dismissal (p) If the case is to be forwarded for other than the documents or evidence Secretarial review, to present a timely contained in the official record or sub- statement rebutting any findings, con- mitted by the applicant prior to the clusions, or reasons of the NDRB or the conduct of the formal review and to be President, NDRB, which are alleged to afforded an opportunity to examine be erroneous on the facts, against the such other documents or evidence or to substantial weight of the evidence, or be provided with copies of them. contrary to law or governing regula- (e) To withdraw the request for dis- tion, prior to that Secretarial review. charge review without prejudice at any time prior to the scheduled review, ex- [50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010] cept that failure to appear for a scheduled hearing shall not be construed or § 724.502 Actions to be taken by the accepted as a withdrawal. applicant preliminary to discharge (f) To request a continuance of the review. review when the continuance is of a (a) Application for Review of Discharge reasonable duration and essential to or Dismissal from the Armed Forces of the achieving a full and fair hearing. The United States, DD Form 293 must be request must indicate the reason why used in requesting a discharge review. the continuance is required. DD Form 293 is available at most mili- (g) To request postponement of the tary installations and regional offices discharge review for good and suffi- of the Veterans Administration. This cient reason set forth in a timely man- form is to be signed personally by the ner. applicant. In the event the discharged (h) To request reconsideration of the individual is deceased or incompetent, discharge review under the conditions the form must be signed by an author- set forth in § 724.217. ized individual as discussed in § 724.113 (i) To have access to the information of this Manual. to be considered by the NDRB prior to (b) The application is to be accom- the actual review of the applicant’s panied by: case. (1) A copy of the certificate of dis- (j) To have the applicant’s right to charge, if available; privacy protected in any review con- (2) A copy of the Armed Forces of the ducted by the NDRB. United States Report of Transfer or (k) When appearing personally before Discharge (DD–214), if available; the NDRB: (3) Certification of death, incom- (1) To introduce witnesses, docu- petency and evidence of relationship in ments, and sworn or unsworn testi- applicable cases (§ 724.113); mony. (4) Other statements, affidavits, (2) To present oral or written argu- depositions, documents and informa- ments personally or through counsel/ tion desired by the applicant to be con- representative. sidered by the NDRB. (l) To submit documents, affidavits, (c) Correspondence relating to review briefs or arguments in writing. When of naval discharges should be addressed the counsel/representative appears in to:

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Naval Discharge Review Board, 720 Kennon sence is computed without regard to Ave SE., Suite 309, Washington, DC 20374– the applicant’s normal or adjusted ex- 5023 piration of term of service. (d) NDRB telephone number is (202) (5) Discharge or dismissal of an offi- 685–6600. cer based on acceptance of the officer’s [50 FR 10943, Mar. 19, 1985, as amended at 75 resignation for the good of the service. FR 747, Jan. 6, 2010] (6) Discharge, on his/her own application, during a period of hostilities, as § 724.503 NDRB response to applica- an alien. tion for discharge review. (c) If it appears that the applicant (a) The NDRB shall acknowledge re- was discharged under one or more of ceipt of the application. the circumstances outlined in (b) In the event a documentary re- § 724.504b, a written notification will be view is requested, the applicant shall sent which informs the applicant that: normally receive no further communication from the NDRB until notified (1) An initial service record review of the decision in the case. reveals that the discharge may have (c) In the event a personal appear- been awarded under circumstances ance discharge review is requested, the which make the applicant ineligible for applicant shall be notified of the pro- receipt of VA benefits regardless of any posed time and place of this review and action taken by the NDRB. shall be advised of the availability of (2) Separate action by the Board for the official documents to be considered Correction of Naval Records (BCNR) by the NDRB. and/or the VA, in case of 180 days con- (d) A copy of NDRB correspondence secutive UA disqualification, may con- to an applicant shall be sent to the rep- fer eligibility for VA benefits. Instruc- resentative of record, if any. tions for making application to the BCNR and for contacting the VA are § 724.504 NDRB actions preliminary to discharge review. provided. (a) When each application for dis- [50 FR 10943, Mar. 19, 1985, as amended at 75 charge review is received by the NDRB, FR 747, Jan. 6, 2010] the service record and, if required, health record of the applicant will be Subpart F—Naval Discharge Re- requested from the appropriate record view Board Mission and Func- custodian. tions (b) Upon receipt, each record of service will be reviewed to determine § 724.601 General. whether or not the applicant appears to have been discharged under cir- The NDRB is a component of the Sec- cumstances which might act as a bar retary of the Navy Council of Review to Veterans’ Administration benefits Boards and has its offices located in under 38 U.S.C. 3103. These cir- the NCR. The NDRB conducts docu- cumstances of discharge are: mentary reviews and personal appear- (1) Discharge or dismissal by reason ance reviews in the NCR and, on a trav- of the sentence of a general court-mar- eling basis, at selected sites within the tial. 48 contiguous states. Regional site se- (2) Discharge as a conscientious ob- lection is predicated on the number of jector who refused to perform military pending applications accumulated from duty, to wear the uniform or otherwise a given geographical area and the re- to comply with lawful orders of com- sources available to support distant petent military authority. personal appearance reviews. The (3) Discharge as a deserter. NDRB does not maintain facilities (4) Discharge on the basis, or as part other than at its NCR offices. The pri- of the basis, of an absence without au- mary sites of NCR are: Chicago, IL; thority from active duty for a contin- Dallas, TX; and San Francisco, CA. uous period of at least 180 days, if such discharge was under conditions other [50 FR 10943, Mar. 19, 1985, as amended at 75 than honorable. Additionally, such ab- FR 747, Jan. 6, 2010]

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§ 724.602 Mission. Subpart G—Organization of the To decide, in accordance with stand- Naval Discharge Review Board ards of naval law and discipline and the § 724.701 Composition. standards for discharge review set forth in subpart I, whether a discharge The NDRB acting in plenary review or dismissal from the naval service is session shall be composed of five mem- proper and equitable, or whether it bers. Normally the members shall be should be changed. career military officers, assigned to the Secretary of the Navy Council of § 724.603 Functions. Review Boards or otherwise made available; inactive duty officers of the (a) Meet as frequently as necessary Navy and Marine Corps Reserve may to provide expeditious review of naval serve as members when designated to discharges. do so by the President, NDRB. (b) Meet at locations within the 48 (a) Presiding officers of the NDRB contiguous states as determined appro- shall normally be Navy or Marine priate on the basis of the number of Corps officers in the grade of Captain/ discharge review applications received Colonel or above. from various geographical areas and of (b) The remaining NDRB membership available resources and facilities. shall normally be not less than the (c) Review applications for review of grade of Lieutenant Commander/Major discharges. with preference being given to senior (d) In consonance with directives of grades. higher authority and the policies set (c) Normally, at least three of the forth in this Manual, grant or deny five members of the NDRB shall belong change of discharges. to the service from which the applicant whose case is under review was dis- (e) Promulgate decisions in a timely charged. manner. (d) Individual membership in the (f) Maintain a system of records. NDRB may vary within the limitations (g) Maintain liaison in discharge re- of the prescribed composition. view matters with: (e) Any member of a panel of the (1) General Counsel of the Navy. NDRB other than the presiding officer (2) Commandant of the Marine Corps. may act as recorder for cases assigned. (3) Chief of Naval Operations. The recorder will participate as a vot- (i) Commander, Naval Reserve Force. ing member of the panel. (ii) Commander, Naval Medical Com- [50 FR 10943, Mar. 19, 1985, as amended at 75 mand. FR 747, Jan. 6, 2010] (iii) Commander, Naval Military Per- sonnel Command, under the Chief of § 724.702 Executive management. Naval Personnel. The administrative affairs of the (4) Judge Advocate General of the NDRB shall be managed by the Execu- Navy. tive Secretary. This responsibility (5) Veterans’ service organizations. shall include schedules, records, cor- (6) Discharge review boards of the respondence and issuance of NDRB de- other services, using the Army Dis- cisions. charge Review Board as the focal point § 724.703 Legal counsel. for service coordination. (h) Protect the privacy of individuals Normally, the NDRB shall function whose records are reviewed. without the immediate attendance of legal counsel. In the event that a legal (i) Maintain for public access a read- advisory opinion is deemed appropriate ing file and associated index of records by the NDRB, such opinion shall be ob- of NDRB proceedings in all reviews un- tained routinely by reference to the dertaken subsequent to July 1, 1975. Counsel assigned to the Office of the Director, Secretary of the Navy Coun- cil of Review Boards. In addition, the NDRB may request advisory opinions

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from staff offices of the Department of portunity to request a specific change the Navy, including, but not limited to in the reason for discharge. If an appli- the General Counsel and the Judge Ad- cant does not request a specific change vocate General. in the reason for discharge, the NDRB will presume that the request for re- [75 FR 747, Jan. 6, 2010] view does not involve a request for change in the reason for discharge. Subpart H—Procedures of Naval Under its responsibility to examine the Discharge Review Board propriety and equity of an applicant’s discharge, the NDRB will change the § 724.801 Matters to be considered in discharge review. reason for discharge if such a change is warranted. In the process of its review of dis- (3) The applicant must ensure that charges, the NDRB shall examine issues submitted to the NDRB are con- available records and pertinent regula- sistent with the request for change in tions of the Department of the Navy, discharge set forth in block 7 of the DD together with such information as may Form 293. If an ambiguity is created by be presented by the applicant and/or a difference between and applicant’s representative, which will normally in- issue and the request in block 7, the clude: NDRB will respond to the issue in the (a) The application for discharge re- context of the action requested in view; block 7. In the case of a personal ap- (b) Statements, affidavits or docu- pearance hearing, the NDRB will at- mentation, if any, accompanying the tempt to resolve the ambiguity under application or presented during hear- § 724.802(c). ings; (c) Testimony, if any, presented dur- (b) Request for consideration of specific ing hearings; issues. An applicant may request the (d) Service and health records; Board to consider specific issues which, (e) A brief of pertinent facts ex- in the opinion of the applicant, form a tracted from the service and health basis for changing the character of or records, prepared by the NDRB re- reason for discharge, or both. In addi- corder. tion to the guidance set forth in this section, applicants should consult the § 724.802 Applicant’s responsibilities. other sections in this manual before submitting issues for consideration by (a) Request for change of discharge. An the Board. applicant may request a change in the character of or reason for discharge (or (1) Submission of issues on DD Form both). 293. Issues must be provided to the (1) Character of discharge. Block 7 of NDRB on DD Form 293 (82 Nov) before DD Form 293 provides an applicant an the NDRB closes the review process for opportunity to request a specific deliberation. change in character of discharge (for (i) Issues must be clear and specific. An example, General Discharge to Honor- issue must be stated clearly and spe- able Discharge; Other than Honorable cifically in order to enable the NDRB Discharge to General or Honorable Dis- to understand the nature of the issue charge). A person separated on or after and its relationship to the applicant’s 1 October 1982 while in an entry level discharge. status may request a change from (ii) Separate listing of issues. Each Other Than Honorable Discharge to issue submitted by an applicant should Entry Level Separation. A request for be listed separately. Submission of a review from an applicant who does not separate statement for each issue pro- have an Honorable Discharge will be vides the best means of ensuring that treated as a request for a change to an the full import of the issue is conveyed Honorable Discharge unless the appli- to the NDRB. cant requests a specific change to an- (iii) Use of DD Form 293. DD Form 293 other character of discharge. provides applicants with a standard (2) Reason for discharge. Block 7 of DD format for submitting issues to the Form 293 provides an applicant an op- NDRB, and its use:

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(A) Provides a means for an applicant with a copy of the new form and advise to set forth clearly and specifically the applicant that it will only respond those matters that, in the option of the to issues submitted on the new form in applicant, provide a basis for changing accordance with this instruction. the discharge; (2) Relationship of issues to character of (B) Assists the NDRB in focusing on or reason for discharge. If the applica- those matters considered to be impor- tion applies to both character of and tant by an applicant; reason for discharge, the applicant is (C) Assists the NDRB in distin- encouraged, but not required, to iden- guishing between a matter submitted tify the issue as applying to either the by an applicant in the expectation that character of or the reason for discharge it will be treated as a decisional issue, (or both). Unless the issue is directed and those matters submitted simply as at the reason for discharge expressly or background or supporting materials; by necessary implication, the NDRB (D) Provides the applicant with will presume that it applies solely to greater rights in the event that the ap- the character of discharge. plicant later submits a complaint con- (3) Relationship of issues to the stand- cerning the decisional document; ards for discharge review. The NDRB re- (E) Reduces the potential for dis- views discharges on the basis of issues agreement as to the content of an ap- of propriety and equity. The standards plicant’s issue. used by the NDRB are set forth in (iv) Incorporation by reference. If the § 724.804. The applicant is encouraged to applicant makes an additional written review those standards before submit- submission, such as a brief, in support ting any issue upon which the appli- of the application, the applicant may cant believes a change in discharge incorporate by reference specific issues should be based. set forth in the written submission in (i) Issues concerning the equity of the accordance with the guidance on DD discharge. An issue of equity is a mat- Form 293. The reference shall be spe- ter that involves a determination cific enough for the NDRB to identify whether a discharge should be changed clearly the matter being submitted as under the equity standards of this part. an issue. At a minimum, it shall iden- This includes any issue, submitted by tify the page, paragraph, and sentence the applicant in accordance with incorporated. Because it is to the appli- § 724.802(b)(1), that is addressed to the cant’s benefit to bring such issues to discretionary authority of the NDRB. the NDRB’s attention as early as pos- (ii) Issues concerning the propriety of a sible in the review, applicants who sub- discharge. An issue of propriety is a mit a brief are strongly urged to set matter that involves a determination forth all such issues as a separate item whether a discharge should be changed at the beginning of the brief. If it rea- under the propriety standards of this sonably appears that the applicant in- part. This includes an applicant’s issue, advertently failed expressly to incor- submitted in accordance with porate an issue which the applicant § 724.802(b)(1), in which the applicant’s clearly identifies as an issue to be ad- position is that the discharge must be dressed by the NDRB, the NDRB shall changed because of an error in the dis- respond to such an issue. (See §§ 724.805 charge pertaining to a regulation, stat- and 724.806.) ute, constitutional provision, or other (v) Effective date of the new Form DD source of law (including a matter that 293. With respect to applications pend- requires a determination whether, ing (before November 1982, the effective under the circumstances of the case, date of the new DD Form 293), the action by military authorities was ar- NDRB shall consider issues clearly and bitrary, capricious, or an abuse of dis- specifically stated in accordance with cretion). Although a numerical ref- the rules in effect at the time of sub- erence to the regulation or other mission. With respect to applications sources of law alleged to have been vio- received after November 1982, if the ap- lated is not necessarily required, the plicant submits an obsolete DD Form context of the regulation or a descrip- 293, the NDRB shall accept the application of the procedures alleged to have tion, but shall provide the applicant been violated normally must be set

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forth in order to inform the NDRB ade- cordance with this section after a re- quately of the basis for the applicant’s view of the materials noted under position. § 924.803, is made. (iii) The applicant’s identification of an (1) Issues on DD Form 293. The NDRB issue. The applicant is encouraged, but shall consider all items submitted as not required, to specify that each issue issues by an applicant on DD Form 293 pertains to the propriety or the equity (or incorported therein). of the discharge. This will assist the (2) Amendment of issues. The NDRB NDRB in assessing the relationship of shall not request or instruct an appli- the issue to propriety or equity. cant to amend or withdraw any matter (4) Citation of matter from decisions. submitted by the applicant. Any The primary function of the NDRB in- amendment or withdrawal of an issue volves the exercise of discretion on a by an applicant shall be confirmed in case-by-case basis. Applicants are not writing by the applicant. Nothing in required to cite prior decisions as the this provision: basis for a change in discharge. If the (i) Limits the NDRB’s authority to applicant wishes to bring the NDRB’s question an applicant as to the mean- attention to a prior decision as backing of such matter; ground or illustrative material, the ci- (ii) Precludes the NDRB from devel- tation should be placed in a brief or oping decisional issues based upon such other supporting documents. If, how- questions; ever, it is the applicant’s intention to (iii) Prevents the applicant from submit an issue that sets forth specific amending or withdrawing such matter principles and facts from a specific any time before the NDRB closes the cited decision, the following require- review process for deliberation; or ments with respect to applications re- (iv) Prevents the NDRB from pre- ceived on or after November 27, 1982 senting an applicant with a list of pro- apply: posed decisional issues and written in- (i) The issue must be set forth or ex- formation concerning the right of the pressly incorporated in the ‘‘Appli- applicant to add to, amend, or with- cant’s Issue’’ portion of DD Form 293. draw the applicant’s submission. The (ii) If an applicant’s issue cites a written information will state that the prior decision (of the NDRB, another applicant’s decision to take such ac- Board, an agency, or a court), the ap- tion (or decline to do so) will not be plicant shall describe the specific prin- used against the applicant in the con- ciples and facts that are contained in sideration of the case. the prior decision and explain the relevance of cited matter to the appli- (3) Additional issues identified during a cant’s case. hearing. The following additional pro- (iii) To ensure timely consideration cedure shall be used during a hearing of principles cited from unpublished in order to promote the NDRB’s under- opinions (including decisions main- standing of an applicant’s presen- tained by the Armed Forces Discharge tation. If, before closing the case for Review Board/Corrective Board Read- deliberation, the NDRB believes that ing Room), applicants must provide the an applicant has presented an issue not NDRB with copies of such decisions or listed on DD Form 293, the NDRB may of the relevant portion of the treatise, so inform the applicant, and the appli- manual or similar source in which the cant may submit the issue in writing principles were discussed. At the appli- or add additional written issues at that cant’s request, such materials will be time. This does not preclude the NDRB returned. from developing its own decisional (iv) If the applicant fails to comply issues. with requirements in § 724.802(b)(4), the § 724.803 The decisional document. decisional document shall note the defect, and shall respond to the issue A decisional document shall be pre- without regard to the citation. pared for each review. At a minimum, (c) Identification by the NDRB of issues this document shall contain: submitted by an applicant. The appli- (a) The circumstances and character cant’s issues shall be identified in ac- of the applicant’s service as extracted

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from available service records, includ- drawn or modified with the written ing health records, and information consent of the applicant need not be provided by other government authori- listed. ties or the applicant, such as, but not (f) The response to the items sub- limited to: mitted as issues by the applicant. (1) Information concerning the dis- (g) A list of decisional issues and a charge under review, including: discussion of such issues. (i) Date (YYMMDD) of discharge; (h) NDRB’s conclusions on the fol- (ii) Character of discharge; lowing: (iii) Reason for discharge; (1) Whether the character of or rea- (iv) The specific regulatory authority son for discharge should be changed. under which the discharge was issued; (2) The specific changes to be made, (v) Date (YYMMDD) of enlistment; if any. (vi) Period of enlistment; (i) A record of the voting, including: (vii) Age at enlistment; (1) The number of votes for the (viii) Length of service; NDRB’s decision and the number of (ix) Periods of unauthorized absence; votes in the minority, if any. (x) Conduct and efficiency ratings (2) The NDRB members’ names and (numerical or narrative); votes. The copy provided to the appli- (xi) Highest rank achieved; cant may substitute a statement that (xii) Awards and decorations; the names and votes will be made (xiii) Educational level; available to the applicant at the appli- (xiv) Aptitude test scores; cant’s request. (xv) Incidents of punishment pursu- (j) Advisory opinions, including those ant to Article 15, Uniform Code of Mili- containing factual information, when tary Justice (including nature and date such opinions have been relied upon for (YYMMDD) of offense or punishment); final decision or have been accepted as (xvi) Convictions by court-martial; a basis for rejecting any of the appli- (xvii) Prior military service and type cant’s issues. Such advisory opinions of discharge received. or relevant portions that are not fully (2) Any other matters in the appli- set forth in the discussion of decisional cant’s record which pertains to the dis- issues or otherwise in response to charge or the issues, or provide a clear- items submitted as issues by the appli- er picture of the overall quality of the cant shall be incorporated by reference. applicant’s service. A copy of opinions incorporated by ref- (b) A list of the type of documents erence shall be appended to the deci- submitted by or on behalf of the appli- sion and included in the record of pro- cant (including written briefs, letters ceedings. of recommendation, affidavits con- (k) The recommendation of the cerning the circumstances of the dis- NDRB president when required. charge, or other documentary evi- (l) The addendum of the SRA when dence), if any. required. (c) A statement whether the appli- (m) Index entries for each decisional cant testified, and a list of the type of issue under appropriate categories list- witnesses, if any , who testified on be- ed in the index of decisions. half of the applicant. (n) An authentication of the docu- (d) A notation whether the applica- ment by an appropriate official. tion pertained to the character of discharge, the reason for discharge, or § 724.804 Decision process. both. (a) The NDRB or the NDRB panel, as (e) A list of the items submitted as appropriate, shall meet in plenary ses- issues on DD Form 293 or expressly in- sion to review discharges and exercise corporated therein and such other its discretion on a case-by-case basis in items submitted as issues by the appli- applying the standard set forth in sub- cant that are identified as inadvert- part I. ently omitted. If the issues are listed (b) The presiding officer is respon- verbatim on DD Form 293, a copy of the sible for the conduct of the discharge relevant portion of the form may be at- review. The presiding officer shall con- tached. Issues that have been with- vene, recess, and adjourn the NDRB

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panel as appropriate and shall main- evaluation of the applicant’s overall tain an atmosphere of dignity and de- record of service and relevant regula- corum at all times. tions of the service of which the appli- (c) Each NDRB member shall act cant was a member. under oath or affirmation requiring (g) Voting shall be conducted in careful, objective consideration of the closed session, a majority of the votes application. NDRB members are re- of the five members constituting the sponsible for eliciting all facts nec- NDRB decision. essary for a full and fair review. They (h) Details of closed session delibera- shall consider all information pre- tions of the NDRB are priviledged in- sented to them by the applicant. In ad- formation and shall not be divulged. dition, they shall consider available (i) There is no requirement for a military service and health records, to- statement of minority views in the gether with other records that may be event of a split vote. in the files of the military department (j) The NDRB may request advisory concerned and relevant to the issues opinions from appropriate staff officers before the NDRB, and any other evi- of the naval service. These opinions are dence obtained in accordance with this advisory in nature and are not binding Manual. on the NDRB in its decision-making (d) The NDRB shall identify and ad- process. dress issues after a review of the fol- (k) The preliminary determinations lowing material obtained and presented required by 38 U.S.C. 3103(e) shall be in accordance with this Manual and made upon majority vote of the NDRB any implementing instructions of the concerned on an expedited basis. Such NDRB: available official records, docu- determination shall be based upon the mentary evidence submitted by or on standards set forth in this Manual. behalf of an applicant, presentation of a hearing examination, testimony by § 724.805 Response to items submitted or on behalf of an applicant, oral or as issues by the applicant. written arguments presented by or on behalf of an applicant, and any other (a) General guidance. (1) If any issue relevant evidence. submitted by an applicant contains (e) If an applicant who has requested two or more clearly separate issues, a hearing does not respond to a notifi- the NDRB should respond to each issue cation letter or does not appear for a under the guidance of this paragraph as scheduled hearing, the NDRB may if it had been set forth separately by complete the review on the basis of ma- the applicant. terial previously submitted and avail- (2) If an applicant uses a ‘‘building able service records. block’’ approach (that is, setting forth (f) Application of standards. (1) When a series of conclusions on issues that the NDRB determines that an appli- lead to a single conclusion purportedly cant’s discharge was improper, the warranting a change in the applicant’s NDRB will determine which reason for discharge), normally there should be a discharge should have been assigned separate response to each issue. based upon the facts and circumstances (3) Nothing in this paragraph pre- before the discharge authority, includ- cludes the NDRB from making a single ing the service regulations governing response to multiple issues when such reasons for discharge at the time the action would enhance the clarity of the applicant was discharged. Unless it is decisional document, but such response also determined that the discharge was must reflect an adequate response to inequitable, the provisions as to the each separate issue. characterization in the regulation (b) Decisional issues. An item sub- under which the applicant should have mitted as an issue by an applicant in been discharged will be considered in accordance with this Manual shall be determining whether further relief is addressed as a decisional issue in the warranted. following circumstances: (2) When the NDRB determines that (1) When the NDRB decides that a an applicant’s discharge was inequi- change in discharge should be granted, table, any change will be based on the and the NDRB bases its decision in

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whole or in part on the applicant’s materials considered cannot determine issue; or the relationship between the appli- (2) When the NDRB does not provide cant’s submission and the particular the applicant with the full change in circumstances of the case. This re- discharge requested, and the decision is sponse may be used only if the submis- based in whole or in part on the sion is expressed in such general terms NDRB’s disagreement on the merits that no other response is applicable. with an issue submitted by the appli- For example, if the NDRB disagrees cant. with the applicant as to the relevance (c) Response to items not addressed as of matters set forth in the submission, decisional issues. (1) If the applicant re- the NDRB normally will set forth the ceives the full change in discharge re- nature of the disagreement with requested (or a more favorable change), spect to decisional issues, or it will re- that fact shall be noted and the basis ject the applicant’s position. If the ap- shall be addressed as a decisional issue. plicant’s submission is so general that No further response is required to none of those provisions is applicable, other issues submitted by the appli- then the NDRB may state that it can- cant. not respond because the item is not (2) If the applicant does not receive specific. the full change in discharge requested with respect to either the character of § 724.806 Decisional issues. or reason for discharge (or both), the (a) General. Under the guidance in NDRB shall address the items sub- this section, the decisional document mitted by the applicant under § 724.806, shall discuss the issues that provide a (Decisional Issues) unless one of the basis for the decision whether there following responses is applicable: should be a change in the character of (i) Duplicate issues. The NDRB may or reason for discharge. In order to en- state that there is a full response to hance clarity, the NDRB should not ad- the issue submitted by the applicant dress matters other than issues relied under a specified decisional issue. This upon in the decision or raised by the response may be used only when one applicant. issue clearly duplicates another or the (1) Partial change. When the decision issue clearly requires discussion in con- changes a discharge, but does not pro- junction with another issue. vide the applicant with the full change (ii) Citations without principles and in discharge requested, the decisional facts. The NDRB may state that the ap- document shall address both the issues plicant’s issue, which consists of a cita- upon which change is granted and the tion to a decision without setting forth issues upon which the NDRB denies the any principles and facts from the deci- full change requested. sion that the applicant states are rel- (2) Relationship of issue of character of evant to the applicant’s case, does not or reason for discharge. Generally, the comply with the requirements of decisional document should specify § 724.802(b)(4). whether a decisional issue applies to (iii) Unclear issues. The NDRB may the character of or reason for discharge state that it cannot respond to an item (or both), but it is not required to do submitted by the applicant as an issue so. because the meaning of the item is un- (3) Relationship of an issue to propriety clear. An issue is unclear if it cannot or equity. (i) If an applicant identifies be understood by a reasonable person an issue as pertaining to both pro- familiar with the discharge review priety and equity, the NDRB will con- process after a review of the materials sider it under both standards. considered. (ii) If an applicant identifies an issue (iv) Nonspecific issues. The NDRB may as pertaining to the propriety of the state that it cannot respond to an item discharge (for example, by citing a pro- submitted by the applicant as an issue priety standard or otherwise claiming because it is not specific. A submission that a change in discharge is required is considered not specific if a reason- as a matter of law), the NDRB shall able person familiar with the discharge consider the issue solely as a matter of review process after a review of the propriety. Except as provided in

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§ 724.806(a)(3)(d), the NDRB is not re- (i) If a reason is based in whole or in quired to consider such an issue under part upon a regulation, statute, con- the equity standards. stitutional provision, judicial deter- (iii) If the applicant’s issue contends mination, or other source of law, the that the NDRB is required as a matter NDRB shall cite the pertinent source of of law to follow a prior decision by set- law and the facts in the record that ting forth an issue of propriety from demonstrate the relevance of the the prior decision and describing its resource of law to the particular cir- lationship to the applicant’s case, the cumstances in the case. issue shall be considered under the pro- (ii) If a reason is based in whole or in priety standards and addressed under part on a determination as to the oc- § 724.806 (a) or (b). currence or nonoccurrence of an event (iv) If the applicant’s issue sets forth or circumstances, including a factor re- principles of equity contained in a quired by applicable service regula- prior NDRB decision, describes the re- tions to be considered for determina- lationship to the applicant’s case, and tion of the character of and reason for contends that the NDRB is required as the applicant’s discharge, the NDRB a matter of law to follow the prior shall make a finding of fact for each case, the decisional document shall such event or circumstance. note that the NDRB is not bound by its (A) For each such finding, the discretionary decisions in prior cases. decisional document shall list the spe- However, the principles cited by the cific source of the information relied applicant, and the description of the upon. This may include the presump- relationship of the principles to the ap- tion of regularity in appropriate cases. plicant’s case, shall be considered and If the information is listed in the serv- addressed under the equity standards. ice record section of the decisional doc- (v) If the applicant’s issue cannot be ument, a citation is not required. identified as a matter of propriety or (B) If a finding of fact is made after equity, the NDRB shall address it as an consideration of contradictory evi- issue of equity. dence in the record (including informa- (b) Change of discharge: issues of pro- tion cited by the applicant or other- priety. If a change in the discharge is wise identified by members of the warranted under the propriety stand- NDRB), the decisional document shall ards, the decisional document shall set forth the conflicting evidence and state that conclusion and list the er- explain why the information relied rors of expressly retroactive changes in upon was more persuasive than the in- policy or violations of regulations that formation that was rejected. If the pre- provide a basis for the conclusion. The sumption of regularity is cited as the decisional document shall cite the basis for rejecting such information, facts in the record that demonstrate the decisional document shall explain the relevance of the error or change in why the contradictory evidence was in- policy to the applicant’s case. If the sufficient to overcome the presump- change in discharge does not constitute tion. In an appropriate case, the expla- the full change requested by the appli- nation as to why the contradictory evi- cant, the reasons for not granting the dence was insufficient to overcome the full change shall be set forth. presumption of regularity may consist (c) Denial of the full change requested: of a statement that the applicant failed issues of propriety. (1) If the decision re- to provide sufficient corroborating evi- jects the applicant’s position on an dence, or that the NDRB did not find issue of propriety, of if it is otherwise the applicant’s testimony to be suffi- decided on the basis of an issue of pro- ciently credible to overcome the pre- priety that the full change in discharge sumption. requested by the applicant is not war- (iii) If the NDRB disagrees with the ranted, the decisional document shall position of the applicant on an issue of note that conclusion. propriety, the following guidance ap- (2) The decisional document shall list plies in addition to the guidance in reasons for its conclusion on each issue § 724.806(c)(2) (a) and (b): of propriety under the following guid- (A) The NDRB may reject the appliance: cant’s position by explaining why it

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disagrees with the principles set forth the constitutionality of the action by in the applicant’s issue (including prin- challenging the application of a stat- ciples derived from cases cited by the ute or regulation in a particular set of applicant in accordance with circumstances, it is not sufficient to § 724.802(b)(4). respond solely by citing the presump- (B) The NDRB may reject the appli- tion of constitutionality of the statute cant’s position by explaining why the or regulation when the applicant is not principles set forth in the applicant’s challenging the constitutionality of issue (including principles derived from the statute or regulation. Instead, the cases cited by the applicant in accord- response must address the specific cir- ance with § 724.802(b)(4)) are not rel- cumstances of the case. evant to the applicant’s case. (d) Denial of the full change in dis- (C) The NDRB may reject an appli- charge requested when propriety is not at cant’s position by stating that the ap- issue. If the applicant has not sub- plicant’s issue of propriety is not a mitted an issue of propriety and the matter upon which the NDRB grants a change in discharge, and by providing NDRB has not otherwise relied upon an an explanation for this position. When issue of propriety to change the dis- the applicant indicates that the issue charge, the decisional document shall is to be considered in conjunction with contain a statement to that effect. The one or more other specified issues, the NDRB is not required to provide any explanation will address all such speci- further discussion as to the propriety fied issues. of the discharge. (D) The NDRB may reject the appli- (e) Change of discharge: issues of eq- cant’s position on the grounds that uity. If the NDRB concludes that a other specified factors in the case pre- change in the discharge is warranted clude granting relief, regardless of under the equity standards, the whether the NDRB agreed with the ap- decisional document shall list each plicant’s position. issue of equity upon which this conclu- (E) If the applicant take the position sion is based. The NDRB shall cite the that the discharge must be changed be- facts in the record that demonstrate cause of an alleged error in a record as- the relevance of the issue to the appli- sociated with the discharge, and the cant’s case. If the change in discharge record has not been corrected by the does not constitute the full change reorganization with primary responsi- quested by the applicant, the reasons bility for corrective action, the NDRB for not giving the full change requested may respond that it will presume the shall be discussed. validity of the record in the absence of (f) Denial of the full change in dis- such corrective action. If the organiza- charge requested: issues of equity. (1) If tion empowered to correct the record is the NDRB rejects the applicant’s posi- within the Department of Defense, the tion on an issue of equity, or if the de- NDRB should provide the applicant cision otherwise provides less than the with a brief description of the proce- full change in discharge requested by dures for requesting correction of the record. If the NDRB on its own motion the applicant, the decisional document cites this issue as a decisional issue on shall note that conclusion. the basis of equity, it shall address the (2) The NDRB shall list reasons for issue. its conclusion on each issue of equity (F) When an applicant’s issue con- under the following guidance: tains a general allegation that a cer- (i) If a reason is based in whole or in tain course of action violated his or her part upon a regulation, statute, con- constitutional rights, the NDRB may stitutional provision, judicial deter- respond in appropriate cases by noting mination, or other source of law, the that the action was consistent with NDRB shall cite the pertinent source of statutory or regulatory authority, and law and the facts in the record that by citing the presumption of constitu- demonstrate the relevance of the tionality that attaches to statutes and source of law to the exercise of discre- regulations. If, on the other hand, the tion on the issue of equity in the appli- applicant makes a specific challenge to cant’s case.

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(ii) If a reason is based in whole or in cases cited by the applicant) are not part on a determination as to the oc- relevant to the applicant’s case. currence or nonoccurrence of an event (C) The NDRB may reject an appli- or circumstance, including a factor re- cant’s position by explaining why the quired by applicable service regula- applicant’s issue is not a matter upon tions to be considered for determina- which the NDRB grants a change in tion of the character of and reason for discharge as a matter of equity. When the applicant’s discharge, the NDRB 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. other specified issues, the explanation (A) For each such finding, the will address all such specified issues. decisional document shall list the spe- (D) The NDRB may reject the appli- cific source of the information relied cant’s position on the grounds that upon. This may include the presump- other specified factors in the case pre- tion of regularity in appropriate cases. clude granting relief, regardless of If the information is listed in the serv- whether the NDRB agrees with the ap- ice record section of the decisional doc- plicant’s position. ument, a citation is not required. (E) If the applicant takes the posi- (B) If a finding of fact is made after tion that the discharge should be consideration of contradictory evi- changed as a matter of equity because dence in the record (including informa- of an alleged error in a record associ- tion cited by the applicant or other- ated with the discharge, and the record wise indentified by members of the has not been corrected by the organiza- NDRB), the decisional document shall tion with primary responsibility for set forth the conflicting evidence and corrective action, the NDRB may re- explain why the information relied spond that it will presume the validity upon was more persuasive than the in- of the record in the absence of such corrective action. However, the NDRB formation that was rejected. If the pre- will consider whether it should exercise sumption of regularity is cited as the its equitable powers to change the dis- basis for rejecting such information, charge on the basis of the alleged error. the decisional document shall explain If it declines to do so, it shall explain why the contradictory evidence was in- why the applicant’s position did not sufficient to overcome the presump- provide a sufficient basis for the tion. In an appropriate case, the expla- change in the discharge requested by nation as to why the contradictory evi- the applicant. dence was insufficient to overcome the (iv) When NDRB concludes that ag- presumption of regularity may consist gravating factors outweigh mitigating of a statement that the applicant failed factors, the NDRB must set forth rea- to provide sufficient corroborating evi- sons such as the seriousness of the of- dence, or that the NDRB did not find fense, specific circumstances sur- the applicant’s testimony to be suffi- rounding the offense, number of of- ciently credible to overcome the pre- fenses, lack of mitigating cir- sumption. cumstances, or similar factors. The (iii) If the NDRB disagrees with the NDRB is not required however, to ex- postion of the applicant on an issue of plain why it relied on any such factors equity, the following guidance applies unless the applicability or weight of in addition to the guidance in para- such a factor is expressly raised as an graphs above: issue by the applicant. (A) The NDRB may reject the appli- (v) If the applicant has not submitted cant’s position by explaining why it any issues and the NDRB has not oth- disagrees with the principles set forth erwise relied upon an issue of equity in the applicant’s issue (including prin- for a change in discharge, the ciples derived from cases cited by the decisional document shall contain a applicant). statement to that effect, and shall note (B) The NDRB may reject the appli- that the major factors upon which the cant’s position by explaining why the discharge was based are set forth in the principles set forth in the applicant’s service record portion of the decisional issue (including principles derived from document.

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§ 724.807 Record of NDRB proceedings. § 724.809 Final disposition of the record of proceedings. (a) When the proceedings in any review have been concluded, a record The original decisional document and thereof will be prepared. Records may all appendices thereto, shall in all include written records, electro- cases be incorporated in the military magnetic records, audio and/or video- service record of the applicant and the tape recordings, or a combination. service record shall be returned to the (b) At a minimum, the record will in- custody of the appropriate record hold- clude the following: ing facility. If a portion of the original (1) The application for review; record of proceedings cannot be stored (2) A record of the testimony in ei- with the service record, the service ther verbatim, summarized, or re- record shall contain a notation as to corded form at the option of the NDRB; the place where the record is stored. (3) Documentary evidence or copies, Other copies including any electro- other than the military service record magnetic records, audio and/or video- considered by the NDRB; tape recordings or any combination thereof shall be filed in the NDRB case (4) Briefs and arguments submitted folder and disposed of in accordance by or on behalf of the applicant; with appropriate naval regulations. (5) Advisory opinions considered by the NDRB, if any: § 724.810 Availability of Naval Dis- (6) The findings, conclusions, and rea- charge Review Board documents sons developed by the NDRB; for public inspection and copying. (7) Notification of the NDRB’s deci- (a) A copy of the decisional document sion to the cognizant custodian of the prepared in accordance with subpart H applicant’s records, or reference to the of this enclosure shall be made avail- notification document; able for public inspection and copying (8) A copy of the decisional docu- promptly after a notice of final deci- ment. sion is sent to the applicant. (b) To prevent a clearly unwarranted § 724.808 Issuance of decisions fol- invasion of personal privacy, identi- lowing discharge review. fying details of the applicant and other The applicant and counsel or rep- persons will be deleted from documents resentative, if any, shall be provided made available for public inspection with a copy of the decisional document and copying. and of any further action in review. (1) Names, addresses, social security Final notification of decisions shall be numbers, and military service numbers issued to the applicant with a copy to must be deleted. Written justification the counsel or representative, if any, shall be made for all other deletions and to the service manager concerned. and shall be available for public inspec- (a) Notification to applicants, with tion. copies to counsel or representatives, (2) The NDRB shall ensure that there shall normally be made through the is a means for relating a decisional U.S. Postal Service. Such notification document number to the name of the shall consist of a notification of deci- applicant to permit retrieval of the ap- sion, together with a copy of the plicant’s records when required in proc- decisional document. essing a complaint. (b) Notification to the service man- (c) Any other privileged or classified ager shall be for the purpose of appro- material contained in or appended to priate action and inclusion of review any documents required by this Man- matter in personnel records. Such noti- ual to be furnished the applicant and fication shall bear appropriate certifi- counsel or representative or made cation of completeness and accuracy. available for public inspection and (c) Actions on review by superior au- copying may be deleted only if a writ- thority, when occurring, shall be pro- ten statement on the basis for the dele- vided to the applicant and counsel or tions is provided the applicant and representative in the same manner as counsel or representative and made to the notification of the review deci- available for public inspection. It is sion. not intended that the statement be so

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detailed as to reveal the nature of the index shall be provided in the NDRB’s withheld material. response to the application. (d) NDRB documents made available for public inspection and copying shall § 724.811 Privacy Act information. be located in the Armed Forces Dis- Information protected under the Pri- charge Review/Correction Board Read- vacy Act is involved in the discharge ing Room. The documents shall be in- review functions. The provisions of dexed in a usable and concise form so SECNAVINST 5211.5C shall be observed as to enable the public, and those who throughout the processing of a request represent applicants before the NDRB, for review of discharge or dismissal. to isolate from all these decisions that are indexed, those cases that may be § 724.812 Responsibilities of the Read- similar to an applicant’s case and that ing Room. indicate the circumstances under or (a) Copies of decisional documents reasons for (or both) which the NDRB will be provided to individuals or orga- or the Secretary concerned granted or nizations outside the NCR in response denied relief. to written requests for such docu- (1) The reading file index shall in- ments. Although the Reading Room clude, in addition to any other item de- shall try to make timely responses to termined by the NDRB, the case num- such requests, certain factors such as ber, the date, character of, reason and the length of a request, the volume of authority for the discharge. It shall other pending requests, and the impact also include the decisions of the NDRB of other responsibilities of the staff as- and reviewing authority, if any, and signed to such duties may cause some the issues addressed in the statement delays. A fee may be charged for such of findings, conclusions, and reasons. documents under appropriate DOD and (2) The index shall be maintained at Department of the Army directives and selected permanent locations through- regulations. The manual that accom- out the United States. This ensures panies the index of decisions shall no- reasonable availability to applicants at tify the public that if an applicant in- least 30 days before a traveling panel dicates that a review is scheduled for a review. A list of these locations shall specific date, an effort will be made to provide requested decisional docu- be published in the FEDERAL REGISTER by the Department of the Army. The ments before that date. The individual index shall also be made available at or organization will be advised if that sites selected for traveling panels or cannot be accomplished. hearing examinations for such periods (b) Correspondence relating to mat- as the NDRB is present and in oper- ters under the cognizance of the Read- ation. An applicant who has requested ing Room (including requests for purchase of indexes) shall be addressed to: a traveling panel review shall be advised, in the notice of such review, of DA Military Review Board Agency, Atten- the permanent index locations. tion: SFBA (Reading Room), Room 1E520, (3) The Armed Forces Discharge Re- The Pentagon, Washington, DC 20310. view/Corrections Board Reading Room shall publish indexes quarterly for all § 724.813 The recommendation of the DRBs. The NDRB shall be responsible NDRB president. for timely submission to the Reading (a) General. The president of the Room of individual case information NDRB may forward cases for consider- required for update of the indexes. In ation by the Secretarial Review Au- addition, the NDRB shall be respon- thority (SRA). There is no requirement sible for submission of new index cat- that the president submit a rec- egories based upon published changes ommendation when a case is forwarded in policy, procedures, or standards. to the SRA. If the president makes a These indexes shall be available for recommendation with respect to the public inspection or purchase (or both) character of or reason for discharge, at the Reading Room. When the NDRB however, the recommendation shall be has accepted an application, informa- prepared under the guidance in tion concerning the availability of the § 724.813b.

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(b) Format for recommendation. If a (1) The SRA may review the fol- recommendation is provided, it shall lowing types of cases before issuance of contain the president’s view whether the final notification of a decision: there should be a change in the char- (i) Any specific case in which the acter of or reason for discharge (or SRA has an interest. both). If the president recommends (ii) Any specific case that the presi- such a change, the particular change to dent of the NDRB believes is of signifi- be made shall be specified. The rec- cant interest to the SRA. ommendation shall set forth the presi- (2) Cases reviewed by the SRA shall dent’s position on decisional issues and be considered under the standards set issues submitted by the applicant forth in this part. under the following guidance: (b) Processing the decisional document. (1) The decisional document shall be (1) Adoption of the NDRB’s decisional transmitted by the NDRB president document. The recommendation may under § 724.813. state that the president has adopted (2) The following guidance applies to the decisional document prepared by cases that have been forwarded to the the majority. The president shall en- SRA except for cases reviewed on the sure that the decisional document NDRB’s own motion, without the par- meets the requirements of this enclo- ticipation of the applicant or the appli- sure. cant’s counsel: (2) Adoption of the specific statements (i) The applicant and counsel or rep- from the majority. If the President resentative, if any, shall be provided adopts the views of the majority only with a copy of the proposed decisional in part, the recommendation shall cite document, including the NDRB presi- the specific matter adopted from the dent’s recommendation to the SRA, if majority. If the president modifies a any. Classified information shall be statement submitted by the majority, summarized. the recommendation shall set forth the (ii) The applicant shall be provided modification. with a reasonable period of time, but (3) Response to issues not included in not less than 25 days, to submit a re- matter adopted from the majority. The buttal to the SRA. Any issue in rebut- recommendation shall set forth the fol- tal consists of a clear and specific lowing if not adopted in whole or in statement by the applicant in support part from the majority: of or in opposition to the statements of (i) The issues on which the presi- the NDRB or NDRB president on dent’s recommendation is based. Each decisional issues and other clear and such decisional issue shall be addressed specific issues that were submitted by by the president. the applicant. The rebuttal shall be (ii) The president’s response to items based solely on matters in the record before the NDRB closed the case for de- submitted as issues by the applicant. liberation or in the president’s rec- (iii) Reasons for rejecting the conclu- ommendation. sion of the majority with respect to the (c) Review of the decisional document. decisional document which, if resolved If corrections in the decisional docu- in the applicant’s favor, would have re- ment are required, the decisional docu- sulted in greater relief for the appli- ment shall be returned to the NDRB cant than that afforded by the presi- for corrective action. The corrected dent’s recommendation. Such issues decisional document shall be sent to shall be addressed under the principles the applicant (and counsel, if any), but in § 724.806. a further opportunity for rebuttal is not required unless the correction pro- § 724.814 Secretarial Review Authority duces a different result or includes a (SRA). substantial change in the decision by (a) Review by the SRA. The Secre- the NDRB (or NDRB president) of the tarial Review Authority (SRA) is the issues raised by the majority or the ap- Secretary concerned or the official to plicant. whom Secretary’s discharge review au- (d) The addendum of the SRA. The de- thority has been delegated. cision of the SRA shall be in writing

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and shall be appended as an addendum sion. Such issues shall be addressed to the decisional document under the under the principles in § 724.806(f). guidance in this subsection. (B) The SRA’s response to items sub- (1) The SRA’s decision. The addendum mitted as issues by the applicant. shall set forth the SRA’s decision (3) Response to the rebuttal. (i) If the whether there will be a change in the SRA grants the full change in dis- character of or reason for discharge (or charge requested by the applicant (or a both); if the SRA concludes that a more favorable change), that fact shall change is warranted, the particular be noted, the decisional issues shall be change to be made shall be specified. If addressed and no further response to the SRA adopts the decision rec- the rebuttal is required. ommended by the NDRB or the NDRB (ii) If the SRA does not grant the full president, the decisional document change in discharge requested by the shall contain a reference to the matter applicant (or a more favorable change), adopted. the addendum shall list each issue in (2) Discussion of issues. In support of rebuttal submitted by an applicant in the SRA’s decision, the addendum shall accordance with this section, and shall set forth the SRA’s position on set forth the response of the SRA under decisional issues, items submitted as the following guidance: issues by an applicant and issues raised (A) If the SRA rejects an issue in re- by the NDRB and the NDRB president buttal, the SRA may respond in ac- in accordance with the following guid- cordance with the principals in ance: § 724.806. (i) Adoption of the NDRB president’s (B) If the matter adopted by the SRA recommendation. The addendum may provides a basis for the SRA’s rejection state that the SRA has adopted the of the rebuttal material, the SRA may NDRB president’s recommendation. note that fact and cite the specific (ii) Adoption of the NDRB’s proposed matter adopted that responds to the decisional document. The addendum may issue in rebuttal. state that the SRA has adopted the (C) If the matter submitted by the proposed decisional document prepared applicant does not meet the require- by the NDRB. ments for rebuttal material, that fact (iii) Adoption of specific statements shall be noted. from the majority or the NDRB president. (4) Index entries. Appropriate index If the SRA adopts the views of the entries shall be prepared for the SRA’s NDRB or the NDRB president only in actions for matters that are not adopt- part, the addendum shall cite the spe- ed from the NDRB’s proposed cific statements adopted. If the SRA decisional document. modifies a statement submitted by the § 724.815 Complaints. NDRB or the NDRB president, the addendum shall set forth the modifica- A complaint is any correspondence in tion. which it is alleged that a decisional (iv) Response to issues not included in document issued by the NDRB or the matter adopted from the NDRB or the SRA contains a specifically indentified NDRB president. The addendum shall violation of 32 CFR part 70 or any ref- set forth the following if not adopted in erences thereto. Complaints will be re- whole or in part from the NDRB or the viewed pursuant to 32 CFR part 70. NDRB president: (A) A list of the issues on which the Subpart I—Standards for SRA’s decision is based. Each such Discharge Review decisional document issue shall be addressed by the SRA. This includes rea- § 724.901 Objective of discharge re- sons for rejecting the conclusion of the view. NDRB or the NDRB president with re- The objective of a discharge review is spect to decisional issues which, if re- ot examine the propriety and equity of solved in the applicant’s favor, would the applicant’s discharge and to effect have resulted in a change to the dis- changes, if necessary. The standards of charge more favorable to the applicant the review and the underlying factors than that afforded by the SRA’s deci- which aid in determining whether the

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standards are met shall be consistent not bind the NDRB in its review of sub- with historical criteria for determining sequent cases because no two cases honorable service. No factors shall be present the same issues of equity. established that require automatic (d) The following applies to appli- change or denial of a change in a dis- cants who received less than fully hon- charge. Neither the NDRB nor the Sec- orable administrative discharges be- retary of the Navy shall be bound by cause of their civilian misconduct any methodology of weighting of the while in an inactive duty status in a factors in reaching a determination. In reserve component and who were dis- each case, the NDRB shall give full, charged or had their discharge re- fair, and impartial consideration to all viewed on or after April 20, 1971: the applicable factors before reaching a de- NDRB shall either recharacterize the cision. An applicant may not receive a discharge to Honorable without any ad- less favorable discharge than that ditional proceedings or additional pro- issued at the time of separation. This ceedings shall be conducted in accord- does not preclude correction of clerical ance with the Court’s Order of Decem- errors. ber 3, 1981, in Wood v. Secretary of De- fense to determine whether proper § 724.902 Propriety of the discharge. grounds exist for the issuance of a less (a) A discharge shall be deemed to be than honorable discharge, taking into proper unless, in the course of dis- account that: charge review, it is determined that: (1) An other than honorable (for- (1) There exists an error of fact, law, merly undesirable) discharge for an in- procedure, or discretion associated active duty reservist can only be based with the discharge at the time of upon civilian misconduct found to have issuance; and that the rights of the ap- affected directly the performance of plicant were prejudiced thereby (such military duties; error shall constitute prejudicial error (2) A general discharge for an inac- if there is substantial doubt that the tive duty reservist can only be based discharge would have remained the upon civilian misconduct found to have same if the error had not been made); had an adverse impact on the overall or effectiveness of the military, including (2) A change in policy by the military military morale and efficiency. service of which the applicant was a member, made expressly retroactive to § 724.903 Equity of the discharge. the type of discharge under consideration, requires a change in the dis- A discharge shall be deemed to be eq- charge. uitable unless: (b) When a record associated with the (a) In the course of a discharge re- discharge at the time of issuance in- view, it is determined that the policies volves a matter in which the primary and procedures under which the appli- responsibility for corrective action cant was discharged differ in material rests with another organization (for ex- respects from policies and procedures ample, another Board, agency, or currently applicable on a service-wide court) the NDRB will recognize an basis to discharges of the type under error only to the extent that the error consideration, provided that: has been corrected by the organization (1) Current policies or procedures rep- with primary responsibility for cor- resent a substantial enhancement of recting the record. the rights afforded a respondent in (c) The primary function of the such proceedings; and NDRB is to exercise its discretion on (2) There is substantial doubt that issues of equity by reviewing the indi- the applicant would have received the vidual merits of each application on a same discharge, if relevant current case-by-case basis. Prior decisions in policies and procedures had been avail- which the NDRB exercised its discre- able to the applicant at the time of the tion to change a discharge based on discharge proceedings under consider- issues of equity (including the factors ation. cited in such decisions or the weight (b) At the time of issuance, the dis- given to factors in such decisions) do charge was inconsistent with standards

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of discipline in the military service of (i) Total capabilities. This includes an which the applicant was a member. evaluation of matters such as age, edu- (c) In the course of a discharge re- cational level, and aptitude scores. view, it is determined that relief is Consideration may also be given as to warranted based upon consideration of whether the individual met normal the applicant’s service record and other military standards of acceptability for evidence presented to the NDRB viewed military service and similar indicators in conjunction with the factors listed of an individual’s ability to serve satis- in this paragraph and the regulations factorily, as well as ability to adjust to under which the applicant was dis- military service. charged, even though the discharge was (ii) Family and personal problems. This determined to have been otherwise eq- includes matters in extenuation or uitable and proper at the time of mitigation of the reason for discharge issuance. Areas of consideration in- that may have affected the applicant’s clude, but are not limited to: ability to serve satisfactorily. (1) Quality of service, as evidenced by (iii) Arbitrary or capricious actions. factors such as: This includes actions by individuals in (i) Service history, including date of authority which constiute a clear enlistment, period of enlistment, high- abuse of such authority and that, al- est rank achieved, conduct and pro- though not amounting to prejudicial ficiency ratings (numerical and nar- error, may have contributed to the de- rative); cision to discharge the individual or (ii) Awards and decorations; unduly influence the characterization (iii) Letters of commendation or rep- of service. rimand; (iv) Discrimination. This includes un- (iv) Combat service; authorized acts as documented by (v) Wounds received in action; records or other evidence. (vi) Records of promotions and demo- tions; APPENDIX A TO PART 724—POLICY (vii) Level of responsibility at which STATEMENT BY THE SECRETARY OF the applicant served; DEFENSE—ADDRESSING CERTAIN CATEGORIES OF DISCHARGES (viii) Other acts of merit that may not have resulted in formal recognition Secretary of Defense memorandum of Au- through an award or commendation; gust 13, 1971, to the Secretaries of the Mili- (ix) Length of service during the tary Departments, The Chairman, Joint service period which is the subject of Chiefs of Staff; Subject: Review of Dis- the discharge review; charges Under Other Than Honorable Condi- tions Issued to Drug Users: (x) Prior military service and type of discharge received or outstanding post ‘‘Consistent with Department of Defense service conduct to the extent that such Directive 1300.11, October 23, 1970, and my memorandum of July 7, 1971, concerning re- matters provide a basis for a more habilitation and treatment of drug users, ad- thorough understanding of the per- ministrative discharges under other than formance of the applicant during the honorable conditions issued solely on the period of service which is the subject of basis of personal use of drugs or possession of the discharge review; drugs for the purpose of such use will be re- (xi) Convictions by court-martial; viewed for recharacterization. (xii) Records of nonjudicial punish- ‘‘Accordingly, each Secretary of a Military Department, acting through his/her Dis- ment; charge Review Board, will consider applica- (xiii) Convictions by civil authorities tions for such review from former service while a member of the service, re- members. Each Secretary is authorized to flected in the discharge proceedings or issue a discharge under honorable conditions otherwise noted in the service records; upon establishment of facts consistent with (xiv) Records of periods of unauthor- this policy. Former service members will be ized absence; notified of the results of the review. The Vet- erans’ Administration will also be notified of (xv) Records relating to a discharge the names of former service members whose in lieu of court-martial. discharges are recharacterized. (2) Capability to serve, as evidenced ‘‘The statute of limitations for review of by factors such as: discharges within the scope of this policy

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will be in accordance with 10 United States will, without regard to the status of the indi- Code 1553. vidual in any case, render my individual ‘‘This policy shall apply to those service judgment according to the facts, my con- members whose cases are finalized or in science and the law and regulations applica- process on or before July 7, 1971’’. ble to review of naval discharges, so help me Secretary of Defense memorandum of April God. 28, 1972, to Secretaries of the Military De- partments, Chairman, Joint Chiefs of Staff; APPENDIX C TO PART 724—SAMPLES OF Subject: Review of Punitive Discharges FORMATS EMPLOYED BY THE NAVAL Issued to Drug Users: DISCHARGE REVIEW BOARD ‘‘Reference is made to Secretary Packard’s memorandum of July 7, 1971, concerning re- Attach- Form Title habilitation and treatment of drug users, ment and my memorandum of August 13, 1971, sub- 1 Letter ...... En Block Notification of Decision to ject: ‘Review of Discharges Under Other Commander, Naval Military Per- Than Honorable Conditions Issued to Drug sonnel Command (No Change). Users.’ 2 ...... do ...... En Block Notification of Decision to ‘‘My August 13, 1971 memorandum estab- Commander, Naval Military Per- lished the current Departmental policy that sonnel Command (Change). administrative discharges under other than 3 ...... do ...... En Block Notification of Decision to honorable conditions issued solely on the Commandant, Marine Corps (No basis of personal use of drugs or possession of Change). 4 ...... do ...... En Block Notification of Decision to drugs for the purpose of such use will be re- Commandant, Marine Corps viewed for recharacterization to under hon- (Change). orable conditions. ‘‘It is my desire that this policy be ex- NOTE: The Forms appearing in appendix C panded to include punitive discharges and are not carried in the Code of Federal Regu- dismissals resulting from approved sentences lations. of courts-martial issed solely for conviction of personal use of drugs or possession of APPENDIX D TO PART 724—VETERANS’ drugs for the purpose of such use. BENEFITS ‘‘Review and recharacterization are to be effected, upon the application of former serv- 91 Stat. 1106 ice members, utilizing the procedures and Pub. L. 95–126, Oct. 8, 1977 authority set forth in Title 10, United States 95th Congress Code, sections 874(b), 1552 and 1553. ‘‘This policy is applicable only to dis- An Act charges which have been executed on or be- To deny entitlement to veterans’ benefits fore July 7, 1971, or issued as a result of a to certain persons who would otherwise be- case in process on or before July 7, 1971. come so entitled solely by virtue of the ad- ‘‘Former service members requesting a re- ministrative upgrading under temporarily view will be notified of the results of the re- revised standards of other than honorable view. The Veterans’ Administration will also discharges from service during the Vietnam be notified of the names of former service era; to require case-by-case review under members whose discharges are recharacter- uniform, historically consistent, generally ized.’’ appli cable standards and procedures prior to the award of veterans’ benefits to persons ad- APPENDIX B TO PART 724—OATH OR AF- ministratively discharged under other than FIRMATION TO BE ADMINISTERED TO honorable conditions from active military, DISCHARGE REVIEW BOARD MEM- naval, or air service; and for other purposes. BERS Be it enacted by the Senate and the House of Representatives of the United States of Prior to undertaking duties as a Board America in Congress assembled, That (a) sec- member, each person assigned to such duties tion 3103 of Title 38, United States Code, is in the precept of the Board shall execute the amended by— following oath or affirmation which shall (1) Inserting ‘‘or on the basis of an absence continue in effect throughout service with without authority from active duty for a the Board. continuous period of at least one hundred and eighty days if such person was dis- Oath/Affirmation charged under conditions other than honor- I, llllll, do swear or affirm that I able unless such person demonstrates to the will faithfully and impartially perform all satisfaction of the Administrator that there the duties incumbent upon me as a member are compelling circumstances to warrant of the Naval Discharge Review Board; that I such prolonged unauthorized absence.’’ after will fully and objectively inquire into and ‘‘deserter,’’ in subsection (a), and by insert- examine all cases coming before me; that I ing a coma and ‘‘notwithstanding any action

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subsequent to the date of such discharge by (ii) on its own initiative within one year a board established pursuant to section 1553 after the date of enactment of this paragraph of title 10’’ before the period at the end of in any case where a general or honorable dis- such subsection; and charge has been awarded on or prior to the (2) Adding at the end of such section the date of enactment of this paragraph under following new subsection: revised standards referred to in clause (A) (i), ‘‘(e)(1) Notwithstanding any other provi- (ii), or (iii) of this paragraph, or (iii) on its sion of law, (A) no benefits under laws ad- own initiative at the time a general or hon- ministered by the Veterans’ Administration orable discharge is so awarded in any case shall be provided, as a result of a change in where a general or honorable discharge is or new issuance of a discharge under section awarded after such enactment date. 1553 of title 10, except upon a case-by-case re- ‘‘If such board makes a preliminary deter- view by the board of review concerned, sub- mination that such person would not have ject to review by the Secretary concerned, been awarded an upgraded discharge under under such section, of all the evidence and standards meeting the requirements of para- factors in each case under published uniform graph (1) of this subsection, such personal standard (which shall be historically con- shall be entitled to an appearance before the sistent with criteria for determining honor- board, as provided for in section 1553(c) of able service and shall not include any cri- title 10, prior to a final determination on terion for automatically granting or denying such question and shall be given written no- such change or issuance) and procedures gen- tice by the board of such preliminary deter- erally applicable to all persons administra- mination and of his or her right to such ap- tively discharged or released from active pearance. The Administrator shall, as soon military, naval, or air service under other as administratively feasible, notify the ap- than honorable conditons: and (B) any such propriate board of review of the receipt of person shall be afforded an opportunity to benefits under laws administered by the Vet- apply for such review under such section 1553 erans’ Administration, or the application for for a period of time terminating not less such benefits, by any person awarded an up- than one year after the date on which such uniform standards and procedures are pro- graded discharge under revised standards re- mulgated and published. ferred to in clause (A) (i), (ii), or (iii) of this ‘‘(2) Notwithstanding any other provision paragraph with respect to whom a favorable of law— determination has not been made under this ‘‘(A) No person discharged or released from paragraph.’’. active military, naval, or air service under (b)(1) The Secretary of Defense shall fully other than honorable conditions who has inform each person awarded a general or been awarded a general or honorable dishonorable discharge under revised standards charge under revised standards for the re- for the review of discharges referred to in view of discharges, (i) as implemented by the section 3103(e)(2)(A) (i), (ii), or (iii) of title 38, President’s directive of January 19, 1977, ini- United States Code, as added by subsection tiating further action with respect to the (a)(2) of this section of his or her right to ob- President’s Proclamation 4313 of September tain an expedited determination under sec- 16, 1974, (ii) as implemented on or after April tion 3103(e)(2)(B)(i) of such title and of the 5, 1977, under the Department of Defense’s implications of the provisions of this Act for special discharge review program, or (iii) as each such person. implemented subsequent to April 5, 1977, and (2) Notwithstanding any other provision of not made applicable to all persons adminis- law, the Secretary of Defense shall inform tratively discharged or released from active each person who applies to a board of review military, naval, or air service under other under section 1553 of title 10, United States than honorable conditions, shall be entitled Code, and who appears to have been dis- to benefits under laws administered by the charged under circumstances which might Veterans’ Administration except upon a de- constitute a bar to benefits under section termination, based on a case-by-case review, 3103(a), of title 38, United States Code, (A) under standards (meeting the requirements that such person might possibly be adminis- of paragraph (1) of this subsection) applied tratively found to be entitled to benefits by the board of review concerned under sec- under laws administered by the Veterans’ tion 1553 of title 10, subject to review by the Administration only through the action of a Secretary concerned, that such person would board for the correction of military records be awarded an upgraded discharged under under section 1552 of such title 10 or the ac- such standards; tion of the Administrator of Veterans’ Af- ‘‘(B) Such determination shall be made by fairs under section 3103 of such title 38, and such board, (i) on an expedited basis after no- (B) of the procedures for making application tification by the Veterans’ Administration to such section 1552 board for such purpose to the Secretary concerned that such person and to the Administrator of Veterans’ Af- has received, is in receipt of, or has applied fairs for such purpose (including the right to for such benefits or after a written request is proceed concurrently under such sections made by such person or such determination, 3103, 1552 and 1553).

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Section 2. Notwithstanding any other pro- Administration, (i) such benefits shall not be vision of law, the Administrator of Veterans’ terminated under paragraph (2) of section Affairs shall provide the type of health care 3103(e) of title 38, United States Code, as and related benefits authorized to be pro- added by section 1(a)(2) of this Act, until, (I) vided under chapter 17 of title 38, United the day on which a final determination not States Code, for any disability incurred or favorable to the person concerned is made on aggravated during active military, naval, or an expedited basis under paragraph (2) of air service in line of duty by a person other such section 3103(e), (II) the day following than a person barred from receiving benefits the expiration of ninety days after a prelimi- by section 3103(a) of such title, but shall not nary determination not favorable to such provide such health care and related benefits person is made under such paragraph, or (III) pursuant to this section for any disability the day following the expiration of one hun- incurred or aggravated during a period of dred and eighty days after such enactment service from which such person was dis- date, whichever day is the earliest, and (ii) charged by reason of a bad conduct dis- the United States shall not make any claim charge. to recover the value of any benefits provided Section 3. Paragraph (18) of section 101 of to such person prior to such earliest day; Title 38, United States Code, is amended to (B) With respect to any person awarded a read as follows: general or honorable discharge under revised ‘‘(18) The term ‘discharge or release’ in- standards for the review of discharges re- cludes, (A) retirement from the active mili- ferred to in clause (A) (i), (ii), or (iii) of such tary, naval, or air service, and (B) the satis- paragraph who has been provided any such factory completion of the period of active benefits prior to such enactment date, the military, naval, or air service for which a United States shall not make any claim to person was obligated at the time of entry recover the value of any benefits so provided; into such service in the case of a person who, and due to enlistment or reenlistment, was not (C) The amendments made by clause (1) of awarded a discharge or release from such pe- section 1(a) shall apply, (i) retroactively riod of service at the time of such comple- only to persons awarded general or honor- tion thereof and who, at such time, would able discharges under such revised standards otherwise have been eligible for the award of and to persons who, prior to the date of en- a discharge or release under conditions other actment of this Act, had not attained gen- than dishonorable.’’ eral eligibility to such benefits by virtue of Section 4. In promulgating, or making any (I) a change in or new issuance of a discharge revisions of or amendments to, regulations under section 1553 of title 10, United States governing the standards and procedures by Code, or (II) any other provision of law, and which the Veterans’ Administration deter- (ii) prospectively (on and after such enact- mines whether a person was discharged or re- ment date) to all other persons. leased from active military, naval, or air service under conditions other than dishonorable, the Administrator of Veterans’ Af- PART 725—RELEASE OF OFFICIAL fairs shall, in keeping with the spirit and in- INFORMATION FOR LITIGATION tent of this Act, not promulgate any such PURPOSES AND TESTIMONY BY regulations or revise or amend any such regulations for the purpose of, or having the ef- DEPARTMENT OF THE NAVY PER- fect of, (1) providing any unique or special SONNEL advantage to veterans awarded general or honorable discharges under revised standards Sec. for the review of discharges described in sec- 725.1 Purpose. tion 3103(e)(2)(A) (i), (ii), or (iii) of title 38, 725.2 Policy. United States Code, as added by section 725.3 Authority to act. 1(a)(2) of this Act, or (2) otherwise making 725.4 Definitions. any special distinction between such vet- 725.5 Applicability. erans and other veterans. 725.6 Authority to determine and respond. Section 5. This Act shall become effective 725.7 Contents of a proper request or de- on the date of its enactment, except that— mand. (1) Section 2 shall become effective on Oc- 725.8 Considerations in determining to tober 1, 1977, or on such enactment date, grant or deny a request. whichever is later; and 725.9 Action to grant or deny a request. (2) The amendments made by section 1(a) 725.10 Response to requests or demands in shall apply retroactively to deny benefits conflict with this instruction. under laws administered by the Veterans’ 725.11 Fees. Administration, except that, notwith- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 113, 5013; standing any other provision of law. 31 U.S.C. 9701 and 32 CFR part 97. (A) With respect to any person who, on such enactment date is receiving benefits SOURCE: 57 FR 2463, Jan. 22, 1992, unless under laws administered by the Veterans’ otherwise noted.

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§ 725.1 Purpose. (e) Upon a showing by a requester of This instruction implements 32 CFR exceptional need or unique cir- part 97 regarding the release of official cumstances, and that the anticipated Department of the Navy (DON) infor- testimony will not be adverse to the in- mation and provision of testimony by terests of the DON, DOD, or the United DON personnel for litigation purposes, States, the General Counsel of the and prescribes conduct of DON per- Navy, the Judge Advocate General of sonnel in response to a litigation re- the Navy, or their respective delegates quest or demand. It restates the infor- may, in their sole discretion, and pur- mation contained in Secretary of the suant to the guidance contained in this Navy Instruction 5820.8A of 27 August instruction, grant such written special 1991 1, and is intended to conform in all authorization for DON personnel to ap- respects with the requirements of that pear and testify as expert or opinion instruction. witnesses at no expense to the United States. § 725.2 Policy. § 725.3 Authority to act. (a) It is DON policy that official factual information, both testimonial and (a) The General Counsel of the Navy, documentary, should be made reason- the Judge Advocate General of the ably available for use in Federal Navy, and their respective delegates courts, state courts, foreign courts, [hereafter ‘‘determining authorities’’ and other governmental proceedings described in § 725.4(a), shall respond to unless that information is classified, litigation requests or demands for offi- privileged, or otherwise protected from cial DOD information or testimony by public disclosure. DON personnel as witnesses. (b) DON personnel, as defined in (b) If required by the scope of their § 725.4(b), however, shall not provide respective delegations, determining au- such official information, testimony, thorities’ responses may include: con- or documents, submit to interview, or sultation and coordination with the permit a view or visit, without the au- Department of Justice or the appro- thorization required by this part. priate United States Attorney as re- (c) DON personnel shall not provide, quired; referral of matters proprietary with or without compensation, opinion to another DOD component to that or expert testimony concerning official component; determination whether of- DON or Department of Defense (DOD) ficial information originated by the information, subjects, personnel, or ac- Navy may be released in litigation; and tivities, except on behalf of the United determination whether DOD personnel States or a party represented by the assigned to or affiliated with the Navy Department of Justice, or with the may be interviewed, contacted, or used written special authorization required as witnesses concerning official DOD by this part. information or as expert or opinion (d) Section 725.2(b) and (c) constitute witnesses. Following coordination with a regulatory general order, applicable the appropriate commander, a response to all DON personnel individually, and may further include whether installa- need no further implementation. A vio- tions, facilities, ships, or aircraft may lation of those provisions is punishable be visited or inspected; what, if any, under the Uniform Code of Military conditions will be imposed upon any re- Justice for military personnel and is lease, interview, contact, testimony, the basis for appropriate administra- visit, or inspection; what, if any, fees tive procedures with respect to civilian shall be charged or waived for access employees. Moreover, violations of this under the fee assessment consider- instruction by DON personnel may, ations set forth in § 725.11; and what, if under certain circumstances, be ac- any, claims of privilege, pursuant to tionable under 18 U.S.C. 207. this instruction, may be invoked before any tribunal.

1 Copies may be obtained, if needed, from § 725.4 Definitions. the Naval Publications and Forms Direc- torate, Attn: Code 301, 5801 Tabor Avenue, (a) Determining authority. The cog- Philadelphia, PA 19120-5099. nizant DON or DOD official designated

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to grant or deny a litigation request. upon matters submitted by counsel or In all cases in which the United States going to the ultimate issue of causa- is, or might reasonably become, a tion or liability—would clearly con- party, or in which expert testimony is stitute precluded testimony under the requested, the Judge Advocate General above policy. or the General Counsel of the Navy, de- (2) Naval personnel, by virtue of their pending on the subject matter of the training, often form opinions because request, will act as determining au- they are required to do so in the course thority. In all other cases, the respon- of their duties. If their opinions are sibility to act as determining author- formed prior to, or contemporaneously ity has been delegated to all officers with, the matter in issue, and are rou- exercising general court-martial con- tinely required of them in the course of vening authority, or to their subordi- the proper performance of their profes- nate commands, and to other com- sional duties, they constitute essen- mands and activities indicated in tially factual matters (i.e., the opinion § 725.6. they previously held). Opinions formed (b) DON personnel. Active duty and after the event in question, including former military personnel of the naval responses to hypothetical questions, service including retirees; personnel of generally constitute the sort of opinion other DOD components serving with a or expert testimony which this instruc- DON component; Naval Academy mid- tion is intended to severely restrict. shipmen; present and former civilian (3) Characterization of expected tes- employees of the DON including non- timony by a requester as fact, opinion, appropriated fund activity employees; or expert is not binding on the deter- non-U.S. nationals performing services mining authority. When there is doubt overseas for the DON under provisions as to whether or not expert or opinion of status of forces agreements; and (as opposed to factual) testimony is other specific individuals or entities being sought, advice may be obtained hired through contractual agreements informally from, or the request for- by or on behalf of DON, or performing warded, to the Deputy Assistant Judge services under such agreements for Advocate General (General Litigation) DON (e.g., consultants, contractors and or the Associate General Counsel (Liti- their employees and personnel). gation) for resolution. (c) Factual and expert or opinion testi- (d) Litigation. All pretrial, trial, and mony. DON policy favors disclosure of post-trial stages of all existing or rea- factual information if disclosure does sonably anticipated judicial or admin- not violate the criteria stated in § 725.8. istrative actions, hearings, investiga- The distinction between factual mat- tions, or similar proceedings before ci- ters, and expert or opinion matters vilian courts, commissions, boards (in- (where DON policy favors non-disclo- cluding the Armed Services Board of sure), is not always clear. The consid- Contract Appeals), or other tribunals, erations set forth below pertain. foreign and domestic. This term in- (1) Naval personnel may merely be cludes responses to discovery requests, percipient witnesses to an incident, in depositions, and other pretrial pro- which event their testimony would be ceedings, as well as responses to formal purely factual. On the other hand, they or informal requests by attorneys or may be involved with the matter only others in situations involving, or rea- through an after-the-event investiga- sonably anticipated to involve, civil or tion (e.g., JAGMAN investigation). De- criminal litigation. scribing the manner in which they con- (e) Official information. All informa- ducted their investigation and asking tion of any kind, however stored, in the them to identify factual conclusions in custody and control of the DOD and its their report would likewise constitute components including the DON; relat- factual matters to which they might ing to information in the custody and testify. In contrast, asking them to control of DOD or its components; or adopt or reaffirm their findings of fact, acquired by DOD personnel or its com- opinions, and recommendations, or ponent personnel as part of their offi- asking them to form or express any cial duties or because of their official other opinion—particularly one based status within DOD or its components,

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while such personnel were employed by (f) This instruction does not control or on behalf of the DOD or on active release of official information in re- duty with the United States Armed sponse to requests unrelated to litiga- Forces (determining whether ‘‘official tion or under the Freedom of Informa- information’’ is sought, as opposed to tion Act (FOIA), 5 U.S.C. 552, or the non-DOD information, rests with the Privacy Act, 5 U.S.C. 552a. This in- determining authority identified in struction does not preclude treating § 725.6, rather than the requester). any written request for DON records as (f) Request or demand (legal process). a request under the FOIA or Privacy Subpoena, order, or other request by a Acts. Activities are encouraged to federal, state, or foreign court of com- treat such requests for documents petent jurisdiction, by any administra- under the FOIA or the Privacy Act if tive agency thereof, or by any party or they are invoked by the requestor ei- other person (subject to the exceptions ther explicitly or by fair implication. stated in § 725.5) for production, disclo- See 32 CFR 701.3(a), 701.10(a). Activities sure, or release of official DOD infor- are reminded that such treatment does mation or for appearance, deposition, not absolve them of the responsibility or testimony of DON personnel as wit- to respond in a timely fashion to legal nesses. process. In any event, if the official information requested pertains to a liti- § 725.5 Applicability. gation matter which the United States (a) This instruction applies to all is a present or potential party, the represent and former civilian and mili- lease authority should notify the dele- tary personnel of the DON whether em- gate of the General Counsel or the ployed by, or assigned to, DON tempo- Judge Advocate General, under § 725.6. rarily or permanently. Affected per- (g) This part does not apply to re- sonnel are defined more fully in lease of official information or testi- § 725.4(b). mony by DON personnel in the fol- (b) This instruction applies only to lowing situations: situations involving existing or reason- (1) Before courts-martial convened by ably anticipated litigation, as defined any DOD component, or in administra- in § 725.4(d), when DOD information or tive proceedings conducted by, or on witnesses are sought, whether or not behalf of, such component; the United States, the DOD, or its com- (2) Under administrative proceedings ponents are parties thereto. It does not conducted by, or on behalf of, the apply to formal or informal requests Equal Employment Opportunity Com- for information in other situations. mission (EEOC) or the Merit Systems (c) This instruction provides guid- Protection Board (MSPB), the Federal ance only for DON operation and ac- Labor Relations Authority, the Federal tivities of its present and former per- Services Impasse Panel, or under a ne- sonnel in responding to litigation re- gotiated grievance procedure under a quests. It is not intended to, does not, collective bargaining agreement to and may not be relied upon to, create which the Government is a party; any right or benefit, substantive or (3) In response to requests by Federal procedural, enforceable at law or eq- Government counsel, or counsel rep- uity against the United States, DOD, resenting the interests of the Federal or DON. Government, in litigation conducted, (d) This instruction is not intended in whole or in part, on behalf of the to infringe upon or displace the respon- United States (e.g., Medical Care Re- sibilities committed to the Department covery Act claims, affirmative claims, of Justice in conducting litigation on or subpoenas issued by, or concurred in behalf of the United States. by, Government counsel when the (e) This instruction does not super- United States is a party), but the regu- sede or modify existing laws, DOD or lation does apply to an action brought DON regulations, directives, or instruc- under the qui tam provisions of the tions governing testimony of DON per- False Claims Act in which a private sonnel or release of official DOD or party brings an action in the name of DON information during grand jury the United States but in which the De- proceedings. partment of Justice either has not yet

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determined to intervene in the litiga- scope of proposed discovery. This will tion or has declined to intervene; assure that certain DON information, (4) As part of the assistance required which properly should be withheld, is by the Defense Industrial Personnel Se- not inadvertently released in response curity Clearance Review Program to a litigation request or demand, in- under DOD Directive 5220.6 2; cluding a subpoena or other request for (5) Release of copies of Manual of the discovery issued under Federal rules of Judge Advocate General (JAGMAN) in- procedure. When the United States is a vestigations, to the next of kin (or party to Federal litigation and the their representatives) of deceased or party opponent uses discovery methods incompetent naval personnel; (e.g., request for interrogatories and (6) Release of information by DON admissions, depositions) set forth in personnel to counsel retained on their Federal rules of procedure, the Judge behalf for purposes of litigation, unless Advocate General or General Counsel, that information is classified, privi- in consultation with representatives of leged, or otherwise protected from dis- the Department of Justice or the cog- closure (in the latter event, compliance nizant United States Attorney, may with 32 CFR part 97 and this part is re- determine whether the requirement for quired); a separate written request in accord- (7) Cases involving garnishment or- ance with § 725.7 should be waived. Even ders for child support and/or alimony. if this requirement is waived, however, The release of official information in DON personnel who are subpoenaed to these cases is governed by 5 CFR 581 testify still will be required to obtain 3 and SECNAVINST 7200.16 , or; the written permission described in (8) Release of information to Federal, § 725.2. state, and local prosecuting and law enforcement authorities, in conjunc- § 725.6 Authority to determine and re- tion with an investigation conducted spond. by a DOD component or DON criminal investigative organization. (a) Matters proprietary to DON. If a (h) This part does not preclude offi- litigation request or demand is made of cial comment on matters in litigation DON personnel for official DON or DOD in appropriate cases. information or for testimony con- (i) The DOD General Counsel may no- cerning such information, the indi- tify DOD components that DOD will as- vidual to whom the request or demand sume primary responsibility for coordi- is made will immediately notify the nating all litigation requests for de- cognizant DON official designated in mands for official DOD information or § 725.6(c) and (d), who will determine testimony of DOD personnel in litiga- availability and respond to the request tion involving terrorism, espionage, or demand. nuclear weapons, and intelligence (b) Matters proprietary to another DOD sources or means. Accordingly, deter- component. If a DON activity receives a mining officials who receive requests litigation request or demand for offi- pertaining to such litigation shall no- cial information originated by another tify the Associate General Counsel DOD component or for non-DON per- (Litigation) or the Deputy Assistant sonnel presently or formerly assigned Judge Advocate General (International to another DOD component, the DON Law or General Litigation) who shall activity will forward appropriate por- consult and coordinate with DOD Gen- tions of the request or demand to the eral Counsel prior to any response to DOD component originating the infor- such requests. mation, to the components where the (j) Relationship with Federal Rules of personnel are assigned, or to the com- Procedure. The requirements imposed ponents where the personnel were for- by this instruction are intended, merly assigned, for action under 32 among other things, to provide ade- CFR part 97. The forwarding DON ac- quate notice to DON regarding the tivity will also notify the requester and court (if appropriate) or other au- 2 See footnote 1 to § 725.1. thority of its transfer of the request or 3 See footnote 1 to § 725.1. demand.

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(c) Litigation matters to which the (Code 00LD), Washington, DC 20362-5101. United States is, or might reasonably be- Matters not clearly within the purview come, a party. Examples of such in- of a particular command counsel shall stances include suits under the Federal be referred to Associate General Coun- Tort Claims Act, Freedom of Informa- sel (Litigation), who may either re- tion Act, Medical Care Recovery Act, spond or refer the matter for action to Tucker Act, and suits against Govern- another office. ment contractors where the contractor (3) Matters involving the Armed may interplead the United States or Services Board of Contract Appeals seek indemnification from the United States for any judgment paid, e.g., shall be forwarded to these respective aviation contractors or asbestos mat- counsel except where the determina- ters. Generally, a suit in which the tion may involve the assertion of the plaintiff is representing the interests of deliberative process privilege before the United States under the Medical that Board. In such an event, the mat- Care Recovery Act is not a litigation ter shall be forwarded for determina- matter to which the United States is, tion to the Associate General Counsel or might reasonably become, a party. (Litigation). Determining authorities, if in doubt (d) Litigation matters in which the whether the United States is likely to United States is not, and is reasonably become a party to the litigation, not expected to become, a party—(1) Mat- should seek guidance from representa- ters within the cognizance of the Judge tives of the Offices of the Judge Advo- Advocate General—(i) Fact witnesses. Re- cate General or General Counsel. The quests to interview, depose, or obtain Judge Advocate General and the Gen- testimony of any present or former eral Counsel have the authority to de- DON personnel as defined in § 725.4(b) termine whether a litigation request about purely factual matters shall be should be forwarded to them, or re- forwarded to the Navy or Marine Corps tained by a determining authority, for officer exercising general court-martial resolution. jurisdiction (OEGCMJ) in whose chain (1) Litigation requests regarding of command the prospective witness or matters assigned to the Judge Advo- cate General of the Navy under Navy requested documents lie. That deter- Regulations, article 0331 (1990), shall be mining authority will respond for the referred to the Deputy Assistant Judge Judge Advocate General under criteria Advocate General for General Litiga- set forth in § 725.8. tion, Office of the Navy Judge Advo- (A) If the request pertains to per- cate General (Washington Navy Yard), sonnel assigned to the Office of the 1322 Patterson Avenue, SE., Suite 3000, Chief of Naval Operations, the Office of Washington, DC, 20374-5066, who will re- the Vice Chief of Naval Operations, or spond for the Judge Advocate General an Echelon 2 command located in the or transmit the request to the appro- Washington, DC, area, it shall be for- priate Deputy Assistant Judge Advo- warded to that office which will like- cate General for response. wise respond for the Judge Advocate (2) Litigation requests regarding General under the criteria set forth in matters assigned to the General Coun- § 725.8. sel of the Navy under Navy Regs., art. (B) If a request pertains to Marine 5 0327 (1990) , shall be referred to the cog- Corps personnel assigned to Head- nizant Command Counsel under, and quarters Battalion, Headquarters Ma- subject to, limitations set forth in rine Corps, or to other Marine Corps § 725.6(d)(2). That Command Counsel commands located in the Washington, may either respond or refer the matter DC, area, it shall be forwarded to the for action to another office. Requests involving asbestos litigation shall be Commandant of the Marine Corps referred to the Office of Counsel, Naval (JAR), Headquarters, U.S. Marine Sea Systems Command Headquarters, Corps, Washington, DC 20380-0001, Personnel and Labor Law Section which will respond for the Judge Advo- cate General under criteria set forth in 5 See footnote 1 to § 725.1. § 725.8.

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(C) Nothing here shall prevent a de- tions, interviews, depositions, or testi- termining authority from referring re- mony will be referred to the Deputy quests or demands to another deter- Assistant Judge Advocate General mining authority better suited under (General Litigation) who will respond the circumstances to determine the for the Judge Advocate General, or matter and respond, but the requester transmit the request to the appropriate shall be notified of the referral. Fur- DAJAG for response. Matters not ther, each determining authority speci- clearly within the purview of a par- fied in this paragraph may further del- ticular Deputy Assistant Judge Advo- egate his or her decisional authority to cate General will be retained by the a principal staff member, staff judge Deputy Assistant Judge Advocate Gen- advocate, or legal advisor. eral (General Litigation), who may ei- (D) In the alternative, the requester ther respond or refer the matter to an- may forward the request to the Deputy other determining authority for re- Assistant Judge Advocate General (General Litigation), who may refer sponse. the matter to another determining au- (2) Matters within the cognizance of the thority for response, and so notify the General Counsel of the Navy—(i) Matters requester. not involving issues of Navy policy. Such (ii) Visits and views. A request to visit matters shall be forwarded for deter- a DON activity, ship, or unit, or to in- mination to the respective counsel for spect material or spaces located there Naval Sea Systems Command, Naval will be forwarded to one of the authori- Air Systems Command, Naval Supply ties stated in § 725.6(d)(1)(i), who will Systems Command, Naval Facilities respond on behalf of the Judge Advo- Engineering Command, Space and cate General. Action taken by that au- Naval Warfare Command, Office of the thority will be coordinated with the Navy Comptroller, Commandant of the commanding officer of the activity, Marine Corps, Office of the Chief of ship, or unit at issue, or with his or her Naval Research, Military Sealift Com- staff judge advocate (if applicable). The mand, Office of Civilian Personnel Pol- military mission of the unit shall nor- icy, or to the Assistant General Coun- mally take precedence over any visit sel (Acquisition), depending upon who or view. The commanding officer may has cognizance over the information or independently prescribe reasonable personnel at issue. conditions as to time, place, and cir- (ii) Matters involving issues of Navy cumstances to protect against com- policy. Such matters shall be forwarded promise of classified or privileged ma- for determination to the General Coun- terial, intrusion into restricted spaces, sel of the Navy via the Associate Gen- and unauthorized photography. eral Counsel (Litigation). (iii) Documents. 10 U.S.C. 7861 pro- (iii) Matters involving asbestos litiga- vides that the Secretary of the Navy tion. Such matters shall be forwarded has custody and charge of all DON to the Office of Counsel, Naval Sea Sys- books, records, and property. Under tems Command Headquarters, Per- DOD Directive 5530.1, 6 the Secretary of sonnel and Labor Law Section (Code the Navy’s sole delegate for service of 00LD), Washington, DC 20362-5101. process is the General Counsel of the Navy. See CFR 257.5(c). All process for (3) Matters not clearly within the cog- such documents shall be served upon nizance of either the Judge Advocate Gen- the General Counsel at the Department eral or the General Counsel. Such mat- of the Navy, Office of the General ters may be sent to the Deputy Assist- Counsel, Navy Litigation Office, 720 ant Judge Advocate General (General Kennon Street SE, Bldg 36 Room 233, Litigation) or the Associate General Washington Navy Yard, DC 20374–5013, Counsel (Litigation), who will, in con- 202–685–7039, who will refer the matter sultation with the other, determine the to the proper delegate for action. appropriate authority to respond to the (iv) Expert or opinion requests. Any re- request. quest for expert or opinion consulta- [57 FR 2463, Jan. 22, 1992, as amended at 69 FR 20541, Apr. 16, 2004; 70 FR 12966, Mar. 17, 6 See footnote 1 to § 725.1. 2005]

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§ 725.7 Contents of a proper request or ing why it is not reasonably available demand. from any other source. (a) Routine requests. If official infor- (b) Additional considerations. The cir- mation is sought, through testimony cumstances surrounding the under- or otherwise, a detailed written request lying litigation, including whether the must be submitted to the appropriate United States is a party, and the na- determining authority far enough in ture and expense of the requests made advance to assure an informed and by a party may require additional in- timely evaluation of the request, and formation before a determination can prevention of adverse effects on the be made. Providing the following infor- mission of the command or activity mation or stipulations in the original that must respond. The determining request may expedite review and elimi- authority shall decide whether suffi- nate the need for additional cor- cient information has been provided by respondence with the determining au- the requester. Absent independent in- thority. formation, the following data is nec- (1) A statement of the requester’s essary to assess a request. willingness to pay in advance all rea- (1) Identification of parties, their coun- sonable expenses and costs of searching sel and the nature of the litigation. (i) for and producing documents, informa- Caption of case, docket number, court. tion, or personnel, including travel ex- (ii) Name, address, and telephone penses and accommodations (if applica- number of all counsel. ble); (iii) The date and time on which the (2) In cases in which deposition testi- documents, information, or testimony mony is sought, a statement of wheth- sought must be produced; the requested er attendance at trial or later deposi- location for production; and, if application testimony is anticipated and re- ble, the estimated length of time that quested. A single deposition normally attendance of the DON personnel will should suffice; be required. (3) An agreement to notify the deter- (2) Identification of information or doc- mining authority at least 10 working uments requested. (i) A description, in as much detail as possible, of the docu- days in advance of all interviews, depo- ments, information, or testimony sitions, or testimony. Additional time sought, including the current military for notification may be required where service, status (active, separated, re- the witness is a DON health care pro- tired), social security number, if vider or where the witness is located known, of the subject of the requested overseas; pay, medical, or service records; (4) An agreement to conduct the dep- (ii) The location of the records, in- osition at the location of the witness, cluding the name, address, and tele- unless the witness and his or her com- phone number, if known, of the person manding officer or cognizant superior, from whom the documents, informa- as applicable, stipulate otherwise; tion, or testimony is sought; and (5) In the case of former DON per- (iii) A statement of whether factual, sonnel, a brief description of the length opinion, or expert testimony is re- and nature of their duties while in DON quested (see §§ 725.4(c) and employment, and a statement of 725.8(b)(3)(ii)). whether such duties involved, directly (3) Description of why the information or indirectly, the information or mat- is needed. (i) A brief summary of the ters as to which the person will testify; facts of the case and the present pos- (6) An agreement to provide free of ture of the case. charge to any witness a signed copy of (ii) A statement of the relevance of any written statement he or she may the matters sought to the proceedings make, or, in the case of an oral deposi- at issue. tion, a copy of that deposition tran- (iii) If expert or opinion testimony is script, if taken by a stenographer, or a sought, an explanation of why excep- video tape copy, if taken solely by tional need or unique circumstances video tape, if not prohibited by applica- exist justifying such testimony, includ- ble rules of court;

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(7) An agreement that if the local she will require the requester to agree rules of procedure controlling the liti- to the conditions set forth in § 725.7(a). gation so provide, the witness will be The determining authority will then given an opportunity to read, sign, and orally advise the requester of the de- correct the deposition at no cost to the termination, and seek a written con- witness or the Government; firmation of the oral request. There- (8) A statement of understanding after, the determining authority will that the United States reserves the make a written record of the disposi- right to have a representative present tion of the oral request including the at any interview or deposition; and grant or denial, circumstances requir- (9) A statement that counsel for ing the procedure, and conditions to other parties to the case will be pro- which the requester agreed. vided with a copy of all correspondence (3) The emergency procedure should originated by the determining author- not be utilized where the requester re- ity so they may have the opportunity fuses to agree to the appropriate condi- to submit any related litigation re- tions set forth in § 725.7(a) or indicates quests and participate in any dis- unwillingness to abide by the limits of covery. the oral grant, partial grant, or denial. (c) Response to deficient requests. A letter request that is deficient in pro- § 725.8 Considerations in determining viding necessary information may be to grant or deny a request. returned to the requester by the deter- (a) General considerations. In deciding mining authority with an explanation whether to authorize release of official of the deficiencies and a statement information, or the testimony of DON that no further action will be taken personnel concerning official informa- until they are corrected. If a subpoena tion (hereafter referred to as ‘‘the dis- has been received for official informa- closure’’ under a request conforming tion, counsel should promptly deter- with the requirements of § 725.7, the de- mine the appropriate action to take in termining authority shall consider the response to the subpoena. See § 725.9(g). following factors: (d) Emergency requests. Written re- (1) The DON policy regarding disclo- quests are generally required by 32 sure in § 725.2; CFR part 97. (2) Whether the request or demand is (1) The determining authority, iden- unduly burdensome or otherwise inap- tified in § 725.6, has discretion to waive propriate under applicable court rules; that requirement in the event of a bona (3) Whether disclosure, including re- fide emergency, under conditions set lease in camera (i.e., to the judge or forth here, which were not anticipated court alone), is appropriate under pro- in the course of proper pretrial plan- cedural rules governing the case or ning and discovery. Oral requests and matter in which the request or demand subsequent determinations should be arose; reserved for instances where factual (4) Whether disclosure would violate matters are sought, and compliance or conflict with a statute, executive with the requirements of a proper writ- order, regulation, directive, instruc- ten request would result in the effec- tion, or notice; tive denial of the request and cause an (5) Whether disclosure, in the absence injustice in the outcome of the litiga- of a court order or written consent, tion for which the information is would violate 5 U.S.C. 552, 552a; sought. No requester has a right to (6) Whether disclosure, including re- make an oral request and receive a de- lease in camera, is appropriate or nec- termination. Whether to permit such essary under the relevant substantive an exceptional procedure is a decision law concerning privilege (e.g., attor- within the sole discretion of the deter- ney-client, attorney work-product, or mining authority, unless overruled by physician-patient in the case of civil- the General Counsel or the Judge Ad- ian personnel); vocate General, as appropriate. (7) Whether disclosure, except when (2) If the determining authority con- in camera (i.e., before the judge alone) cludes that the request, or any portion and necessary to assert a claim of of it, meets the emergency test, he or privilege, would reveal information

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properly classified under the DOD In- must be produced by a naval custodian, formation Security Program under it will not be removed from the cus- DOD 5200.1-R 7, withholding of unclassi- tody of the person producing it, but fied technical data from public disclo- copies may be placed in evidence. sure following OPNAVINST 5510.161; (B) Upon written request of one or privileged Naval Aviation Safety Pro- more parties in interest or their re- gram information (OPNAVINST 3750.6Q spective attorneys, records which (NOTAL)) 8, or other matters exempt would be produced in response to a from unrestricted disclosure under 5 court order signed by a judge as set U.S.C. 552, 552a; forth above may be furnished without a (8) Whether disclosure would unduly court order, but only upon a request interfere with ongoing law enforcement complying with § 725.7 and only when proceedings, violate constitutional such records are not in a ‘‘system of rights, reveal the identity of an intel- records’’ as defined by the Privacy Act ligence source or source of confidential (5 U.S.C. 552a). In determining whether information, conflict with U.S. obliga- a record not contained in a ‘‘system of tions under international agreement, records’’ will be furnished in response or be otherwise inappropriate under to a Freedom of Information Act the circumstances; (FOIA) request, SECNAVINST (9) Whether attendance of the re- 5720.42E 9 controls. quested witness at deposition or trial (C) Generally, a record in a Privacy will unduly interfere with the military Act ‘‘system of records’’ may not be re- mission of the command; and leased under a litigation request except (10) Whether, in a criminal case, re- with the written consent of the person quiring disclosure by a defendant of de- to whom the record pertains or in re- tailed information about the relevance sponse to a court order signed by a of documents or testimony as a condi- judge. See SECNAVINST 5211.5C 10 and tion for release would conflict with the 5 U.S.C. 552, 552a for further guidance. defendant’s constitutional rights. (D) Whenever compliance with a (b) Specific considerations—(1) Docu- court order or subpoena duces tecum ments, interviews, depositions, testimony, for production of DON records is denied and views (where the United States is, or for any reason, the subpoena or court may become, a party). All requests per- order and complete copies of the retaining to such matters shall be for- quested records will be forwarded to warded to the Judge Advocate General the appropriate Deputy Assistant or the General Counsel, as appropriate Judge Advocate General (General Liti- under § 725.6(c). gation) or the Associate General Coun- (2) Documents (where the United States sel (Litigation) for action, and the par- is not, and is reasonably not expected to ties to the suit notified in accordance become a party)—(i) Unclassified Navy with this part. and Marine Corps records. Where parties (ii) Classified Navy and Marine Corps or potential parties desire unclassified records. Any consideration of release of naval records in connection with a liti- classified information for litigation gation matter, the subpoena duces purposes, within the scope of this in- tecum or court order will be served, struction, must be coordinated within under 32 CFR 257.5(c), upon the General the Office of the Chief of Naval Oper- Counsel of the Navy, along with a writ- ations (OP-09N) per OPNAVINST ten request complying with § 725.7. 5510.1H. 11 (A) If the determining authority to (iii) Records in the custody of the Na- whom the matter is referred deter- tional Personnel Records Center. Court mines to comply with the order or sub- orders or subpoenas duces tecum de- poena, compliance will be effected by manding information from, or produc- transmitting certified copies of records tion of, service or medical records of to the clerk of the court from which former Navy and Marine Corps per- process issued. If, because of an un- sonnel in the custody of the National usual circumstance, an original record 9 See footnote 1 to § 725.1. 7 See footnote 1 to § 725.1. 10 See footnote 1 to § 725.1. 8 See footnote 1 to § 725.1. 11 See footnote 1 to § 725.1.

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Personnel Records Center will be (v) JAGMAN investigations (other than served upon the Director, National Per- to next of kin). The Deputy Assistant sonnel Records Center, 9700 Page Bou- Judge Advocate General having cog- levard, St. Louis, MO 63132. If records nizance over the records at issue for responsive to the request are identified litigation or prospective litigation pur- and maintained at the National Per- poses may release the records if a com- sonnel Records Center, that Center plete release will result. The Assistant shall make appropriate certified (au- Judge Advocate General (Civil Law) thenticated) copies of the information will make determinations concerning requested. These copies will then be the release of the records specified in forwarded, along with the request, in this subparagraph if a release of less the case of Navy personnel, to Chief, than the complete requested record Bureau of Naval Personnel (Pers-06), will result. A release to next of kin of Washington, DC 20370-5000, or his dele- incompetent or deceased DON per- gate, who will respond. In the case of sonnel or their representatives is ex- Marine Corps personnel, the copies and empt from these requirements and this request will be sent to the Com- part. mandant of the Marine Corps (MMRB- (vi) Affirmative claims files. Affirma- 10), Quantico, VA 22134-0001, who will tive claims files (including Medical respond. Those requests that do not Care Recovery Act files), except to the constitute legal demands will be re- extent they contain copies of JAGMAN fused by the Director, National Per- investigations prepared under the Man- sonnel Records Center, and written ual of the Judge Advocate General, or guidance provided to the requester. classified or privileged information, (iv) Medical and other records of civil- may be released by the commanding of- ian employees. Production of medical ficer of the Naval Legal Service Office certificates or other medical reports having cognizance over the claim at concerning civilian employees is con- issue, without compliance with this in- trolled by Federal Personnel Manual, struction, to: insurance companies to chapter 294 and chapter 339.1-4. 12 support claims; to civilian attorneys Records of civilian employees, other representing injured service persons, than medical records, may be produced their dependents, and the Govern- upon receipt of a court order and a re- ment’s interests; and to other DOD quest complying with § 725.7, provided components. When a request for production involves material related to no classified or for official use only in- claims in favor of the Government, ei- formation, such as loyalty or security ther the cognizant Command Counsel records, are involved. Disclosure of or the Naval Legal Service Office hav- records relating to compensation bene- ing territorial responsibility for the fits administered by the Office of area should be notified. Workers’ Compensation Programs of (vii) Accounting for disclosures from the Department of Labor are governed ‘‘systems of records.’’ When compliance by Secretary of the Navy Instruction with a litigation request or demand for 5211.5C (Privacy Act implementation) production of records is appropriate, or and Secretary of the Navy Instruction when release of records is otherwise au- 5720.42E (Freedom of Information Act thorized, and records contained in a implementation), as appropriate. ‘‘system of records,’’ are released, the Where information is furnished per this releasing official will consult Sec- subparagraph in response to a court retary of the Navy Instruction 5211.5C order and proper request, certified cop- regarding disclosure accounting re- ies rather than originals should be fur- quirements. nished. Where original records must be (viii) Pay records. Official pay records produced because of unusual cir- of active-duty, reserve, retired, or cumstances, they may not be removed former Navy members should be re- from the custody of the official pro- quested from Director, Defense Finance ducing them, but copies may be placed and Accounting Service (DFAS), Cleve- on the record. land Center, Anthony J. Celebrezze Federal Building, Cleveland, OH 44199- 12 See footnote 1 to § 725.1. 2055. Official pay records of active-

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duty, reserve, retired, or former Ma- conditions as to time, place, and cir- rines should be requested from Direc- cumstances (including proper restric- tor, Defense Finance and Accounting tions on photography). Service, Kansas City Center (Code G), (iv) Non-DOD information. A request Kansas City, MO 64197-0001. for disclosure under this part, particu- (3) Interviews, depositions, and testi- larly through the testimony of a wit- mony (where the United States is not, and ness, may involve both official infor- is reasonably not expected to become, a mation and non-DOD information (e.g., party)—(i) Factual matters. DON policy in the case of a person who has ac- favors disclosure of factual matters quired additional and separate knowl- when disclosure does not violate the edge or expertise wholly apart from criteria stated in this section. Distin- Government employment). Deter- guishing between factual matters and mining whether or not official informa- expert or opinion matters (where DON tion is at issue is within the purview of policy favors non-disclosure) requires the determining authority, not the re- careful analysis. Opinion matters are defined at § 725.4(c). quester. A requester’s contention that (ii) Expert, opinion, or policy matters. only non-DOD information is at issue Such matters are to be determined, is not dispositive. The requester must under the delegation in § 725.6, by the still comply with this instruction to cognizant Deputy Assistant Judge Ad- support that contention. If non-DOD vocate General or by General Counsel. information is at issue in whole or in General considerations to identify ex- part, the determining authority shall pert or opinion testimony are in so state in the written determination § 725.4(c). DON personnel shall not pro- described in § 725.9. He or she shall vide, with or without compensation, make no other determination regard- opinion or expert testimony concerning ing that non-DOD information. official information, subjects, or activities, except on behalf of the United § 725.9 Action to grant or deny a re- States or a party represented by the quest. Department of Justice. Upon a showing (a) The process of determining by the requester of exceptional need or whether to grant or deny a request is unique circumstances, and that the an- not an adversary proceeding. This part ticipated testimony will not be adverse provides guidance for the operation of to the interests of the DOD or the DON only and is not intended to, does United States, the appropriate DON of- not, and may not be relied upon to, cre- ficial designated in § 725.6, may grant, ate any right or benefit, substantive or in writing, special authorization for procedural, enforceable at law against DON personnel to appear and testify at the United States, DOD, or DON. no expense to the United States. In de- (b) 32 CFR part 97 and this part apply termining whether exceptional need or to testimony by former naval per- unique circumstances exist, the deter- sonnel and former civilian employees mining official should consider whether such expert or opinion testimony is of DON. A proper request must be available to the requester from any made, under § 725.7, to obtain testi- other source. The burden of dem- mony by former personnel regarding onstrating such unavailability, if any, official DOD information. However, is solely upon the requester. this part is not intended to place un- (iii) Visits and views (where the United reasonable restraints upon the post- States is not, and is reasonably not ex- employment conduct of such personnel. pected to become, a party). Such disclo- Accordingly, requests for expert or sures are normally factual in nature opinion testimony by such personnel and should not be accompanied by will normally be granted unless that interviews of personnel unless sepa- testimony would constitute a violation rately requested and granted. The au- of the U.S. Code (e.g., 18 U.S.C. 201 et thority of the commanding officer of seq.), conflict with pertinent regula- the activity, ship, or unit at issue is tions (e.g., Secretary of the Navy In- not limited by this part. Accordingly, struction 5370.2H), or disclose properly he or she may prescribe appropriate classified or privileged information.

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(c) A determination to grant or deny Federal Rules of Civil Procedure re- should be made as expeditiously as pos- quire that some objections to sub- sible to provide the requester and the poenas must be made either within 10 court with the matter at issue or with days of service of the subpoena or on or a statement of the reasons for denial. before the time for compliance, which- The decisional period should not ex- ever first occurs, and because this will ceed 10 working days from receipt of a require consultation with the Depart- complete request complying with the ment of Justice, timely notice is essen- requirements of § 725.7, absent excep- tial. tional or particularly difficult circumstances. The requester should also § 725.10 Response to requests or de- be informed promptly of the referral of mands in conflict with this instruc- any portion of the request to another tion. authority for determination. (a) Except as otherwise provided in (d) Except as provided in § 725.7(d), a this paragraph, DON personnel, includ- determination to grant or deny shall be ing former military personnel and ci- in writing. vilian employees, shall not produce, (e) The determination letter should disclose, release, comment upon, or respond solely to the specific disclo- testify concerning any official DOD in- sures requested, stating a specific de- formation in response to a litigation termination on each particular re- request or demand without prior writ- quest. When a request is denied in ten approval of the appropriate DON whole or in part, a statement of the official designated in § 725.6. If a re- reasons for denial should be provided to quest has been made, and granted, in fully inform a court of the reasons un- whole or in part, per 32 CFR part 97 and derlying the determination if it is chal- this part, DON personnel may only lenged. produce, disclose, release, comment (f) A copy of any denial, in whole or upon, or testify concerning those mat- in part, of a request, should be for- ters specified in the request and prop- warded to the cognizant Deputy Assist- erly approved by the determining au- ant Judge Advocate General or the As- thority designated in § 725.6. See United sociate General Counsel (Litigation), States ex rel. Touhy v. Ragen, 340 U.S. as appropriate. Such notification is 462 (1951). likewise appropriate when the litiga- (b) If, after DON personnel have re- tion request has been treated under 5 ceived a litigation request or demand U.S.C. 552, 552a and § 725.5(f). Tele- and have in turn notified the appro- phonic notification is particularly ap- priate determining authority described propriate where a judicial challenge or in § 725.6, a response to the request or contempt action is anticipated. demand is required before instructions (g) In cases in which a subpoena has from the responsible official have been been received and the requester refuses received, the responsible authority des- to pay fees or otherwise comply with ignated in § 725.6 shall notify the Dep- the guidance and requirements imposed uty Assistant Judge Advocate General by this part, or if the determining au- or Associate General Counsel (Litiga- thority declines to make some or all of tion) who has cognizance over the mat- the subpoenaed information available, ter. That official will furnish the re- or if the determining authority has had quester, the court, or other authority insufficient time to complete its deter- that the request or demand is being re- mination as to how to respond to the viewed in accordance with this part request, the determining authority and seek a stay of the request or de- must promptly notify the General Liti- mand pending a final determination. gation Division of the Office of the (c) If a court of competent jurisdic- Judge Advocate General or the Navy tion or other appropriate authority de- Litigation Office of the Office of the clines to stay the effect of the request General Counsel, which offices will de- or demand in response to action taken termine, in consultation with the De- under § 725.10(b), or if such court or partment of Justice, the appropriate other authority orders that the request response to be made to the tribunal or demand must be complied with, not- which issued the subpoena. Because the withstanding the final decision of the

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appropriate DON official, the DON per- is a party to the proceedings, and the sonnel upon whom the request or de- activity holding the requested informa- mand was made will, if time permits, tion or employing the witness shall notify the determining authority of bear the expense of complying with the such ruling or order. That authority request. will notify the Deputy Assistant Judge (2) When another federal agency is a Advocate General or the Associate party. No fees shall be charged to the General Counsel (Litigation) having requesting agency. Travel and per diem cognizance over the matter. After due expenses may be paid by the requesting consultation and coordination with the agency, or by the Navy activity to Department of Justice, as required by which the requested witness is as- the Manual of the Judge Advocate Gen- signed, subject to reimbursement from eral, that official will determine the requesting agency. whether the individual is required to (3) When neither DON nor another fed- comply with the request or demand and eral agency is a party. Fees shall be will notify the requester, the court, or charged to the requester for time taken other authority accordingly. The wit- from official duties by DON personnel ness shall, if directed by the appro- who are authorized to be interviewed, priate DON official, respectfully de- give testimony, or escort persons on cline to comply with the demand. views and visits of installations. At the Legal counsel for the command con- discretion of the cognizant command, cerned should accompany and advise DON personnel need not be made avail- DON personnel during any court pro- able during duty hours unless directed ceedings involving the foregoing cir- by subpoena. Time which DON per- cumstances. sonnel spend in court testifying, or (d) It is expected that all DON ac- waiting to testify on factual matters tions in the foregoing paragraphs will shall not be charged. Fees should be be taken only after active consultation with the appropriate component of the charged, however, for expert or opinion Department of Justice. Generally, DON testimony based upon the witness’s personnel will be instructed to decline education, training, or experience. Tes- to comply with a court order only if timony by a treating physician called the Department of Justice commits to to testify about his personal knowledge represent the DON personnel in ques- of a specific case is considered fact not tion. expert testimony. Fees are payable to the Treasurer of the United States for § 725.11 Fees. deposit in the Treasury’s miscellaneous (a) Generally. Except as provided receipts. Rates for uniformed personnel below, determining authorities shall are published in NAVCOMPT Notice 15 charge reasonable fees and expenses to 7041 series. Pursuant to 32 CFR 288.4, parties seeking official DON informa- charges for civilian personnel should tion or testimony under this instruc- include the employee’s hourly rate of tion. Pursuant to 32 CFR 288.4, 288.10, pay, as well as allowances and benefits. these fees should include all costs of Except as provided in § 725.11(b)(4), no processing a request for information, funds may be expended for travel or per including time and material expended. diem of active duty members when an Travel for active duty members sum- agency of the Federal Government is moned as witnesses is governed by not a party. The requesting party is re- Joint Travel Regulations, Vol. I, Chap. sponsible for travel arrangements and 7, pt. E. and Navy Travel Instructions, funding. Government funding of travel Chap. 6, pt. E. 13 Travel for civilian per- and per diem for civilian employees is sonnel summoned as witnesses is gov- authorized. erned by the Joint Travel Regulations, (b) Special circumstances—(1) Refusal Vol. II, Chap. 4, pt. E. 14 to pay fees. In cases in which a sub- (1) When DON is a party. No fees nor- poena has been received and the re- mally shall be charged when the DON quester refuses to pay appropriate fees, it may become necessary to request the 13 See footnote 1 to § 725.1. 14 See footnote 1 to § 725.1. 15 See footnote 1 to § 725.1.

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Department of Justice to take appro- PART 726—PAYMENTS OF priate legal action before the court AMOUNTS DUE MENTALLY IN- issuing the subpoena. Determining au- COMPETENT MEMBERS OF THE thorities should consult promptly with NAVAL SERVICE the OJAG General Litigation Division or the Navy Litigation Office of the Sec. General Counsel if this course of action 726.1 Purpose. appears necessary, because some objec- 726.2 Scope. tions to subpoenas must be made either 726.3 Authority to appoint trustees. within ten days of service of the sub- 726.4 Procedures. poena or on or before the time for com- 726.5 Procedures for designation of a trust- pliance, whichever first occurs, and be- ee. 726.6 Travel orders. cause this will require timely consulta- 726.7 Status of pay account. tion with the Department of Justice. If 726.8 Emergency funds and health and com- no subpoena has been issued, the deter- fort. mining authority must decide whether 726.9 Reports and supervision of trustees. to deny the request or, if appropriate, AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013, and waive the fees. 5148; 37 U.S.C. 601–604, and 1001; 32 CFR 700.105 (2) Waiver or reduction of fees. The de- and 700.312. termining authority may waive or re- SOURCE: 56 FR 55088, Oct. 24, 1991, unless duce fees pursuant to 32 CFR 288.4, otherwise noted. 288.9, provided such waiver or reduction NOTE: This part 726 is chapter XIV, of the is in the best interest of the DON and Manual of the Judge Advocate General of the the United States. Fee waivers and re- Navy. ductions shall not be routinely grant- § 726.1 Purpose. ed, or granted under circumstances which might create the appearance This part explains the procedures for that DON favors one party over an- convening competency boards and how other. to appoint trustees for members of the Naval service who have been deter- (3) Witness fees required by the court. mined to be mentally incompetent in Witness fees required by the rules of accordance with Chapter 11 of Title 37, the applicable court shall be paid di- United States Code. rectly to the witness by the requester. Such amounts are to defray the cost of [56 FR 55088, Oct. 24, 1991, as amended at 73 travel and per diem. In a case where FR 64206, Oct. 29, 2008] the Government has paid the cost of § 726.2 Scope. travel and per diem, the witness shall turn over to his or her supervisor any (a) The Secretary of the Navy has au- payment received from a private party thority to designate a trustee in the to defray the cost of travel that, when absence of notice that a legal committee, guardian, or other legal rep- added to amounts paid by the Govern- resentative has been appointed by a ment, exceed the actual cost of travel. State court of competent jurisdiction. The supervisor shall forward the 37 U.S.C. 601-604. Trustees receive the amount turned over by the witness to active duty pay and allowances, the Office of the Comptroller of the amounts due for accrued or accumu- Navy for appropriate action. lated leave, and retired pay or retainer (4) Exceptional cases. If neither the pay, that are otherwise payable to a DON, nor an agency of the Federal member found by competent medical Government is a party, appropriated authority to be mentally incapable of funds may be used to pay, without re- managing his affairs. The Secretary of imbursement, travel and per diem of the Navy has authority to designate a DON personnel who are witnesses in trustee in the absence of notice that a criminal or civil proceedings, provided, legal committee, guardian, or other the case is directly related to the legal representative has been appointed Armed Services, or its members, and by a State court of competent jurisdic- the Armed Services have a genuine and tion (37 U.S.C. 601–604). This authority compelling interest in the outcome. is exercised by the Defense Finance and

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Accounting Service-Cleveland Center medical facility or administrator of a (DFAS–CL), who has delegated it to Department of Veterans Affairs med- DFAS–CL, Office of Continuing Gov- ical facility, convene a competency ernment Activity (DFAS–CL(CGA)). board in accordance with this section Trustees receive the active duty pay to determine the mental capability of a and allowances, amounts due for ac- member to manage his financial af- crued or accumulated leave, and re- fairs. tired pay or retainer pay, that are oth- (3) A finding of restoration of com- erwise payable to a member found by petency or capability to manage per- competent medical authority to be sonal and financial affairs may be ac- mentally incapable of managing his af- complished in the same manner speci- fairs. fied in Chapter 18, MANMED, except (b) Member as used in this chapter re- that the board may consist of one or fers to: two Medical Department officers or (1) Members of the Navy or Marine physicians, one of whom must be a Corps on active duty (other than for Navy psychiatrist or clinical psycholo- training) or on the retired list of the gist. Navy or Marine Corps; and (4) At least one officer on the com- (2) Members of the Fleet Reserve or petency board, preferably the psychia- Fleet Marine Corps Reserve. trist or clinical psychologist, will personally observe the member and ensure [56 FR 55088, Oct. 24, 1991, as amended at 73 that the member’s medical record, par- FR 64206, Oct. 29, 2008] ticularly that portion concerning his mental health, is accurate and com- § 726.3 Authority to appoint trustees. plete. DFAS–CL (CGA) is authorized to act (5) The requirement to convene a for the Secretary of the Navy to ap- competency board under this chapter is point trustees to receive and admin- in addition to and separate from the ister Federal monies for members and medical board procedures. Each board to carry out the provisions of this member signs the report of the board chapter. and certifies whether the member is or [56 FR 55088, Oct. 24, 1991, as amended at 73 is not mentally capable of managing FR 64206, Oct. 29, 2008] his financial affairs. After approval by the convening authority, the original § 726.4 Procedures. board report is forwarded to DFAS– (a) Competency Board. (1) The com- CL(CGA). manding officer of the cognizant Naval (b) Records. The convening authority medical facility will convene a board of will forward the original of each board not less than three Medical Depart- report to the Defense Finance and Ac- ment officers or physicians, one of counting Service-Cleveland Center, Of- whom will be a Navy psychiatrist or fice of Continuing Government Activ- clinical psychologist, when there is ity (Code CGA), Post Office Box 998021, evidence that a member may be in- Room 2323, Cleveland, OH 44199–80216. If capable of handling his financial af- a member is found to be not mentally fairs. The board will be convened in ac- capable of managing his financial af- cordance with Chapter 18, Manual of fairs, the forwarding endorsement will the Medical Department (MANMED). set forth the name, relationship, ad- The board may include members of the dress, and telephone number(s) of the Reserve components on active or inac- member’s next of kin, and any other tive duty. When active duty Navy or information that will assist to identify Marine Corps members are hospitalized a prospective trustee. in non-Naval medical facilities, the [73 FR 64206, Oct. 29, 2008] Military Medical Support Office will ensure compliance with Chapter 18, § 726.5 Procedures for designation of a MANMED. trustee. (2) DFAS–CL(CGA) may request the Upon receipt of a report of a com- commanding officer of any Naval med- petency board that a member has been ical facility, or request the com- found mentally incapable of managing manding officer of another service his financial affairs, DFAS–CL(CGA)

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will initiate action to appoint a trust- § 726.9 Reports and supervision of ee, provided no notice of appointment trustees. of a committee, guardian, or other (a) Accounting reports. The trustee legal representative by a State court of designated by DFAS–CL(CGA) will sub- competent jurisdiction has been remit accounting reports annually or at ceived by DFAS–CL(CGA). such other times as DFAS–CL(CGA) or [73 FR 64207, Oct. 29, 2008] his designee directs. DFAS–CL(CGA) will provide forms to be used by trust- § 726.6 Travel orders. ees for the required accounting report. The report will account for all funds The Chief of Naval Personnel or the received from the Navy or Marine Deputy Commandant, Manpower & Re- Corps on behalf of the member. When serve Affairs, may issue travel orders payments to a trustee are terminated to a member to appear before a com- for any reason, the trustee will submit petency board convened to determine a final accounting report to DFAS– whether the member is mentally capa- CL(CGA). Upon approval of the final ble of managing his financial affairs. In accounting report, the trustee and the the case of permanently retired mem- surety will be discharged from liabil- bers, travel will be at no cost to the ity. Government. (b) Failure to submit a report and default. If an accounting report is not re- [73 FR 64207, Oct. 29, 2008] ceived by the date designated by DFAS–CL(CGA) or an accounting is un- § 726.7 Status of pay account. satisfactory, DFAS–CL(CGA) will no- Upon notification by the com- tify the trustee in writing. If a satis- manding officer of the medical facility factory accounting is not received by preparing the board report that a mem- DFAS–CL(CGA) within the time speci- ber has been declared mentally incapa- fied, the trustee will be declared in de- ble of managing his financial affairs, fault of the trustee agreement and will DFAS–CL(CGA) will suspend the mem- be liable for all unaccounted trustee ber’s pay. Thereafter, DFAS–CL(CGA) funds. If a trustee is declared in default or his designee will direct payment of of the trustee agreement, DFAS– monies to: CL(CGA) will terminate payments to (a) The appointed trustee; the trustee and, if necessary, a suc- (b) The legal representative ap- cessor trustee may be appointed. The pointed by a State court of competent trustee and surety will be notified in jurisdiction; or writing by DFAS–CL(CGA) of the declaration of default. The notification (c) Directly to the member following will state the reasons for default, the a determination the member is capable amount of indebtedness to the Govern- of managing his financial affairs. ment, and will demand payment for the [73 FR 64207, Oct. 29, 2008] full amount of indebtedness. If payment in full is not received by DFAS– § 726.8 Emergency funds and health CL(CGA) within an appropriate period and comfort. of time from notification of default, Until a trustee is appointed, DFAS– the account may be forwarded to the CL(CGA) may appoint the member’s Department of Justice for recovery of funds through appropriate civil action. designated next of kin to receive emergency funds equal to, but not to exceed [73 FR 64207, Oct. 29, 2008] the amount of pay due the incompetent member for a period of one month. PART 727—LEGAL ASSISTANCE These funds will be deducted from the member’s pay account and will be used Sec. for the benefit of the member and any 727.1 Purpose. legal dependents. 727.2–727.4 [Reserved] 727.5 Persons eligible for assistance. [73 FR 64207, Oct. 29, 2008] 727.6 Functions of legal assistance officers. 727.7 Limitations on service provided.

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727.8 Confidential and privileged character serving with, or accompanying the U.S. of service provided. Armed Forces, and their dependents, 727.9 Referrals to civilian lawyers. when and if the workload of the office 727.10 Fees, compensation, solicitation, and renders such service feasible, and other representation in civilian courts. 727.11 Supervision. persons authorized by the Judge Advo- 727.12 Communications. cate General of the Navy. 727.13 Reports. [69 FR 20541, Apr. 16, 2004] 727.14 Files and records. 727.15 Liberal construction of part. § 727.6 Functions of legal assistance of- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and ficers. 5148; 32 CFR 700.206 and 700.1202. (a) Basic duties. A legal assistance of- SOURCE: 38 FR 6026, Mar. 6, 1973, unless oth- ficer, while performing legal assistance erwise noted. duties, in addition to performing any other duties which may be assigned to § 727.1 Purpose. him/her: A legal assistance program providing (1) Shall counsel, advise, and assist needed legal advice and assistance to persons eligible for assistance in con- military personnel and their depend- nection with their personal legal prob- ents has been in operation in the naval lems, or refer such persons to a civilian service since 1943. The program has im- lawyer as provided in § 727.9. proved the morale of personnel and re- (2) Shall serve as advocate and coun- duced disciplinary problems since its sel for persons eligible for assistance in inception. The purpose of this part is connection with their personal legal to provide guidelines for the continu- problems and may prepare and sign ation of the program. correspondence on behalf of a client, negotiate with another party or his §§ 727.2–727.4 [Reserved] lawyer, and prepare all types of legal documents, including pleadings, as are § 727.5 Persons eligible for assistance. appropriate. Legal assistance shall be available to (3) Shall, in appropriate cases and members of the Armed Forces of the under guidelines prescribed in the Man- United States and their dependents, ual of the Judge Advocate General con- and military personnel of allied na- templating agreements or liaison with tions serving in the United States, its appropriate civilian bar officials, serve territories or possessions. Legal assist- as advocate and counsel for, and pro- ance is intended primarily for the ben- vide full legal representation including efit of active duty personnel during ac- representation in court to, persons eli- tive service, including reservists (and gible for assistance in connection with members of the National Guard) on ac- their personal legal problems. tive duty for 30 days or more. As re- (4) Shall, subject to the direction of sources permit, legal assistance may be the senior legal assistance officer of extended to retired military personnel, the command, establish contact and their dependents, survivors of members maintain liaison with local bar organi- of the Armed Forces who would be eli- zations, lawyer referral services, legal gible were the service member alive, aid societies, and other local organiza- reservists on active duty for single pe- tions through which the services of ci- riods of 29 days or less, members of Re- vilian lawyers may be made available serve Components following release to military personnel and their depend- from active duty under a call or order ents. to active duty for more than 30 days (5) Shall supervise the personnel and issued under a mobilization authority operation of the legal assistance office (as determined by the Secretary of De- in accordance with good legal practice fense), for a period of time that begins and the policies and guidance provided on the date of the release and is not by the Judge Advocate General. less than twice the length of the period (6) Shall advise persons with com- served on active duty under that call plaints of discrimination on policies or order to active duty, and in overseas and procedures under the Civil Rights areas, civilians, other than local-hire Act of 1964 and pertinent Navy instruc- employees, who are in the employ of, tions.

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(b) Nature of assistance. Legal assist- fessional Responsibility of the Amer- ance officers and administrative and ican Bar Association. clerical personnel assigned to legal as- [41 FR 26863, June 30, 1976, as amended at 47 sistance offices perform legal assist- FR 41561, Sept. 21, 1982; 65 FR 26748, May 9, ance duties as official duties in the ca- 2000] pacity of an officer or an employee of the United States. Persons performing § 727.7 Limitations on service pro- legal assistance duties, however, vided. should not mislead those with whom (a) Assistance in official military mat- they may deal into believing that their ters. Legal Assistance duties are sepa- views or opinions are the official views rate and apart from the responsibilities or opinions of, approved by, or binding of a trial counsel, defense counsel, or on, the Department of the Navy or the other officer involved in the processing United States. of courts-martial, nonjudicial punish- (c) Duty to client. A legal assistance ment, administrative boards or pro- officer should exercise his independent ceedings, investigations, or other offi- professional judgment on behalf of his cial military matters. Frequently, a client within the standards promul- service member accused or suspected of gated in the Code of Professional Re- an offense or conduct leading to an ad- sponsibility and the specific limita- ministrative proceeding will request tions imposed in this part. advice from the legal assistance offi- (d) Professional legal advice. Legal ascer. In such a case, the service member sistance is authorized for personal should be advised of the proper proce- legal affairs only, as contrasted with dures for obtaining counsel or advice. military justice problems, business This limitation does not prevent the ventures, or matters that are not of a assignment of the same officer to per- personal nature. Legal assistance du- form the functions of a legal assistance ties are separate and apart from re- officer and the functions of a defense sponsibilities of trial counsel, defense counsel, counsel for respondent, or counsel, or others involved in proc- counsel for a party. essing courts-martial, nonjudicial pun- (b) Domestic-relations cases. In domes- ishments, administrative boards or tic-relations cases, a legal assistance proceedings, and investigations. Only officer may provide advice concerning legal assistance officers are authorized the legal and practical implications of to render services that call for the pro- divorce, legal separation, annulment, fessional judgment of a lawyer. The custody, and paternity. Assistance and legal assistance officer may delegate advice in domestic violence cases will tasks to clerks, secretaries, and other be consistent with the Department of lay personnel provided the officer the Navy family advocacy program. If maintains a direct relationship with two or more eligible persons with con- the client, supervises the delegated flicting interests seek legal assistance work, and has complete professional re- from the same office on the same mat- sponsibility for the work product. ter, the party first establishing an at- Services that call for the professional torney-client relationship will be pro- judgment of a lawyer include, but are vided representation. Other parties not limited to, the preparation of wills shall be advised that they are also eli- and powers of attorney, advising per- gible for assistance, but that it must be sonnel with respect to legal rights and obtained from another source, with the assistance of and referral by the first relationships, negotiating contracts, office. and other matters requiring an edu- cated ability to relate the general body (c) Nonlegal advice. The legal assistance officer, while giving legal advice, and philosophy of law to a specified may also determine that the client legal problem of a client. Guidance in needs or desires advice on related this matter may be had from various nonlegal matters. The legal assistance official sources including the ethical officer should provide legal advice considerations under the Code of Pro- only, or defer giving such advice, and

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refer the client to an appropriate per- sistance client by name or any other son or agency for such nonlegal coun- particular, such as social security seling. The legal assistance officer number, shall be extracted from the should establish and maintain a work- case files and incorporated into any ing relationship with those individuals file or index system aside from or in who are qualified to provide nonlegal addition to the information contained counseling services. on the legal assistance form (NAVJAG (d) Proceedings involving the United 5801/9) or locally used equivalent. States. A legal assistance officer shall Strict adherence to the foregoing will not advise on, assist in, or become in- ensure compliance with the Privacy volved with, individual interests op- Act. Administrative and clerical per- posed to or in conflict with the United sonnel assigned to legal assistance of- States without the specific approval of fices shall maintain the confidential the Judge Advocate General. nature of matters handled. (e) Telephone inquiries. In the absence [42 FR 35957, July 13, 1977, as amended at 65 of unusual or compelling cir- FR 26749, May 9, 2000] cumstances, legal advice should not be given over the telephone. This does not § 727.9 Referrals to civilian lawyers. prohibit appropriate follow-up tele- (a) General. If it is determined that phone discussions between the legal as- the legal assistance requested is be- sistance attorney and the client. yond the scope of this part, or if no [41 FR 26863, June 30, 1976, as amended at 65 available legal assistance officer is FR 26749, May 9, 2000] qualified to give the assistance requested, the client should be referred § 727.8 Confidential and privileged to a civilian lawyer. When the client character of service provided. does not know of a lawyer whom he All information and files pertaining wishes to represent him, his case may to the persons served will be treated as be referred to an appropriate bar orga- confidential and privileged in the legal nization, lawyer referral service, legal sense as outlined in the Code of Profes- aid society, or other local organization sional Responsibility, as opposed to for assistance in obtaining reliable, confidential in the military sense of se- competent, and sympathetic counsel, curity information. These privileged or to a civilian lawyer designated by matters may not be disclosed to any- such organization. one by personnel rendering the service, (b) Fees charged by civilian lawyers. except upon the specific permission of Legal assistance clients being referred the person concerned, and disclosure to a civilian lawyer should be advised thereof may not be lawfully ordered by that, even when the fee to be charged is superior military authority. This re- set by statute or subject to court ap- striction does not prohibit providing proval, it should be one of the first the nonprivileged statistical data re- items discussed to avoid later mis- quired by § 727.13 of this part. Protec- understandings and eliminate uncer- tion of the confidences of a legal assist- tainty. Legal assistance officers should ance client is essential to the proper exercise caution in discussing possible functioning of the legal assistance pro- fees to be charged by civilian lawyers gram in order to assure all military so as to avoid embarrassment or mis- personnel, regardless of grade, rank, or understanding between the client and position, that they may disclose frank- his civilian lawyer. ly and completely all material facts of their problem to those rendering the § 727.10 Fees, compensation, solicita- service without fear that their con- tion, and representation in civilian fidence will be abused or used against courts. them in any way. While case files are (a) General. Active duty military per- not subject to the control of the De- sonnel and civilian employees of the partment of the Navy and therefore do Navy and Marine Corps are prohibited not constitute a ‘‘system of records’’ from accepting or receiving, directly or within the meaning of the Privacy Act indirectly, any fee or compensation of of 1974 (5 U.S.C. 552a), no information any nature, in cash or otherwise, for which identifies an individual legal as- legal services rendered to any person

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entitled to legal assistance under this § 727.11 Supervision. part whether or not the service ren- The Judge Advocate General will ex- dered is normally provided or available ercise supervision over all legal assist- to such person under this part and ance activities in the Department of whether or not the service is rendered the Navy. Subject to the supervision of during duty hours as part of official du- the Judge Advocate General, officers in ties. Reserve judge advocates on inac- charge of Naval Legal Service Offices, tive duty are prohibited from accepting and all Marine Corps commanders exer- or receiving any fee or compensation of cising general court-martial authority, any nature, in cash or otherwise, for acting through their judge advocates, legal services rendered to any person shall exercise supervision over all legal entitled to legal assistance under this assistance activities within their re- part with respect to matters about spective areas of responsibility and which they consulted or advised said shall ensure that legal assistance serv- person in an official capacity. ices are made available to all eligible (b) Solicitation. Active duty military personnel within their areas. The personnel, civilian employees of the Judge Advocate General will collabo- Navy and Marine Corps, and inactive rate with the American Bar Associa- reservists, acting in an official capac- tion, the Federal Bar Association, and ity, are prohibited from soliciting, or other civilian bar organizations as he advising that any person entitled to may deem necessary or advisable in the legal assistance under this part retain, accomplishment of the objectives and consult, or seek legal services from purposes of the legal assistance pro- themselves in their private capacities, gram. or from any attorney who is a partner [42 FR 35957, July 13, 1977] or associate of a law firm of which they are partners or associates, or from any § 727.12 Communications. attorney with whom they share office spaces; Provided that nothing herein (a) Legal assistance officers are au- shall prevent such person from being thorized to communicate directly with referred to civilian counsel as provided the Judge Advocate General, with each other, and with other appropriate orga- in § 727.9. nizations and persons concerning legal (c) Representation before civilian courts assistance matters. or agencies. No active duty Navy or Ma- (b) The use of a legal assistance of- rine Corps judge advocate may appear fice letterhead within the Department as counsel on behalf of any person enti- of the Navy is authorized as an excep- tled to legal assistance, except as pro- tion to the standard letterhead require- vided in paragraph (a)(3) of § 727.6, or ments contained in Department of De- the Expanded Legal Assistance Pro- fense Instructions. Naval Legal Service gram, or under guidelines prescribed in Offices and other commands having au- the Manual of the Judge Advocate Gen- thorized legal assistance officers are eral, before any civil court, civil ad- authorized to print and use letterheads ministrative tribunal, civil regulatory without seal or official command des- body, or civil governmental agency, in ignation in those matters in which the any proceeding, whether or not a fee or correspondence pertains solely to legal other compensation is accepted or re- assistance matters. Legal assistance ceived, without prior written approval officers are directed to ensure that of the Judge Advocate General, the ad- their correspondence does not imply ministrator of the applicable program, United States Navy or command spon- or the Commander, Naval Legal Serv- sorship or approval of the substance of ice Command, as appropriate. Requests the correspondence. Such correspond- for such permission may be in the form ence is considered a private matter prescribed in the Manual of the Judge arising from the attorney-client rela- Advocate General. tionship as indicated in § 727.8. [47 FR 41561, Sept. 21, 1982, as amended at 65 [42 FR 35958, July 13, 1977, as amended at 65 FR 26749, May 9, 2000] FR 26749, May 9, 2000]

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§ 727.13 Reports. 728.13 Application for care. 728.14 Pay patients. Each legal assistance office shall, by the 10th day of October of each year, Subpart C—Members of Reserve Compo- prepare and submit to the Judge Advo- nents, Reserve Officers’ Training Corps, cate General one copy of the Legal As- Navy and Marine Corps Officer Can- sistance Report (NAVJAG 5801/3 Rev. didate Programs, and National Guard 12–78)) covering the preceding fiscal Personnel year. A final report shall be submitted on the disestablishment of the legal as- 728.21 Navy and Marine Corps reservists. 728.22 Members of other reserve components sistance office. Special reports shall be of the uniformed services. submitted when requested by the Judge 728.23 Reserve Officers’ Training Corps Advocate General. Information copies (ROTC). of all reports shall be furnished to the 728.24 Navy and Marine Corps Officer Can- supervising commander referred to in didate Programs. § 727.11. Reports symbol JAG–5801–1 is 728.25 Army and Air Force National Guard assigned for this reporting require- personnel. ment. Subpart D—Retired Members and [38 FR 6026, Mar. 6, 1973, as amended at 47 FR Dependents of the Uniformed Services 41561, Sept. 21, 1982] 728.31 Eligible beneficiaries and health ben- § 727.14 Files and records. efits authorized. 728.32 Application for care. (a) Case files. The material contained 728.33 Nonavailability statement (DD 1251). in legal assistance case files is nec- 728.34 Care beyond the capabilities of a essarily limited to private unofficial naval MTF. matters and such material is privileged 728.35 Coordination of benefits—third party and protected under the attorney-cli- payers. ent relationship. Each legal assistance 728.36 Pay patients. office should therefore maintain only Subpart E—Members of Foreign Military such files as are necessary for the prop- Services and Their Dependents er operation of the office. (b) [Reserved] 728.41 General provisions. 728.42 NATO. [38 FR 6026, Mar. 6, 1973, as amended at 43 FR 728.43 Members of other foreign military 17355, Apr. 24, 1978] services and their dependents. 728.44 Members of security assistance train- § 727.15 Liberal construction of part. ing programs, foreign military sales, and The provisions of this part are in- their ITO authorized dependents. tended to be liberally construed to aid 728.45 Civilian components (employees of in accomplishing the mission of legal foreign military services) and their dependents. assistance. 728.46 Charges and collection. PART 728—MEDICAL AND DENTAL Subpart F—Beneficiaries of Other Federal CARE FOR ELIGIBLE PERSONS AT Agencies NAVY MEDICAL DEPARTMENT 728.51 General provisions—the ‘‘Economy FACILITIES Act.’’ 728.52 Veterans Administration bene- Subpart A—General ficiaries (VAB). 728.53 Department of Labor, Office of Work- Sec. ers’ Compensation Programs (OWCP) 728.1 Mission of Navy Medical Department beneficiaries. facilities. 728.54 U.S. Public Health Service (USPHS), 728.2 Definitions. other than members of the uniformed 728.3 General restrictions and priorities. services. 728.4 Policies. 728.55 Department of Justice beneficiaries. 728.56 Treasury Department beneficiaries. Subpart B—Members of the Uniformed 728.57 Department of State and associated Services on Active Duty agencies. 728.58 Federal Aviation Agency (FAA) bene- 728.11 Eligible beneficiaries. ficiaries. 728.12 Extent of care. 728.59 Peace Corps beneficiaries.

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728.60 Job Corps and Volunteers in Service Subpart A—General to America (VISTA) beneficiaries. 728.61 Medicare beneficiaries. § 728.1 Mission of Navy Medical De- partment facilities. Subpart G—Other Persons The primary mission of Navy Medical 728.71 Ex-service maternity care. Department facilities is to provide 728.72 Applicants for enrollment in the Sen- medical and dental care for members of ior Reserve Officers’ Training Program. the Navy and Marine Corps and for 728.73 Applicants for enlistment or reenlist- members of the other uniformed serv- ment in the Armed Forces, and appli- ices who may be sick, injured, or dis- cants for enlistment in the reserve com- abled. In addition, Navy Medical De- ponents. partment facilities may provide med- 728.74 Applicants for appointment in the ical and dental care to dependents of regular Navy or Marine Corps and re- military personnel, to members not on serve components, including members of active duty, and to such other persons the reserve components who apply for ac- as authorized by law, U.S. Navy regula- tive duty. tions, and Department of Defense di- 728.75 Applicants for cadetship at service rectives. These authorizations also pro- academies and applicants for the Uni- vide that Navy Medical Department fa- formed Services University of Health cilities may be called upon to furnish Sciences (USUHS). medical and dental care, under laws of 728.76 Naval Home residents. humanity or principles of international 728.77 Secretarial designees. 728.78 American Red Cross representatives courtesy, to civilians and to other per- and their dependents. sons not otherwise entitled to medical 728.79 Employees of Federal contractors and and dental care. subcontractors. § 728.2 Definitions. 728.80 U.S. Government employees. 728.81 Other civilians. Unless otherwise qualified in this 728.82 Individuals whose military records part, the following terms, when used are being considered for correction. throughout, are defined as follows: 728.83 Persons in military custody and non- (a) Active duty. Full-time duty in the military Federal prisoners. active military service of the United States. This includes full-time training Subpart H—Adjuncts to Medical Care duty; annual training duty; and attendance, while in the active military serv- 728.91 General. ice, at a school designated as a service 728.92 Policy. school by law or by the Secretary of 728.93 Chart of adjuncts. the military department concerned. It Subpart I—Reservists—Continued Treat- does not include full-time National ment, Return to Limited Duty, Separa- Guard duty. tion, or Retirement for Physical Dis- (b) Active duty for training. A tour of ability active duty for reserves for training under orders that provide for auto- 728.101 General. matic reversion to non-active status 728.102 Care from other than Federal when the specified period of active sources. duty is completed. It includes annual training, special tours, and the initial Subpart J—Initiating Collection Action on tour performed by enlistees without Pay Patients prior military service. (c) CHAMPUS. Civilian Health and 728.111 General. 728.112 Responsibilities. Medical Program of the Uniformed 728.113 Categories of pay patients. Services. (d) Catchment area. A specified geo- AUTHORITY: 5 U.S.C. 301 and 8101; 10 U.S.C. graphic area surrounding each Uni- 1071–1095, 1201–1221, 2104, 2107, 2109, 2110, 5031, formed Services Medical Treatment 5537, 6011, 6201–6203; 22 U.S.C. 1158, 2357, 2504, Facility (USMTF) or designated Uni- 2505, 2507, 2522; 24 U.S.C. 15, 34, 35; 31 U.S.C. formed Services Treatment Facility 1535; 42 U.S.C. 249, 253; and 32 CFR 700.1202. (USTF). In the United States, SOURCE: 52 FR 33718, Sept. 4, 1987, unless catchment areas are defined by zip otherwise noted. 295

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codes and are based on an area of ap- (i) Dental care. Treatment which will proximately 40 miles in radius for inpa- prevent or remedy diseases, disabil- tient care and 20 miles in radius for ities, and injuries to the teeth, jaws, ambulatory care. Zip codes designating and related structures and thereby con- such areas in the United States are tribute to maintenance or restoration specified in Volumes I and II of the of the dental health of an individual. Military Health Services System (j) Dependent. A spouse, an (MHSS) Catchment Area Directory. unremarried widow or widower, a child, Catchment areas for facilities outside or a parent who bears that legal rela- the United States are defined in Vol- tionship to his or her sponsor. For the ume III of the MHSS Catchment Area purpose of rendering care under title Directory. These directories exclude 10, U.S.C., chapter 55, this category certain areas because of geographic may also include an unremarried barriers. former spouse. However, each bene- (e) Chronic condition. Any medical or ficiary must also meet the eligibility surgical condition marked by long du- criteria in § 728.31(b) and § 728.31(c). ration or frequent recurrence—or like- (k) Designated USTFs. The following ly to be so marked—which, in light of former U.S. Public Health Service medical information available, will or- (USPHS) facilities operate as ‘‘des- dinarily resist efforts to eradicate it ignated USTFs’’ for the purpose of ren- completely; a condition which needs dering medical and dental care to ac- health benefits to achieve or maintain tive duty members and to all stability that can be provided safely CHAMPUS-eligible individuals. only by, or under the supervision of, (1) Sisters of Charity of the Incarnate physicians, nurses, or persons author- Word Health Care System, 6400 ized by physicians. Lawndale, Houston, TX 77058 (713) 928– (f) Civilian employee. Under 5 U.S.C. 2931 operates the following facilities: 2105, a nonmilitary individual (1) ap- (i) St. John Hospital, 2050 Space Park pointed in the civil service, (2) engaged Drive, Nassau Bay, TX 77058, telephone in the performance of a Federal func- (713) 333–5503. Inpatient and outpatient tion, or (3) engaged in the performance services. of his or her duties while subject to the (ii) St. Mary’s Hospital Outpatient supervision of The President, a Member Clinic, 404 St. Mary’s Boulevard, Gal- or Members of Congress, or the Con- veston, TX 77550, telephone (409) 763– gress, a member of a uniformed service, 5301. Outpatient services only. an individual who is an employee under (iii) St. Joseph Hospital Ambulatory 5 U.S.C. 2105, the head of a Government Care Center, 1919 La Branch, Houston, controlled corporation, or an adjutant TX 77002, telephone (713) 757–1000. Out- general designated by the Secretary patient services only. concerned under section 709c of title 32. (iv) St. Mary’s Hospital Ambulatory Included are justices and judges of the Care Center, 3600 Gates Boulevard, United States, appointed and engaging Port Arthur, TX 77640 (409) 985–7431. in the performance of duties per 5 Outpatient services only. U.S.C. 2104. (2) Inpatient and outpatient services. (i) (g) Cooperative care. Medical services Wyman Park Health System, Inc., 3100 and supplies for which CHAMPUS will Wyman Park Drive, Baltimore, MD share in the cost under circumstances 21211, telephone (301) 338–3693. specified in § 728.4(z), even though the (ii) Alston-Brighton Aid and Health patient remains under the primary Group, Inc., Brighton Marine Public control of a USMTF. Health Center, 77 Warren Street, Bos- (h) Cooperative care coordinator. Des- ton, MA 02135, telephone (617) 782–3400. ignated individual in a CHAMPUS con- (iii) Bayley Seton Hospital, Bay tractor’s office who serves as the point Street and Vanderbilt Avenue, Staten of contact for health benefits advisors Island, NY 10304, telephone (718) 390– on all matters related to supplemental- 5547 or 6007. cooperative care or services provided (iv) Pacific Medical Center, 1200 12th or ordered for CHAMPUS-eligible bene- Avenue South, Seattle, WA 98144, tele- ficiaries by USMTF providers. phone (206) 326–4100.

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(3) Outpatient services only. (i) Coastal (r) Legitimate care. Those medical and Health Service, 331 Veranda Street, dental services under the cooperative/ Portland, ME 04103, telephone (207) 774– supplemental care program of 5805. CHAMPUS that are legally performed (ii) Lutheran Medical Center, Down- and not contrary to governing statutes. town Health Care Services, 1313 Supe- (s) Maximum hospital benefit. That rior Avenue, Cleveland, OH 44113, tele- point during inpatient treatment when phone (216) 363–2065. the patient’s progress appears to have (l) Disability retirement or separation. stabilized and it can be anticipated Temporary or permanent retirement or that additional hospitalization will not separation for physical disability as directly contribute to any further sub- provided in title 10, U.S.C., 1201–1221. stantial recovery. A patient who will (m) Elective care. Medical, surgical, or continue to improve slowly over a long dental care desired or requested by the period without specific therapy or med- individual or recommended by the phy- ical supervision, or with only a mod- sician or dentist which, in the opinion erate amount of treatment on an out- of other cognizant professional author- patient basis, may be considered as ity, can be performed at another place having attained maximum hospital or time without jeopardizing life, limb, benefit. health, or well-being of the patient, (t) Medical care. Treatment required to maintain or restore the health of an e.g., surgery for cosmetic purposes and individual. Medical care may include, nonessential dental prosthetic appli- but is not limited to, the furnishing of ances. inpatient treatment, outpatient treat- (n) Emergency care. Medical treatment, nursing service, medical exami- ment of patients with severe, life- nations, immunizations, drugs, subsist- threatening, or potentially disabling ence, transportation, and other ad- conditions that require immediate juncts such as prosthetic devices, spec- intervention to prevent undue suffering tacles, hearing aids, orthopedic foot- or loss of life or limb and dental treat- wear, and other medically indicated ment of painful or acute conditions. appliances or services. (o) Health benefits advisors (HBA). (u) Medically inappropriate. A situa- Designated individuals at naval facili- tion arising when denial of a Nonavail- ties who are responsible for advising ability Statement could result in sig- and assisting beneficiaries covered in nificant risk to the health of a patient this part concerning medica1 and den- or significant limitation to the pa- tal benefits in uniformed services fa- tient’s reasonable access to needed cilities and under CHAMPUS. They health care. also provide information regarding (v) Medically necessary. The level of Veterans’ Administration, Medicare, services and supplies (i.e., frequency, MEDICAID, and such other local extent, and kinds) adequate for the di- health programs known to be available agnosis and treatment of illness or in- to beneficiaries (see § 728.4(n)). jury, including maternity care. Medi- (p) Hospitalization. Inpatient care in a cally necessary, includes the concept of medical treatment facility. appropriate medical care. (q) Inactive duty training. Duty pre- (w) Medical treatment facility (MTF). scribed for Reserves by the Secretary Any duly authorized medical depart- concerned under section 206 of title 37, ment center, hospital, clinic, or other U.S.C. or any other provision of law. facility that provides medical, sur- Also includes special additional duties gical, or dental care. authorized for Reserves by an author- (x) Member or former member. Includes: ity designated by the Secretary con- (1) Members of the uniformed serv- cerned and performed on a voluntary ices ordered to active duty for more basis in connection with the prescribed than 30 days. training or maintenance activities of (2) Retired members as defined in the units to which they are assigned. It § 728.2(bb). includes those duties when performed (3) Members of a uniformed service by Reserves in their status as members ordered to active duty for more than 30 of the National Guard. days who died while on that duty.

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(4) Deceased retired members. sioned Corps of the National Oceanic (y) Military patient. A member of a and Atmospheric Administration. United States uniformed service on ac- (ee) USMTF. Uniformed services med- tive duty, active duty for training, or ical treatment facility. inactive duty training, or an active (ff) Visit, outpatient. Appearance by duty member of the armed forces of a an eligible beneficiary at a separate, foreign government who is receiving organized clinic or specialty service inpatient or outpatient care. for: Examination, diagnosis, treat- (z) Occupational health services. In- ment, evaluation, consultation, coun- cludes medical examinations and tests seling, or medical advice; or treatment related to preemployment, of an eligible beneficiary in quarters; preplacement, periodic, and and a signed and dated entry is made in pretermination; tests required for pro- the patient’s health record. Specifi- tecting the health and safety of naval cally excluded are personnel in an in- personnel; job-related immunizations patient status at the time of such a and chemoprophylaxis; education and visit. training related to occupational health; and other services provided to § 728.3 General restrictions and prior- avoid lost time or to improve effective- ities. ness of employees. The latter will include the furnishing of emergency (a) Restrictions. (1) Naval MTFs pro- treatment of illnesses or injuries oc- vide care to all eligible beneficiaries curring at work. Furnish such health subject to the capabilities of the pro- services to both active duty military fessional staff and the availability of personnel and naval civilian employees space and facilities. per current directives. (2) Hospitalization and outpatient (aa) Retired member. A member or services may be provided outside the former member of a uniformed service continental limits of the United States who is entitled to retired or retainer and in Alaska to officers and employ- pay, or equivalent pay, as a result of ees of any department or agency of the service in a uniformed service. This in- Federal Government, to employees of a cludes a member or former member contractor with the United States or who is: (1) Retired for length of service; the contractor’s subcontractor, to ac- (2) permanently or temporarily retired companying dependents of such per- for physical disability; (3) on the emer- sons, and in emergencies to such other gency officers’ retired list and is enti- persons as the Secretary of the Navy tled to retired pay for physical dis- may prescribe: Provided, such services ability; or (4) otherwise in receipt of re- are not otherwise available in reason- tired pay under chapter 67 of title 10. ably accessible and appropriate non- (bb) Routine care. Medica1 and dental Federal facilities. Hospitalization of care necessary to maintain health or such individuals in a naval MTF is lim- dental functions other than care of an ited to the treatment of acute medical emergency or elective nature. and surgical conditions, exclusive of (cc) Supplemental care or services. nervous, mental, or contagious dis- When medical or dental management is eases, or those requiring domiciliary retained by a naval MTF and required care. Routine dental care, other than care is not available at the facility re- dental prosthesis or orthodontia, may taining management, any additional be rendered on a space available basis material, professional diagnostic or outside the continental limits of the consultative services, or other personal United States and in Alaska, Provided, services ordered by qualified uniformed such services are not otherwise avail- service providers, and obtained for the able in reasonably accessible and ap- care of that patient are supplemental. propriate non-Federal facilities. See § 728.12 concerning the management (b) Priorities. When care cannot be of active duty member patients. rendered to all eligible beneficiaries, (dd) Uniformed services. The Navy, the priorities in the following chart Marine Corps, Air Force, Army, Coast will prevail. Make no distinction as to Guard, Commissioned Corps of the Pub- the sponsoring uniformed service when lic Health Service, and the Commis- providing care or deciding priorities.

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PRIORITIES FOR THE VARIOUS CATEGORIES OF PERSONNEL ELIGIBLE FOR CARE IN NAVY MEDICAL DEPARTMENT FACILITIES

Pri- ority Category Degree of entitlement

1 ...... A. Members of the uniformed services on active duty (including active duty See subpart B. for training and inactive duty training) and comparable personnel of the NATO nations meeting the conditions prescribed in this part. B. Members of a Reserve Component of the Armed Forces and National See subpart C. Guard personnel under orders. 2 ...... Dependents of active duty members of the uniformed services, dependents See subparts D and E. of persons who died while in such a status, and the dependents of active duty members of NATO nations meeting the conditions prescribed in subpart E of this part. 3 ...... Members ot the Senior Reserve Officers’ Training Corps of the Armed See § 728.23. Forces. 4 ...... Retired members of the uniformed services and their dependents and de- See subpart D. pendents of deceased retired members. 5 ...... Civilian employees of the Federal Government under the limited cir- See § 728.80. cumstances covered by the Federal Employees’ Health Service program. 6 ...... All others, including ex-service maternity eligibles ...... See subparts F and G.

§ 728.4 Policies. active duty members under medical (a) Admissions to closed psychiatric care when such persons are not yet fit wards. Admit patients to closed psy- for duty, may be granted by a mem- chiatric wards only when they have a ber’s commanding officer (CO) or the psychiatric or emotional disorder hospital’s CO per the following: which renders them dangerous to (1) Unless otherwise indicated, grant themselves or others, or when a period such leave only when recommended by of careful closed psychiatric observa- COMNAVMEDCOM through action tion is necessary to determine whether taken upon a report by a medical such a condition exists. When a patient board, or the recommended findings of is admitted to a closed psychiatric a physical evaluation board or higher ward, the reason for admission must be authority. clearly stated in the patient’s clinical (2) Member’s commanding officer record by the physician admitting the (upon advice of attending physician); patient to the ward. These same poli- commanding officers of Navy, Army, or cies apply equally in those instances Air Force medical facilities; com- when it becomes necessary to place a manders of regional medical commands patient under constant surveillance for persons hospitalized in designated while in an open ward. USTFs or in civilian facilities within (b) Absence from the sick list. See their respective areas of authority; and § 728.4 (d), (x), and (y). managers of Veterans Administration (c) Charges and collection. Charges for hospitals within the 50 United States services rendered vary and are set by or in Puerto Rico may grant convales- the Office of the Assistant Secretary of cent leave to active duty naval pa- Defense (Comptroller) and published in tients, with or without reference to a a yearly NAVMEDCOMNOTE 6320, medical board, physical evaluation (Cost elements of medical, dental, subsistence rates, and hospitalization board, or higher authority provided bills). Billing and collection actions the: also vary according to entitlement or (i) Convalescent leave is being grant- eligibility and are governed by the pro- ed subsequent to a period of hos- visions of NAVMED P-5020, Resource pitalization. Management Handbook. See subpart J (ii) Member is not awaiting discipli- on the initiation of collection action nary action or separation from the on pay patients. service for medical or administrative (d) Convalescent leave. Convalescent reasons. leave, a period of authorized absence of (iii) Medical officer in charge:

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(A) Considers the convalescent leave tial for jeopardy to physical or mental beneficial to the patient’s health. health of an individual. (B) Certifies that the patient is not (2) Commanding officers will mon- fit for duty, will not need hospital itor, control, and assure compliance treatment during the contemplated with the following cosmetic surgery convalescent leave period, and that policy: such leave will not delay final disposi- (i) Certain cosmetic procedures are a tion of the patient. necessary part of training and reten- (3) When considered necessary by the tion of skills to meet the requirements attending physician and approved on of certification and recertification. an individual basis by the commander (ii) Insofar as they meet minimum of the respective geographic regional requirements and serve to improve the medical command, convalescent leave skills and techniques needed for recon- in excess of 30 days may be granted. structive surgery, the following cos- The authority to grant convalescent metic procedures may be performed as leave in excess of 30 days may not be low priority surgery on active duty redelegated to hospital commanding members only when time and space are officers. Member’s permanent com- available. mand must be notified of such exten- (A) Cosmetic facial rhytidectomies sions (see MILPERSMAN 3020360). (face lifts) will be a part of all training programs required by certifying (4) Exercise care in granting con- boards. valescent leave to limit the duration of (B) Cosmetic augmentation such leave to that which is essential in mammaplasties will be done only by relation to diagnosis, prognosis, esti- properly credentialed surgeons and mated duration of treatment, and pa- residents within surgical training pro- tient’s probable final disposition. grams to meet requirements of certi- (5) Upon return from convalescent fying boards. leave; (f) Cross-utilization of uniformed serv- (i) Forward one copy of original or- ices facilities. To provide effective cross- ders of officers, bearing all endorse- utilization of medical and dental facili- ments, to the Commander, Naval Mili- ties of the uniformed services, eligible tary Personnel Command persons, regardless of service affili- (COMNAVMILPERSCOM) (NMPC–4) or ation, will be given equal opportunity the Commandant of the Marine Corps for health benefits. Catchment areas (CMC), as appropriate. have been established by the Depart- (ii) Make an entry on the administra- ment of Defense for each USMTF (see tive remarks page (page 13 for Navy § 728.2(d)). Eligible beneficiaries resid- personnel) of the service records of ening within such a catchment area are listed personnel indicating that con- expected to use that inpatient facility valescent leave was granted and the for care. Make provisions to assure dates of departure and return. that: (6) lf considered beneficial to the pa- (1) Eligible beneficiaries residing in a tient’s health, commanding officers of catchment area served by a USMTF hospitals may grant convalescent leave not of the sponsor’s own service may as a delay in reporting back to the par- obtain care at that facility or at a fa- ent command. cility of the sponsor’s service located (e) Cosmetic surgery. (1) Defined as in another catchment area. that surgery which is done to revise or (2) If the facility to which an eligible change the texture, configuration, or beneficiary applies cannot furnish relationship of contiguous structures needed care, the other facility or facili- of any feature of the human body ties in overlapping catchment areas are which would be considered by the aver- contacted to determine whether care age prudent observer to be within the can be provided thereat. broad range of ‘‘normal’’ and accept- (g) Disengagement. Discontinuance of able variation for age or ethnic origin, medical management by a naval MTF and in addition, is performed for a con- for only a specific episode of care. dition which is judged by competent (1) General. Disengagement is accom- medical opinion to be without poten- plished only after alternative sources

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of care (i.e., transfer to another mentation of counseling are appro- USMTF, a USTF, or other Federal priately accomplished. Complete a source via the aeromedical evacuation NAVMED 6320/30. Disengagement for system, if appropriate) and attendant Civilian Medical Care, to document costs, if applicable, have been fully ex- that all appropriate disengagement plained to patient or responsible fam- procedures have been accomplished. ily member. Counselors may arrange (iii) After obtaining the signature of for counseling by other appropriate the patient or responsible family mem- sources when the patient is or may be ber, the counselor will file a copy of eligible for VA, Medicare, MEDICAID, the DD 2161 and the original of the etc. benefits. With the individual’s per- NAVMED 6320/30 in the patient’s mission, counselors may also contact Health Record. State programs, local health organiza- (3) Patients other than active duty or tions, or health foundations to deter- CHAMPUS-eligible individuals—(i) Cat- mine if care is available for the condi- egories of patients. The following are tion upon which disengagement is categories of individuals who also may based. After the disengagement deci- be disengaged: sion is made, the patient to be dis- (A) Medicare-eligible individuals. engaged or the responsible family (B) MEDICAID-eligible individuals. member should be advised to return to (C) Civilians (U.S. and foreign) ad- the naval MTF for any care required mitted or treated as civilian humani- subsequent to receiving the care that tarians. necessitated disengagement. (D) Secretarial designees. (2) CHAMPUS-eligible individuals. (i) (E) All other individuals, with or Issue a Nonavailability Statement (DD without private insurance, who are not 1251) per § 728.33, when appropriate, to eligible for care at the expense of the patients released to civilian sources for Government. total care (disengaged) under (ii) Disengagement decision. Disengage CHAMPUS. CHAMPUS-eligible pa- such individuals when: tients disengaged for total care, who do (A) Required services are beyond the not otherwise require a DD 1251 (re- capability of the MTF, and services leased for outpatient care or those re- necessary for continued treatment in leased whose residence is outside the the MTF cannot be appropriately pro- inpatient catchment area of all vided by another USMTF, a USTF, or USMTFs and USTFs) will be given the another Federal source. (Explore alter- original of a properly completed DD native sources, for individuals eligible 2161, Referral For Civilian Medical for care from these sources, before Care, which clearly indicates that the making the disengagement decision.) patient is released for total care under (B) The MTF cannot, within the fa- CHAMPUS. CHAMPUS-eligible bene- cility’s capability, effectively provide ficiaries will be disengaged for services required care or manage the overall under CHAMPUS when: course of treatment even if augmented (A) Required services are beyond by services procured from other Gov- your capability and these services can- ernment sources or through procure- not be appropriately provided through ment from civilian sources using sup- one of the alternatives listed in plemental care funding. § 728.4(z), or (iii) Counseling. The initial step in (B) You cannot effectively provide re- the disengagement process is appro- quired services or manage the overall priate counseling and documentation. course of care even if augmented by In an emergency, or when the indi- services procured from other Govern- vidual cannot be appropriately coun- ment or civilian sources using naval seled prior to leaving the MTF, estab- MTF operation and maintenance funds lish procedures to ensure counseling as authorized in subpart § 728.4(z). and documentation are accomplished (ii) When a decision is made to dis- during the next working day. Such engage a CHAMPUS-eligible indi- ‘‘follow-up’’ counseling may be in per- vidual, commanding officers (CO) or of- son or via a witnessed telephone con- ficers-in-charge (OIC) are responsible versation. In either instance, the coun- for assuring that counseling and docu- selor will document counseling on a

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NAVMED 6320/30, Disengagement for sible family member refuses to ac- Civilian Medical Care. The disengage- knowledge receipt of counseling by ment decision making authority must signing the form, state this fact on the assure the accomplishment of coun- bottom of the form and have it wit- seling by personally initiating this nessed by an officer. Give the patient service or by referring the patient or or responsible family member a copy responsible family member to the HBA and immediately file the original in for counseling. As a minimum, coun- the patient’s Health Record. seling will consist of: (4) Active duty members. When an ac- (A) Explaining that the patient is tive duty member seeks care at a being disengaged from treatment at USMTF, that USMTF retains some re- the facility and the reason therefor. sponsibility (e.g., notification, medical Assure that the individual understands the meaning of ‘‘disengagement’’ by ex- cognizance, supplemental care, etc.) for plaining that the MTF is unable to pro- that member even when the member vide for the patient’s present needs and must be transferred to another facility must therefore relinquish medical for care. Therefore, relinquishment of management of the patient to a health total management of an active duty care provider of the individual’s choice. member (disengagement) cannot be ac- (B) Assuring the individual that the complished. disengagement action is taken to pro- (h) Domiciliary/custodial care. The vide for the patient’s immediate med- type of care designed essentially to as- ical needs. Also assure that the indi- sist an individual in meeting the nor- vidual understands that the disengage- mal activities of daily living, i.e., serv- ment is not indicative of whether care ices which constitute personal care is or will be available in the MTF for such as help in walking and getting in other aspects of past, current, or future or out of bed, help in bathing, dressing, medical conditions. feeding, preparation of special diets, (C) Explaining Medicare, MEDICAID, and supervision over medications or other known programs as they re- which can usually be self-administered late to the particular circumstance of and which does not entail or require the patient, including cost-sharing, the continuing attention of trained deductibles, allowable charges, partici- medical or paramedical personnel. The pating and authorized providers, physi- essential characteristics to be consid- cians accepting assignment, claim fil- ered are the level of care and medical ing procedures, etc. Explain that once disengagement is accomplished, the supervision that the patient requires, Navy, is not responsible for any costs rather than such factors as diagnosis, for care received from a health care type of condition, or the degree of func- provider of the patient’s or responsible tional limitation. Such care will not be family member’s choice. provided in naval MTFs except when (iv) Documentation. Commanding offi- required for active duty members of cers are responsible for ensuring that the uniformed services. proper documentation procedures are (i) Emergency care. Treat patients au- started and that providers and coun- thorized only emergency care and selors under their commands are ap- those admitted as civilian emergencies prised of their individual responsibil- only during the period of the emer- ities for counseling and documenting gency. Initiate action to effect appro- each disengagement. Failure to prop- priate disposition of such patients as erly counsel and document counseling soon as the emergency period ends. may result in the naval MTF having to (j) Evaluation after admission. Evalu- absorb the cost of the entire episode of ate each patient as soon as possible care. Document counseling on a after admission and continue reevalua- NAVMED 6320/30. Disengagement for tion until disposition is made. Antici- Civilian Medical Care. Completion of pate each patient’s probable type and all items on the form assures docu- date of disposition. Necessary proc- mentation and written acknowledgement of appropriate disengagement and essing by the various medical and ad- counseling. If the patient or respon- ministrative entities will take place

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concurrently with treatment of the pa- istrative reasons or for medical condi- tient. Make the medical disposition de- tions which can be treated on a clinic cision as early as possible for U.S. mili- basis will be provided quarters and tary patients inasmuch as immediate messing facilities, where practicable, transfer to a specialized VA center or separately from those hospitalized. to a VA spinal cord injury center may Provide medical care for such patients be in their best interest (see on a periodic clinic appointment basis NAVMEDCOMINST 6320.1.2). Make dis- (see § 728.4(p) for handling enlisted con- position decisions for military per- valescent patients). Make maximum sonnel of NATO nations in conform- use of administrative versus medical ance with § 728.42(d). personnel in the supervision of such pa- (k) Extent of care. Subject to the re- tients. strictions and priorities in § 728.3, eligi- (n) Health benefits advising—(1) Gen- ble persons will be provided medical eral. A Health Benefits Advising pro- and dental care to the extent author- gram must be started at all shore com- ized, required, and available. When an mands having one or more medical offi- individual is accepted for care, all care cers. While health benefits advisors are and adjuncts thereto, such as non- not required aboard every ship with a standard supplies, as determined by the medical officer, the medical depart- CO to be necessary, will be provided ment representative can usually pro- from resources available to the CO un- vide services to personnel requiring less specifically prohibited elsewhere help. The number of health benefits ad- in this part. When a patient has been visors (HBAs) of a command will be accepted and required care is beyond commensurate with counseling and as- the capability of the accepting MTF, sistance requirements. The program the CO thereof will arrange for the re- provides health benefits information quired care by one of the means shown and counseling to beneficiaries of the below. The method of choice will be Uniformed Services Health Benefits based upon professional considerations Program (USHBP) and to others who and travel economy. may or may not qualify for care in (1) Transfer the patient per USMTFs. Office location of HBAs, their § 728.4(bb). names, and telephone numbers will be (2) Procure from civilian sources the widely publicized locally. If additional necessary material or professional per- help is required, contact MEDCOM–333 sonal services required for the patient’s on AUTOVON 294–1127 or commercial proper care and treatment. (202) 653–1127. In addition to the duties (3) Care authorized in § 728.4(k)(2) will described in § 728.4(n)(2), HBAs will: normally be accomplished in the naval MTF. However, when such action is not (i) Maintain a depository of up-to- feasible, supplementation may be ob- date officially supplied health benefits tained outside the facility. Patients information for availability to all may be sent to other Federal or civil- beneficiaries. ian facilities for specific treatment or (ii) Provide information and guidance services under § 728.4(k)(3) provided they to beneficiaries and generally support remain under medical management of the medical and dental staff by pro- the CO of the sending facility during viding help to eligible beneficiaries the entire period of care. seeking or obtaining services from (l) Family planning services. Provide USMTFs, civilian facilities, VA facili- family planning services following the ties, Medicare, MEDICAID, and other provisions of SECNAVINST 6300.2A. health programs. (m) Grouping of patients. Group hos- (iii) Assure that when a referral or pitalized patients according to their re- disengagement is required, patients or quirements for housing, medical, or responsible family members are: dental care. Provide gender identified (A) Fully informed that such action quarters, facilities, and professional su- is taken to provide for their immediate pervision on that basis when appro- medical or dental requirements and priate. Individuals who must be re- that the disengagement or referral has tained under limited medical super- no bearing on whether care may be vision (medical hold) solely for admin- available in the naval MTF for other

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aspects of current or other future med- 2161 and explain that CHAMPUS con- ical conditions. tractors will return claims submitted (B) Provided the services and coun- without a required DD 2161. Obtain sig- seling outlined in § 728.4(n)(2) or nature of patient or responsible family § 728.3(g)(3)(ii), as appropriate, prior to member on the form. their departure from the facility when (v) Arrange for counseling from ap- such beneficiaries are referred or dis- propriate sources when the patient is engaged because care required is be- eligible for VA, Medicare, or MED- yond the naval MTF’s capability. In an ICAID benefits. emergency, or when the patient or (vi) Serve as liaison between civilian sponsor cannot be seen by the HBA providers and naval MTF on adminis- prior to leaving, provide these benefits trative matters related to the referral as soon thereafter as possible. and disengagement process. (2) Counseling and assisting (vii) Serve as liaison between naval CHAMPUS-eligible individuals. HBAs, as MTF and cooperative care coordinators a minimum, will: on matters relating to care provided or (i) Explain alternatives available to recommended by naval MTF providers, the patient. as appropriate. (ii) If appropriate, explain CHAMPUS (viii) Explain why the patient is as it relates to the particular cir- being disengaged and, per § 728.4(g)(2), cumstance, including the cost-sharing provide a DD 1251, Nonavailability provisions applicable to the patient, al- Statement, or DD 2161, Referral For Ci- lowable charges, provider participation, and claim filing procedures. Fully vilian Medical Care, as appropriate. inform the patient or responsible fam- (o) Immunizations. Administer immu- ily member that when a patient is dis- nizations per BUMED INST 6230.1H. engaged for care under CHAMPUS or (p) Medical holding companies. Medical when cooperative care is to be consid- holding companies (MHC) have been es- ered for payment under the provisions tablished at certain activities to facili- of § 728.4(z) (5) and (6), the naval MTF is tate handling of enlisted convalescent not responsible for monetary amounts patients whose medical conditions are above the CHAMPUS-determined al- such that, although they cannot be re- lowable charge or for charges turned to full duty, they can perform CHAMPUS does not allow. light duty ashore commensurate with (iii) Explain why the naval MTF is their condition while completing their paying for the supplemental care, if ap- medical care on an outpatient basis. propriate (see § 728.4(z) (3) and (4)), and Where feasible, process such patients how the bill will be handled. Then: for transfer. (A) Complete a DD 2161, Referral For (q) Notifications. The interests of the Civilian Medical Care, marking the ap- Navy, Marine Corps, and DOD have propriate source of payment with the been adversely affected by past proce- concurrence of the naval MTF com- dures which emphasized making notifi- manding officer or CO’s designee. cations only when an active duty mem- (B) If referred for a specified proce- ber’s condition was classed as either se- dure with a consultation report to be riously ill or injured or classed as very returned to the naval MTF retaining seriously ill or injured. However, even medical management, annotate the DD temporary disabilities which preclude 2161 in the consultation report section communication with the next of kin to state this requirement. Advise pa- have generated understandable concern tient or responsible family member to and criticism, especially when emer- arrange for a completed copy of the DD gency hospitalization has resulted. Ac- 2161 to be returned to the naval MTF cordingly, naval MTFs will effect pro- for payment, if appropriate, and inclu- cedures to make notifications required sion in patient’s medical record. in § 728.4(q) (2), (3), and (4) upon admis- (iv) Brief patient or responsible fam- sion or diagnosis of individuals speci- ily member on the use of the DD 2161 in fied. The provisions of § 728.4(q) supple- USMTF payment procedures and ment articles 1810520 and 4210100 of the CHAMPUS claims processing, as appro- Naval Military Personnel Manual and priate. Provide sufficient copies of DD chapter 1 of Marine Corps Order

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P3040.4B, Marine Corps Casualty Proce- officer under the conditions listed dures Manual; they do not supersede below. Make COMNAVMILPERS COM them. or CMC, as appropriate, information (1) Privacy Act. The right to privacy addressees on their respective per- of individuals for whom hospitalization sonnel: reports and other notifications are (A) Direct admissions. Upon direct ad- made will be safeguarded as required mission of an active duty member, by the Privacy Act, implemented in with or without orders regardless of ex- the Department of the Navy by pected length of stay. The patient ad- SECNAVINST 5211.5C, U.S. Navy Regu- ministration department (administra- lations, the Manual of the Judge Advo- tive watch officer after hours) is re- cate General, the Marine Corps Cas- sponsible for preparation, per ualty Procedures Manual, and the Man- § 728.4(q)(4), and release of these mes- ual of the Medical Department. sages. If the patient is attached to a (2) Active duty flag or general officers local command (CO’s determination), and retired Marine Corps general officers. initial notification may be made tele- Upon admission of subject officers, phonically. Record the name, grade or make telephonic contact with rate, and position of the person receiv- MEDCOM–33 on AUTOVON 294–1179 or ing the call at the member’s command commercial (202) 653–1179 (after duty on the back of the NAVMED 6300/5, In- hours, contact the command duty offi- patient Admission/Disposition Record cer on AUTOVON 294–1327 or commer- and include the name and telephone cial (202) 653–1327) to provide the fol- number of the MTF’s point of contact lowing information: as given to the patient’s command. (i) Initial. Include in the initial re- (B) Change in medical condition. Upon port: becoming aware of any medical condi- (A) Officer’s name, grade, social secu- tion, including pregnancy, which will rity number, and designator. now or in the foreseeable future result (B) Duty assignment in ship or sta- in the loss of a member’s full duty tion, or other status. services in excess of 72 hours. Transmit (C) Date of admission. this information in a message, pre- (D) Present condition, stating if serious or very serious. pared per § 728.4(q)(4), marked ‘‘Com- (E) Diagnosis, prognosis, and esti- manding Officer’s Eyes Only.’’ mated period of hospitalization. To (ii) Notification of next of kin (NOK)— prevent possible invasion of privacy, (A) Admitted members. As part of the ad- report the diagnosis only in Inter- mission procedure, encourage all pa- national Classification of Diseases—9th tients to communicate expeditiously Edition (ICD–9–CM) code designator. and regularly with their NOK. When an (ii) Progress reports. Call frequency active duty member’s incapacity and content will be at the discretion of makes timely personal communication the commanding officer. However, impractical, i.e., fractures, burns, eye promptly report changes in condition pathology, psychiatric or emotional or status. disorders, etc., MTF personnel will ini- (iii) Termination report. Make a termi- tiate the notification process. Do not nation of hospitalization report to pro- start the process if the patient specifi- vide appropriate details for informa- cally declines such notification or it is tional purposes. clear that the NOK already has knowl- (iv) Additional commands to apprise. edge of the admission (commands The geographic naval medical region should develop a local form for such pa- serving the hospital and, if different, tients to sign attesting their desire or the one serving the officer’s command refusal to have their NOK notified). will also be apprised of such admis- Once notification has been made, the sions. facility will make progress reports, at (3) Active duty members—(i) Notifica- least weekly, until the patient is again tion of member’s command. The com- able to communicate with the NOK. manding officer of naval medical treat- (1) Navy personnel. Upon admission of ment facilities has responsibility for Navy personnel, effect the following notifying each member’s commanding notification procedures.

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(i) In the contiguous 48 states. Patient (iii) In and outside the United States. In administration department personnel life-threatening situations, the Com- will notify the NOK in person, by tele- mandant of the Marine Corps desires phone, telegraph, or by other expedi- and encourages medical officers to tious means. Included are notifications communicate with the next of kin. In of the NOK upon arrival of all Navy pa- other circumstances, request that the tients received in the medical air-evac- Marine Corps member communicate uation system. with the NOK if able. If unable, the (ii) Outside the contiguous 48 states. If medical officer should communicate the next of kin has accompanied the with the NOK after personal notifica- patient on the tour of duty and is in tion has been effected. the immediate area, hospital personnel (B) Terminally ill patients. As soon as will notify the next of kin in person, by a diagnosis is made and confirmed (on telephone, telegraph, or by other expe- inpatients or outpatients) that a Navy ditious means. If the next of kin is lo- member is terminally ill, cated in the 48 contiguous United MILPERSMAN 4210100 requires notifi- States, use telegraphic means to notify cation of the primary and secondary COMNAVMILPERSCOM who will pro- next of kin. Accomplish notification vide notification to the NOK. the same as for Navy members admit- (2) Marine Corps personnel. When Ma- ted as seriously or very seriously ill or rine Corps personnel are admitted, ef- injured, i.e., by priority message to the fect the following notification proce- Commander, Naval Military Personnel Command and to the Casualty Assist- dures. ance Calls/Funeral Honors Support (i) In the contiguous 48 states. The Program Coordinator, as appropriate, commander of the unit or activity to who has cognizance over the geo- which the casualty member is assigned graphical area in which the primary is responsible for initiating notifica- and secondary NOK resides (see tion procedures to the NOK of seriously OPNAVINST 1770.1). Submit followup or very seriously ill or injured Marine reports when appropriate. See Corps personnel. Patient administra- MILPERSMAN 4210100 for further am- tion department personnel will assure plification and for information address- that liaison is established with the ap- ees. propriate command or activity when (1) In the contiguous 48 states. Notifi- such personnel are admitted. Patient cation responsibility is assigned to the administration personnel will notify USMTF making the diagnosis and to the Marine’s command by telephone the member’s duty station if diagnosed and request that cognizance be as- in a civilian facility. sumed for in-person initial notification (2) Outside the contiguous 48 states. No- of the NOK of Marine Corps patients tification responsibility is assigned to admitted with an incapacity that the naval medical facility making the makes personal and timely commu- diagnosis. When diagnosed in nonnaval nication impractical and for those ar- facilities or aboard deployed naval ves- riving via the medical air-evacuation sels, notification responsibility belongs system. If a member’s command is un- to the Commander, Naval Military Per- known or cannot be contacted, inform sonnel Command. CMC (MHP–10) on AUTOVON 224–1787 (C) Other uniformed services patients. or commercial (202) 694–1787. Establish liaison with other uniformed (ii) Outside the contiguous 48 states. services to assure proper notification Make casualty notification for Marine upon admission or diagnosis of active Corps personnel hospitalized in naval duty members of other services. MTFs outside the contiguous 48 States (D) Nonactive duty patients. At the to the individual’s command. If the discretion of individual commanding command is unknown or not located in officers, the provisions of § 728.4(q)(3)(ii) close proximity to the MTF, notify on providing notification to the NOK CMC (MHP–10). When initial notifica- may be extended to admissions or diag- tion to the individual’s command is nosis of nonactive duty patients; e.g., made via message, make CMC (MHP– admission of dependents of members on 10) an information addressee. duty overseas.

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(4) Messages—(i) Content. Phrase con- U.S. military patients who are unlikely tents of messages (and telephonic noti- to return to duty. The time at which a fications) in lay terms and provide suf- patient should be processed for dis- ficient details concerning the patient’s ability separation must be determined condition, prognosis, and diagnosis. on an individual basis, taking into con- Messages will also contain the name sideration the interests of the patient and telephone number of the facility’s as well as those of the Government. A point of contact. When appropriate for long-term patient roster will be main- addressal, psychiatric and other sen- tained and updated at least once sitive diagnoses will be related with monthly to enable commanding offi- discretion. When indicated, also in- cers and other appropriate staff mem- clude specific comment as to whether bers to monitor the progress of all pa- the presence of the next of kin is medi- tients with 30 or more continuous days cally warranted. of hospitalization. Include on the ros- NOTE: In making notification to the NOK ter basic patient identification data of patients diagnosed as having Acquired Im- (name, grade or rate, register number, mune Deficiency Syndrome (AIDS) or ward or absent status, clinic service, Human Immunodeficiency Virus (HIV), use and whether assigned to a medical one of the symptoms of the disease as the di- holding company), projected disposi- agnosis (e.g., pneumonia) rather than ‘‘HIV’’, tion (date, type, and profile), diagnosis, ‘‘AIDS’’, or the diagnostic code for AIDS. and cumulative hospital days (present (ii) Information addressees. Make the facility and total). commander of the geographic naval (u) Remediable physical defects of ac- medical region servicing the member’s tive duty members—(1) General. When a command and the one servicing the medical evaluation reveals that a Navy hospital, if different, information ad- or Marine Corps patient on active duty dressees on all messages. For Marine has developed a remediable defect Corps personnel, also include CMC while on active duty, the patient will (MHP–10) and the appropriate Marine be offered the opportunity of operative Corps district headquarters as informa- repair or other appropriate remediable tion addressees, COMNAVMEDCOM treatment, if medically indicated. WASHINGTON DC requires informa- (2) Refusal of treatment. Per MANMED tion copies of messages only when a pa- art. 18–15, when a member refuses to tient has been placed on the seriously submit to recommended therapeutic ill or injured or very seriously ill or in- measures for a remediable defect or jured list or diagnosed as terminally condition which has interfered with the ill. member’s performance of duty and fol- (r) Outpatient care. Whenever pos- lowing prescribed therapy, the member sible, perform diagnostic procedures is expected to be fit for full duty, the and provide preoperative and post oper- following procedures will apply: ative care, surgical care, convales- (i) Transfer the member to a naval cence, and followup observations and MTF for further evaluation and appear- treatment on an outpatient basis. ance before a medical board. After (s) Performance of duties while in an counseling per MANMED art. 18–15, inpatient status. U.S. military patients any member of the naval service who may be assigned duties in and around refuses to submit to recommended naval MTFs when such duties will be, medical, surgical, dental, or diagnostic in the judgement of the attending phy- measures, other than routine treat- sician, of a therapeutic value. Physical ment for minor or temporary disabil- condition, past training, and other ac- ities, will be asked to sign a completed quired skills must all be considered be- NAVMED 6100/4, Medical Board Certifi- fore assigning any patient a given task. cate Relative to Counseling on Refusal Do not assign patients duties which are of Surgery and/or Treatment, attesting not within their capabilities or which to the counseling. require more than a very brief period of (ii) The board will study all pertinent orientation. information, inquire into the merits of (t) Prolonged definitive medical care. the individual’s refusal to submit to Prolonged definitive medical care in treatment, and report the facts with naval MTFs will not be provided for appropriate recommendations.

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(iii) As a general rule, refusal of (A) Title 10 U.S.C. 1207 precludes dis- minor surgery should be considered un- position under chapter 61 of 10 U.S.C. if reasonable in the absence of substan- such a member’s disability is due to in- tial contraindications. Refusal of tentional misconduct, willful neglect, major surgical operations may be rea- or if it was incurred during a period of sonable or unreasonable, according to unauthorized absence. A member’s re- the circumstances, The age of the pa- fusal to complete a recommended ther- tient, previous unsuccessful operations, apy regimen or diagnostic procedure existing physical or mental contra- may be interpreted as willful neglect. indications, and any special risks (B) Benefits from the Veterans Ad- should all be taken into consideration. ministration will be dependent upon a (iv) Where surgical procedures are in- finding that the disability was incurred volved, the board’s report will contain in line of duty and is not due to the answers to the following questions: member’s willful misconduct. (A) Is surgical treatment required to (ix) The Social Security Act contains relieve the incapacity and restore the special provisions relating to benefits individual to a duty status, and may it for ‘‘disabled’’ persons and certain pro- be expected to do so? visions relating to persons disabled ‘‘in (B) Is the proposed surgery an estab- line of duty’’ during service in the lished procedure that qualified and ex- Armed Forces. In many instances per- perienced surgeons ordinarily would sons deemed to have ‘‘remediable’’ dis- recommend and undertake? orders have been held not ‘‘disabled’’ (C) Considering the risks ordinarily within the meaning of that term as associated with surgical treatment, the used in the statute, and Federal courts patient’s age and general physical con- have upheld that interpretation. One dition, and the member’s reason for re- who is deemed unreasonably to have fusing treatment, is the refusal reason- refused to undergo available surgical able or unreasonable? (Fear of surgery procedures may be deemed both ‘‘not or religious scruples may be consid- disabled’’ and to have incurred the con- ered, along with all the other evidence, dition ‘‘not in the line of duty.’’ for whatever weight may appear appro- (x) Forward the board’s report di- priate.) rectly to the Central Physical Evalua- (v) If a member needing surgery is tion Board with a copy to MEDCOM–25 mentally competent, do not perform except in those instances when the con- surgery over the member’s protesta- tion. vening authority desires referral of the medical board report for Departmental (vi) In medical, dental, or diagnostic review. situations, the board should show the need and risk of the recommended pro- (xi) Per MANMED art. 18–15, a mem- cedure(s). ber who refuses medical, dental, or sur- (vii) If a medical board decides that a gical treatment for a condition that ex- diagnostic, medical, dental, or surgical isted prior to entry into the service procedure is indicated, these findings (EPTE defect), not aggravated by a pe- must be made known to the patient. riod of active service but which inter- The board’s report will show that the feres with the performance of duties, patient was afforded an opportunity to should be processed for reason of phys- submit a written statement explaining ical disability, convenience to the Gov- the grounds for refusal. Forward any ernment, or enlisted in error rather statement with the board’s report. Ad- than under the refusal of treatment vise the patient that even if the dis- provisions. Procedures are delineated ability originally arose in line of duty, in BUMEDINST 1910.2G and its continuance may be attributable to SECNAVINST 1910.4A. the member’s unreasonable refusal to (3) Other uniformed services patients. cooperate in its correction; and that When a patient of another service is the continuance of the disability found to have a remediable physical de- might, therefore, result in the mem- fect developed in the military service, ber’s separation without benefits. refer the matter to the nearest head- (viii) Also advise the patient that: quarters of the service concerned.

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(v) Responsibilities of the commanding ination, personnel medically unfit for officer. In connection with the provi- duty will be admitted to an MTF or sions of this part, commanding officers placed sick in quarters; personnel not of naval MTFs will: admitted or placed sick in quarters (1) Determine which persons within will be given such treatment as is the various categories authorized care deemed necessary. When excused from in a facility will receive treatment in, duty for medical reasons which do not be admitted to, and be discharged from require hospitalization, military per- that specific facility. sonnel may be authorized to remain in (2) Supervise care and treatment, in- quarters, not to exceed 72 hours. cluding the employment of recognized (x) Sicklist—authorized absence from. professional procedures. Commanding officers of naval MTFs (3) Provide each patient with the best may authorize absences of up to 72 possible care in keeping with accepted hours for dependents and retired per- professional standards and the assigned sonnel without formal discharge from primary mission of the facility. the sicklist. When absences are author- (4) Provide for counseling patients ized in excess of 24 hours, subsistence and naval MTF providers when care re- charges or dependent’s rate, as applica- quired is beyond the naval MTF’s capable, for that period will not be col- bility. This includes: lected and the number of reportable oc- (i) Establishing training programs to cupied bed days will be appropriately acquaint naval MTF providers and reduced. Prior to authorizing such ab- HBAs with the uniformed services’ re- sences, the attending physician will ad- ferral for supplemental/cooperative vise patients of their physical limita- care or services policy outlined in tions and of any necessary safety pre- § 728.4(z). cautions, and will annotate the clinical (ii) Implementing control measures record that patients have been so ad- to ensure that: vised. For treatment under the Medical (A) Providers requesting care under Care Recovery Act, make reporting the provisions § 728.4(z) are qualified to consistent with § 728.4(aa). maintain physician case management (y) Subsisting out. A category in when required. (B) Care requested under the supple- which officer and enlisted patients on mental/cooperative care criteria is the sicklist of a naval MTF may be medically necessary, legitimate, and placed when their daily presence is not otherwise permissible under the terms required for treatment nor examina- of that part of the USHBP under which tion, but who are not yet ready for re- it will be considered for payment. turn to duty. As a general rule, pa- (C) Providers explain to patients the tients placed in this category should reason for a referral and the type of re- reside in the area of the facility and ferral being made. should be examined by the attending (D) Attending physicians properly physician at least weekly. Enlisted per- refer beneficiaries to the HBA for coun- sonnel in a subsisting out status should seling and services per § 728.4(n). be granted commuted rations. (E) Uniform criteria are applied in (1) Granting of subsisting out privi- determining cooperative care situa- leges is one of many disposition alter- tions without consideration of rate, natives; however, recommend that grade, or uniformed service affiliation. other avenues (medical holding com- (F) All DD 2161’s are properly company, convalescent leave, limited duty, pleted and approved by the com- etc.) be considered before granting this manding officer or designee. privilege. (G) A copy of the completed DD 2161 (2) Naval MTF patients in a sub- is returned to the naval MTF for inclu- sisting out status should not be con- sion in the medical record of the pa- fused with those enlisted personnel in a tient. rehabilitation program who are grant- (w) Sick call. A regularly scheduled ed liberty and are drawing commuted assembly of sick and injured military rations, but are required to be present personnel established to provide rou- at the treating facility during normal tine medical care. Subsequent to exam- working hours. These personnel are not

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subsisting out and must have a bed as- chotherapeutic service, yet have the signed at the naval MTF. remainder of required medical care (3) Naval MTF patients who are re- provided by the naval MTF. quired to report for examinations or (v) Forms and documentation. A DD treatment more often than every 48 2161, Referral For Civilian Medical hours should not be placed in a sub- Care, will be provided to each patient sisting out status. who is to receive supplemental or coop- (z) Supplemental/cooperative care or erative care or services. When supple- services—(1) General. When such serv- mental care is required under the pro- ices as defined in § 728.2(cc) are ren- visions of § 728.4(z) (3) and (4), the provi- dered to other than CHAMPUS-eligible sions of § 728.4(z)(3)(iii) apply. When co- individuals, the cost thereof is charge- operative care or services are required able to operation and maintenance under the provisions of § 728.4(z) (5) and funds available for operation of the fa- (6), the provisions of § 728.4(z)(5)(iv) cility requesting care or services. Co- apply. operative care applies to CHAMPUS-el- (vi) Clarification of unusual cir- igible patients receiving inpatient or cumstances. Commanding officers of outpatient care in a USMTF who re- naval MTFs will submit requests for quire care or services beyond the capa- clarification of unusual circumstances bility of that USMTF. The following to OCHAMPUS or CHAMPUS contrac- general principles apply to such tors via the Commander, Naval Med- CHAMPUS-eligible patients: ical Command (MEDCOM–33) for con- (i) Cooperation of uniformed services sideration. physicians. USMTF physicians are re- (2) Care beyond a naval MTF’s capa- quired to cooperate in providing bility. When, either during initial eval- CHAMPUS contractors and uation or during the course of treat- OCHAMPUS additional medical infor- ment of CHAMPUS-eligible bene- mation. SECNAVINST 5211.5C delin- ficiaries, required services are beyond eates policies, conditions, and proce- the capability of the naval MTF, the dures that govern safeguarding, using, accessing, and disseminating personal commanding officer will arrange for information kept in a system of the services from an alternate source records. Providing information to in the following order, subject to re- CHAMPUS contractors and strictions specified. The provisions of OCHAMPUS will be governed thereby. § 728.4(z)(2)(i) through (iii) must be fol- (ii) Physician case management. Where lowed before either supplemental care, required by NAVMEDCOMINST 6320.18 authorized in § 728.4(z)(4), is considered (CHAMPUS Regulation; implementa- for payment from Navy Operations and tion of), uniformed services physicians Maintenance funds, or cooperative are required to provide case manage- care, authorized in § 728.4(z)(6), is to be ment (oversight) as would an attending considered for payment under the or supervising civilian physician. terms of CHAMPUS. (iii) CHAMPUS-authorized providers. (i) Obtain from another USMTF or CHAMPUS contractors are responsible other Federal MTF the authorized care for determining whether a civilian pro- necessary for continued treatment of vider is CHAMPUS-authorized and for the patient within the naval MTF, providing such information, upon re- when such action is medically feasible quest, to USMTFs. and economically advantageous to the (iv) Phychiatric or psychotherapeutic Government. services. If psychiatric care is being ren- (ii) When the patient is a retired dered by a psychiatric or clinical social member or dependent, transfer per worker, a psychiatric nurse, or a mar- § 728.4(bb)(3) (i), (ii), (iii), or (iv), in that riage and family counselor, and the order. When the patient is a dependent uniformed services facility has made a of a member of a NATO nation, trans- determination that it does not have fer per § 728.4(bb)(4) (i), (ii), or (iii), in the professional staff competent to pro- that order. vide required physician case manage- (iii) With the patient’s permission, ment, the patient may be (partially) the naval MTF may contact State pro- disengaged for the psychiatric or psy- grams, local health agencies, or health

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foundations to determine if benefits (i) All specialty consultations for the are available. purpose of establishing or confirming (iv) Obtain such supplemental care or diagnoses or recommending a course of services as delineated in § 728.4(z)(4) treatment. from a civilian source using local oper- (ii) All diagnostic tests, diagnostic ation and maintenance funds, or examinations, and diagnostic proce- (v) Obtain such cooperative care or dures (including genetic tests and CAT services as delineated in § 728.4(z)(6) scans), ordered by qualified USMTF from a civilian source under the terms providers. of CHAMPUS. (iii) Prescription drugs and medical (3) Operation and maintenance funds. supplies. When local operation and maintenance (iv) Civilian ambulance service or- funds are to be used to obtain supple- dered by USMTF personnel. mental care or services, the following (5) CHAMPUS funds. When payment guidelines are applicable: is to be considered under the terms of CHAMPUS for cooperative care, even (i) Care or services must be legiti- though the beneficiary remains under mate, medically necessary, and ordered naval MTF control, the following by a qualified USMTF provider. guidelines are applicable: (ii) The naval MTF must make the (i) Process charges for care under the necessary arrangements for obtaining terms of CHAMPUS. required care or services from a spe- (A) If the charge for a covered service cific source of care. or supply is above the CHAMPUS-de- (iii) Upon approval of the naval MTF termined reasonable charge, the direct commanding officer or designee, pro- care system will not assume any liabil- vide the patient or sponsor with a prop- ity on behalf of the patient where a ci- erly completed DD 2161, Referral For vilian provider is concerned, although Civilian Medical Care. The DD 2161 will a USMTF physician recommended or be marked by the health benefits advi- prescribed the service or supply. sor or other designated individual to (B) Payment consideration for all show the naval MTF as the source of care or services meeting cooperative payment. Forward a copy to the MTF’s care criteria will be under the terms of contracting or supply officer who is the CHAMPUS and payment for such care point of contact for coordinating obli- or services will not be made from naval gations with the comptroller and thus MTF funds. Conversely, any care or is responsible for assuring proper proc- services meeting naval MTF supple- essing for payment. mental care or services payment cri- (iv) Authorize care on an inpatient or teria will not be considered under the outpatient basis for the minimum pe- terms of CHAMPUS. riod necessary for the civilian provider (ii) Care must be legitimate and oth- to perform the specific test, procedure, erwise permissible under the terms of treatment, or consultation requested. CHAMPUS and must be ordered by a Patients receiving inpatient services in qualified USMTF provider. civilian medical facilities will not be (iii) Provide assistance to bene- counted as an occupied bed in the naval ficiaries referred or disengaged under MTF, but will be continued on the CHAMPUS. Although USMTF per- naval MTF’s inpatient census. Con- sonnel are not authorized to refer bene- tinue to charge pay patients the ficiaries to a specific civilian provider USMTF inpatient rate appropriate for for care under CHAMPUS, health bene- their patient category. fits advisors are authorized to contact (v) Naval MTF physicians will main- the cooperative care coordinator of the tain professional contact with civilian appropriate CHAMPUS contractor for providers. aid in determining authorized pro- (4) Care and services authorized. Use viders with the capability of rendering local operation and maintenance funds required services. Such information to defray the cost of the following may be given to beneficiaries. Also en- when CHAMPUS-eligible patients are courage beneficiaries to obtain re- referred to civilian sources for the fol- quired services only from providers lowing types of care or services; willing to participate in CHAMPUS.

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Subject to the availability of space, fa- of care. USMTF physicians exercising cilities, and capabilities of the staff, physician case management responsi- USMTFs may provide consultative and bility will maintain professional con- such other ancillary aid as required by tact with civilian providers of care. the civilian provider selected by the (6) Care and services authorized. Refer beneficiary. CHAMPUS-eligible patients to civilian (iv) Provide a properly completed DD sources for the following under the 2161, Referral For Civilian Medical terms of CHAMPUS: Care, to patients who are referred (i) Authorized nondiagnostic medical (versus disengaged) to civilian sources services such as physical therapy, under the terms of CHAMPUS for coop- speech therapy, radiation therapy, and erative care. (A Nonavailability State- private duty (special) nursing. ment (DD 1251) may also be required. (ii) Preauthorized (by OCHAMPUS) Provide this form when required under adjunctive dental care, including or- § 728.33.) The DD 2161 will be marked by thodontia related to surgical correc- the health benefits advisor, or other tion of cleft palate. designated individual, to show (iii) Durable medical equipment. CHAMPUS as the source of payment (CHAMPUS payment will be considered consideration. All such DD 2161’s must only if the equipment is not available be approved by the commanding officer on a loan basis from the naval MTF.) or designee. Give the patient sufficient (iv) Prosthetic devices (limited ben- copies to ensure a copy of the DD 2161 efit), orthopedic braces and appliances. accompanies each CHAMPUS claim. (v) Optical devices (limited benefit). Advise patients that CHAMPUS con- (vi) Civilian ambulance service to a tractors will return claims received USMTF when service is ordered by without the DD 2161. Also advise pa- other than direct care personnel. tients to arrange for return of a com- (vii) All CHAMPUS Program for the pleted copy of the DD 2161 to the naval Handicapped care. MTF for inclusion in their medical (viii) Psychotherapeutic or psy- record. chiatric care. (v) Such patients receiving inpatient (ix) Except for those types of care or or outpatient care or services will pay services delineated in § 728.4(z)(4), all the patient’s share of the costs as spec- other CHAMPUS authorized medical ified under the terms of CHAMPUS for services not available in the naval their beneficiary category. Patients re- MTF (for example, neonatal intensive ceiving inpatient services will not be care). continued on the naval MTF’s census (aa) Third party liability case. Per and will not be charged the USMTF in- chapter 24, section 2403, JAG Manual, patient rate. use the following guidelines to com- (vi) Certain ancillary services au- plete and submit a NAVJAG 5890/12, thorized under CHAMPUS require phy- Hospital and Medical Care, 3rd Party sician case management during the Liability Case, when a third party may course of treatment. USMTF physi- be liable for the injury or disease being cians will manage the provision of an- treated: cillary services by civilian providers (1) Preparation. All naval MTFs will when such services are obtained under use the front of NAVJAG 5890/12 to re- the terms of CHAMPUS. Examples in- port the value of medical care fur- clude physical therapy, private duty nished to any patient when (i) a third (special) nursing, rental or lease/pur- party may be legally liable for causing chase of durable medical equipment, the injury or disease, or (ii) when a and services under the CHAMPUS Pro- Government claim is possible under gram for the Handicapped. USMTF pro- workmen’s compensation, no-fault in- viders exercising physician case man- surance (see responsibilities for appris- agement responsibility for ancillary ing the insurance carrier in services under CHAMPUS are subject § 728.4(aa)(5)), uninsured motorist insur- to the same benefit limitations and ance, or under medical payments insur- certification of need requirements ap- ance (e.g., in all automobile accident plicable to civilian providers under the cases). Block 4 of this form requires an terms of CHAMPUS for the same types appended statement of the patient or

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an accident report, if available. Prior (C) U.S. Coast Guard. Commandant to requesting such a statement from a (G-K-2). U.S. Coast Guard, Washington, patient, the person preparing the front DC 20593–0001. side of NAVJAG 5890/12 will show the (D) Department of Labor. The appro- patient the Privacy Act statement priate Office of Workers’ Compensation printed at the bottom of the form and Programs (OWCP). have the patient sign his or her name (E) Veterans Administration. Director beneath the statement. of the Veterans Administration hos- (2) Submission—(i) Naval patients. For pital responsible for medical care of naval patients, submit the completed the patient being provided treatment. front side of the NAVJAG 5890/12 to the (F) Department of Health and Human appropriate action JAG designee listed Services (DHHS). Regional attorney’s in section 2401 of the JAG Manual at office in the area were the incident oc- the following times: curred. (A) Initial. Make an initial submis- (3) Supplementary documents. An SF sion as soon as practicable after a pa- 502 should accompany the final submis- tient is admitted for any period of in- sion in all cases involving inpatient patient care, or if it appears that more care. Additionally, when Government than 7 outpatient treatments will be care exceeds $1,000, inpatient facilities furnished. This submission should not should complete and submit the back be delayed pending the accumulation side of NAVJAG 5890/12 to the action of all potential charges from the treat- JAG designee. On this side of the form, ing facility. This submission need not the determination of ‘‘patient status’’ be based upon an extensive investiga- may be used on local hospital usage. tion of the cause of the injury or dis- (4) Health record entries. Retain copies ease, but it should include all known of all NAVJAG 5890/12’s in the Health facts. Statements by the patient, po- Record of the patient. Immediately no- lice reports, and similar information (if tify action JAG designees when a pa- available), should be appended to the tient receives additional treatment form. subsequent to the issuance of a final (B) Interim. Make an interim submis- NAVJAG 5890/12 if the subsequent sion every 4 months after the initial treatment is related to the condition submission until the patient is trans- which gave rise to the claim. ferred or released from the facility, or (5) No-fault insurance. When no-fault changed from an inpatient status to an insurance is or may be involved, the outpatient status. naval legal service office at which the (C) Final. Make a final submission JAG designee is located is responsible upon completion of treatment or upon for apprising the insurance carrier that transfer of the patient to another facil- the Federal payment for the benefits of ity. The facility to which the patient is this part is secondary to any no-fault transferred should be noted on the insurance coverage available to the inform. Report control symbol NAVJAG jured individual. 5890–1 is assigned to this report. (6) Additional guidance. Chapter 24 of (ii) Nonnaval patients. When care is the JAG Manual and BUMEDINST provided to personnel of another Fed- 5890.1A contain supplemental informa- eral agency or department, that agency tion. or department generally will assert (bb) Transfer of patients—(1) General. any claim in behalf of the United Treat all patients at the lowest echelon States. In such instances, submit the equipped and staffed to provide nec- NAVJAG 5890/12’s (initial, interim, and essary care; however, when transfer to final) directly to the appropriate of the another MTF is considered necessary, following: use Government transportation when (A) U.S. Army. Commanding general available. Accomplish medical regu- of the Army or comparable area com- lating per the provisions of mander in which the incident occurred. OPNAVINST 4630.25B and BUMEDINST (B) U.S. Air Force. Staff judge advo- 6320.1D. cate of the Air Force installation near- (2) U.S. military patients. Do not re- est the location where the initial med- tain U.S. military patients in acute ical care was provided. care MTFs longer than the minimum

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time necessary to attain the mental or tient’s choice under the terms of Medi- physical state required for return to care, if the patient is entitled. Bene- duty or separation from the service. ficiaries entitled to Medicare, Part A, When required care is not available at because they are 65 years of age or the facility providing area inpatient older or because of a disability or care, transfer patients to the most chronic renal disease, lose CHAMPUS readily accessible USMTF or des- eligibility but remain eligible for care ignated USTF possessing the required in USMTFs and designated USTFs. capability. Transportation of the pa- (v) If the patient is authorized bene- tient and a medical attendant or at- fits under CHAMPUS, disengage from tendants, if required, is authorized at medical management and issue a Non- Government expense. Since the VA is availability Statement (DD 1251) per staffed and equipped to provide care in the provisions of § 728.33, for care under the most expeditious manner, follow CHAMPUS. This step should only be the administrative procedures outlined taken after due consideration is made in NAVMEDCOMINST 6320.12 when: of the supplemental/cooperative care (i) A patient has received the max- policy addressed in § 728.4(z). imum benefit of hospitalization in a (4) Dependents of members of NATO na- naval MTF but requires a protracted tions. When a dependent, as defined in period of nursing home type care. The § 728.41, of a member of a NATO nation VA can provide this type care or ar- requires care beyond the capabilities of range for it from a civilian source for a facility and a transfer is necessary, individuals so entitled. the commanding officer of that facility (ii) Determined that there is or may may: be spinal cord injury necessitating im- (i) Arrange for transfer to another mediate medical and psychological at- USMTF or designated USTF with retention. quired capability if either is located in (iii) A patient has sustained an ap- an overlapping inpatient catchment parently severe head injury or has been area of the transferring facility. blinded necessitating immediate intervention beyond the capabilities of (ii) If the patient or sponsor agrees, naval MTFs. arrange for transfer to the nearest (iv) A determination has been made USMTF or designated USTF with re- by the Secretary concerned that a quired capability, regardless of its lo- member on active duty has an alcohol cation. or drug dependency or drug abuse dis- (iii) Effect disposition per § 728.42(d). ability. (5) Others—(i) Medical care. Section 34 (3) Retired members and dependents. of title 24, United States Code, provides When a retired member of a dependent that hospitalization and outpatient requires care beyond the capabilities of services may be provided outside the a facility and a transfer is necessary, continental limits of the United States the commanding officer of that facility and in Alaska to officers and employ- may: ees of any department or agency of the (i) Arrange for transfer to another Federal Government, to employees of a USMTF or designated USTF located in contractor with the United States or an overlapping inpatient catchment the contractor’s subcontractor, to de- area of the transferring facility if ei- pendents of such persons, and in emer- ther has the required capability. gencies to such other persons as the (ii) If the patient or sponsor agrees, Secretary of the Navy may prescribe: arrange for transfer to the nearest Provided, such services are not other- USMTF or designated USTF with re- wise available in reasonably accessible quired capability, regardless of its lo- and appropriate non-Federal facilities. cation. Hospitalization of such persons in a (iii) Arrange for transfer of retired naval MTF is further limited by 24 members to the Veterans Administra- U.S.C. 35 to the treatment of acute tion MTF nearest the patient’s resi- medical and surgical conditions, exclu- dence. sive of nervous, mental, or contagious (iv) Provide aid in releasing the pa- diseases, or those requiring domiciliary tient to a civilian provider of the pa- care.

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(ii) Dental care. Section 35 of title 24 (B) Mailing address including com- provides for space available routine plete zip code (zip + 4) and unit identi- dental care, other than dental pros- fication code (UIC). Include this infor- thesis and orthodontia, for the cat- mation for all facilities listed in egories of individuals enumerated in § 728.4(cc)(1)(iii)(A). § 728.4(bb)(5)(i): Provided, that such (C) Name, grade, and corps of the services are not otherwise available in DEERS project officer designated. reasonably accessible and appropriate (D) Position title within parent facil- non-Federal facilities. ity. (iii) Transfer. Accomplish transfer (E) AUTOVON and commercial tele- and subsequent treatment of individ- phone numbers. uals in § 728.4(bb)(5)(i) per the provi- (2) DEERS and the identification card. sions of law enumerated in § 728.4(bb)(5) This subpart includes DEERS proce- (i) and (ii). dures for eligibility verification checks (cc) Verification of patient eligibility— to be used in conjunction with the (1) DEERS. (i) The Defense Enrollment identification card system as a basis Eligibility Reporting System (DEERS) for verifying eligibility for medical and was implemented by OPNAVINST dental care in USMTFs and uniformed 1750.2. Where DEERS has been started services dental treatment facilities at naval medical and dental treatment (USDTFs). For other than emergency facilities, commanding officers will ap- care, certain patients are required to point, in writing, a DEERS project offi- have a valid ID card in their possession cer to perform at the base level. The and, under the circumstances described project officer’s responsibilities and in § 728.4(cc)(3), are also required to functions include coordinating, exe- meet DEERS criteria before treatment cuting, and maintaining base-level or services are rendered. Although DEERS policies and procedures; pro- DEERS and the ID card system are viding liaison with line activities, interrelated, there will be instances base-level personnel project officers, where a beneficiary is in possession of and base-level public affairs project of- an apparently valid ID card and the ficers; meeting and helping the con- DEERS verification check shows that tractor field representative on site vis- eligibility has terminated or vice its to each facility under the project versa. Eligibility verification via an ID officer’s cognizance; and compiling and card does not override an indication of submitting reports required within the ineligibility in DEERS without some command and by higher authority. other collateral documentation. De- (ii) Commanding officers of afloat pendents (in possession of or without and deployable units are encouraged to ID cards) who undergo DEERS check- appoint a unit DEERS medical project ing will be considered ineligible for the officer as a liaison with the hospital reasons stated in § 728.4(cc)(4)(v) (A) project officer providing services to through (G). For problem resolution, local medical and dental treatment fa- refer dependents of active duty mem- cilities. Distribute notice of such ap- bers to the personnel support detach- pointments to all concerned facilities. ment (PSD) servicing the sponsor’s (iii) When a DEERS project officer command; refer retirees, their depend- has been appointed by a naval MTF or ents, and survivors to the local PSD. DTF, submit a message (report control (3) Identification cards and procedures. symbol MED 6320–42) to All individuals, including members of COMNAVMEDCOM, with information uniformed services in uniform, must copies to appropriate chain of com- provide valid identification when re- mand activities, no later than 10 Octo- questing health benefits. Although the ber annually, and situationally when most widely recognized and acceptable changes occur. As a minimum, the re- forms of identification are DD 1173, DD port will provide: 2, Form PHS–1866–1, and Form PHS– (A) Name of reporting facility. If the 1866–3 (Ret), individuals presenting for project officer is responsible for more care without such identification may than one facility, list all such facili- be rendered care upon presentation of ties. other identification as outlined in this

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part. Under the circumstances indi- sor sign a statement that the indicated, the following procedures will be vidual requiring care has a valid ID followed when individuals present card or that an application has been without the required ID card. submitted for a renewal DD 1173. In the (i) Children under 10. Although a DD latter instance, include in the state- 1173 (Uniformed Services Identification ment the allegation that: (1) The bene- and Privilege Card) may be issued to ficiary is dependent upon the service children under 10 years of age, under member for over one-half of his or her normal circumstances they are not. support, and (2) that there has been no Accordingly, certification and identi- material change in the beneficiary’s fication of children under 10 years of circumstances since the previous deter- age are the responsibility of the mem- mination of dependency and issuance of ber, retired member, accompanying the expired card. Place the statement parent, legal guardian, or acting guard- in the beneficiary’s medical record. In- ian. Either the DD 1173 issued the form the patient or sponsor that if eli- spouse of a member or former member gibility is not verified by presentation or the identification card of the mem- of a valid ID card to the patient admin- ber or former member (DD 2, DD 2 istration department within 30 cal- (Ret), Form PHS–1866–1, or Form PHS– endar days, the facility will initiate ac- 1866–3 (Ret)) is acceptable for the pur- tion to recoup the cost of care. If indi- pose of verifying eligibility of a child cated, billing action for the cost of under 10 years of age. treatment will then proceed following (ii) Indefinite expiration. The fact that NAVMED P–5020. the word ‘‘indefinite’’ may appear in (B) When recent accessions, National the space for the expiration date on a Guard, reservists, or Reserve units are member’s card does not lessen its ac- called to active duty for a period great- ceptability for identification of a child. er than 30 days and neither the mem- See § 728.4(cc)(3)(iii) for dependent’s bers nor their dependents are at yet in cards with an indefinite expiration receipt of their identification cards, date. satisfactory collateral identification (iii) Expiration date. To be valid, a de- may be accepted in lieu thereof, i.e., of- pendent’s DD 1173 must have an expira- ficial documents such as orders, along tion date. Do not honor a dependent’s with a marriage license, or birth cer- DD 1173 with an expiration date of ‘‘in- tificate which establish the individ- definite’’. Furthermore, such a card ual’s status as a dependent of a mem- should be confiscated, per ber called to duty for a period which is NAVMILPERSCOMINST 1750.1A, and not specified as 30 days or less. For a forwarded to the local PSD. The PSD child, the collateral documentation may then forward it to the Com- must include satisfactory evidence mander, Naval Military Personnel that the child is within the age lim- Command, (NMPC (641D)/Pers 7312), De- iting criteria outlined in § 728.31(b)(4). partment of the Navy, Washington, DC An eligible dependent’s entitlement, 20370–5000 for investigation and final under the provisions of this subpart, disposition. Render necessary emer- starts on the first day of the sponsor’s gency treatment to such a person. The active service and ends as of midnight patient administration department on the last day of active service. must determine such a patient’s bene- (4) DEERS checking. Unless otherwise ficiary status within 30 calendar days indicated, all DEERS verification pro- and forward such determination to the cedures will be accomplished in con- fiscal department. If indicated, billing junction with possession of a valid ID action for treatment will then proceed card. following NAVMED P–5020. (i) Prospective DEERS processing—(A) (iv) Without cards or with expired Appointments. To minimize difficulties cards. (A) When parents or parents-infor MTFs, DTFs, and patients, DEERS law (including step-parents and step- checks are necessary for prospective parents-in-law) request care in naval patients with future appointments MTFs or DTFs without a DD 1173 in made through a central or clinic ap- their possession or with expired DD pointment desk. Without advance 1173’s, render care if they or their spon- DEERS checking, patients could arrive

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at a facility with valid ID cards but (B) One hundred percent of all admis- may fail the DEERS check, or may ar- sions. rive without ID cards but be identified (C) One hundred percent of all dental by the DEERS check as eligible. visits at all DTFs for other than active Records, including full social security duty members, retired members, and numbers, of central and clinic appoint- dependent. ment systems will be passed daily to (1) Active duty members are exempt the DEERS representative for a pro- from DEERS eligibility verification spective DEERS check. This enables checking at DTFs. appointment clerks to notify individ- (2) Retired members will receive a uals with appointments of any appar- DEERS vertification check at the ini- ent problem with the DEERS or ID tial visit to any DTF and annually card system and refer those with prob- thereafter at time of treatment at the lems to appropriate authorities prior same facility. To qualify for care as a to the appointment. result of the annually performed (B) Prescriptions. Minimum checking verification check, the individual per- requirements of the program require forming the eligibility check will make prospective DEERS checks on all indi- a notation to this effect on an SF 603, viduals presenting prescriptions of ci- Health Record—Dental. Include in the vilian providers (see notation the date and result of the § 728.4(cc)(4)(iv)(D)). check. (ii) Retrospective DEERS processing. (3) Dependents will have a DEERS Pass daily logs (for walk-in patients, eligibility verification check upon ini- patients presenting in emergencies, or patients replacing last minute appoint- tial presentation for evaluation or ment cancellations) to the DEERS rep- treatment. This check will be valid for resentative for retrospective batch up to 30 days if, when the check is con- processing if necessary for the facility ducted, the period of eligibility re- to meet the minimum checking requested is 30 days. A 30-day eligibility quirements in § 728.4(cc)(4)(iv). For check may be accomplished online or DEERS processing, the last four digits via telephone by filling in or request- of a social security number are insuffi- ing the operator to fill in a 30 day pe- cient. Accordingly, when retrospective riod in the requested treatment dates processing is necessary, the full social on the DEERS eligibility inquiry security number of each patient must screen. Each service or clinic is ex- be included on daily logs. pected to establish auditable proce- (iii) Priorities. With the following ini- dures to trace the date of the last eligi- tial priorities, conduct DEERS eligibility verification on a particular de- bility checks using a CRT terminal, pendent. single-number dialer telephone, or 800 (D) One hundred percent of pharmacy number access provided for the specific outpatients presenting new prescrip- purpose of DEERS checking to: tions written by a civilian provider. (A) Determine whether a beneficiary Prospective DEERS checks are re- is enrolled. quired for all patients presenting pre- (B) Verify beneficiary eligibility. scriptions of civilian providers. A Eastablishment of eligibility is under DEERS check is not required upon the cognizance of personnel support ac- presentation of a request for refill of a tivities and detachments. prescription of a civilian provider if (C) Identify any errors on the data the original prescription was filled by a base. USMTF within the past 120 days. (iv) Minimum checking requirements. (E) One hundred percent of all indi- Process patients presenting at viduals requesting treatment without a USMTFs and DTFs in the 50 States for valid ID card if they represent them- DEERS eligibility verification per the selves as individuals who are eligible to following minimum checking require- be included in the DEERS data base. ments. (v) Ineligibility determinations. When a (A) Twenty five percent of all out- DEERS verification check is performed patient visits. and eligibility cannot be verified for

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any of the following reasons, deny rou- 9, Dependent’s Eligibility for Medical tine nonemergency care unless the ben- Care, is signed by the member, patient, eficiary meets the criteria for a patient’s parent, or patient’s legal or DEERS eligibility override as noted in acting guardian. This form attests the § 728.4(cc)(4)(viii). fact that eligibility has been estab- (A) Sponsor not enrolled in DEERS. lished per appropriate directives and (B) Dependent not enrolled in includes the reason a valid ID card is DEERS. not in the prospective patient’s posses- (C) ‘‘End eligibility date’’ has passed. sion. Apprise the aforementioned re- Each individual in the DEERS data sponsible individual of the provisions base has a date assigned on which eligi- on the form NAVMED 6320/9 now re- bility is scheduled to end. quiring presentation of a valid ID card (D) Sponsor has separated from ac- within 30 calendar days. Deny treat- tive duty and is no longer entitled to benefits. ment or admission in physician deter- (E) Spouse has a final divorce decree mined nonemergency situations of per- from sponsor and is not entitled to con- sons refusing to sign the certification tinued eligibility as a former spouse. on the NAVMED 6320/9. For persons (F) Dependent child is married. rendered treatment, patient adminis- (G) Dependent becomes an active tration department personnel must de- duty member of a uniformed service. termine their eligibility status within (Applies only to CHAMPUS benefits 30 calendar days and forward such de- since the former dependent becomes termination to the fiscal department. entitled to direct care benefits in his or If indicated, billing action for treat- her own right as an active duty mem- ment will then proceed following ber and must enroll in DEERS.) NAVMED P–5020. (vi) Emergency situations. When a phy- (viii) DEERS overrides. Possession of sician determines that emergency care an ID card alone does not constitute is necessary, initiate treatment. If ad- sufficient proof of eligibility when the mitted after emergency treatment has DEERS check does not verify eligi- been provided, a retrospective DEERS bility. What constitutes sufficient check is required. If an emergency ad- proof will be determined by the reason mission or emergency outpatient treat- the patient failed the DEERS check. ment is accomplished for an individual For example, groups most expected to whose proof of eligibility is in ques- fail DEERS eligibility checks are re- tion, the patient administration de- cent accession members and their department must determine the individual’s beneficiary status within 30 cal- pendents, Guard or Reserve members endar days of treatment and forward recently activated for training periods such determination to the fiscal de- of greater than 30 days and their department. Eligibility verifications will pendents, and parents and parents-in- normally consist of presentation of a law with expired ID cards. Upon pres- valid ID card along with either a posi- entation of a valid ID card, the fol- tive DEERS check or a DEERS over- lowing are reasons to ‘‘override’’ a ride as noted in § 728.4(cc)(4)(viii). If in- DEERS check either showing the indi- dicated, billing action for treatment vidual as ineligible or when an indi- will then proceed per NAVMED P–5020. vidual does not appear in the DEERS (vii) Eligibility verification for non- data base. emergency care. When a prospective pa- (A) DD 1172. Patient presents an tient presents without a valid ID card original of a copy of a DD 1172, Applica- and: tion for Uniformed Services Identifica- (A) DEERS does not verify eligi- tion and Privilege Card, which is also bility, deny nonemergency care. Care used to enroll beneficiaries in DEERS. denial will only be accomplished by su- If the original is used, the personnel pervisory personnel designated by the support detachment (PSD) furnishing commanding officer. the original will list the telephone (B) The individual is on the DEERS number of the verifying officer to aid data base, do not provide non- in verification. Any copy presented emergency care until a NAVMED 6320/

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must have an original signature in sec- the DEERS data base. Before initiating tion III; printed name of verifying offi- nonemergency care, request collateral cer, his or her grade, title, and tele- documentation showing relationship to phone number; and the date the copy sponsor when the relationship is or was issued. For treatment purposes, may be in doubt. this override expires 120 days from the (G) Survivors. Dependents of deceased date issued. sponsors when the deceased sponsor (B) Recently issued identification failed to enroll in or have his or her de- cards—(1) DD 1173. Patient presents a pendents enrolled in DEERS. This situ- recently issued DD 1173, Uniformed ation will be evidenced when an eligi- Services Identification and Privilege bility check on the surviving widow or Card. Examples are spouses recently widower (or other dependent) finds that married to sponsor, newly eligible step- children, family members of sponsors the sponsor does not appear (screen recently entering on active duty for a shows ‘‘Sponsor SSN Not Found’’) or period greater than 30 days, parents or the survivor’s name appears as the parents-in-law, and unremarried sponsor but the survivor is not listed spouses recently determined eligible. separately as a dependent. In any of For treatment purposes, this override these situations, if the survivor has a expires 120 days from the date issued. valid ID card, treat the individual on (2) Other ID cards. Patient presents the first visit and refer him or her to any of the following ID cards with a the local personnel support detachment date of issue within the previous 120 for correction of the DEERS data base. days: DD 2, DD 2 (Ret), Form PHS 1866– For second and subsequent visits prior 1, or Form PHs 1866–3 (Ret). When these to appearance on the DEERS data base, ID cards are used for the purpose of require survivors to present a DD 1172 verifying eligibility for a child, collat- issued per § 728.4(cc)(4)(viii)(A). eral documentation is necessary to en- (H) Patients not eligible for DEERS ensure the child is actually the alleged rollment. (1) Secretarial designees are sponsor’s dependent and in determining not eligible for enrollment in DEERS. whether the child is within the age Their eligibility determination is limiting criteria outlined in verified by the letter, on one of the § 728.31(b)(4). service Secretaries’ letterhead, of au- (C) Active duty orders. Patient or thorization issued. sponsor presents recently issued orders to active duty for a period greater than (2) When it becomes necessary to 30 days. Copies of such orders may be make a determination of eligibility on accepted up to 120 days of their issue other individuals not eligible for entry date. on the DEERS data base, patient ad- (D) Newborn infants. Newborn infants ministration department personnel for a period of 1 year after birth pro- will obtain a determination from the vided the sponsor presents a valid ID purported sponsoring agency, if appro- card. priate. When necessary to treat or (E) Recently expired ID cards. If the admit a person who cannot otherwise DEERS data base shows an individual present proof of eligibility for care at as ineligible due to an ID card that has the expense of the Government, do not expired within the previous 120 days deny care based only on the fact that (shown on the screen as ‘‘Elig with the individual is not on the DEERS valid ID card’’), care may be rendered data base. In such instances, follow the when the patient has a new ID card procedures in NAVMED P–5020 to mini- issued within the previous 120 days. mize, to the fullest extent possible, the (F) Sponsor’s duty station has an FPO write-off of uncollectible accounts. or APO number or sponsor is stationed outside the 50 United States. Do not deny care to bona fide dependents of sponsors assigned to a duty station outside the 50 United States or assigned to a duty station with an FPO or APO address as long as the sponsor appears on

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Subpart B—Members of the Uni- treatment and services upon applica- formed Services on Active tion to a naval MTF whose mission in- Duty cludes the rendering of the care required. This entitlement provides that § 728.11 Eligible beneficiaries. when required care and services are be- (a) A member of a uniformed service, yond the capabilities of the facility to as defined in subpart A, who is on ac- which the member applies, the com- tive duty is entitled to and will be pro- manding officer of that facility will ar- vided medical and dental care and ad- range for care from another USMTF, juncts thereto. For the purpose of this designated USTF, or other Federal part, the following are also considered source or will authorize and arrange on active duty: for direct use of supplemental services (1) Members of the National Guard in and supplies from civilian non-Federal active Federal service pursuant to a sources out of operation and mainte- ‘‘call’’ under 10 U.S.C. 3500 or 8500. nance funds. (2) Midshipmen of the U.S. Naval (i) Necessary hospitalization and Academy. other medical care. (3) Cadets of the U.S. Military Acad- (ii) Occupational health services as emy. defined in § 728.2(z). (4) Cadets of the Air Force Academy. (iii) Necessary prosthetic devices, (5) Cadets of the Coast Guard Acad- prosthetic dental appliances, hearing emy. aids, spectacles, orthopedic footwear, (b) The following categories of per- and other orthopedic appliances (see sonnel who are on active duty are enti- subpart H). When these items need re- tled to and will be provided medical pair or replacement and the items were and dental care and adjuncts thereto to not damaged or lost through neg- the same extent as is provided for ac- ligence, repair or replacement is au- tive duty members of the Regular serv- thorized at Government expense. ice (except reservists when on active (iv) Routine dental care. duty for training as delineated in § 728.21). (2) When a USMTF, with a mission of (1) Members of the Reserve compo- providing the care required, releases nents. the medical management of an active (2) Members of the Fleet Reserve. duty member of the Navy, Marine (3) Members of the Fleet Marine Corps, Army, Air Force, or a commis- Corps Reserve. sioned corps member of USPHS or (4) Members of the Reserve Officers’ NOAA, the resulting civilian health Training Corps. care costs will be paid by the referring (5) Members of all officer candidate facility. programs. (3) The member’s uniformed service (6) Retired members of the uniformed will be billed for care provided by the services. civilian facility only when the referring MTF is not organized nor author- § 728.12 Extent of care. ized to provide needed health care (see Members who are away from their part 732 of this chapter for naval mem- duty stations or are on duty where bers). Saturation of service or facilities there is no MTF of their own service does not fall within this exception. may receive care at the nearest avail- When a naval MTF retains medical able Federal MTF (including des- management, the costs of supplemental ignated USTFs) with the capability to care obtained from civilian sources is provide required care. Care will be pro- paid from funds available to operate vided without regard to whether the the MTF which manages care of the pa- condition for which treatment is re- tient. When it becomes necessary to quired was incurred or contracted in refer a USPHS or NOAA commissioned line of duty. corps member to a non-Federal source (a) All uniformed services active duty of care, place a call to the Department members. (1) All eligible beneficiaries of Health and Human Services (DHHS), covered in this subpart are entitled to Chief, Patient Care Services on (301) and will be rendered the following 443–1943 or FTS 443–1943 if DHHS is to

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assume financial responsibility. Pa- (c) Reserve and National Guard per- tient Care Services is the sole source sonnel. In addition to those services for providing authorization for non- covered in paragraphs (a) and (b) of Federal care at DHHS expense. this section, Reserve and National (b) Maternity episode for active duty fe- Guard personnel are authorized the fol- male members. A pregnant active duty lowing under conditions set forth. (See member who lives outside the MHSS § 728.25 for additional benefits for Na- inpatient catchment area of all tional Guard personnel.) USMTFs is permitted to choose wheth- (1) Personnel whose units have an ac- er she wishes to deliver in a closer ci- tive Army mission of manning missile vilian hospital or travel to the USMTF sites are authorized spectacle inserts for delivery. If such a member chooses for protective field masks. to deliver in a naval MTF, makes ap- (2) Personnel assigned to units des- plication, and presents at that facility ignated for control of civil disturb- at the time for delivery, the provisions ances are authorized spectacle inserts of paragraph (a) of this section apply for protective field masks M17. with respect to the furnishing of needed care, including routine newborn care § 728.13 Application for care. (i.e., nursery, newborn examination, PKU test, etc.); arrangements for care Possession of an ID card (a green col- beyond the facility’s capabilities; or ored DD 2 (with letter suffix denoting the expenditure of funds for supple- branch of service), Armed Forces Iden- mental care or services. Pay expenses tification Card; a green colored PHS incurred for the infant in USMTFs or 1866–1, Identification Card; or a red col- civilian facilities (once the mother has ored DD 2 Res (Reservists on active been admitted to the USMTF) from duty for training)) alone does not con- funds available for care of active duty stitute sufficient proof of eligibility. members, unless the infant becomes a Accordingly, make a DEERS check, per patient in his or her own right either § 728.4(cc), before other than emergency through an extension of the birthing care is rendered to the extent that may hospital stay because of complications, be authorized. subsequent transfer to another facility, or subsequent admission. If the Gov- § 728.14 Pay patients. ernment is to assume financial respon- Care is provided on a reimbursable sibility for: basis to: Coast Guard active duty offi- (1) Care of pregnant members resid- cers, enlisted personnel, and academy ing within the MHSS inpatient cadets; Public Health Service Commis- catchment area of a uniformed services sioned Corps active duty officers; and hospital or in the inpatient catchment Commissioned Corps active duty offi- area of a designated USTF, such mem- cers of the National Oceanic and At- bers are required to: mospheric Administration. Accord- (i) Make application to that facility ingly, patient administration personnel for care, or will initiate the collection action proc- (ii) Obtain authorization, per part 732 ess in subpart J in each instance of in- of this chapter, for delivery in a civil- patient or outpatient care provided to ian facility. these categories of patients. (2) Non-Federal care of pregnant members residing outside inpatient Subpart C—Members of Reserve catchment areas of USMTFs and Components, Reserve Offi- USTFs, the member must request and receive authorization per part 732 of cers’ Training Corps, Navy this chapter. Part 732 of this chapter and Marine Corps Officer also provides for cases of precipitious Candidate Programs, and Na- labor necessitating emergency care. tional Guard Personnel OPNAVINST 6000.1, Management of Pregnant Servicewomen, contains med- § 728.21 Navy and Marine Corps re- ical-administrative guidelines on man- servists. agement prior to admission and after (a) Scope. This section applies to re- discharge from admission for delivery. servists, as those terms are defined in

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§ 728.2, ordered to active duty for train- titlement Manual for allowable con- ing or inactive duty training for 30 structive travel times.) days or less. Reservists serving under (e) Treatment and services authorized. orders specifying duty in excess of 30 In addition to those services delineated days, such as Sea and Air Mariners above, the following may be rendered (SAMS) while on initial active duty for under circumstances outlined: training, will be provided care as mem- (1) Prosthetic devices, including den- bers of the Regular service per subpart tal appliances, hearing aids, spectacles, B. and orthopedic appliances that are lost (b) Entitlement. Per 10 U.S.C. 1074a(a), or have become damaged during train- reservists who incur or aggravate an ing duty, not through negligence of the injury, illness, or disease in line of individual, may be repaired or replaced duty while on active duty for training at Government expense. or inactive duty training for a period of (2) Reservists covered by this subpart 30 days or less, including travel to and may be provided the following only if from that duty, are entitled to medical approved by the appropriate OMA or and dental care appropriate for the ODA, or by the Commander, Naval treatment of that injury, disease, or Medical Command (MEDCOM–33 for illness until the resulting disability medical and MEDCOM–06 for dental) cannot be materially improved by fur- prior to initiation of services. ther hospitalization or treatment. Care (i) Treatment for acute exacerbations is authorized for such an injury, ill- of conditions that existed prior to a reservist’s period of training duty. Limit ness, or disease beyond the period of care to that necessary for the preven- training to the same extent as care is tion of pain or undue suffering until authorized for members of the Regular the patient can reasonably return to service (see subpart B) subject to the control of the member’s private physi- provisions of § 728.21(e). cian or dentist. (c) Questionable circumstances. If the (A) Remediable physical defects and circumstances are questionable, refer- remediable treatment for other condi- ral to the OMA or ODA is appropriate. tions. If necessary, make referral to the (B) Elective surgery. Naval Medical Command (MEDCOM–33 (ii) All dental care other than emer- for medical and MEDCOM–06 for den- gency treatment and that necessary to tal) on determinations of entitlements. correct an injury incurred in the line of (d) Line of duty. For the purpose of duty. providing treatment under laws enti- (f) Authorization for care. (1) Reserv- tling reservists to care, an injury, ill- ists covered by this subpart may be ness, or disease which is incurred, ag- provided inpatient or outpatient care gravated, or becomes manifest while a during a period of training duty with- reservist is employed in the perform- out written authorization. ance of active duty for training or in- (2) Except in emergencies or when inactive duty training (including author- patient care initiated during a period ized leave, liberty and travel to and of training duty extends beyond such from either duty) will be considered to period, reservists will be required to have been incurred in line of duty furnish written official authorization (LOD) unless the condition was in- from their unit commanding officer, or curred as a result of the reservist’s own higher authority, incident to receiving misconduct or under other cir- inpatient or outpatient care beyond cumstances enumerated in JAG Man- the period of training duty. The letter ual, chapter VIII. While the LOD inves- of authorization will include name, tigation is being conducted, such re- grade or rate, social security number, servists remain entitled to care. If the and organization of the reservist; type investigation determines that the in- of training duty being performed or jury or illness was not incurred in line that was being performed when the of duty, the civilian humanitarian non- condition manifested; diagnosis (if indigent rate is applicable if further known); and a statement that the con- care is required in naval MTFs. (See dition was incurred in line of duty and DOD Military Pay and Allowances En- that the reservist is entitled to care. If

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the reservist has been issued a notice (3) Medical, dental, pharmacy, veteri- of eligibility (NOE) (subpart I), the nary or science allied to medicine stu- NOE may then be accepted in lieu of dents who are commissioned officers of the letter of authorization. When au- a reserve component of an Armed thorization has not been obtained be- Force who have been admitted to and forehand, care may be provided on a ci- training in a unit of a Senior Reserve vilian humanitarian basis (see subpart Officers’ Training Corps. G) pending final determination of eligi- (b) Extent of care. (1) While attending bility. or en route to or from field training or practice cruises: § 728.22 Members of other reserve (i) Medical care for a condition in- components of the uniformed services. curred without reference to line of duty. (a) Members of reserve components of (ii) Routine dental care. the Coast Guard may be provided care (iii) Prosthetic devices, including the same as Navy and Marine Corps re- dental appliances, hearing aids, spec- servists. tacles, and orthopedic appliances that (b) Members of reserve components of have become damaged or lost during the Army and Air Force may be pro- training duty, not through negligence vided care in naval MTFs to the same of the individual, may be repaired or extent that they are eligible for such replaced as necessary at government care in MTFs of their respective serv- expense. ices. Consult current Army Regulation (iv) Care of remediable physical de- 40–3, Medical, Dental, and Veterinary fects, elective surgery or other remedi- Care, or Air Force Regulation 168–6, able treatment for conditions that ex- Persons Authorized Medical Care, as isted prior to a period of training duty appropriate, for particular eligibility are not authorized without approval requirements or contact the nearest from the appropriate OMA or ODA, or appropriate service facility. from the Commander, Naval Medical (c) When the service directive re- Command (MEDCOM–33 for medical quires written authorization, obtain and MEDCOM–06 for dental). such authorization from the reservist’s unit commanding officer or other ap- (v) Medical examinations and immu- propriate higher authority. nizations. (d) Naval MTFs in the United States (vi) ROTC members are authorized are authorized to conduct physical ex- continued medical care, including hos- aminations of and administer immuni- pitalization, upon expiration of their zations to inactive reserve Public field training or practice cruise period, Health Service commissioned officers the same as reservists in § 728.21(b) and upon presentation of a written request § 728.22. from the Commissioned Personnel Op- (2) While attending a civilian edu- erations Division, OPM/OAM, 5600 Fish- cational institution: ers Lane, Rockville, MD 20852. (i) Medical care in naval MTFs, including hospitalization, for a condition § 728.23 Reserve Officers’ Training incurred in line of duty while at or Corps (ROTC). traveling to or from a military instal- (a) Eligible beneficiaries. (1) Members lation for the purpose of undergoing of the Senior Reserve Officers’ Train- medical or other examinations or for ing Corps of the Armed Forces includ- purposes of making visits of observa- ing students enrolled in the 4-year Sen- tion, including participation in service- ior ROTC Program or the 2-year Ad- sponsored sports, recreational, and vanced Training Senior ROTC Pro- training activities. gram. (ii) Medical examinations, including (2) Designated applicants for mem- hospitalization necessary for the prop- bership in the Navy, Army, and Air er conduct thereof. Force Senior ROTC Programs during (iii) Required immunizations, includ- their initial 6-weeks training period ing hospitalization for severe reactions (practice cruises or field training). therefrom.

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(c) Authorization. The individual’s from that duty. The authorizing letter commanding officer will prepare a let- will include name, social security num- ter of authorization addressed to the ber, grade, and organization of the commanding officer of the MTF con- member; type and period of duty in cerned. which engaged (or in which engaged (d) ROTC members as beneficiaries of when the injury or illness occurred); di- the Office of Workers’ Compensation Pro- agnosis (if known); and will indicate grams (OWCP). Under circumstances that the injury suffered or disease con- described therein, render care as out- tracted was in line of duty and that the lined in § 728.53 to members of the individual is entitled to medical or ROTC as beneficiaries of OWCP. dental care. Limit care to that appropriate for the injury. disease, or illness § 728.24 Navy and Marine Corps Offi- until the resulting disability cannot be cer Candidate Programs. materially improved by further hos- Members of the Reserve Officers Can- pitalization or treatment. didate Program and Platoon Leaders (b) Physical examinations. AR 40–3 and Class are entitled to the same medical AFR 168–6 also authorize physical ex- and dental benefits as are provided aminations for National Guard per- members of the Navy and Marine Corps sonnel. Accordingly, when requested by Reserve Components. Accordingly, the an Army or Air Force National Guard provisions of § 728.21 are applicable for unit’s commanding officer, naval MTFs such members. Additionally, can- may perform the requested physical ex- didates for, or persons enrolled in such amination per the appropriate service programs are authorized access to directive, subject to the availability of naval MTFs for the purpose of con- space, facilities, and the capabilities of ducting special physical examination the staff. procedures which have been requested by the Commander, Naval Medical Subpart D—Retired Members and Command to determine their physical Dependents of the Uniformed fitness for appointment to, or continu- Services ation in such a program. Upon a request from the individual’s com- § 728.31 Eligible beneficiaries and manding officer, the officer in charge health benefits authorized. of cognizant Navy and Marine Corps re- (a) Retired members of the uniformed cruiting stations, or officer selection services. Retired members, as defined in officer, naval MTFs are authorized to § 728.2(aa), are authorized the same admit such persons when, in the opin- medical and dental benefits as active ion of the cognizant officer, hos- duty members subject to the avail- pitalization is necessary for the proper ability of space and facilities, capabili- conduct of the special physical exami- ties of the professional staff, and the nations. Hospitalization should be kept priorities in § 728.3, except that: to a minimum and treatment other (1) Periodic medical examinations for than for humanitarian reasons, except members on the Temporary Disability as provided in this part, is not author- Retired List, including hospitalization ized. in connection with the conduct thereof, will be furnished on the same priority § 728.25 Army and Air Force National basis as care to active duty members. Guard personnel. (2) When vision correction is re- (a) Medical and dental care. Upon quired, one pair of standard issue spec- presentation of a letter of authoriza- tacles, or one pair of nonstandard spection, render care as set forth in AR 40– tacles, are authorized when required to 3 (Medical, Dental, and Veterinary satisfy patient needs. Two pairs of Care) and AFR 168–6 (Persons Author- spectacles may be furnished only when ized Medical Care) to members of the professionally determined to be essen- Army and Air Force National Guard tial by the examining officer. Military who contract a disease or become ill in ophthalmic laboratories will not fur- line of duty while on full-time National nish occupational type spectacles, such Guard duty, (including leave and lib- as aviation, industrial safety, double erty therefrom) or while traveling to or segment, and mask insert, to retired

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military personnel (7) An unremarried former spouse of (NAVMEDCOMINST 6810.1 refers). a member or former member who does (b) Dependents of members of former not have medical coverage under an members. Include: employer-sponsored health plan, and (1) The spouse. who: (2) The unremarried widow. (i) On the date of the final decree of (3) The unremarried widower. divorce, dissolution, or annulment, had (4) An unmarried legitimate child, in- been married to the member or former cluding an adopted child or a stepchild, member at least 20 years during which who either— period the member of former member performed at least 20 years of service (i) Has not passed his or her 21st creditable in determining that mem- birthday; ber’s or former member’s eligibility for (ii) Is incapable of self-support be- retired or retainer pay, or equivalent cause of a mental or physical inca- pay. pacity that existed before the 21st (ii) Had been married to the member birthday and is, or was at the time of of former member at least 20 years, at the member’s or former member’s least 15 of which were during the period death, in fact dependent on the mem- the member of former member per- ber for over one-half of his or her sup- formed service creditable in deter- port; or mining the member’s eligibility for re- (iii) Has not passed the 23rd birthday, tired or retainer pay, or equivalent is enrolled in a full-time course of pay. The former spouse’s sponsor must study in an institution of higher learn- have performed at least 20 years of ing approved by the administering Sec- service creditable in determining the retary and is, or was at the time of the sponsor’s eligibility for retired or re- member’s or former member’s death, in tainer pay, or equivalent pay. fact dependent on the member for over (A) Eligibility for such former one-half of his or her support. (If such spouses continue until remarriage if a child suffers a disabling illness or in- the final decree of divorce, dissolution, jury and is unable to return to school, or annulment occurred before 1 April the child remains eligible for benefits 1985. until 6 months after the disability is (B) Eligibility terminates the later removed, or until the 23rd birthday is of: Either 2 years from the date of the reached, whichever comes first.) final decree of divorce, dissolution, or (5) An unmarried illegitimate child annulment; or 1 April 1988 for such or illegitimate step-child who is, or former spouses whose final decree was at the time of sponsor’s death, de- occured on or after 1 April 1985. pendent on the sponsor for more than (iii) An unremarried former spouse of one-half of his or her support; residing a deceased member of former member with or in a home provided by the who meets the requirements of sponsor or the sponsor’s spouse, as ap- § 728.31(b)(7)(i) or (ii) may be provided plicable, and is— medical and dental care as a dependent (i) Under 21 years of age; or when the sponsor: (ii) Twenty-one years of age or older (A) Died before attaining age 60. but incapable of self-support because of (B) At the time of death would have a mental or physical incapacity that been eligible for retired pay under 10 existed prior to the individual’s 21st U.S.C. 1331–1337 except that the sponsor birthday; or was under 60 years of age; but the (iii) Twenty-one or 22 years of age former spouse is not eligible for care and pursuing a full-time course of edu- until the date the sponsor would have cation that is approved per attained age 60; § 728.31(b)(4)(iii). (C) Whether or not the sponsor elect- (6) A parent or parent-in-law, who is, ed participation in the Survivor Ben- or was at the time of the member’s or efit Plan of 10 U.S.C. 1447–1455. former member’s death, in fact depend- (c) Eligibility factors. Care that may ent on the member for over one-half of be rendered to all dependents in this such parent’s support and residing in subpart D is subject to the availability the sponsor’s household. of space and facilities, capabilities of

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the professional staff, and priorities in by the remarriage of the divorced § 728.3. Additionally: spouse maintaining custody unless the (1) Members of the uniformed serv- marriage is to an eligible service mem- ices must be serving under orders ber. specifying active duty for more than 30 (6) A stepchild relationship does not days before their dependents are au- cease upon death of the member step- thorized benefits delineated in parent but does cease if the natural § 728.31(d). parent subsequently remarries. (2) A dependent’s eligibility begins on (7) A child of an active duty or re- the date the member enters on active tired member, adopted after that mem- duty and ends as of midnight of the ber’s death, retains eligibility for date the sponsor’s period of active duty ends for any reason other than retire- health benefits. However, the adoption ment or death. Dependents lose eligi- of a child of a living member (other bility as of midnight of the date a than by a person whose dependents are member is officially place in a deserter eligible for health benefits at USMTFs) status. Eligibility is restored on the terminates the child’s eligibility. date a deserter is returned to military (8) If a member’s child is married be- control. fore reaching age 21 to a person whose (3) A dependent (other than a former dependents are not eligible for health spouse) of a member or former member benefits in USMTFs, eligibility ceases who died before attaining age 60 and at as of midnight on the date of marriage. the time of death— Should the marriage be terminated, (i) Would have been eligible for re- the child again becomes eligible for tired pay under chapter 67 of title 10 benefits as a dependent child if other- U.S.C. but for the fact that the member wise eligible. of former member was under 60 years of (d) Health benefits authorized. (1) Inpa- age, and tient care including services and sup- (ii) Had elected to participate in the plies normally furnished by the MTF. Survivor Benefit Plan, may not be ren- (2) Outpatient care and services. dered medical or dental care under the (3) Drugs (see chapter 21, MANMED). sponsor’s entitlement until the date on which such member of former member (i) Prescriptions written by officers would have attained age 60. of the Medical and Dental Corps, civil- (4) A spouse, not qualifying as a ian physicians and dentists employed former spouse, who is divorced from a by the Navy, designated officers of the member loses eligibility for benefits as Medical Service Corps and Nurse Corps, of midnight of the date the divorce be- independent duty hospital corpsmen, comes final. This includes loss of ma- and others designated to write pre- ternity care benefits for wives who are scriptions will be filled subject to the pregnant at the time a divorce becomes availability of pharmaceuticals, and final. A spouse does not lose eligibility consistent with control procedures and through issuance of an interlocutory applicable laws. decree of divorce even when a property (ii) Prescriptions written by civilian settlement has been approved which re- physicians and dentists (non-Navy em- leases the member from responsibility ployed) for eligible beneficiaries may for the spouse’s support. A spouse’s eli- be filled if: gibility depends upon the relationship (A) The commanding officer or CO’s of the spouse to the member; so long as designee determines that pharmacy the relationship of husband and wife is personnel and funds are available. not terminated by a final divorce or annulment decree, eligibility con- (B) The items requested are routinely tinues. stocked. (5) Eligibility of children is not af- (C) The prescribed quantity is within fected by the divorce of parents except limitations established by the com- that a stepchild relationship ceases mand. upon divorce or annulment of natural (D) The prescriber is in the local area parent and step-parent. A child’s eligi- (limits designated by the commanding bility for health benefits is not affected officer).

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(E) The provisions of chapter 21, endangered if the fetus were carried to MANMED are followed when such serv- term. ices include the dispensing of con- (10) Dental care worldwide on a space trolled substances. available basis. (4) Treatment on an inpatient or out- (11) Government ambulance services, patient basis of: surface or air, to transport dependents (i) Medical and surgical conditions. to, from, or between medical facilities (ii) Contagious diseases. when determined by the medical officer (iii) Nervous, mental, and chronic in charge to be medically necessary. conditions. (12) Home calls when determined by the medical officer in charge to be (5) Physical examinations, including medically necessary. eye examinations and hearing evalua- (13) Artificial limbs and artificial tions, and all other tests and proce- eyes, including initial issue, fitting, re- dures necessary for a complete physical pair, replacement, and adjustment. examination. (14) Durable equipment such as (6) Immunizations. wheelchairs, hospital beds, and resus- (7) Maternity (obstetrical) and infant citators may be issued on a loan basis. care, routine care and examination of (15) Orthopedic aids, braces, crutches, the newborn infant, and well-baby care elastic stockings, walking irons, and for mothers and infants meeting the similar aids. eligibility requirements of § 728.31(b). If (16) Prosthetic devices (other than a newborn infant of an unmarried de- artificial limbs and eyes), hearing aids, pendent minor daughter becomes a pa- orthopedic footwear, and spectacles or tient in his or her own right after dis- contact lenses for the correction of or- charge of the mother, classify the in- dinary refractive error may not be pro- fant as civilian humanitarian non- vided dependents. These items, how- indigent inasmuch as § 728.31(b) does ever, may be sold to dependents at cost not define the infant as a dependent of to the Government at facilities outside the active duty or retired service mem- the United States and at specific in- ber. Therefore, the minor daughter’s stallations within the United States sponsor (parent) should be counseled where adequate civilian facilities are concerning the possibility of Secre- unavailable. tarial designee status for the infant (17) Special lenses (including intra- (see § 728.77). ocular lenses) or contact lenses for (8) Diagnostic tests and services, in- those eye conditions which require cluding laboratory and x-ray examina- these items for complete medical or tions. Physical therapy, laboratory, x- surgical management of the condition. ray, and other ambulatory diagnostic (18) One wig if the individual has alo- or therapeutic measures requeted by pecia resulting from treatment of a non-Navy employed physicians may be malignant disease: Provided the indi- provided upon approval of the com- vidual has not previously received a manding officer or designated depart- wig at the expense of the United ment heads. Rendering of such srvices States. is subordinate to and will not unduly (e) Dependents of reserves. (1) A de- interfere with providing inpatient and pendent, as defined in § 728.31(b), of a outpatient care to active duty per- deceased member of the Naval Reserve, sonnel and others whose priority to re- the Fleet Reserve, the Marine Corps ceive care is equal to or greater than Reserve, or the Fleet Marine Corps Re- such dependents. Ensure that the reserve, who— lease of any information to non-Navy (i) Was ordered to active duty or to employed physicians is in consonance perform inactive-duty training for any with applicable provisions of period of time. SECNAVINST 5211.5C. (ii) Was disabled in the line of duty (9) Family planning services as delin- from an injury while so employed, and eated in SECNAVINST 6300.2A. Abor- (iii) Dies from such a specific injury, tions, at the expense of the Govern- illness, or disease is entitled to the ment, may not be performed except same care as provided for dependents in where the life of the mother would be § 728.31(c).

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(2) The provisions of this subpart D quire the beneficiary to use the are not intended to authorize medical USMTF and the attending physician and dental care precluded for depend- has specific prior approval from the fa- ents of members of Reserve compo- cility’s commanding officer or higher nents who receive involuntary orders authority to make such determination. to active duty under 10 U.S.C. 270b. (i) Issuance for this reason should be (f) Unauthorized care. In addition to restricted to those instances when de- the devices listed in § 728.31(d)(16) as nial of the DD 1251 could result in a unauthorized, dependents are not au- significant risk to the health of any pa- thorized care for elective correction of tient requiring any clinical specialty. minor dermatological blemishes and (ii) Issuing authorities have discre- marks or minor anatomical anomalies. tionary authority to evaluate each situation and issue a DD 1251 under the § 728.32 Application for care. ‘‘medically inappropriate’’ reason if: Possession of an ID card alone (DD 2 (A) In consideration of individual (Retired), PHS–1866–3 (Retired), or DD medical needs, personal constraints on 1173 (Uniformed Services Identification an individual’s ability to get to the and Privilege Card)) does not con- USMTF results in an unreasonable lim- stitute sufficient proof of eligibility. itation on that individual’s ability to Accordingly, a DEERS check will be get required medical care, and instituted per § 728.4 (cc) before medical (B) The issuing authority determines and dental care may be rendered except that obtaining care from a civilian in emergencies. When required inpa- source selected by the individual would tient or outpatient care is beyond the result in significantly less limitations capabilities of the naval MTF, the pro- on that individual’s ability to get revisions of § 728.34 apply. When required quired medical care than would result inpatient care cannot be rendered and if the individual was required to obtain a decision is made to disengage a care from a USMTF. CHAMPUS-eligible beneficiary, the (C) A beneficiary is in a travel status. provisions of § 728.33 apply. The commanding officer of the first facility contacted, in either the bene- § 728.33 Nonavailability statement (DD ficiary’s home catchment area or the 1251). catchment area where hospital care (a) General. Per DODINST 6015.19 of 26 was obtained, has this discretionary Nov. 1984, the following guidelines are authority. Travel in this instance effective as of 1 Jan. 1985. All pre- means the beneficiary is temporarily viously issued Nonavailability State- on a trip away from his or her perma- ment guidelines and reporting require- nent residence. The reason the patient ments are superseded. is traveling, the distance involved in (b) Applicability. The following provi- the travel, and the time away from the sions are applicable to nonemergency permanent residence is not critical to inpatient care only. A DD 1251 is not the principle inherent in the policy. required: The issuing officer to whom the re- (1) For emergency care (see para- quest for a Nonavailability Statement graph (d)(1)) of this section. is made should reasonably determine (2) When the beneficiary has other in- that the trip was not made, and the ci- surance (including Medicare) that pro- vilian care is not (was not) obtained, vides primary coverage for a covered with the primary intent of avoiding use service. of a USMTF or USTF serving the bene- (3) For medical services that ficiary’s home area. CHAMPUS clearly does not cover. (d) Guidelines for issuing—(1) Emer- (c) Reasons for issuance. DD 1251’s gency care. Emergency care claims do may be issued for only the following not require an NAS; however, the na- reasons: ture of the service or care must be cer- (1) Proper facilities are not available. tified as an emergency by the attend- (2) Professional capability is not ing physician, either on the claim form available. or in a separate signed and dated state- (3) It would be medically inappro- ment. Otherwise, a DD 1251 is required priate (as defined in § 728.2(u)) to re- by CHAMPUS-eligible beneficiaries

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who are subject to the provisions of manders of naval geographic medical this section. commands, naval MTFs will issue Non- (2) Emergency maternity care. Unless availability Statements only when care substantiated by medical documenta- required is not available from the tion and review, a maternity admission naval MTF and the beneficiary’s place would not be deemed as an emergency of residence is within the catchment since the fact of the pregnancy would area (as defined in § 728.2(d)) of the have been established well in advance issuing facility or as otherwise directed of the admission. In such an instance, by the Secretary of Defense. When the the beneficiary would have had suffi- facility’s inpatient catchment area cient opportunity to obtain a DD 1251 if overlaps the inpatient catchment area required in her residence catchment of one or more other USMTFs or area. USTFs with inpatient capability and (3) Newborn infant(s) remaining in hos- the residence of the beneficiary is pital after discharge of mother. A new- within the same catchment area of one born infant remaining in the hospital or more other USMTFs or USTFs with continuously after discharge of the inpatient capability, the issuing au- mother does not require a separate DD thority will: 1251 for the first 15 days after the (1) Determine whether required care mother is discharged. Claims for care is available at any other USMTFs or beyond this 15-day limitation must be USTFs whose inpatient catchment area accompanied by a valid DD 1251 issued overlaps the beneficiary’s residence. If in the infant’s name. This is due to the care is available, refer the beneficiary fact that the infant becomes a patient to that facility and do not issue a DD in his or her own right (the episode of 1251. care for the infant after discharge of (2) Implement measures ensuring the mother is not considered part of that an audit trail related to each the initial reason for admission of the check and referral is maintained, in- mother (delivery), and is therefore con- cluding the check required before ret- sidered a separate admission under a roactive issuance of a DD 1251 as delin- different diagnosis). eated in paragraph (g) of this section. (4) Cooperative care program. When a When other than written communica- DD 2161, Referral for Civilian Medical tion is made to ascertain capability, Care, is issued for inpatient care in make a record in the log required in connection with the Cooperative Care paragraph (h) of this section that Program (§ 728.4(z)(5)(iv)) for care under ‘‘Telephonic (or other) determination CHAMPUS, a DD 1251 must also be was made on (date) that required care issued. was not available at (name of other (5) Beneficiary responsibilities. Bene- USMTF(s) or USTF(s) contacted)’’. The ficiaries are responsible for deter- individual ascertaining this informa- mining whether an NAS is necessary in tion will sign this notation. the area of their residence and for ob- (3) Once established that a DD 1251 is taining one, if required, by first seek- authorized and will be issued, the fol- ing nonemergency inpatient care in the lowing will apply: USMTF or USTF serving the (i) Do not refer patients to a specific catchment area. Beneficiaries cannot source of care. avoid this requirement by arranging to (ii) Nonavailability Statements be away from their residence when issued at commands outside the United nonemergency inpatient care is ob- States are not valid for care received in tained, e.g., staying with a relative or facilities located within the United traveling. Individuals requiring an States. Statements issued within the NAS because they reside in the inpa- United States are not valid for care re- tient catchment area of a USMTF or ceived outside the United States. USTF also require an NAS for non- (iii) The issuing authority will: emergency care received while away (A) If capability permits, prepare a from their inpatient catchment area. DD 1251 via the automated application (e) Issuing authority. Under the direc- of DEERS. Where this system is oper- tion of the Commander, Naval Medical ational, it provides for transmitting Command, exercised through com- quarterly reports to the Office of the

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Assistant Secretary of Defense for lated directly to the original admis- Health Affairs (OASD(HA)) by elec- sion. tronic means. System users should (2) Maternity episodes are valid if refer to their DEERS/NAS Users Man- outpatient of inpatient treatment re- ual for specific guidance on the use of lated to the pregnancy is initiated the automated system. At activities within 30 days of its issuance. They re- where the DEER/NAS automated sys- main valid for care of the mother tem is not operational, prepare each through termination of the pregnancy DD 1251 per instructions on the reverse and for 42 days thereafter to allow for of the form. After completion, if au- postnatal care to be included in the thorized by the facility CO, the issuing maternity episode. (See paragraph authority will sign the DD 1251. Give a (d)(3) of this section for the validity pe- copy to the patient for presentation to riod of DD 1251’s for infants remaining a participating civilian provider, or for after discharge of the mother.) submission with the claim of a non- (g) Retroactive issuance. Issue Non- participating provider. Retain a copy availability Statements retroactively for the issuing activity’s records. Re- only if required care could not have tain the original for subsequent trans- been rendered in a USMTF or USTF as mittal to the Naval Medical Data Serv- specified in paragraph (e) of this sec- ices Center per paragraph (j) of this tion at the time services were rendered section. in the civilian sector. At the time a (B) Explain to the patient or other retroactive issuance is requested, the responsible family member the validity facility receiving the request will de- period of the DD 1251 (see paragraph (f) termine whether capability existed at of this section). the USMTF or USTF serving the inpa- (C) Ensure that beneficiaries are tient catchment area wherein the bene- clearly advised of the cost-sharing pro- ficiary resides (resided) or at any of the visions of CHAMPUS and of the fact facilities in the overlapping area de- that the issuance of a Nonavailability scribed in paragraph (e) of this section. Statement does not imply that While the date of service will be re- CHAMPUS will allow any and all costs corded on the DD 1251, send the re- incurred through the use of the DD tained original to the Naval Medical 1251. The issuance of a DD 1251 indi- Data Services Center along with others cates only that care requested is not issued during the week of issuance available at a USMTF or USTF serving (paragraph (j) of this section refers). the beneficiary’s residence inpatient (h) Annotating DD 1251’s. Before catchment area. issuance, annotate each DD 1251 per (D) Review, with the patient or re- the instructions for completion on the sponsible family member, instructions reverse of the form. DD 1251’s issued 1 through 6 on the face of the DD 1251 under the CO’s discretionary authority and have the patient or responsible for the ‘‘medically inappropriate rea- family member sign acknowledgement son (paragraph (c)(3)(ii) of this section) that such review has been made and is will be annotated in the remarks sec- understood. tion documenting the special cir- (E) Advise recipients that CHAMPUS cumstances necessitating issuance, the fiscal intermediaries may deny claims name and location of the source of care of individuals who are not enrolled in selected by the beneficiary, and ap- the Defense Enrollment Eligibility Re- proximate distance from the source se- porting System (DEERS). lected to the nearest USMTF or USTF (f) Validity period. DD 1251’s issued with capability (see instruction num- for: ber 2 on the reverse of the DD 1251). Es- (1) Other than maternity care are tablish and maintain a consecutively valid for a hospital admission occur- numbered log to include for each indi- ring within 30 days of issuance and re- vidual to whom a DD 1251 is issued: main valid from the date of admission (1) Patient’s name and identifying until 15 days after discharge from the data. facility rendering inpatient care. This (2) The facility unique NAS number allows for any follow-on treatment re- (block number 1 on the DD 1251).

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(i) Appeal procedures. Beneficiaries the reasonable costs of inpatient hos- may appeal the denial of their request pital care incurred by the United for a DD 1251. This procedure consists States on behalf of retirees and depend- of four levels within Navy, any one of ents. Naval hospital collection agents which may terminate action and order have been provided instructions rel- issuance of a Nonavailability State- ative to this issue and are responsible ment if deemed warranted: for initiating claims to third-party (1) The first level is the chief of serv- payers for the cost of such care. Admis- ice, or director of clinical services if sion office personnel must obtain in- the chief of service is the cognizant au- surance, medical service, or health thority denying the beneficiary’s origi- plan (third-party payer) information nal request. from retirees and dependents upon ad- (2) The second level is the commission and forward this information manding officer of the naval MTF de- to the collection agent. nying the issuance. Where the appeal is denied and denial is upheld at the com- § 728.36 Pay patients. manding officer’s level, inform bene- Care is provided on a reimbursable ficiaries that their appeal may be for- basis to retired Coast Guard officers warded to the geographic commander and enlisted personnel, retired Public having jurisdictional authority. Health Service Commissioned Corps of- (3) The third level is the appropriate ficers, retired Commissioned Corps offi- geographic commander, if the appeal is cers of the National Oceanic and At- denied at this level, inform bene- mospheric Administration, and to the ficiaries that their appeal may be for- dependents of such personnel. Accord- warded to the Commander, Naval Med- ingly, patient administration personnel ical Command, Washington, DC 20372– will follow the provisions of subpart J 5120. to initiate the collection action proc- (4) The Commander, Naval Medical ess when inpatient or outpatient care Command, the fourth level of appeal, is provided to these categories of bene- will evaluate all documentation sub- ficiaries. mitted and arrive at a decision. The beneficiary will be notified in writing Subpart E—Members of Foreign of this decision and the reasons there- Military Services and Their De- for. pendents (j) Data collection and reporting. Do not issue the original of each DD 1251 § 728.41 General provisions. prepared at activities where the DEER/ (a) Dependent. As used in this sub- NAS automated system is not oper- part, the term ‘‘dependent’’ denotes a ational. Send the retained originals to person who bears one of the following the Commanding Officer, Naval Med- relationships to his or her sponsor: ical Data Services Center (Code–03), (1) A wife. Bethesda, MD 20814–5066 for reporting (2) A husband if dependent on his under report control symbol DD-HA (Q) sponsor for more than one-half of his 1463(6320). support. (3) An unmarried legitimate child, in- § 728.34 Care beyond the capabilities cluding an adopted or stepchild who is of a naval MTF. dependent on the sponsor for over one- When either during initial evaluation half of his or her support and who ei- or during the course of treatment of an ther: individual authorized care in this sub- (i) Has not passed the 21st birthday; part, a determination is made that re- or quired care or services are beyond the (ii) Is incapable of self-support due to capability of the naval MTF, the provi- a physical or mental incapacity that sions of § 728.4(z)(2) apply. existed prior to reaching the age of 21; or § 728.35 Coordination of benefits— (iii) Has not passed the 23rd birthday third party payers. and is enrolled in a full-time course of Title 10 U.S.C. 1095 directs the serv- study in an accredited institution of ices to collect from third-party payers higher learning.

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(b) Transfer to naval MTFs in the provide required care. If approved, the United States. Do not transfer personnel Chief of Naval Operations will furnish, covered in this subpart to the United through the chain of command, the States solely for the purpose of obtain- commanding officer of the designated ing medical care at naval MTFs. Con- naval MTF authorization for admission sideration may be given however, in of the beneficiary for treatment. special circumstances following laws of humanity or principles of international § 728.42 NATO. courtesy. Transfer to naval MTFs in (a) NATO SOFA nations. Belgium, the United States of such persons lo- Canada, Denmark, Federal Republic of cated outside the United States re- Germany, France, Greece, Iceland, quires approval of the Secretary of the Italy, Luxembourg, the Netherlands, Navy. Naval commands, therefore, Norway, Portugal, Spain, Turkey, the should not commit the Navy by a United Kingdom, and the United promise of treatment in the United States. States. Approval generally will not be (b) Beneficiaries. The following per- granted for treatment of those who suf- sonnel are beneficiaries under the confer from incurable afflictions, who re- ditions set forth. quire excessive nursing or custodial (1) Members of NATO military services care, or those who have adequate facili- and their dependents. Military personnel ties in their own country. When a re- of NATO nations, who, in connection quest is received concerning transfer with their official duties, are stationed for treatment at a naval MTF in the in or passing through the United United States, the following procedures States, and their dependents residing apply: in the United States with the sponsor (1) Forward the request to the Chief may be provided care in naval MTFs to of Naval Operations (OP–61), with a the same extent and under the same copy to the Commander, Naval Medical conditions as comparable U.S. uni- Command, Washington, DC 20372–5120 formed services personnel and their de- for administrative processing. Include: pendents. Accordingly, the provisions (i) Patient’s full name and grade or of § 728.12 are applicable to military rate (if dependent, the sponsor’s name personnel and § 728.31(d) through § 728.34 and grade or rate also). to accompanying dependents. (ii) Country of which a citizen. (2) Military ships and aircraft per- (iii) Results of coordination with the sonnel. Crew and passengers of visiting chief of the diplomatic mission of the military aircraft and crews of ships of country involved. NATO nations which land or come into (iv) Medical report giving the his- port at NATO or U.S. military airfields tory, diagnosis, clinical findings, re- or ports within NATO countries. sults of diagnostic tests and proce- (3) NATO liaison officers. In overseas dures, and all other pertinent medical areas, liaison officers from NATO information. Army Forces or members of a liaison (v) Availability or lack thereof of detachment from such a Force. professional skills and adequacy of fa- (c) Application for care. Military per- cilities for treatment in the member’s sonnel of NATO nations stationed in own country. the United States and their dependents (vi) Who will assume financial re- will present valid Uniformed Services sponsibility for costs of hospitalization Identification and Privilege Cards (DD and travel. 1173) when applying for care. For other (2) The Chief of Naval Operations eligible persons passing through the (OP–61) will, if appropriate, obtain United States on official business and State Department clearance and guid- those enumerated in paragraph (b) (2) ance and advise the Secretary of the and (3) of this section, orders or other Navy accordingly. The Commander, official identification may be accepted Naval Medical Command will furnish in lieu of the DD 1173. the Chief of Naval Operations informa- (d) Disposition. When it becomes nection and recommendations relative to essary to return individuals to their the medical aspects and the name of home country for medical reasons, the naval MTF with the capability to make immediate notification to the

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NATO unit sponsoring the member or (viii) Patients not suitable for trans- dependent’s sponsor. Include all perti- fer to their own national organization nent information regarding the phys- must be dealt with for treatment and ical and mental condition of the indi- disposition purposes as patients of the vidual concerned. Following are details holding nation until they are trans- of agreements among the Armed ferred, i.e., they will be dealt with in Forces of NATO, CENTO, and SEATO military hospitals, military medical Nations on procedures for disposition installations, or in civilian hospitals of allied country patients by DOD med- that are part of the military medical ical installations. evacuation system of the holding na- (1) Transfer of patients. (i) The pation. tient’s medical welfare must be the (2) Classification of patients. Different paramount consideration. When decid- channels for disposition will be re- ing upon transfer of a patient, give due quired for the following two types of consideration to any increased medical patients: hazard which the transfer might in- (i) Patients not requiring admission. volve. Patients not requiring admission to an (ii) Arrangements for disposition of MTF will be returned to their nearest patients should be capable of being im- national unit under arrangements to be plemented by existing organizations. made locally. Consequently, no new establishment (ii) Patients admitted to medical instal- should be required specially for dealing lations. All such patients will be dealth with the transferring of allied casual- with per paragraph (d)(1) of this sec- ties. tion. (iii) Transfer patients to their own (e) Care authorized outside the 48 con- national organization at the earliest tiguous United States. Major overseas practicable opportunity consistent commanders may authorize care in with the observance of principles estab- naval MTFs subject to the availability lished in paragraph (d)(1) (i) and (ii) of of space, facilities, and the capabilities this section and under any of the fol- of the professional staff in emergency lowing conditions: situations only, Provided, the required care cannot reasonably be obtained in (A) When a medical facility of their medical facilities of the host country own nation is within reasonable prox- or in facilities of the patient’s own imity of the facility of the holding na- country, or if such facilities are inad- tion. equate. Provide hospitalization only (B) When the patient is determined for acute medical and surgical condi- to require hospitalization in excess of tions, exclusive of nervous, mental, or 30 days. contagious diseases or those requiring (C) Where there is any question as to domiciliary care. Administer dental the ability of the patient to perform treatment only as an adjunct to au- duty upon release from the MTF. thorized inpatient care. Do not include (iv) The decision as to whether a pa- dental prostheses or orthodontia. tient, other than one requiring transfer under paragraph (d)(1)(iii) of this sec- § 728.43 Members of other foreign mili- tion, is fit for release from the MTF is tary services and their dependents. the responsibility of the facility’s com- (a) Foreign military service members. manding officer. For the purpose of § 728.43, members of (v) All clinical documents, to include foreign military services include only: x-rays, relating to the patient will ac- (1) Military personnel carried on the company such patients on transfer to current Diplomatic List (Blue) or on their own national organization. the List of Employees of Diplomatic (vi) The decision of suitability for Missions (White) published by the De- transfer and the arrangements for partment of State. transfer will be the responsibility of (2) Military personnel assigned or at- the holding nation. tached to United States military units (vii) Final transfer channels should for duty; military personnel on foreign be arranged by local liaison before ac- military supply missions accredited to tual movement. and recognized by one of the military

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departments; and military personnel (e) Care authorized outside the 48 con- on duty in the United States at the in- tiguous United States. Major overseas vitation of the Secretary of Defense or commanders may authorize care in one of the military departments. For naval MTFs subject to the availability the purpose of § 728.43, members of for- of space, facilities, and the capabilities eign Security Assistance Training Pro- of the professional staff in emergency grams (SATP) and Foreign Military situations only. Provided, the required Sales (FMS) are not included (see care cannot reasonably be obtained in § 728.44). medical facilities of the host country (3) Foreign military personnel ac- or in facilities of the patient’s own credited to joint United States defense country, or if such facilities are inad- boards or commissions when stationed equate. Provide hospitalization only in the United States. for acute medical and surgical condi- (4) Foreign military personnel cov- tions, exclusive of nervous, mental, or ered in agreements entered into by the contagious diseases or those requiring Secretary of State, Secretary of De- domiciliary care. Administer dental fense, or one of the military depart- treatment only as an adjunct to au- ments to include, but not limited to, thorized inpatient care. Do not include United Nations forces personnel of for- dental prostheses or orthodontia. eign governments exclusive of NATO nations. § 728.44 Members of security assist- (b) Care authorized in the United ance training programs, foreign States. Military personnel of foreign na- military sales, and their ITO au- tions not covered in § 728.42 and their thorized dependents. dependents residing in the United (a) Policies—(1) Invitational travel or- States with the sponsor may be rou- ders screening. Prior to determining the tinely provided only outpatient med- levels of care authorized or the govern- ical care in naval MTFs on a reimburs- ment or person responsible for payable basis. Provided, the sponsor is in ment for care rendered, carefully the United States in a status officially screen ITOs to detect variations appli- recognized by an agency of the Depart- cable to certain foreign countries. For ment of Defense. Dental care and hos- example, unless orders state dif- pitalization for such members and ferently, Kuwait has a civilian health their dependents are limited to emer- plan to cover medical expenses of their gencies. All outpatient care and hos- trainees; trainees from the Federal Re- pitalization in emergencies are subject public of Germany are personally re- to reimbursement as outlined in sponsible for reimbursing for inpatient § 728.46. care provided to their dependents; and (c) Application for care. All personnel all inpatient medical services for train- covered by § 728.43 will present orders ees from France and their dependents or other official U.S. identification are to be borne by the individual train- verifying their status when applying ee. for care. (2) Elective and definitive surgery. The (d) Disposition. When it becomes nec- overall policy with respect to elective essary to return individuals covered by and definitive surgery for Security As- § 728.43 to their home country for med- sistance Training Program (SATP), ical reasons, make immediate notifica- Foreign Military Sales (FMS) per- tion to the sponsoring unit of the pa- sonnel and their dependents is that tient or patient’s sponsor with a copy conservatism will at all times prevail, to the Chief of Naval Operations (OP– except bona fide emergency situations 61). Include all pertinent information which might threaten the life or health regarding the physical and mental con- of an individual. Generally, elective dition of the individual concerned and care is not authorized nor should be full identification, diagnosis, prog- started. However, when a commanding nosis, estimated period of hospitaliza- officer of a naval MTF considers such tion, and recommended disposition. Ad- care necessary to the early resumption ditionally, the provisions of § 728.42(d) and completion of training, submit the (1) and (2) apply. complete facts to the Chief of Naval

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Operations (OP–63) for approval. In- sonnel and their dependents except clude the patient’s name (sponsor’s that: also if patient is an ITO authorized de- (A) Dependent dental care is not au- pendent), grade or rate, country of ori- thorized. gin, diagnosis, type of elective care (B) Dependents are not authorized co- being sought, and prognosis. operative care under CHAMPUS. (3) Prior to entering training. Upon ar- (ii) International military education rival of an SATP or FMS trainee in the and training (IMET). Subject to reim- United States or at an overseas train- bursement for inpatient care at the ap- ing site, it is discovered that the train- propriate IMET rate for members or at ee cannot qualify for training by rea- the full reimbursement rate for de- son of a physical or mental condition pendents, IMET personnel of NATO na- which will require a significant amount tions who are in the United States or of treatment before entering or com- at U.S. Armed Forces installations out- pleting training, return such trainees side the United States and accom- to their home country immediately or panying dependents will be provided as soon thereafter as travel permits. medical and dental care in naval MTFs (4) After entering training. When train- to the same extent and under the same ees require hospitalization or are dis- conditions as comparable United abled after entering a course of train- States military personnel and their de- ing, return them to their home country pendents except that: as soon as practicable when, in the (A) Dependent dental care is not authorized. opinion of the commanding officer of (B) Dependents are not authorized co- the medical facility, hospitalization or operative care under CHAMPUS. disability will prevent training for a (2) Other foreign members and ITO au- period in excess of 30 days. Forward a thorized dependents—(i) Foreign military copy of the patient’s clinical records sales. Subject to reimbursement by the with the patient. When a trainee is ac- trainee or the trainee’s government for cepted for treatment that is not ex- both inpatient and outpatient care at pected to exceed 30 days, notify the the full reimbursement rate, FMS per- commanding officer of the training sonnel of non-NATO nations and ITO acvitity. Further, when a trainee is authorized accompanying dependents scheduled for consecutive training ses- may be provided medical and dental sions convening prior to the expected care on a space available basis when fa- data of release from a naval MTF, cilities and staffing permit except that: make the next scheduled training ac- (A) Prosthetic devices, hearing aids, tivity an information addressee. Upon orthopedic footwear, and similar ad- release from the MTF, direct such juncts are not authorized. trainees to resume training. (B) Spectacles may be furnished when (b) Care authorized. Generally, all required to enable trainees to perform SATP and FMS personnel and their their assigned duties, Provided the re- ITO authorized dependents are entitled quired spectacles are not available to care to the same extent. However, through civilian sources. certain agreements require that they (C) Dental care is limited to emer- be charged differently and that certain gency situations for the military mem- exclusions apply. ber and is not authorized for depend- (1) NATO members and their ITO au- ents. thorized dependents—(i) Foreign military (D) Dependents are not authorized sales (FMS). Subject to reimbursement cooperative care under CHAMPUS. per § 728.46, FMS personnel of NATO na- (ii) International military education tions who are in the United States or and training. Subject to reimbursement at U.S. Armed Forces installations out- for both inpatient and outpatient care side the United States and their ac- at the appropriate rates for members companying ITO authorized dependents and dependents, IMET personnel of will be provided medical and dental non-NATO nations may be provided care in naval MTFs to the same extent medical and dental care on a space and under the same conditions as com- available basis when facilities and parable United States military per- staffing permit except that:

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(A) Prosthetic devices, hearing aids, § 728.42(b)(1), Provided, the beneficiaries orthopedic footwear, and similar ad- are not stateless persons nor nationals juncts are not authorized. of any state which is not a party to the (B) spectacles may be furnished when North Atlantic Treaty, nor nationals required to enable trainees to perform of, nor ordinarily residents in the their assigned duties, Provided the re- United States. quired spectacles are not available (2) Others. Civilian personnel not cov- through civilian sources. ered in § 728.45(b)(1) (and their depend- (C) Dental care is limited to emer- ents residing with them) accompanying gency situations for military members personnel of foreign nations on duty in and is not authorized for dependents. the United States at the invitation of (D) Dependents are not authorized the Department of Defense or one of cooperative care under CHAMPUS. the military departments. (c) Application for care. Trainees and accompanying dependents will present (c) Application for care. Personnel cov- official U.S. identification or orders ered by the provisions of § 728.45 will verifying their status when applying present orders or other official U.S. for care. If any doubt exists as to the identification verifying their status extent of care authorized, ITOs should when applying for care. be screened (see paragraph (a)(1) of this section). § 728.46 Charges and collection. (d) Notification. When trainees require (a) Policy. Pub. L. 99–591, section 9029, hospitalization as a result of illness or contains provisions prohibiting the ex- injury prior to or after entering train- penditure of appropriated funds ing, the training activity (the hospital ‘‘. . . to provide medical care in the if patient has been admitted) will make United States on an inpatient basis to a message report through the normal foreign military and diplomatic per- chain of command to the Chief of Naval sonnel or their dependents unless the Operations (OP–63) with information Department of Defense is reimbursed copies to MAAG, COMNAV MEDCOM, for the costs of providing such care: Navy International Logistics Control Provided, That reimbursements Office (NAVIL CO), Unified Com- . . . shall be credited to the appropria- mander, the affected office, and the tions against which charges have been foreign naval attache concerned. In- clude details of the incident, estimated made for providing such care, except period of hospitalization, physical or that inpatient medical care may be mental condition of the patient, and di- provided in the United States without agnosis. For further amplification, see cost to military personnel and their de- OPNAVINST 4950.1H and pendents from a foreign country if NAVCOMPTMAN 032103. comparable care is made available to a comparable number of United States § 728.45 Civilian components (employ- military personnel in that foreign ees of foreign military services) and country.’’ their dependents. (b) Canadian agreement. On 3 Novem- (a) Care authorized. Beneficiaries cov- ber 1986, the Department of National ered in this section are only authorized Defence of Canada and DOD concluded care in naval MTFs in the United a comparable care agreement that cov- States and then only civilian humani- ers certain military personnel. The tarian emergency care on a reimburs- agreement stipulates that: able basis (subpart J) rendered at in- (1) DOD will, upon request, provide stallations which have been designated Canadian Forces members the same as remote by the Secretary of the range of medical and dental services Navy. Make arrangements to transfer such beneficiaries to a civilian facility under the same conditions and to the as soon as their condition permits. same extent as such services are pro- (b) Potential beneficiaries—(1) NATO. vided comparable United States mili- Civilian employee personnel (and their tary personnel. Inasmuch as the agree- dependents residing with them) accom- ment covers only certain military per- panying military personnel in sonnel, the reimbursement provisions

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of Pub. L. 99–591 remain in effect for in- services are ordered can produce them patient care provided to Canadian dip- or obtain them by contract, and the in- lomatic personnel, Canadian depend- ternal or inter-agency procurement is ents, and Canadian foreign military more convenient, or less expensive, sales trainees who receive care in the than commercial procurement. Provi- United States. Further: sions of the Economy Act apply to re- (2) Permanently stationed Canadian quests from other Federal agencies for units with established strengths of medical and dental care for bene- more than 150 personnel are expected ficiaries for whom they are responsible. to have integral health care capability. Consult specific provisions of the Act Any health care services which mem- respecting financial and acounting lim- bers of such units receive from the host itations and requirements. nation will be provided on a full reimbursement basis. Groups of larger than § 728.52 Veterans Administration bene- 150 personnel, which conduct collective ficiaries (VAB). training in the United States, are expected to deploy with an organic unit (a) Eligible beneficiaries—Those who medical capability. Naval MTFs may have served in the Armed Forces, have be requested to provide services, be- been separated under conditions other yond the capability of the organic unit, than dishonorable, and have been de- at full reimbursement rates. termined by the Veterans Administra- (c) Procedures. (1) Until otherwise dition (VA) to be eligible for care at VA rected, naval MTFs in the 50 United expense. Prior to 7 September 1980, vet- States will collect the full reimburse- erans status could be obtained by vir- ment rate (FRR) for inpatient care pro- tue of 1 day’s honorable service. The vided to all foreign military personnel following restrictions do not apply to (except Canadians covered by the com- individuals who are discharged from parable care agreement in § 728.46(b), active duty because of a disability or and military personnel connected with who were discharged for reasons of a Foreign Military Sales (FMS) case ‘‘early out’’ or hardship program under number), foreign diplomatic personnel, 10 U.S.C. 1171 and 1173. and to the dependents of both whether (1) For individuals with an original they are in the United States on offi- enlistment in the military service after cial duty or for other reasons. 7 September 1980, the law generally de- (2) Subpart J contains procedures for nies benefits, including medical care. the initiation of collection action when (2) For individuals entering service inpatient care is rendered to bene- after 16 October 1981, the law generally ficiaries from NATO nations and when denies medical benefits when such indi- either inpatient or outpatient care is rendered to all others enumerated in viduals do not complete the shorter of: this part. Chapter II, part 4 of (i) Twenty-four months of continuous NAVMED P–5020 is applicable to the active duty, or collection of and accounting for such (ii) The full period for which that charges. person was called or ordered to active duty. Subpart F—Beneficiaries of Other (b) Inpatient control—Each VAB ad- Federal Agencies mitted will be required to conform to regulations governing the internal ad- § 728.51 General provisions—the ministration of the naval facility. Re- ‘‘Economy Act.’’ strictive or punitive measures, includ- The Economy Act, 31 U.S.C. 1535, gen- ing disciplinary action or denial of erally permits agency heads, or heads privileges, will conform as nearly as of major organizational units of agen- possible to VA instructions. cies, to procure goods and services (c) Resolution of problems—All prob- from other agencies or within their lems pertaining to VABs, including ad- own agency so long as funds for pro- mission, medical or other records, and curement are available, the order is in all correspondence will be matters of the best interest of the Government, resolution between the commanding of- the source from which the goods or ficer of the naval facility and the VA

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office of jurisdiction authorizing ad- pabilities and workload permit pro- mission. Questions of policy and ad- viding such care. In an emergency, pro- ministration which cannot be so re- vide necessary care. solved will be forwarded, through the (3) Physical examinations. Upon a de- normal chain of command, to the Ad- termination by a naval MTF com- ministrator of Veterans Affairs via manding officer that space, facilities, COMNAVMEDCOM for resolution. and capabilities exist, naval MTFs may (d) Care in the United States—(1) Inpa- provide physical examinations when re- tient care. An eligible VAB may be ad- quested by the VA for the purpose of mitted to a naval MTF on presentation adjudicating claims for VA physical of a written authorization for admis- disability compensation. If authorized sion signed by an official of the VA of- by the VA, patients may be admitted fice of jurisdiction. Neurological and when the examination requires more certain neuropsychiatric patients with- than 1 day. out obvious evidence of psychosis and (4) Dental care. Limit dental treat- not requiring restraints, and instances of suspected tuberculosis, may be ad- ment to inpatients who require serv- mitted for diagnosis. When diagnosed, ices adjunctive to medical or surgical promptly report instances of psychosis, conditions for which hospitalized. psychoneurosis, and tuberculosis of (e) Care outside the United States—(1) present clinical significance to the VA Eligible beneficiaries. Beneficiaries de- office of jurisdiction with a request for scribed in paragraph (a) of this section transfer to a VA facility. who are citizens of the United States (i) Extent of care. Provide eligible and residing or sojourning abroad may, VABs medical and surgical care, in- within the capabilities of the facility cluding prostheses such as eyes and as determined by the commanding offi- limbs and appliances such as hearing cer, be provided inpatient and out- aids, spectacles, or orthopedic appli- patient care upon presentation of an ances when required for the proper authorization from the appropriate VA treatment of the condition upon which office of jurisdiction listed in para- eligibility is based. graph (e)(3) of this section. (ii) Disposition of emergency admission. (2) Emergency care. Overseas naval Notify the appropriate VA office of ju- MTFs furnishing emergency care to po- risdiction by message or other expedi- tential VABs will promptly notify the tious means within 72 hours after the appropriate VA office of jurisdiction date and hour of an emergency admis- and request authorization for treat- sion of a potential VAB. Include a re- ment and instructions for disposition quest for an authorization for admis- of the patient. sion and emergency treatment. If VA (3) Offices of jurisdiction. The fol- denies VAB status to such a person ad- lowing activities are vested with re- mitted in an emergency, the provisions sponsibility for issuing authorizations of § 728.81(a) are applicable. Once ad- for care and furnishing dispisition in- mitted in an emergency situation, structions for VABs in overseas naval discharage a VAB promptly upon ter- MTFs: mination of the emergency unless ar- (i) In the Trust Territory of the Pa- rangements have been made with the cific (Micronesia), VA Office, Honolulu, VA office of jurisdiction: Hawaii. (A) For transfer to a VA treatment facility if further treatment is re- (ii) In the Philippines, VA Regional quired. Office, Manila, Philippines. (B) To retain the patient as a VAB in (iii) In Canada, Canadian Department the naval MTF. of Veterans Affairs, Ottawa, Canada. (2) Outpatient care. Outpatient care, (iv) In all other foreign countries, including post hospitalization out- consular offices of U.S. embassies. patient care, may be provided upon au- (f) Forms required. (1) Complete a VA thorization by the VA office of jurisdic- 10–10 (Application for Medical Benefits) tion. When outpatient followup care is when potential VABs are admitted for requested, commanding officers are re- emergency care without prior author- sponsible for determining whether ca- ization.

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(2) Prepare a VA 10–10m (Medical Cer- (ii) Flight instructions. tificate and History) when care is ren- (iii) Travel to or from training or dered. All information required in the flight instructions. medical certificate thereon will be fur- (2) The following employees of the nished whether the admission is subse- Government of the United States, re- quently approved or disapproved by the gardless of nationality or place of VA office of jurisdiction. work, are entitled to receive care as (3) Since the completion of VA 10– outlined in paragraph (e) of this sec- 10m requires an examination of pation for work incurred traumatic inju- tients, admissions which are dis- ries at the expense of OWCP. (In addi- approved will be reported as medical tion to injury by accident, a disease or examinations on DD 7A, Report of illness which is the proximate result of Treatment Furnished Pay Patients, performance of employment duties is Outpatient Treatment Furnished (part considered an injury.) This category in- B) (See subpart J). cludes but is not limited to: (4) Prepare and submit a DD 7 (Re- (i) Civilian student employees in port of Treatment Furnished Pay Pa- training at Navy and Marine Corps fa- tients, Hospitalization Furnished (part cilities. A)) on all VABs and potential VABs ad- (ii) Civilian seamen in the service of mitted (see subpart J). vessels operated by the Department of (5) Complete an SF 502 (Narrative the Army (see paragraph (a)(7) of this Summary) or SF 539 (Abbreviated Clin- section and § 728.80(c)(2) for civilian ical Record), as appropriate, when a Military Sealift Command (MSC) per- VAB or potential VAB is discharged or sonnel). otherwise released. When an interim (iii) All civilian employees of the report of hospitalization is requested Government except nonappropriated- by the VA office of jurisdiction, it may fund-activity employees. Nonappro- be prepared on an SF 502. priate fund employees may be covered under the Longshore and Harbor Work- § 728.53 Department of Labor, Office of ers’ Compensation Act (contact cog- Workers’ Compensation Programs nizant district office of OWCP). (OWCP) beneficiaries. (3) Civilian members of the Civil Air (a) Potential beneficiaries. The fol- Patrol (except Civil Air Patrol Cadets) lowing may be beneficiaries of one of for injury or disease which is the proxi- the programs sponsored by the Office of mate result of active service or travel Workers’ Compensation Programs to and from such service, rendered in (OWC) under the conditions set forth. performance or support of operational They are not beneficiaries of OWCP missions of the Civil Air Patrol under until authorized as such by the appro- the direction and written authority of priate district officer of OWCP. How- the Air Force. ever, they may be carried as potential (4) Former Peace Corps enrollees for beneficiaries pending OWCP determina- injury or disease which is the proxi- tion of eligibility. DOD civilian em- mate result of their former employ- ployees provided medical services ment with the Peace Corps or which under a Defense or service health pro- was sustained or contracted while lo- gram are not included under this au- cated with the Peace Corps outside the thority (see subpart G). United States and its territories. (1) Members and applicants for mem- (5) Former Job Crops enrollees for in- bership in the Reserve Officers’ Train- jury or disease which is the proximate ing Corps of the Navy, Army, and Air result of employment with the Job Force, provided the condition necessi- Corps. tating treatment was incurred in line (6) Former VISTA (Volunteers in of duty during an off-campus training Service to America) enrollees for in- regimen. Such care is authorized for injury or disease which is the proximate jury (a disease or illness which is the result of employment with VISTA. proximate result of performance of (7) Military Sealift Command (MSC) training is considered an injury) in- civilian marine personnel curred while engaged in: (CIVMARPERS or CIVMARS) (includ- (i) Training. ing temporary employees, intermittent

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employees, and employees with less (iii) Be referred to a non-Federal than 1 year’s service) are entitled to source of care where back-to-work care occupationally related care at the ex- may be provided at the CIVMAR’s expense of OWCP. CIVMARS are in a pense after, if necessary, the imme- crew status only after reporting to diate emergency is alleviated when a their assigned ship. They are in a trav- reasonable determination can be made el status from crewing point to ship that the injury or illness is not occupa- and return. While in a travel status, tionally related. they are entitled to the same health (A) Per 5 U.S.C. 7901(c)(3), the health care benefits as other Federal civil service program for Federal civilian service employees in a travel status (5 employees is limited to referral of em- U.S.C. 8101). CIVMARS presenting for ployees, upon their request, to private treatment with a properly completed sources of care. CA–16, Request for Examination and/or (B) Long term extended care of Treatment, will: chronic illnesses such as hypertension, (i) Enter the naval MTF’s system diabetes, etc., is not authorized in through the occupational medicine naval MTFs at the expense of OWCP service. nor at the CIVMAR’s personal expense. (ii) Be treated for any injury or dis- (C) Patients who cannot be referred, ease proximately caused by their em- because of medical reasons or because ployment. Although the actual deter- non-Federal sources are not available mination of whether an illness or in- or available but inadequate, may be re- jury is occupationally related is a func- tained in naval MTFs at the expense of tion of OWCP, determinations are the CIVMAR or of his or her private in- based on the required injury report along with the treatment record from surance until transfer becomes pos- the attending physician. Therefore, sible. Although the means of access to when doubt exists as to the relation- the naval MTF may have been through ship of the condition to the potential the occupational medicine service, re- patient’s employment, the physician tention in the naval MTF is on a civil- should report an unbiased medical con- ian humanitarian basis. This is also ap- clusion and the medical rationale plicable when OWCP disallows a therefor, indicating the conditions CIVMAR’s claim (see paragraph (c) of which are responsible for the claim- this section). ant’s disability. As a general rule, the (b) Authorization required. Personnel following may be initially considered in paragraph (a) (1) through (6) may be as occupationally related, however, it rendered inpatient and outpatient care should be emphasized that OWCP is the as outlined in paragraph (e) of this sec- final approval authority: tion, unless otherwise stipulated in (A) Any injury or illness occurring as this section, upon presentation of a a direct result of employment. May properly prepared and signed author- occur on a ship, at a Government in- ization from CA–16 (Request for Exam- stallation ashore, or in an aircraft ination and/or Treatment). District of- while performing a requirement of em- fices of OWCP will honor these author- ployment. izations for 60 days unless written no- (B) Any injury or illness which be- tice of termination of authorization is comes manifest while away from work given earlier. Whereas the CA–16 is (on leave or liberty) while in a crew used primarily for traumatic injuries, status or travel status as long as the it may also be used to authorize exam- condition may be directly related to ination and treatment for disease or job activities or to exposures incident illness provided the affected agency to travel to ship assignment. has obtained prior permission from the (C) Required immunizations. cognizant district office of OWCP. If (D) Required physical examinations. the condition for which treatment is (E) Periodic medical surveillance requested appears related to employ- screening examinations for DOD occu- ment, treatment of beneficiaries in pational and industrial health pro- paragraph (a) (1) through (7) of this sec- grams, i.e., asbestos medical surveil- tion may be initiated without presen- lance, hearing conservation, etc. tation of a CA–16. Patients provided

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treatment without a CA–16 may be car- other orthopedic and prosthetic devices ried as OWCP beneficiaries from the will be replaced or repaired, except time of initial treatment, provided the that eyeglasses and hearing aids will appropriate district office of OWCP is not be replaced or repaired unless their notified and requested to submit a CA– damage or destruction is incidental to 16 within 48 hours giving authorization a personal injury requiring medical as of the date of actual treatment. services. OWCP will not be liable for payment of (2) Outpatient care. Complete medical bills for unauthorized treatment. Post and surgical care not requiring hos- hospitalization care following author- pitalization, and posthospitalization ized inpatient care does not require an services following authorized inpatient additional authorization. First aid care in a naval MTF for the proper treatment rendered civilian employees treatment of the condition upon which does not require an authorization form eligibility is based. (c) Disallowance by OWCP. When (3) Dental care. Limit dental treat- OWCP determines that any claim ment to emergencies and that care nec- should be disallowed, OWCP will advise essary as an adjunct to inpatient hos- the naval facility rendering care that pital care authorized in advance. Such no further treatment should be ren- care will not include dental prostheses, dered at OWCP expense. The patient unless specifically authorized, nor or- ceases to be an OWCP beneficiary as of thodontic treatment. the date of receipt of the notice of dis- (f) Reports and records. (1) Copies of allowance by the naval MTF and the medical records will accompany OWCP patient will be so notified. Any treat- patients being transferred from one ment subsequent to the date of receipt medical treatment facility to another. of the notice of disallowance will be at Records accompanying OWCP patients the personal expense of the patient (see to a debarkation hospital will be the § 728.81(a)). same as for military personnel and will (d) Authorization for transfer. Prior clearly identify the patient as an approval of OWCP is required before a OWCP beneficiary. transfer can be effected, except in an (2) Forward a CA–20 (Attending Phy- emergency or when immediate treat- sician’s Report) to the appropriate dis- ment is deemed more appropriate in trict office of OWCP on discharge of another Federal facility. When transfer the patient unless hospitalization ex- is effected without approval, the trans- ceeds 1 month. In such instances, a referring facility will immediately report will be submitted every 30 days. quest such authorization from the ap- When extensive hospitalization is re- propriate district office of OWCP. quired, use an SF 502 or a narrative for- When authorized by OWCP, evacuation mat in lieu of CA–20. When submitted to the United States can be effected per to OWCP, the physician’s report will OPNAVINST 4630.25B. Medical records include: and a CA–16 will accompany such pa- (i) History. tients. (ii) Physical findings. (e) Care authorized—(1) Inpatient care. (iii) Laboratory findings. Medical and surgical care necessary for (iv) Abstract of hospital records. the proper treatment of the condition (v) Diagnosis for conditions due to in- upon which eligibility is based. Spe- jury and not due to injury. cific OWCP authorization is required (vi) Rationalized medical opinion for before major surgical procedures can the physician’s belief that the illness be performed unless the urgency of the or disease treated was causally related situation is such that time does not to a specific condition or set of condi- permit obtaining said authorization. tions to which the claimant was sub- All necessary prostheses, hearing aids, jected. spectacles, and orthopedic appliances (vii) Condition on discharge with will be furnished when required for opinion as to degree of impairment due proper treatment of the condition upon to injury, if any. which eligibility is based. Upon specific (3) Complete and submit, per subpart authorization, damaged or destroyed J, a DD 7 (Report of Treatment Fur- medical braces, artificial limbs, and nished Pay Patients, Hospitalization

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Furnished, part A) or DD 7A (Report of (1) Inpatient care. Necessary medical Treatment Furnished Pay Patients, and surgical care. Outpatient Treatment, part B) when (2) Outpatient care. Necessary medical outpatient or inpatient care is ren- and surgical care. dered to any OWCP beneficiary. (3) Dental care. (i) Limit dental care in the United States, its territories, § 728.54 U.S. Public Health Service possessions, and the Commonwealth of (USPHS), other than members of the uniformed services. Puerto Rico to emergencies for the relief of pain or acute conditions and (a) Potential beneficiaries. The fol- that necessary as an adjunct to inpa- lowing may be beneficiaries of the tient hospital care. Prosthetic dental USPHS for care in naval MTFs upon appliances and permanent restorations submission of the necessary form from are not authorized. appropriate officials as outlined in (ii) In overseas areas, dental care is paragraph (b) of this section. authorized to the extent necessary (1) Within and outside the United pending the patient’s return to the States. Any individuals the USPHS may United States, its territories, posses- determine to be eligible for care on an sions, or the Commonwealth of Puerto interagency reimbursable basis. Rico. (2) Within the 48 Contiguous United (d) Report. Complete and submit, per States and the District of Columbia. subpart J, a DD 7 (Report of Treatment American Indians, Alaska Natives, Es- Furnished Pay Patients, Hospitaliza- kimos, and Aleuts. tion Furnished, part A) or a DD 7A (Re- (3) In Alaska. American Indians, Eski- port of Treatment Furnished Pay Pa- mos, and Aleuts. tients, Outpatient Treatment, part B) (b) Authorization required—(1) Normal when outpatient or inpatient care is circumstances. An American Indian or rendered. Alaska Native may be rendered inpatient care upon presentation of form § 728.55 Department of Justice bene- HRSA 43 (Contract Health Service Pur- ficiaries. chase Order for Hospital Services Ren- Upon presentation of a letter of au- dered) or HRSA form 64 (Purchase/De- thorization that includes disposition of livery Order for Contract Health Serv- SF 88 (Report of Medical Examination), ices Other Than Hospital Inpatient or SF 93 (Report of Medical History), and Dental). Either form must be signed by address for submission of claim, the an appropriate Indian Health Service following personnel may be furnished or Alaska Native Health Service area/ requested care as beneficiaries of the program official. Department of Justice. See subpart J (2) Emergencies. In an emergency, care on completing and submitting forms may be rendered upon written request for central collection of the cost of of patient’s commanding officer or su- care provided. perior officer, or the patient if neither of the above is available. When emer- (a) Federal Bureau of Investigation. In- gency care is rendered without prior vestigative employees of the Federal authorization, the facility rendering Bureau of Investigation (FBI) and ap- care must notify the service unit direc- plicants for employment as special tor of the patient’s home reservation agents with the FBI may be provided: within 72 hours from the time such (1) Immunizations. care is rendered unless extenuating cir- (2) Physical examinations and hos- cumstances preclude prompt notifica- pitalization when required to deter- tion. mine physical fitness. Use this period (c) Care authorized. Unless limited by of hospitalization for diagnostic pur- the provisions stipulated in paragraph poses only. Do not correct disquali- (a) of this section and subject to the fying defects. provisions of § 728.3, the following care (b) U.S. Marshals. U.S. Marshals may may be rendered, when requested, to receive physical examinations and hos- all beneficiaries enumerated in para- pitalizations when required to deter- graph (a) of this section. mine physical fitness. Use this period

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of hospitalization for diagnostic pur- (3) Agents of the U.S. Customs Serv- poses only. Do not correct disquali- ice and their prisoners (detainees) may fying defects. be provided emergency medical treat- (c) Claimants against the United States. ment and evacuation services to the Claimants whose suits or claims nearest medical facility (military or ci- against the United States are being de- vilian) in those remote areas of the fended by the Department of Justice United States where no other such may be furnished physical examina- services are available. Limit evacu- tions to determine the extent and na- ation to the continental United States ture of the injuries or disabilities being and do not cross borders. The Navy’s claimed. Hospitalization is authorized responsibility for medical care of such for proper conduct of the examination. prisoners terminates once the medical Upon completion, forward the report of emergency has been resolved. Guarding the examination promptly to the U.S. of prisoners, while they or their cap- Attorney involved. tors are receiving treatment at naval MTFs, remains the responsibility of § 728.56 Treasury Department bene- the U.S. Customs Service or other ap- ficiaries. propriate Federal (nonmilitary) law en- (a) Potential beneficiaries. The fol- forcement agencies. lowing may be beneficiaries of the (c) Reports and records. (1) When ex- Treasury Department and may be ren- aminations are rendered to Secret dered care as set forth below. Service Special Agents and support (1) Secret Service Special Agents and personnel, forward one copy of the SF support personnel. 88, one copy of the SF 93, and one copy (2) Secret Service Agents providing of any forms provided with the letter of protection to certain individuals. authorization to United States Secret (3) Persons being provided protection Service, Administrative Operations Di- by the Secret Service. vision, Safety and Health Branch, 1800 (4) Agents of the U.S. Customs Serv- G Street, NW., Room 845, Washington, ice. DC 20223 or as otherwise directed by (5) Prisoners (detainees) of the U.S. the letter of authorization. Provide an Customs Service. information copy to the Deputy Comp- (b) Care authorized. (1) Secret Service troller of the Navy. Special Agents may be provided rou- (2) Complete and submit, per subpart tine annual physical examinations J, a DD 7 (Report of Treatment Fur- upon request and presentation of a let- nished Pay Patients, Hospitalization ter of authorization. Conduct and Furnished, part A) or DD 7A (Report of record examinations in the same man- Treatment Furnished Pay Patients, ner as routine examinations rendered Outpatient Treatment, part B) when naval officers except that they may be outpatient or inpatient care is ren- conducted only on an outpatient basis. dered. If hospitalization is considered desirable in connection with an examina- § 728.57 Department of State and asso- tion, patient administration depart- ciated agencies. ment personnel will contact the United Eligibility for care under the provi- States Secret Service at (202) 535–5641 sions of this section will be determined at the address in paragraph (c) of this by the Department of State, Office of section. Enter a statement, attesting Medical Services. to the fact that hospitalization is de- (a) Beneficiaries. Officers and employ- sirable, in item 73 or 75 of the SF 88, as ees of the following agencies, their de- appropriate, before forwarding to the pendents, and applicants for appoint- United States Secret Service as di- ment to such agencies are authorized rected by the letter of authorization. inpatient and outpatient medical care (2) Secret Service Agents providing as set forth below in addition to that protection to certain individuals and care that may be authorized elsewhere those persons being provided such pro- within this part (i.e., §§ 728.53, 728.55, tection may be rendered all required 728.56, and 728.58). Limit dental care to medical services including hospitaliza- that delineated in paragraph (b)(6) of tion subject to the provisions of § 728.3. this section.

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(1) Department of State-U.S.Arms eligibility for care at the expense of Control and Disarmament Agency and one of the agencies, all care provided the Office of International Conferences. will be at the expense of the patient or (2) U.S. Agency for International De- patient’s sponsor and charged at the velopment. full reimbursement rate. (3) International Communications (3) In the United States. (i) Care is not Agency. authorized for an injury or illness in- (4) ACTION—Peace Corps Staff. curred in the United States. Authoriza- (5) Department of Agriculture—For- tions and other arrangements for care eign Agriculture Service. in the United States for individuals in- (6) Department of Commerce—Bureau curring injury or illness outside the of Public Roads. United States will be provided by the (7) Department of Interior—Bureau of Deputy Assistant Secretary for Med- Reclamation and the U.S. Geological ical Services, Department of State, Survey. using appropriate authorization (8) Department of Transportation— form(s). When personnel are admitted Federal Aviation Administration and in an emergency without prior author- the Federal Highway Administration. ization, the commanding officer of the (9) Department of Justice—Drug En- admitting naval MTF will immediately forcement Agency. request authorization from the Deputy (10) Department of Treasury—U.S. Assistant Secretary for Medical Serv- Customs, U.S. Secret Service, Office of ices. International Affairs (OIA), U.S.-Saudi (ii) The extent of care furnished in Arabian Joint Commission for Eco- the United States, to individuals in nomic Cooperation (JECOR), and the paragraph (a) of this section who are Internal Revenue Service. evacuated to the United States for (11) National Aeronautics and Space medical reasons, will be comparable in Administration. all respects to that which is authorized (12) Library of Congress. or prescribed for these individuals out- (13) Beneficiaries of such other agen- side the United States. When deter- cies as may be included in the Depart- mined appropriate by the Deputy As- ment of State Medical Program. sistant Secretary for Medical Services, (b) Care authorized—(1) General. The officers and employees and their ac- Foreign Service Act of 1946, as amend- companying dependents who have re- ed, authorizes care delineated in this turned to the United States for non- section. Subject to the restrictions and medical reasons may be furnished med- priorities of § 728.3 and the restrictions ical care at the expense of one of the of this section, care may be rendered at above agencies for treatment of an ill- the expense of the Department of State ness or injury incurred while outside or one of the agencies listed in para- the United States. graph (a) of this section. The law al- (4) Physical examinations. The Sec- lows for payment when care is fur- retary of State is authorized to provide nished for an illness or injury which re- for comprehensive physical examina- sults in hospitalization or equal treat- tions, including dental examinations ment. Outpatient care is only author- and other specific testing, of applicants ized as an adjunct to hospitalization. for employment and for officers and (2) Overseas. (i) When, in the opinion employees of the Foreign Service who of the principal or administrative offi- are U.S. citizens and for their depend- cer of an overseas post of the Depart- ents, including examinations necessary ment of State, an individual meets the to establish disability or incapacity for conditions of eligibility, the post will retirement purposes. An authorization furnish authorization to the naval will be executed by an appropriate De- MTF for care at the expense of the De- partment of State official and fur- partment of State or one of the agen- nished in duplicate to the naval MTF, cies listed in paragraph (a) of this sec- listing the type of examination re- tion. quired and stating that the individual (ii) Should the Department of State is entitled to services at the expense of official determine that the illness or the Department of State. Furnish re- injury does not meet the conditions of ports per the letter of authorization.

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(5) Immunizations. Inoculations and istries, and audiograms, without inter- vaccinations are authorized for offi- pretation in support of the medical sur- cers, employees, and their dependents veillance program for ATCS personnel upon written authorization from an ap- established by the FAA. propriate Department of State official. (d) Report. Complete and submit, per This authorization, in duplicate, will subpart J, a DD 7A (Report of Treat- include the type of inoculation or vac- ment Furnished Pay Patients, Out- cination required and will state that patient Treatment, part B) outpatient the individual is entitled to services at care is rendered. the expense of the Department of State. Furnish reports per the letter of § 728.59 Peace Corps beneficiaries. authorization. (a) Potential beneficiaries. (1) Appli- (6) Dental care. Limit dental care to cants for the Peace Corps. emergencies for the relief of pain or (2) Peace Corps Volunteers. acute conditions, or dental conditions (3) Minor children of a Peace Corps as an adjunct to inpatient care. Do not volunteer living with the volunteer. provide prosthetic dental appliances. (b) Care authorized in the United (c) Evacuation to the United States. States. Upon written request of a Peace Should a beneficiary in an overseas Corps official, stating care to be pro- naval MTF require prolonged hos- vided and disposition of reports, the pitalization, the commanding officer of following may be provided subject to the overseas facility will report the re- the provisions of § 728.3. quirement to the nearest Department (1) Physical examinations. Physical ex- of State principal or administrative of- aminations are authorized on an out- ficer and request authority to return patient basis only. Except for interpre- the patient to the United States. Re- tation of x-rays, make no assessment lease dependents who decline evacu- of the physical qualifications of ation to the custody of their sponsor. examinees. Aeromedical evacuation may be used per OPNAVINST 4630.25B. Travel of an (i) Preselection physical examination attendant or attendants is authorized may be provided applicants (volun- at Department of State expense when teers) for the Peace Corps. the patient is too ill or too young to (ii) Separation or other special phys- travel unattended. ical examinations may be provided vol- (d) Report. Complete and submit, per unteers and their dependents as listed subpart J, a DD 7 (Report of Treatment in paragraph (a)(3) of this section. Un- Furnished Pay Patients, Hospitaliza- less otherwise prescribed in written re- tion Furnished, part A) or DD 7A (Re- quests, report such examinations of port of Treatment Furnished Pay Pa- Peace Corps volunteers on SF–88 and tients, Outpatient Treatment, part B) SF–93. Include: when outpatient or inpatient care is (A) Medical history and systemic re- rendered. view. (B) Chest x-ray with interpretation. § 728.58 Federal Aviation Agency (C) Complete urinalysis, serology, (FAA) beneficiaries. and blood type. (a) Beneficiaries. Air Traffic Control (D) Pelvic examination and Pap Specialists (ATCS) of the FAA when smear for all female volunteers. appropriate authorization has been fur- (E) Hematocrit or hemoglobin for all nished by the FAA regional representa- females and for all males over 40 years tive. of age. (b) Authorization. Written authoriza- (F) Electrocardiogram for all volun- tion from an FAA Regional Flight Sur- teers over 40 years of age. geon is required and will include in- (2) Immunizations. Immunizations, as structions for forwarding the results of requested, may be provided all bene- services rendered. ficiaries listed in paragraph (a) of this (c) Care authorized. Subject to the section. provisions of § 728.3, authorized per- (3) Medical care. Both inpatient and sonnel may be rendered chest x-rays, outpatient care may be provided volun- electrocardiograms, basic blood chem- teers for illnesses or injuries occurring

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during their period of service which in- (d) Report. Complete and submit, per cludes all periods of training. Depend- subpart J, a DD 7 (Report of Treatment ents of volunteers specified in para- Furnished Pay Patients, Hospitaliza- graph (a)(3) of this section are author- tion Furnished, part A) or DD 7A (Re- ized care to the same extent as their port of Treatment Furnished Pay Pa- sponsor. tients, Outpatient Treatment, part B) (4) Dental care. Limit dental care to when outpatient or inpatient care is emergencies. Render only that care es- rendered. sential to relieve pain or prevent imminent loss of teeth. All beneficiaries § 728.60 Job Corps and Volunteers in seeking dental care will be requested, Service to America (VISTA) bene- whenever possible, to furnish advanced ficiaries. authorization. (a) Beneficiaries. Job Corps and (c) Care authorized outside the United VISTA enrollees and Job Corps appli- States—(1) Physical examinations. Termi- cants may be provided services as set nation physical examinations may be forth. For former members, see § 728.53. provided volunteers and eligible de- (b) Authorization required—(1) Job pendents of volunteers. In most in- Corps enrollees. Presentation of a Job stances, Peace Corps staff physicians Corps Identification Card after ap- will provide these examinations; how- pointment has been made by the corps- ever, help may be required of naval member’s Job Corps center. MTFs for ancillary services. (2) Job Corps applicants. Presentation (2) Immunizations. When requested, of a letter from a screening agency immunizations may be provided all (e.g., State Employment Service) after beneficiaries listed in paragraph (a) of an appointment has been made by that this section. agency. (3) Medical care. When requested in writing by a representative or physi- (3) VISTA Volunteers and VISTA cian of a Peace Corps foreign service Trainees. A ‘‘Blue-Cross and Blue post, volunteers, eligible dependents of Shield Identification Card’’ is issued to volunteers, and trainees of the Peace such personnel as identification. Each Corps may be provided necessary med- card has a VISTA identification num- ical care at Peace Corps expense. When ber which will be used on all records emergency treatment is rendered with- and correspondence. out prior approval, forward a request (c) Care authorized. Normally, med- to the Peace Corps foreign service post ical services are provided only when ci- as soon as possible. vilian of VA facilities are not avail- (4) Dental care. Limit dental care to able. or if available, are incapable of emergencies. Render only that care es- providing needed services. However, sential to relieve pain or prevent immi- upon presentation of an appropriate nent loss of teeth. All beneficiaries authorization, the following services seeking dental care will be requested, may be rendered subject to the provi- whenever possible, to furnish advanced sions of § 728.3. authorization. (1) Job Corps enrollees are authorized (5) Evacuation to the United States. emergency medical care upon presen- When a beneficiary in an overseas tation of their Job Corps Identification naval MTF requires prolonged hos- Card; however, the corpsmember’s Job pitalization, the commanding officer of Corps center should be notified imme- the overseas facility will report the re- diately. quirement to the nearest Peace Corps (2) Job Corps applicants may be pro- foreign service post and request au- vided preenrollment physical examina- thorization to return the patient to the tions and immunizations on an out- United States. Releases custody of de- patient basis only. pendents to their sponsor when evacu- (3) Job Corps enrollees, VISTA train- ation is declined. Aeromedical evacu- ees, and VISTA volunteers are author- ation may be used per OPNAVINST ized: 4630.25B. Travel of attendant(s) is au- (i) Outpatient medical examinations, thorized when the patient is too ill or outpatient treatment, and immuniza- too young to travel unattended. tions.

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(ii) Inpatient care for medical and the emergency is terminated and it is surgical conditions which, in the opin- permissible from a medical standpoint, ion of the attending physician, will discharge or transfer the patient to a benefit from definitive care within a facility that participates in Medicare. reasonable period of time. When found (2) Notification. Notify the nearest of- probable that a patient will require fice of the Social Security Administra- hospitalization in excess of 45 days, no- tion as soon as possible when a Medi- tify the Commander, Naval Medical care beneficiary is rendered treatment. Command (MEDCOM–33) by the most (d) Report. Complete and submit, per expeditious means. subpart J, a DD 7 (Report of Treatment (iii) Limit dental care to emer- Furnished Pay Patients, Hospitaliza- gencies. Render only that care essen- tion Furnished, part A) or DD 7A (Re- tial to relieve pain or prevent immi- port of Treatment Furnished Pay Pa- nent loss of teeth. Beneficiaries seek- tients, Outpatient Treatment, part B) ing dental care will be requested to fur- when outpatient or inpatient care is nish, whenever possible, advanced au- rendered. thorization. (d) Report. Complete and submit, per Subpart G—Other Persons subpart J, a DD 7 (Report of Treatment Furnished Pay Patients, Hospitaliza- § 728.71 Ex-service maternity care. tion Furnished, part A) or DD 7A (Re- (a) Eligible beneficiaries. After separa- port of Treatment Furnished Pay Pa- tion from the service under honorable tients, Outpatient Treatment, part B) conditions because of pregnancy, or when outpatient or inpatient care is separated from the service under hon- rendered. orable conditions and found to have been pregnant at the time of separa- § 728.61 Medicare beneficiaries. tion, the following former members (a) Care authorized. Emergency hos- and their newborn infant(s) may be pitalization and other emergency serv- provided care as set forth below. The ices are authorized for beneficiaries of rendering of this care is subject to the the Social Security Health Insurance provisions of § 728.3. When certified by Program for the Aged and Disabled medical authorities that the pregnancy (Medicare) who reside in the 50 United existed prior to entry into service States and the District of Columbia, (EPTE), maternity benefits are not au- Guam, Puerto Rico, the Virgin Islands, thorized. American Samoa, and the Northern (1) Former women members of the Mariana Islands. Such care in naval Army, Air Force, Navy, and Marine MTFs may be rendered when emer- Corps. gency services, as defined in § 728.61(b), (2) On or after 12 August 1985, former are necessary. women members of the Commissioned (b) Emergency services. Services pro- Corps of the United States Public vided in a hospital emergency room Health Service (USPHS) and the Na- after the sudden onset of a medical tional Oceanic and Atmospheric Ad- condition manifesting itself by acute ministration (NOAA). symptoms of sufficient severity (in- (b) Care authorized. (1) Former women cluding severe pain) such that the ab- members may be rendered medical and sence of immediate medical attention surgical care in naval MTFs incident to could reasonably be expected to result that pregnancy, prenatal care, hos- in: pitalization, postnatal care, and, when (1) Placing the patient’s health in se- requirements of SECNAVINST 6300.2A rious jeopardy. are met, abortions. Limit postnatal (2) Serious impairment to bodily care to 6 weeks following delivery. Do functions of serious dysfunction of any not promise civilian sources under any bodily organ or part. circumstances for either the mother or (c) General provisions—(1) Limitations. the infant as such care is not author- Benefit payments for emergency serv- ized. ices under Medicare can be made for (2) Treatment of the newborn infant only that period of time during which in USMTFs includes care, both inpa- the emergency exists. Therefore, when tient and outpatient, only during the

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first 6 weeks (42 days) following deliv- § 728.73 Applicants for enlistment or ery. If the newborn infant requires care reenlistment in the Armed Forces, beyond the 6-weeks postnatal period, and applicants for enlistment in the the mother or other responsible family reserve components. member must make arrangements for (a) Upon referral by a commander of disposition to private, State, welfare, a Military Enlistment Processing Sta- or another Federal facility. tion (MEPS), applicants will be fur- (c) Application for care. In making ap- nished necessary medical examina- plication for care authorized by this tions, including hospitalization when qualifications for service cannot other- section, former women members should wise be determined. Use the hos- apply either in person or in writing to pitalization period only for diagnostic the Armed Forces inpatient MTF near- purposes. Do not correct disqualifying est their home and present either their defects. DD 214 (Armed Forces of the United (b) Applicants who suffer injury or States Report of Transfer or Discharge) acute illness while awaiting or under- or DD 256A (Honorable Discharge Cer- going processing at Navy and Marine tificate) as proof of eligibility for re- Corps facilities or MEPS may be fur- quested care. In areas with more than nished emergency medical and dental one Armed Forces MTF available and care, including emergency hospitaliza- capable of providing required care, ap- tion, for that injury or illness. plication should be made to the MTF of the service from which separated, as § 728.74 Applicants for appointment in the regular Navy or Marine Corps applicable. Disengagement in such and reserve components, including areas to MTFs of other services may be members of the reserve components made only when space is not available who apply for active duty. or capability does not exist in the MTF (a) Necessary medical examinations of the services from which the indi- may be furnished, including hos- vidual was separated. pitalization when qualifications for (d) Charges and collection. Charges service cannot otherwise be deter- and reimbursement procedures for care mined. Use such a period of hospitaliza- rendered to beneficiaries in paragraph tion only for diagnostic purposes. Do (a)(2) of this section are the same as not correct disqualifying defects. prescribed by current regulations for (b) Applicants who suffer injury or active Coast Guard, USPHS, and NOAA acute illness while awaiting or under- members. going processing at Navy and Marine Corps facilities or MEPS may be fur- § 728.72 Applicants for enrollment in nished emergency medical and dental the Senior Reserve Officers’ Train- care, including emergency hospitaliza- ing Program. tion, for that injury or illness. When properly authorized, designated § 728.75 Applicants for cadetship at applicants (including applicants for en- service academies and applicants rollment in the 2-year program and for the Uniformed Services Univer- Military Science II enrollees applying sity of Health Sciences (USUHS). for Military Science III) may be fur- (a) Upon presentation of a letter of nished medical examinations at naval authorization from the Department of MTFs including hospitalization nec- Defense Medical Examination Review essary for the proper conduct thereof. Board (DODMERB), applicants for ca- Medical care, including hospitaliza- detship at Service Academies (Navy, tion, is authorized for diseases con- Army, Air Force, Coast Guard, and tracted or injuries incurred in line of Merchant Marine) and applicants for duty while at or traveling to or from a the Uniformed Services University of military installation for the purpose of Health Sciences (USUHS) will be fur- undergoing medical or other examina- nished medical examinations at facili- tions or for visits of observation. ties designated by the DODMERB. Hos- pitalization is authorized when qualifications for service cannot otherwise be determined. Use the hospitalization

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period for diagnostic purposes only, quests involving the following situa- and not to correct disqualifying or tions: other defects. Perform examinations (1) Preadoption proceedings wherein and make disposition of completed an active duty member or a retired forms per BUMEDINST 6120.3M. member has taken affirmative legal ac- (b) Applicants who suffer injury or tion to adopt a child. acute illness while awaiting or under- (2) Custodianships and guardianships going processing at Navy and Marine authorized by a court order wherein Corps facilities or at MEPS may be fur- the member is designated by the court nished emergency medical and dental as the custodian or guardian and the care, including emergency hospitaliza- child is fully dependent upon the active tion, for that injury or illness. duty or retired member sponsor. (3) Evaluation and selection of non- § 728.76 Naval Home residents. beneficiaries who are donor candidates for an organ or tissue transplant proce- Provide necessary medical and dental dure in behalf of a military service care, both inpatient and outpatient, to beneficiary. residents of the Naval Home when re- (4) Nonbeneficiary participants in of- quested by the Governor of the Home. ficially approved clinical research In an emergency, care may be rendered studies. without prior approval of the Gov- (5) Unremarried former spouses who: ernor; however, the Governor of the Require care for a condition incurred Home should be contacted immediately during or caused/aggravated by condi- and requested to furnish authorization. tions associated with the member’s or former member’s creditable service; do § 728.77 Secretarial designees. not qualify under the former spouses Subject to the capabilities of the pro- act; and do not have medical coverage fessional staff and the availability of under an employer-sponsored health space and facilities, naval MTFs and plan which will provide for the care re- DTFs will provide treatment to indi- quired. viduals that have been granted Secre- (6) Abused dependents of discharged tarial designee status by any of the or dismissed former uniformed services three service Secretaries (Navy, Army, members in need of medical or dental or Air Force), the Secretary of Com- care resulting from knowledge of the merce for NOAA personnel, the Sec- abuse or for an injury or illness result- retary of Health and Human Services ing from abuse by the former member. for USPHS personnel, or the Secretary Eligibility will terminate the earliest of Transportation for Coast Guard per- of 1 year after the date on which the sonnel. member is discharged or dismissed (a) Potential designees. Upon a show- from a uniformed service, or when care ing of sufficient cause, the Secretary of is no longer needed. the Navy may authorize individuals, (7) In other instances wherein the cir- not otherwise authorized by law, to re- cumstances clearly merit the providing ceive such care as is available in naval of treatment in naval MTFs, and in MTFs in the United States. Designa- which the best interest of the patient, tion may be extended on a worldwide the Navy, and the Government will be basis for preadoptive children and served, favorable Secretarial action wards of active duty members, and for may result. The mere need of medical abused dependents delineated in para- care by a former beneficiary or other graph (a)(6) of this section. Temporary person, alone, will not support ap- in loco parents or foster parent status proval of such a request. of the member with regard to a minor (b) Requests for consideration. Re- is insufficient for approval. Also, civil- quests for consideration will be sub- ian health care under the CHAMPUS mitted to the Commander, Naval Med- program cannot be authorized for other ical Command (MEDCOM–33) by appli- than abused dependents. The Sec- cants via their command, when appli- retary’s discretionary authority is ex- cable, or by the Medical Department ercised most conservatively, however, command concerned. Requests should favorable action is usually taken on re- include any pertinent information

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which will support resolution and a re- need of medical or dental care to treat turn address. Requests involving: adverse health conditions resulting (1) Preadoption must include a leg- from such dependent’s knowledge of ible reproducible copy of an interim the abuse or any injury or illness suf- court order or adoption agency place- fered by the abused person as a result ment agreement which names the spon- of such abuse. sor and identifies the other partici- (c) Blanket designation. (1) The Sec- pating parties. A petition for a court retary of Defense has granted Secre- order is insufficient to support a rec- tarial designee status to full-time ommendation for approval. Schedule ‘‘A’’ faculty members of the (2) Custodianships and guardianships Uniformed Services University of must include a legible reproducible Health Sciences (USUHS). They have copy of the court order, identification been provided documentation substan- of the parties, and also identify any tiating their eligibility and, where nec- amounts of income to which the ward essary, an eligibility termination date. is entitled. These personnel are authorized routine (3) Participants in clinical research care at the Naval Hospital, Bethesda, studies must include: MD. At other naval MTFs, only emer- (i) Sufficient clinical information gency treatment is authorized while concerning the nature of the study. they are traveling on official univer- (ii) Benefits which may accrue to the sity business. The letter of authoriza- individual. tion excludes routine dental care, pros- (iii) The extent, if any, to which ac- thetic appliances, and spectacles. cess by other authorized beneficiaries will be impaired. (2) The following officials within the (iv) Benefits which will accrue to the Government, the Department of De- command, e.g., enhancement of train- fense, and military departments have ing, maximum use of specialized facili- been granted blanket Secretarial des- ties, etc. ignation for medical and emergency (v) Recommended duration of des- dental care in naval MTFs in the ignation. United States: (vi) Whether the consenting indi- (i) The President. vidual has been informed concerning (ii) The Vice President. the nature of the study, its personal (iii) Members of the Cabinet. implications, and freely consents. (iv) Article III Federal Judges. (4) Unremarried former spouses must (v) U.S. Court of Military Appeals include: Judges. (i) A notarized copy of the marriage (vi) Members of Congress. license. (vii) The Secretary, Deputy Sec- (ii) A statement attesting to the fact retary, and the Assistant Secretaries of that the sponsoring former spouse Defense. achieved 20 or more years of creditable (viii) The Under Secretary of Defense military service. (iii) Copy of divorce decree with offi- for Policy. cial date. (ix) The Under Secretary of Defense (5) Abused depdendents must include: for Research and Engineering. (i) Full name, social security num- (x) The Secretaries, Under Secre- ber, grade or rate, branch or service, taries, and the Assistant Secretaries of and date and type of discharge or dis- the Military Departments. missal of the former member. Such a (d) Authorization. Designees will member must have received a dishon- present a signed letter bearing the let- orable or bad-conduct discharge or dis- terhead of the designating service. Sec- missal from a uniformed service as a retarial designees are not included in result of court-martial conviction for the DEERS data base and may not pos- an offense involving abuse of a depend- sess Government identification cards. ent of the member. Therefore, the only proof of their eligi- (ii) Full names, social security num- bility for treatment may be the letter bers (if assigned), and relationship to of authorization. When a Secretarial the former member of any dependent in designee presents for treatment:

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(1) Ask for identification of the indi- § 728.78 American Red Cross rep- vidual presenting the letter of author- resentatives and their dependents. ization to assure that the person seek- (a) Potential beneficiaries. (1) Volun- ing care is the individual to whom the teer workers. letter was issued. (2) Full-time, paid employees. (2) Check the expiration date on the (3) Dependents of personnel enumer- letter of authorization. Many author- ated in paragraph (a) (1) and (2) of this izations are issued for only a specified section when accompanying their spon- period of time, e.g., abused depend- sor outside the continental United ents—no longer than 1 year. States, including Alaska, Hawaii, and (3) Check to assure that the indi- Puerto Rico. vidual is applying for care authorized (b) Care authorized. (1) When services by the letter of authorization. Designa- of the American Red Cross (ARC) have tion is often granted for a specific diag- been accepted in behalf of the Federal nosis or specific mode of treatment. Government under applicable DOD reg- (4) Check to assure that the indi- ulations, beneficiaries in paragraph vidual has not been designated for care (a)(1) of this section are considered only as specific facility. Many author- ‘‘employees’’ of the Government for the izations are granted for conditions or purpose of this part and are authorized for care that can be rendered only by a health care in USMTFs, both in and specified physician or under a specific outside the United States for work-re- program. lated conditions. See § 728.53(a)(2) re- (5) Place a copy of the letter of au- garding the specific application of this authorization. thorization in the individual’s Health Record or outpatient treatment record (2) Beneficiaries enumerated in paragraph (a) (1) and (2) of this section are on the left side at the first visit or ad- authorized health care in USMTFs lo- mission. cated outside the United States for (e) Charges and collection. (1) Inter- both work and nonwork-related condi- agency rates are applicable for inpa- tions. See § 728.53(a)(2) for treatment of tient and outpatient care provided out- work-related conditions of those in side the National Capital Region to all paragraph (a)(1) of this section. individuals listed in paragraph (c)(2) of (3) Beneficiaries identified in para- this section with the exception of graph (a) (1), (2), and (3) of this section Members of Congress. Charges are at are authorized emergency care in full reimbursement rates for Members USMTFs outside the continental of Congress provided inpatient or out- United States, including Alaska, Ha- patient care outside the National Cap- waii, and Puerto Rico where facilities ital Region. are not otherwise available in reason- (2) In the National Capital Region: ably accessible and appropriate non- (i) Charges are waived for outpatient Federal hospitals. Provide hospitaliza- care provided to all categories listed in tion only for acute medical and sur- paragraph (c)(2) of this section. gical conditions, exclusive of nervous, (ii) Charge interagency rates for in- mental, or contagious diseases or those patient care of all individual in para- requiring domiciliary care. Routine graph (c)(2) of this section except Mem- dental care, other than dental pros- bers of Congress. Charge Members of thesis and orthodontia, is authorized on a space available basis provided fa- Congress at full reimbursement rates. cilities are not otherwise available in (3) Complete and submit, per subpart reasonably accessible non-Federal fa- J, a DD 7 (Report of Treatment Fur- cilities. nished Pay Patients, Hospitalization (c) Records disposal. Upon completion Furnished, part A) or DD 7A (Report of of treatment of accredited representa- Treatment Furnished Pay Patients, tives of the American Red Cross or Outpatient Treatment, part B) when their dependents, forward medical outpatient or inpatient care is ren- records, including all clinical records dered to Secretarial designees whose and x-ray films, to the Medical Direc- charges for care have not been waived. tor, National Headquarters, American

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Red Cross, 20th and D Street NW., reasonably accessible and appropriate Washington, DC 20006. non-Federal facilities. (d) Charges and collection. Charge (c) Charges and collection. Care is au- beneficiaries in paragraph (a) (1) and thorized on a reimbursable basis. Com- (2) of this section the rate applicable to plete and submit, per subpart J, a DD 7 officer personnel and dependents in (Report of Treatment Furnished Pay paragraph (a)(3) of this section the de- Patients, Hospitalization Furnished, pendent rate. Complete and submit, per part A) or DD 7A (Report of Treatment subpart J, a DD 7 (Report of Treatment Furnished Pay Patients, Outpatient Furnished Pay Patients, Hospitaliza- Treatment, part B) when outpatient or tion Furnished, part A) or DD 7A (Re- inpatient care is rendered. port of Treatment Furnished Pay Pa- tients, Outpatient Treatment, part B) § 728.80 U.S. Government employees. when outpatient or inpatient care is (a) Civil service employees of all Fed- rendered to ARC personnel or to their eral agencies, including teachers em- dependents. ployed by Department of Defense De- § 728.79 Employees of Federal contrac- pendent’s Schools (DODDS) and their tors and subcontractors. dependents, may be provided hospitalization and necessary outpatient (a) (1) U.S. citizen con- Beneficiaries. services, (other than occupational tractor, engineering, and technical health services), on a reimbursable service personnel designated as U.S. basis, outside the continental limits of Navy Technicians. the United States and in Alaska, where (2) Civilian employees of contractors facilities are not otherwise available in and subcontractors operating under reasonably accessible and appropriate U.S. Government contracts. non-Federal hospitals. Except for em- (3) Dependents of personnel enumer- ployees who are serving aboard naval ated in paragraph (a) (1) and (2) of this vessels, hospitalization may be fur- section when accompanying their spon- nished only for acute medical and sur- sor outside the continental United gical conditions, exclusive of nervous, States or in Alaska. mental, or contagious diseases or those (b) (1) Beneficiaries Care authorized. requiring domiciliary care. Routine identified in paragraph (a) (1) and (2) of dental care, other than dental pros- this section may be provided emer- thesis and orthodontia, is authorized gency care in naval MTFs for illnesses on a space available basis provided fa- and injuries occurring at work in or cilities are not otherwise available in outside the United States. reasonably accessible and appropriate (2) While serving outside the conti- non-Federal facilities. nental United States or in Alaska, (b) Such civilian employees and their where facilities are not otherwise dependents may be provided medical, available in reasonably accessible and surgical, dental treatment, hospitaliza- appropriate non-Federal facilities, tion, and optometric care at installa- beneficiaries identified in paragraph (a) (1), (2), and (3) of this section may re- tions in the United States which have ceive hospitalization and necessary been designated remote by the Sec- outpatient services in naval MTFs on a retary of the Navy for the purpose of reimbursable basis. Except for bene- providing medical care. ficiaries in paragraph (a)(1) of this sec- (c) The major objective of the fol- tion who are serving aboard naval ves- lowing programs for civil service em- sels, all others enumerated may only ployees, regardless of location, is emer- be hospitalized for acute medical and gency treatment for relief of minor ail- surgical conditions, exclusive of nerv- ments or injuries to keep the employee ous, mental, or contagious diseases or on the job: those requiring domiciliary care. Rou- (1) The Department of Labor, Office tine dental care, other than dental of Workers’ Compensation Programs prosthesis and orthodontia, is author- (OWCP), governs the overall medical ized on a space available basis provided care program for employees of the Gov- facilities are not otherwise available in ernment who sustain injuries while in

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the performance of duty, including dis- the following personnel are authorized eases proximately caused by conditions care as set forth. of employment (see § 728.53). (b) Beneficiaries and extent of care. (1) (2) Federal civil service employees Provide all occupational health serv- and applicants for such employment ices to civilian employees paid from are authorized services as outlined in nonappropriated funds, including Navy chapter 22, section XIII, of the Manual exchange employees and service club of the Medical Department employees, free of charge (see (MANMED). When appropriated fund § 728.80(c)(2)). Provide treatment of oc- and nonappropriated fund employees, cupational illnesses and injuries other including unpaid volunteer employees, than in emergencies per rules and regu- require emergency and nonemergency lations of the Office of Workers’ Com- occupational health services due to an pensation Programs (see § 728.53). illness or an injury on the job, provide (2) Civilians attending the Federal this limited care through your occupa- Bureau of Investigation (FBI) Acad- tional health service, emergency room, emy, Marine Corps Development and or evening primary care clinic, as ap- Education Command, Quantico, VA, propriate. This care is rendered free of may be rendered care at the Naval charge to the employee, the employee’s Medical Clinic, Quantico, VA, for emer- command, or insurance carrier. In- gencies. Such persons who are in need cluded with this group are Military of hospitalization for injuries or dis- Sealift Command (MSC) civilian ma- ease may be hospitalized and classed as rine personnel (authorized additional civilian humanitarian nonindigents care and services as outlined in with the approval of the cognizant hos- BUMINST 6320.52 and care under pital’s commanding officer. EXCEPTION: § 728.53(a)(7)) and members of the Na- Certain individuals, such as employees tional Oceanic and Atmospheric Ad- of the Federal Bureau of Investigation ministration (NOAA) serving with the who are injured in the line of duty, Navy. may be entitled to care at the expense (3) Under the technical control of the of the Office of Workers’ Compensation Surgeon General of the Army, the DOD Programs (OWCP) (see § 728.53). Civilian Employees’ Health Service is (3) The following civilians who are in- responsible for administering the jured or become ill while participating health program for all Federal civil in Navy or Marine Corps sponsored service employees in the District of Co- sports, recreational or training activi- lumbia area. ties may be rendered care on a tem- (d) Care, other than occupational porary (emergency) basis until such health services, is provided on a reim- time as disposition can be effected to bursable basis. Complete and submit, another source of care. per subpart J, a DD 7 (Report of Treat- (i) Members of the Naval Sea Cadet ment Furnished Pay Patients, Hos- Corps. pitalization Furnished, part A) or DD (ii) Junior ROTC/NDCC (National De- 7A (Report of Treatment Furnished fense Cadet Corps) cadets. Pay Patients, Outpatient Treatment, (iii) Civilian athletes training or part B) when outpatient or inpatient competing as part of the U.S. Olympic care is rendered. effort. (iv) Civilians competing in Navy or § 728.81 Other civilians. Marine Corps sponsored competitive (a) General. In an emergency, any meets. person may be rendered care in naval (v) Members of Little League teams MTFs to prevent undue suffering or and Youth Conservation groups. loss of life or limb. Limit care to that (vi) Boy Scouts and Girl Scouts of necessary only during the period of the America. emergency, and if further treatment is (4) Other civilian personnel included indicated, initiate action to transfer below are not normally eligible for the patient to a private physician or ci- care in naval MTFs; however, under vilian facility as soon as possible. Fur- the conditions set forth, care may be ther, subject to the provisions of § 728.3, rendered.

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(i) Potential beneficiaries. (A) Civilian United Nations) or by a voluntary non- representatives of religious groups. profit-relief agency registered with and (B) Educational institutions rep- approved by the Advisory Committee resentatives. on Voluntary Aid (e.g., CARE), they (C) Athletic clinic instructors. may receive other necessary non- (D) USO representatives. emergency medical care and occupa- (E) Celebrities and entertainers. tional health services while serving (F) Social agencies representatives. outside the 48 contiguous United (G) Others in a similar status to States and the District of Columbia. those in § 728.81(b)(4)(i) (A) through (F). (c) Charges and collection. Care is pro- (H) News correspondents. vided on a reimbursable basis. Com- (I) Commercial airline pilots and em- plete and submit, per subpart J, a DD 7 ployees. (Report of Treatment Furnished Pay (J) Volunteer workers. This category Patients, Hospitalization Furnished, includes officially recognized welfare part A) or DD 7A (Report of Treatment workers, other than Red Cross. Furnished Pay Patients, Outpatient (ii) Care authorized. (A) Persons enu- Treatment, part B) when outpatient or merated in paragraph (b)(4)(i) (A) inpatient care is rendered. through (G) of this section, who are contracted to provide direct services to § 728.82 Individuals whose military the Armed Forces and who are acting records are being considered for under orders issued by the Department correction. of Defense or one of the military de- Individuals who require medical eval- partments to visit military commands uation in connection with consider- overseas, and their accompanying de- ation of their individual circumstances pendents, may be provided medical by the Navy, Army, and Air Force care in naval MTFs outside the 48 con- Board for Correction of Military tiguous United States and the District Records are authorized evaluation, in- of Columbia provided local civilian fa- cluding hospitalization when necessary cilities are not reasonably available or for the proper conduct thereof. are inadequate. Limit inpatient care to acute medical and surgical conditions § 728.83 Persons in military custody exclusive of nervous, mental, or con- and nonmilitary Federal prisoners. tagious diseases, or those requiring (a) Potential beneficiaries. (1) Military domiciliary care. Routine dental care, prisoners. other than dental prostheses and or- (2) Nonmilitary Federal prisoners. thodontia, is authorized on a space (3) Enemy prisoners of war and other available basis outside the United detained personnel. States, provided such care is not other- (b) Care authorized—(1) Military pris- wise available in reasonably accessible oners. (i) Whose punitive discharges and appropriate non-Federal facilities. have been executed but whose sen- (B) Persons enumerated in paragraph tences have not expired are authorized (b)(4)(i) (H) and (I) of this section are all necessary medical and dental care. authorized emergency medical and den- (ii) Whose punitive discharges have tal care in naval MTFs outside the 48 been executed and who require hos- contiguous United States and the Dis- pitalization beyond expiration of sen- trict of Columbia provided local civil- tences are not eligible for care but may ian facilities are not reasonably avail- be hospitalized as civilian humani- able or are inadequate. tarian nonindigents until final disposi- (C) Persons enumerated in paragraph tion can be made to some other appro- (b)(4)(i)(J) of this section, both within priate facility. and outside the 48 contiguous United (iii) On parole pending completion of States and the District of Columbia, appellate review or whose parole may receive care in naval MTFs for in- changes to an excess leave status fol- juries or diseases incurred in the per- lowing completion of sentence to conformance of duty as beneficiaries of finement while on parole are members OWCP (see § 728.53). Additionally, if of the military service and as such are such volunteers are sponsored by an authorized care as outlined in subpart international organization (e.g., the B.

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(iv) On parole whose punitive dis- either from civilian sources as supple- charge has been executed are not mem- mental care or from stocks maintained bers of the military service and are by the facility, are payable from oper- therefore not entitled to care at Gov- ation and maintenance funds available ernment expense. If the circumstances for support of naval MTFs. However, are exceptional, individuals herein who certain adjuncts may be cost-shared are not authorized care may request under CHAMPUS for CHAMPUS-eligi- Secretarial designee status under the ble individuals under circumstances provisions of § 728.77. enumerated in the cooperative care or (2) Nonmilitary Federal prisoners. services criteria of § 728.4(z). Under the provisions of this section, nonmilitary Federal prisoners are au- § 728.92 Policy. thorized only emergency medical care. When such care is being rendered, the (a) Provide adjuncts to medical care institution to which prisoners are sen- to eligible beneficiaries receiving inpa- tenced must furnish necessary guards tient or outpatient care when, in the to effectively maintain custody of pris- opinion of the attending physician, oners and assure the safety of other pa- such adjuncts will offer substantial as- tients, staff members, and residents of sistance in overcoming the handicap or the local area. Under no circumstances condition and thereby contribute to will military personnel be voluntarily the well-being of the beneficiary. used to guard or control such pris- (b) Unless necessary for humani- oners. Upon completion of emergency tarian reasons, do not furnish ortho- care, make arrangements for imme- pedic and prosthetic appliances on an diate transfer of the prisoners to a non- elective basis to members of the naval military MTF or for return to the facil- service with short periods of service re- ity to which sentenced. maining when the defect requiring the (3) Enemy prisoners of war and other appliance existed prior to entry into detained personnel. Subject to the provi- service and when such members will be sions of § 728.3, enemy prisoners of war separated from the service because of and other detained personnel are enti- these defects. tled to and may be rendered all nec- (c) For active duty members, make essary medical and dental care. the initial allowance of orthopedic (c) Charges and collection. Care provided individuals enumerated in footwear and orthopedic alterations to § 728.83(b)(1) (ii), (iv), and (2) is on a re- standard footwear the same quantity imbursable basis. Complete and sub- as provided in the initial clothing al- mit, per subpart J, a DD 7 (Report of lowance. Treatment Furnished Pay Patients, (d) Base the number of orthopedic Hospitalization Furnished, part A) or and prosthetic appliances issued or re- DD 7A (Report of Treatment Furnished placed for other authorized recipients Pay Patients, Outpatient Treatment, upon the individual’s requirements as part B) when outpatient or inpatient determined by the attending physician care is rendered. to be consistent with the highest standards of modern medicine. Subpart H—Adjuncts to Medical (e) Former members of the uniformed Care service should be advised that they may obtain durable medical equip- § 728.91 General. ment, medical care, and adjuncts from Adjuncts to medical care include but Veterans Administration facilities. are not limited to prosthetic devices (f) Dependents are authorized certain such as artificial limbs, artificial eyes, adjuncts per §§ 728.31 (c) and (d) and in hearing aids, orthopedic footwear, instances where items are not nor- spectacles, wheel chairs, hospital beds, mally authorized at the expense of the and similar medical support items or Government, they may be provided at aids which are required for the proper cost to the United States if available care and management of the condition from Government stocks under the fol- being treated. Generally, expenses in- lowing conditions: curred for procurement of such items, (1) Outside the United States.

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(2) At specific stations within the ized by the Secretary of the Navy to United States which have been author- sell these items.

§ 728.93 Chart of adjuncts. The following chart and footnotes provide information relative to adjuncts which may be furnished the several categories of beneficiaries eligible for medical care at naval MTFs.

Others authorized the Dependents author- Adjuncts Active duty and re- same benefits as active ized the same bene- Other bene- tired members duty or retired mem- ficiaries (8) fits bers (8)

Ambulance service ...... Yes ...... Yes ...... Yes (1) ...... No Artificial eyes ...... Yes ...... Yes ...... Yes ...... Maybe (3) Artificial limbs ...... Yes ...... Yes ...... Yes ...... Maybe (3) Contact or special lenses (11) .... Yes (4) ...... Yes (4) ...... Maybe (246) ...... No Crutches (7) ...... Yes ...... Yes ...... Yes ...... Yes Dental prostheses ...... Yes ...... Yes ...... Maybe (9) ...... Maybe (9) Elastic stockings ...... Yes ...... Yes ...... Yes ...... Yes Hearing aids (10) ...... Yes (5) ...... Yes (5) ...... Maybe (2) ...... Maybe (3) Hearing aid parts and batteries Yes (10) ...... Yes (10) ...... Maybe (210) ...... No Hospital beds (7) ...... Yes ...... Yes ...... Yes ...... Yes Joint braces ...... Yes ...... Yes ...... Yes ...... Yes Orthopedic footware ...... Yes ...... Yes ...... Maybe (2) ...... Maybe (3) Prosthetic devices, other (7) ...... Yes ...... Yes ...... Maybe (2) ...... No Respirators and inhalators (7) .... Yes ...... Yes ...... Yes ...... Yes (1) Resuscitators (7) ...... Yes ...... Yes ...... Yes ...... Yes(1) Spectacles ...... Yes ...... Yes ...... Maybe (26) ...... No Walking irons (7) ...... Yes ...... Yes ...... Yes ...... Yes Wheel chairs (7) ...... Yes ...... Yes ...... Yes ...... Yes 1 When considered medically appropriate by the attending physician. 2 See § 728.92(f). 3 Outside the United States and at designated remote stations when considered medically appropriate by the attending physician. 4 Contact or special lenses are not to be issued solely for cosmetic reasons. Further guidelines are contained in NAVMEDCOMINST 6810.1. 5 In addition to the hearing aid, include in initial issue one spare receiver cord, approximately 1 month’s supply of batteries, and a statement indicating make, model, type of receiver, serial number, code, part numbers, ‘‘B’’ battery voltage, and type of ‘‘A’’ and ‘‘B’’ batteries, as appropriate. Provide replacement of hearing aids upon the same basis as initial issue and, except in unusual circumstances, will not be replaced within 2 years of the initial furnishing or the last replacement of the appliance. 6 Spectacles, contact lenses, or intraocular lenses may be provided dependents with eye conditions which require these items for complete medical or surgical management of a condition other than ordinary refractive error. For further information, consult NAVMEDCOMINST 6810.1. 7 May be loaned on a custody basis at the discretion of the attending physician. 8 See subpart of this part relating to specific beneficiary. 9 When considered by the attending physician and dentist to be an adjunct to a medical or surgical condition other than dental and when in consonance with existing legislation and directives. 10 For further guidelines, consult BUMEDINST 6320.41B. 11 Includes intraocular lenses required for implantation upon removal of cataracts.

Subpart I—Reservists—Continued (b) Physical disability benefits. The fol- Treatment, Return to Limited lowing, excerpted and paraphrased Duty, Separation, or Retire- from SECNAVINST 1770.3, paragraph 10, is applicable when a reservist may ment for Physical Disability be entitled to physical disability benefits. § 728.101 General. (1) When a notice of eligibility (NOE) (a) Notice of eligibility (NOE). While has been issued to a member hospital- the NOE is basically a document that ized in a naval MTF and the attending substantiates entitlement to a dis- physician is of the opinion that recov- ability benefit equal to pay and allow- ery is not anticipated or that the re- ances, it may be accepted when reservist is not expected to be fit for required to substantiate eligibility for turn to full duty within a reasonable benefits other than pay and allow- period, a medical board will be con- ances, i.e., treatment in USMTFs under vened and the case managed the same the provisions of title 10, United States as that of a Regular member. Assure Code. that a copy of the NOE accompanies

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the medical board report forwarded to transactions. The purpose of the final the Central Physical Evaluation Board. report is to provide data on services Disability benefits, equal to pay and al- furnished by naval health care facili- lowances, will continue in such in- ties for which central collection from stances until final disposition. other Government agencies and private (2) There is no limited duty status, parties is required. per se, for inactive reservists. However, if the attending physician determines § 728.112 Responsibilities. that a reservist is temporarily unfit for (a) Patient administration departments. full duty, but will be fit for full duty The initiation of the collection process following a period of convalescence or following duty with physical limita- begins with patient administration de- tions, not to exceed 6 months, the phy- partments. Collection action cannot be sician may return the reservist to duty accomplished unless patient adminis- with a summary of the hospitalization tration departments take the initial or treatment. The summary will set step to complete: forth the limitations posed by the (1) DD 7, Report of Treatment Fur- member’s disability and the period of nished Pay Patients, Hospitalization Fur- such limitations. Followup hospitaliza- nished (part A). Prepare a separate sub- tion, treatment, and evaluation for the stantiating DD 7, in triplicate, for each same condition may be provided at category of pay patient receiving inpa- USMTFs during the period of restricted tient care. At the end of each day that duty, if required. If, during the period any pay patient is admitted, submit of the restricted duty, it appears that DD 7’s to the collection agent. the reservist will be permanently unfit (2) DD 7A, Report of Treatment Fur- for full duty, promptly authorize the nished Pay Patients, Outpatient Treat- reservist to report for evaluation, ment Furnished (part B). Prepare a sepa- treatment if required, and appearance rate substantiating DD 7A, in trip- before a medical board at the nearest licate, for each category of pay patient naval MTF capable of accomplishing receiving outpatient care. At the end of same. Admission to the sicklist is au- each day that any pay patient is treat- thorized, when required. Should the ed on an outpatient basis, submit DD medical board recommend appearance 7A’s to the collection agent. before a physical evaluation board, dis- (b) Collection agents. Upon receipt of a ability benefits equal to pay and allow- completed DD 7 or DD 7A, collection ances should continue until final dis- agents will take the action indicated in position is effected. paragraph 24304 of the Resource Man- § 728.102 Care from other than Federal agement Handbook, NAVMED P–5020, sources. to effect central collection action. The provisions of this subpart do not § 728.113 Categories of pay patients. authorize care for reservists at other than Federal facilities nor out of funds The categories of patients for whom available for operation of USMTFs collection action must be initiated are: (supplemental care) after a period of (a) Coast Guard. (1) Active Officers; active duty or a period of training duty (2) Retired Officers; (3) Active Enlisted; ends, including travel to and from such (4) Retired Enlisted; (5) Dependents; (6) training. Such care may be rendered Cadets. under the provisions of part 732 of this (b) Public Health Service. (1) Active Of- chapter. ficers; (2) Retired Officers; (3) Depend- ents of Officers. Subpart J—Initiating Collection (c) National Oceanic and Atmospheric Action on Pay Patients Administration (NOAA). (1) Active Offi- cers; (2) Retired Officers; (3) Depend- § 728.111 General. ents of Officers. The Comptroller of the Navy has ap- (d) Foreign. (1) NATO Officers (Except proved a system of transactions that Canadians provided care under the generates reports to COMNAV comparable care agreement.); (2) NATO MEDCOM on unfunded reimbursable Enlisted (Except Canadians provided

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care under the comparable care agree- 732.19 Claims. ment.); (3) NATO Dependents; (4) Civil- 732.20 Adjudication authorities. ians Accompanying NATO Members; (5) 732.21 Medical board. Foreign Military Sales (FMS) Officers; 732.22 Recovery of medical care payments. (6) FMS Enlisted; (7) FMS Dependents; 732.23 Collection for subsistence. (8) FMS Civilians; (9) Military Grant 732.24 Appeal procedures. Aid Officers; (10) Military Grant Aid Enlisted; (11) Military Grant Aid De- Subpart C—Accounting Classifications for pendents; (12) Military Grant Aid Civil- Nonnaval Medical and Dental Care ians; (13) Military Officers From Other Expenses and Standard Document Than NATO Nations; (14) Military En- Numbers listed From Other Than NATO Nations; 732.25 Accounting classifications for (15) Dependents of Officers and Enlisted nonnaval medical and dental care ex- From Other Than NATO Nations; (16) penses. Civilians Accompanying Military Mem- 732.26 Standard document numbers. bers of Other Than NATO Nations; (17) Nationals and Their Dependents. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1071–1088, 5031, 6148, 6201–6203, and 8140; and 32 CFR (e) Secretarial designees not exempted 700.1202. from paying. (f) Others. (1) Merchant Marines; (2) SOURCE: 52 FR 32297, Aug. 27, 1987, unless Military Sealift Command (MSC) Per- otherwise noted. sonnel; (3) Public Health Service beneficiaries (Other than Commissioned Subpart A—General Corps); (4) Veterans Administration beneficiaries; (5) Peace Corps bene- § 732.1 Background. ficiaries; (6) Job Corps beneficiaries; (7) When a U.S. Navy or Marine Corps Volunteers In Service to America member or a Canadian Navy or Marine (VISTA) beneficiaries; (8) Office of Corps member receives authorized care Workers Compensation Program from other than a Navy treatment fa- (OWCP) beneficiaries; (9) Bureau of Employees Compensation (BEC) bene- cility, care is under the cognizance of ficiaries; (10) Department of State and the uniformed service medical treat- Other Federal Agencies beneficiaries ment facility (USMTF) providing care, (prepare a separate form for each Fed- the USMTF referring the member to eral agency); (11) Civilian Humani- another treatment source, or under the tarian Nonindigents (CHNI); (12) Trust provisions of this part. If such a mem- Territory beneficiaries; (13) Others not ber is not receiving care at or under specified above who are not entitled to the auspices of a Federal source, re- health benefits at the expense of the sponsibility for health and welfare, and Government. the adjudication of claims in connection with their care, remains within PART 732—NONNAVAL MEDICAL the Navy Medical Department. Part 728 AND DENTAL CARE of this chapter and NAVMEDCOMINST 6320.18 contain guidelines concerning Subpart A—General care for other eligible beneficiaries, not authorized care by this part. Sec. 732.1 Background. § 732.2 Action. 732.2 Action. Ensure that personnel under your Subpart B—Medical and Dental Care from cognizance are made aware of the con- Nonnaval Sources tents of this part. Failure to comply 732.11 Definitions. with contents may result in delayed 732.12 Eligibility. adjudication and payment or may re- 732.13 Sources of care. sult in denial of Navy financial respon- 732.14 Authorized care. sibility for expenses of maternity, med- 732.15 Unauthorized care. ical, or dental care obtained. 732.16 Emergency care requirements. 732.17 Nonemergency care requirements. 732.18 Notification of illness or injury.

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Subpart B—Medical and Dental authorities for a civil offense and a Care From Nonnaval Sources naval authority has been notified that the member can be released to military § 732.11 Definitions. control. Unless otherwise qualified in this (2) When a naval member has been ar- part the following terms when used rested by civil authorities for a civil throughout are defined as follows: offense while in a UA status and the of- (a) Active duty. Full-time duty in the fense does not allow release to military active military service of the United control, constructive return is not ac- States. Includes full-time training complished. The individual is respon- duty; annual training duty; and attend- sible for medical and dental care re- ance, while in the active military serv- ceived prior to arrest and the incarcer- ice, at a school designated as a service ating jurisdiction is responsible for school by law or by the Secretary of care required after arrest. the military department concerned. (d) Designated Uniformed Services (b) Active duty for training. A specified Treatment Facilities (Designated USTFs). tour of active duty for Reserves for Under Pub. L. 97–99, the following fa- training under orders that provides for cilities are ‘‘designated USTFs’’ for the automatic reversion to non-active duty purpose of rendering medical and den- status when the specified period of ac- tal care to all categories of individuals tive duty is completed. It includes an- entitled to care under this part. nual training, special tours, and the (1) Sisters of Charity of the Incarnate initial tour performed by enlistees Word Health Care System, 6400 without prior military service. The pe- Lawndale, Houston, TX 77058 (713) 928– riod of duty includes travel to and from 2931 operates the following facilities: training duty, not in excess of the al- (i) St. John Hospital, 2050 Space Park lowable constructive travel time pre- Drive, Nassau Bay, TX 77058, telephone scribed by SECNAVINST 1770.3 and (713) 333–5503. Inpatient and outpatient paragraphs 10242 and 10243 of DOD Mili- services. tary Pay and Allowances Entitlements (ii) St. Mary’s Hospital Outpatient Manual. Clinic, 404 St Mary’s Boulevard, Gal- (c) Constructive return. For purposes veston, TX 77550, telephone (409) 763– of medical and dental care, an 5301. Outpatient services only. unathorized absentee’s return to mili- (iii) St. Joseph Hospital Ambulatory tary control may be accomplished Care Center, 1919 La Branch, Houston, through notification of appropriate TX 77002, telephone (713) 757–1000. Out- military authorities as outlined below. patient services only. (1) For members in an unauthorized (iv) St Mary’s Hospital Ambulatory absentee (UA) status, constructive re- Care Center, 3600 Gates Boulevard, turn to military control for the pur- Port Arthur, TX 77640 (409) 985–7431. pose of providing medical or dental Outpatient services only. care at Navy expense is effected when (2) Inpatient and outpatient services. (i) one of the following has occurred: Wyman Park Health System, Inc., 3100 (i) A naval activity informs a civilian Wyman Park Drive, Baltimore, MD provider of medical or dental care that 21211, telephone (301) 338–3693. the Navy accepts responsibility for a (ii) Alston-Brighton Aid and Health naval member’s care. The naval activ- Group, Inc., Brighton Marine Public ity providing this information must Health Center, 77 Warren Street, Bos- also provide documentation of such no- ton, MA 02135, telephone (617) 782–3400. tification to the appropriate adjudica- (iii) Bayley Seton Hospital, Bay tion authority in § 732.20. Street and Vanderbilt Avenue, Staten (ii) A member has been apprehended Island, NY 10304, telephone (718) 390– by civil authorities at the specific re- 5547 or 6007. quest of naval authorities and naval (iv) Pacific Medical Center, 1200 12th authorities have been notified that the Avenue South, Seattle, WA 98144, tele- member can be released to military phone (206) 326–4100. custody. (3) Outpatient services only. (i) Coastal (iii) A naval member has been ar- Health Service, 331 Veranda Street, rested, while in a UA status, by civil Portland, ME 04103 (207) 774–5805.

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(ii) Lutheran Medical Center, Down- (l) Nonnaval care. Maternity, medical, town Health Care Services, 1313 Supe- or dental care provided by other than rior Avenue, Cleveland, OH 44113, tele- Navy MTFs. Includes care in other phone (216) 363–2065. USMTFs, designated USTFs, VA facili- (e) Duty status. The situation of the ties, as well as from civilian sources. claimant when maternity, medical, or (m) Office of Medical Affairs (OMA) or dental care is received. Members, in- Office of Dental Affairs (ODA). Des- cluding reservists, on leave or liberty ignated offices, under program man- are considered in a duty status. Reserv- agement control of COMNAVMEDCOM ists, performing active duty for train- and direct control of regional medical ing or inactive duty training, are also commands, responsible for administra- considered in a duty status during tive requirements delineated in this their allowable constructive travel part. Responsibilities and functional time to and from training. tasks of OMAs and ODAs are outlined (f) Emergency care. Medical treatment in NAVMEDCOMINST 6010.3. of severe life threatening or poten- (n) Prior approval. Permission granted tially disabling conditions which result for a specific episode of necessary but from accident or illness of sudden onset nonemergent maternity, medical, or and necessitates immediate interven- dental care. tion to prevent undue pain and suf- (o) Reservist. A member of the Naval fering or loss of life, limb, or eyesight or Marine Corps Reserve. and dental treatment of painful or (p) Supplemental care—(1) Operation acute conditions. and maintenance funds, Navy. Supple- (g) Federal facilities. Navy, Army, Air mental care of all uniformed services Force, Coast Guard, Veterans Adminis- members, at Navy expense, encom- tration, and USTFs (former U.S. Public passes only inpatient or outpatient Health Service facilities listed in care augmenting the capability of a § 732.11(d). naval MTF treating a member. Such (h) Inactive duty training. Duty pre- care is usually obtained from civilian scribed for Reserves by the Secretary sources through referral by the treat- of the Navy under Section 206 of Title ing naval MTF. If a member, author- 37, United States Code, or any other ized care under this part, is admitted provision of law. Also includes special to or is being treated on an outpatient additional duties authorized for Re- basis at any USMTF, all supplemental serves by an authority designated by care is the financial responsibility of the Secretary of the Navy and per- that facility regardless of whether the formed by Reserves on a voluntary facility is organized or authorized to basis in connection with the prescribed provide needed health care. The cost of training or maintenance activities of such care is chargeable to operation units to which they are assigned. and maintenance funds (OM&N) avail- (i) Maternity emergency. A condition able for operation of the USMTF re- commencing or exacerbating during questing the care regardless of service pregnancy when delay caused by refer- affiliation of the member (see part 728 ral to a uniformed services medical of this chapter for such care under treatment facility (USMTF) or des- Navy Medical Department facilities). ignated USTF would jeopardize the (2) Nonnaval medical and dental care welfare of the mother or unborn child. program funds. Adjudication authorities (j) Member. United States Navy and will pay claims, under this part, for Marine Corps personnel, Department of care received as a result of a referral National Defence of Canada Navy and when: Marine Corps personnel, and Navy and (i) A United States Navy or Marine Marine Corps personnel of other NATO Corps member or a Canadian Navy or Nations meeting the requirements for Marine Corps member requires care be- care under this part. yond the capability of the referring (k) Non-federal care. Maternity, med- USMTF and care is obtained for such a ical, or dental care furnished by civil- member not admitted to or not being ian sources (includes State, local, and treated on an outpatient basis by a foreign MTFs). USMTF, and

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(ii) The referring USMTF is not orga- 99–591 prohibits inpatient care of these nized nor authorized to provide the foreign military members in the needed health care. United States at the expense of the (3) Other uniformed services supple- United States Government. The other mental care programs. In addition to NATO SOFA Nation, Canada, entered services that augment other USMTF’s into a comparable care agreement with capabilities, supplemental care pro- the United States requiring the United grams of the other uniformed services States to provide inpatient and out- include care and services comparable patient care under the provisions of to those authorized by this part, e.g., this part to members of the Depart- emergency care and pre-approved non- ment of National Defence of Canada re- emergency care. ceiving care in the United States. (q) Unauthorized absence. Absence or (d) Absent without authority. Naval departure without authority from a members absent without authority member’s command or assigned place of duty. during an entire episode of treatment (r) Uniformed Services Medical Treat- are not eligible for non-Federal med- ment Facilities (USMTF). Health care fa- ical, dental, or emergency maternity cilities of the Navy, Army, Air Force, care at Government expense. The only Coast Guard, and the former U.S. Pub- exception occurs when a member’s ill- lic Health Service facilities listed in ness or injury is determined to have paragraph (d) of this section designated been the direct cause of the unauthor- as USTFs per DOD and Department of ized absentee status. In such an in- Health and Human Services directives. stance, eligibility will be: (1) Determined to have existed from § 732.12 Eligibility. the day and hour of such injury or ill- (a) Regular members. To be eligible for ness provided the member was not in non-Federal medical, dental, or emer- an unauthorized absentee status prior gency maternity care at Government to the onset of the illness or injury and expense, Regular active duty United initiation of treatment. States naval members and Canadian (2) Retained when the member is re- Navy and Marine Corps members must turned directly to military control. be in a duty status when care is pro- (3) Terminated should the member vided. return to an unauthorized absentee (b) Reservists. (1) Reservists on active status immediately after completion of duty for training and inactive duty treatment. Departmental level training, including leave and liberty (MEDCOM–333 for medical and therefrom, are considered to be in a MEDCOM–06 for dental) review is re- duty status while participating in quired before benefits may be extended. training. Accordingly, they are enti- (e) Constructive return. When con- tled to care for illnesses and injuries structive return, defined in § 732.11(c), occurring while in that status. is effected, entitlement will be deter- (2) Reservists are entitled to care for mined to have existed from 0001 hours injuries and illnesses occurring during of the day of constructive return, not direct travel enroute to and from ac- necessarily the day and hour care was tive duty training (ACDUTRA) and to initiated. and from inactive duty training. (c) NATO naval members. Naval mem- § 732.13 Sources of care. bers of the NATO Status of Forces Agreement (SOFA) nations of Belgium, (a) Initial application. If a member re- Denmark, Federal Republic of Ger- quires maternity, medical, or dental many, France, Greece, Iceland, Italy, care and naval facilities are unavail- Luxembourg, the Netherlands, Norway, able, make initial application to other Portugal, Spain, Turkey, and the available Federal medical or dental fa- United Kingdom, are authorized out- cilities or USTFs. When members are patient care only under the provisions of stationed in or passing through a this part when stationed in or passing NATO SOFA nation and U.S. facilities through the United States in connec- are unavailable, ensure that members tion with official duties. Public Law make initial application for emergency

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and nonemergency care to military fa- comes responsible for a part of the cilities of the host country, or if appli- medical expenses incurred. cable, to civilian sources under the (c) Dental. (1) With prior approval, NATO SOFA nation’s health care pro- the following may be provided: gram. When hospitalized in Hawaii, (i) All types of treatment (including Alaska, or in a foreign medical facility, operative, restorative, and oral sur- members and responsible commands gical) to relieve pain and abort infec- will comply with OPNAVINST 6320.6. tion. (b) Secondary sources. When either (ii) Prosthetic treatment to restore emergency or nonemergency care is re- extensive loss of masticatory function quired and there are no Federal or or the replacement of anterior teeth NATO SOFA facilities available, care for esthetic reasons. may be obtained from non-Federal (iii) Repair of existing dental pros- sources under this part. theses when neglect of the repair would result in unserviceability of the appli- § 732.14 Authorized care. ance. (iv) Any type of treatment adjunctive (a) Medical. (1) Consultation and to medical or surgical care. treatment provided by physicians or at (v) All x-rays, drugs, etc., required medical facilities, and procedures not for treatment or care in paragraphs involving treatment when directed by (c)(1) (i) through (iv) of this section. COMNAVMEDCOM, are authorized. (2) In emergencies (no prior ap- Such care includes, but is not limited proval), only measures appropriate to to: treatment by physicians, hospital relieve pain or abort infection are au- inpatient and outpatient care, surgery, thorized. nursing, medicine, laboratory and x- (d) Eye refractions and spectacles. In- ray services, physical therapy, eye excludes refractions of eyes by physicians aminations, etc. See § 732.17 for prior and optometrists and furnishing and approval of these services in non- repairing spectacles. emergency situations. (1) Refractions. A refraction may be (2) When transplant (including bone- obtained from a civilian source at Gov- marrow) is the treatment of choice, ernment expense only when Federal fa- COMNAVMEDCOM approval is re- cilities are not available, no suitable quired. If time permits, telephone (A) prescription is in the member’s Health 294–1102, (C) (202) 653–1102 during reg- Record, and the cognizant OMA or re- ular hours or (A) 294–1327, (C) 653–1327 ferring USMTF has given prior ap- after regular duty hours, and followup proval. with a message. Request approval via (2) Spectacles. When a member has no message in nonemergency situations. suitable spectacles and the lack there- (b) Maternity episode. If a member au- of, combined with the delay in obtain- thorized care under this part qualifies ing suitable ones from a Federal source for care under the provisions of would prevent performance of duty; re- § 732.17(c) and delivers in a civilian hos- pair, replacement, or procurement pital, routine newborn care (i.e., nurs- from a civilian source may be author- ery, newborn examination, PKU test, ized upon initiation of an after-the-fact etc.) is a part of the mother’s admis- request per § 732.17. Otherwise, the pre- sion expenses. Regardless of cir- scription from the refractionist, with cumstances necessitating delivery in a proper facial measurements, must be civilian facility or how charges are sep- sent for fabrication to the appropriate arated on the bill, charges will be paid dispensing activity set forth in from funds available for care of the NAVMED COMINST 6810.1. See mother. If the infant becomes a patient § 732.15(g) concerning contact lenses. in his or her own right—through an extension of the birthing hospital stay § 732.15 Unauthorized care. because of complications, transfer to The following are not authorized by another facility, or subsequent admis- this part: sion—the provisions of part 728 of this (a) Chiropractic services. chapter and NAVMEDCOMINST 6320.18 (b) Vasectomies. are applicable, and the sponsor be- (c) Tubal ligations.

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(d) Breast augmentations or reduc- (a) Individual prior approval. (1) Sub- tions. mit requests for prior approval of non- (e) Psychiatric care, beyond the ini- emergency care (medical, dental, or tial evaluation. maternity) from non-Federal sources (f) Court ordered care. to the adjudication authority (§ 732.20) (g) Contact lenses. serving the geographic area where care (h) Other elective procedures. is to be obtained. When the requirements of § 732.14(d)(2) are met and spec- § 732.16 Emergency care requirements. tacles have been obtained, request Only in a bona fide emergency will after-the-fact approval per this paramedical, maternity, or dental services graph. be obtained under this part by or on be- (2) Submit requests on a NAVMED half of eligible personnel without prior 6320/10. Statement of Civilian Medical/ authority as outlined below. Dental Care, with blocks 1 through 7 (a) Medical or dental care. A situation and 19 through 25 completed. Assist- where the need or apparent need for ance in completing the NAVMED 6320/ medical or dental attention does not 10 can be obtained from the health ben- permit obtaining approval in advance. efits advisor (HBA) at the nearest (b) Maternity care. When a condition USMTF. commences or exacerbates during preg- (3) Upon receipt, the adjudication au- nancy in a manner that a delay, caused thority will review the request and, if by referral to a USMTF or USTF, necessary, forward it to the appro- would jeopardize the welfare of the priate chief of service with an expla- mother or unborn child, the following nation of non-Federal care regulations constitutes indications for admission pertaining to the request. The chief of to or treatment at a non-Federal facil- service will respond to the request ity: within 24 hours. The adjudication au- (1) Medical or surgical conditions thority will then complete blocks 26 which would constitute an emergency and 27, and return the original of the in the nonpregnant state. approved/disapproved NAVMED 6320/10 (2) Spontaneous abortion, with first to the member. trimester hemorrhage. (b) Blanket prior approval. (1) Recruit- (3) Premature or term labor with de- ing offices and other activities far re- livery. moved from USMTFs, uniformed serv- (4) Severe pre-eclampsia. ices dental treatment facilities (5) Hemorrhage, second and third tri- (USDTFs), designated USTFs, and VA mester. facilities may request blanket approval (6) Ectopic pregnancy with cardio- for civilian medical and dental care of vascular instability. assigned active duty personnel. Letter (7) Premature rupture of membrames requests should be submitted to the ad- with prolapse of the umbilical cord. judication authority (§ 732.20) assigned (8) Obstetric sepsis. responsibility for the geographic area (9) Any other obstetrical condition of the requestor. that, by definition, constitutes an (2) With full realization that such emergency circumstance. blanket approval is an authorization to obligate the Government without indi- § 732.17 Nonemergency care require- vidual prior approval, adjudication au- ments. thorities will ensure that: Members are cautioned not to obtain (i) Each blanket approval letter nonemergency care from civilian specifies a maximum dollar amount al- sources without prior approval from lowable in each instance of care. the cognizant adjudication authority (ii) The location of the activity rein § 732.20. Obtaining nonemergency ceiving blanket approval authority is care, other than as specified herein, clearly delineated. without documented prior approval (iii) Travel distance and time re- may result in denial by the Govern- quired to reach the nearest USMTF, ment of responsibility for claims aris- USDTF, designated USTF, or VA facil- ing from such care. ity have been considered.

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(iv) Certain conditions are specifi- available. If a member is receiving pre- cally excluded, e.g., psychiatric care natal care from other than a USMTF, and elective surgical procedures. These she should avail herself of the services conditions will continue to require in- of the nearest HBA to effect the dividual prior approval. aforestated services. This statement (v) COMNAVMEDCOM (MEDCOM- should be attached to the approved 333) is made an information addressee leave request. In normal deliveries, re- on each letter of authorization. quests for after-the-fact approval (c) Maternity care. (1) Pregnant active should be denied when members have duty members residing outside Mili- not attempted to adhere to the provi- tary Health Services System (MHSS) sions of this part. inpatent catchment areas of uniformed (4) Upon arrival at the designated services facilities (including USTFs), leave address, members should contact designated in Volumes I, II, and III of the MTF indicated on the statement MHSS Catchment Area Directories, are attached to their leave request. The permitted to choose whether to deliver MTF will make a determination wheth- in a closer civilian hospital or travel to er the member’s leave address falls a USMTF or USTF for delivery. If the within the inpatient catchment area of Government is to assume financial re- a USMTF or USTF with the capability sponsibility for non-Federal maternity of providing needed care. If no such care of any member regardless of where USMTF or USTF exists, the member she resides, the member must obtain will be given the opportunity to choose individual prior approval as outlined in to deliver in a civilian hospital closer paragraph (a) of this section. Adjudica- to her leave address or travel to the tion authorities should not approve re- most accessible USMTF or USTF with quests from members residing within capability for maternity care. an inpatient MHSS catchment area un- (5) Upon determination that civilian less: sources will be used for maternity care, (i) Capability does not (did not) exist the MTF listed on the attachment to at the USMTF or other Federal MTF the leave papers will inform the mem- serving her catchment area. ber that she (or someone acting in her (ii) An emergency situation neces- behalf) must notify that MTF of the sitated delivery or other treatment in member’s admission for delivery or a non-Federal facility (§ 732.16(b)). other inpatient care so that medical (2) Normal delivery at or near the ex- cognizance can be initiated. pected delivery date should not be con- (6) Automatically grant prior or ret- sidered an emergency for members re- roactive approval, as the situation war- siding within an MHSS inpatient rants, to members requiring maternity catchment area where delivery was ex- care while in a travel status in the exe- pected to occur and, unless provided for cution of permanent change of station in this part, will not be reason for de- (PCS) orders. livery in a civilian facility at Govern- (d) Nonemergency care without prior ment expense. approval. (1) If it becomes known that a (3) When granted leave that spans the member intends to seek medical or period of an imminent delivery, the dental care (inpatient or outpatient) pregnant member should request a from a non-Federal source and prior copy of her complete prenatal care approval has not been granted for the records from the prenatal care physi- use of the Nonnaval Medical and Den- cian. The physician should note in the tal Care Program, the member must be record whether the member is clear to counseled by, or in the presence of, a travel. If receiving prenatel care from Medical Department officer. Request a USMTF, the HBA will assist the that the member sign a statement on member in obtaining a statement bear- an SF 600, Chronological Record of ing the name of the MTF (may be an Medical Care, or an SF 603 or 603A, OMA) with administrative responsi- Health Record, Dental as appropriate, bility for the geographic area of her for inclusion in the member’s Health leave address, including the telephone Record. The statement must specify number of the head of the patient ad- that counseling has been accomplished, ministration department or HBA, if and that the member understands the

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significance of receiving unauthorized serving the area of the source of care civilian care. This must be accom- (§ 732.20). This notification is in addi- plished when either personal funds or tion to the requirements of article third party payor (insurance) funds are 4210100 of the Military Personnel Com- intended to be used to defray the cost mand Manual (MILPERSMAN) or Ma- of care. Counseling will include: rine Corps Order 6320.3B, as appro- (i) Availability of care from a Fed- priate. The adjudication authority will eral source. then arrange for transfer of the mem- (ii) The requirement for prior ap- ber and, if appropriate, newborn in- proval if the Government may be ex- fant(s), to a Federal facility or for such pected to defray any of the cost of such other action as is appropriate. care. (i) Name, grade or rate, and social se- (iii) Information regarding possible curity number of patient. compromise of disability benefits (ii) Name of non-Federal medical or should a therapeutic misadventure dental facility rendering treatment. occur. (iii) Date(s) of such treatment. (iv) Notification that should hos- (iv) Nature and extent of treatment pitalization become necessary, or other or care already furnished. time is lost from the member’s place of (v) Need or apparent need for further duty, such lost time may be chargeable treatment (for maternity patients, as ‘‘ordinary leave.’’ need or apparent need for further care (v) Notification that the Government of infant(s) also). cannot be responsible for out-of-pocket (vi) Earliest date on which transfer expenses which may be required by the to a Federal facility can be effected. insurance carrier or when the member (vii) Telephone number of attending does not have insurance which covers physician and patient. the cost of contemplated care. (2) Should movement be delayed due (vi) Direction to report to a uni- to actions of the member or the mem- formed services medical officer (pref- ber’s family, payment may be denied erably Navy) upon completion of treat- for all care received after provision of ment for determination of member’s written notification by the adjudica- fitness for continued service. tion authority. (2) If it becomes known that a mem- (3) The denial is § 732.18(a)(2) will be ber has already received non-Federal for care received after the member’s medical care without prior authoriza- condition has stabilized and after the tion, refer the member to a uniformed cognizant adjudication authority has services medical officer (preferably made a request to the attending physi- Navy) to determine fitness for contin- cian and hospital administration for ued service. At this time, counseling the member’s release from the civilian measures delineated in paragraph facility. This notification must specify: (d)(1)(iii), (iv), and (v) of this section (i) Date and time the Navy will ter- must be taken. minate its responsibility for payment. (ii) That care rendered subsequent to § 732.18 Notification of illness or in- receipt of the written notification is at jury. the expense of the member. (a) Member’s responsibility. (1) If able, (b) Adjudication authority. As soon as members must notify or cause their it is ascertained that a member is parent command, the nearest naval ac- being treated in a nonnaval facility, tivity, or per OPNAVINST 6320.6, the adjudication authorities must make nearest U.S. Embassy or consulate the notifications required in when hospitalized in a foreign medical MILPERSMAN, article 4210100.11. See facility to be notified as soon as pos- part 728 of this chapter on message sible of the circumstances requiring drafting and information addressees. medical or dental attention in a non- (1) Article 4210100.11 of the Federal facility. The member will also MILPERSMAN requires submission of assure (request the facility to make no- a personnel casualty report, by priority tification if unable to do so personally) message, to the primary and secondary that the following information is next of kin (PNOK/SNOK) of Navy passed to the adjudication authority members seriously or very seriously ill

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or injured, and on those terminally ill (i) For nonemergency care with prior (diagnosed and confirmed). While sub- approval, submit the NAVMED 6320/10 mission of the personnel casualty re- containing the prior approval, after port to the PNOK and SNOK is a re- completing blocks 8 through 18. sponsibility of the member’s command, (ii) For emergency care (or non- adjudication authorities must advise emergency care without prior ap- the member’s command when such a proval), submit a NAVMED 6320/10 member is being treated or diagnosed after completing blocks 1 through 18. by non-Federal sources. The message Assure that the diagnosis is listed in will also request forwarding of the block 10. If prior approval was not ob- member’s service and medical records tained, state in block 11 circumstances to the personnel support detachment necessitating use of non-Federal facili- (PSD) supporting the activity in which ties. the OMA is located. Additionally, the (iii) Signature by the member in notification should contain a request block 17 implies agreement for release for appropriate orders, either tem- of information to the responsible adju- porary additional duty (TEMADD) or dication authority receiving the claim temporary duty (TEMPDU). for processing. Signature by the certi- (i) Request TEMADD orders if care is fying officer in block 18 will be consid- expected to terminate within the time ered certification that documentation constraints imposed for these orders. has been entered in the member’s (ii) Request TEMDU Under Treat- Health Record as directed in article 16– ment orders for members hospitalized 24 of MANMED. in a NMTF within the adjudication (2) Itemized bills. The original and authority’s area of responsibility. three copies of itemized bills to show: (i) Dates on or between which serv- (2) Make prompt message notifica- ices were rendered or supplies fur- tion to the member’s commanding offi- nished. cer when apprised of any medical con- (ii) Nature of and charges for each dition, including pregnancy, which will item. now or in the foreseeable future result (iii) Diagnosis. in loss of a member’s full duty services (iv) Acknowledgment of receipt of in excess of 72 hours. Mark the message the services or supplies on the face of ‘‘Commanding Officer’s Eyes Only.’’ the bill or by separate certificate. The acknowledgment must include the § 732.19 Claims. statement. ‘‘Services were received and (a) Member’s responsibility. Members were satisfactory.’’ receiving care are responsible for prep- (3) Claims for reimbursement. To effect aration and submission of claims to the reimbursement, also submit the origi- cognizant adjudication authority iden- nal and three copies of paid receipts tified in § 732.20. A complete claim in- and an SF 1164. Claim for Reimburse- cludes: ment for Expenditures on Official Busi- (1) NAVMED 6320/10, Statement of Ci- ness, completed per paragraphs 046377– vilian Medical/Dental Care. In addition 2 a and b of the Naval Comptroller to its use as an authorization docu- Manual (NAVCOMPT MAN). ment, the original and three copies of a (4) Notice of eligibility (NOE) and line NAVMED 6320/10 are required to adju- of duty (LOD) determination. When a re- dicate claims in each instance of sick- servist claims benefits for care re- ness, injury, or maternity care when ceived totally after the completion of treatment is received from a non-Fed- either an active duty or active duty for eral source under the provisions of this training period, the claim should also part. The form should be prepared by a include: naval medical or dental officer, when (i) An NOE issued per SECNAVINST practicable, by the senior officer 1770.3. present where a naval medical or den- (ii) An LOD determination from the tal officer is not on duty, or by the member’s commanding officer. member receiving care when on de- (b) Adjudicating authority’s responsi- tached duty where a senior officer is bility. Reviewing and processing prop- not present. erly completed claims and forwarding

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approved claims to the appropriate dis- and may be the responsibility of the re- bursing office should be completed ferring USMTF. See § 732.11(p) for the within 30 days of receipt. Advice may definition of supplemental care. be requested from COMNAVMEDCOM (2) Dispproval. If a determination is (MEDCOM–333 (A/V 294–1127)) for med- made to disapprove a claim, provide ical or MEDCOM–06 (A/V 294–1250)) for the member (and provider of care, when dental on unusual or questionable in- applicable) a prompt and courteous let- stances of care. Advise claimants of ter stating the reason for the dis- any delay experienced in processing approval and the appropriate avenues claims. of appeal as outlined in § 732.24. (1) Review. The receiving adjudication (3) Processing. Subpart C contains the authority will carefully review each chargeable accounting classifications claim submitted for payment or reim- and Standard Document Numbers bursement to verify whether: (SDN) to be cited on the NAVCOMPT (i) Claimant was entitled to benefits 2277, Voucher for Disbursement and/or (i.e., was on active duty, active duty Collection, on an SF 1164 submitted per for training, inactive duty training, paragraph (a)(3) of this section, and on was not an unauthorized absentee, supporting documents of approved etc.). As required by part 728 of this claims before submission to disbursing chapter, a Defense Enrollment Eligi- offices. bility Reporting System (DEERS) eli- (i) For payment to providers of care, gibility check must be performed on a NAV COMPT 2277 will be prepared claims to all claimants required to be and certified approved for payment by enrolled in DEERS. the adjudicating authority. This form (ii) Care rendered was due to a bona must accompany the NAVMED 6320/10 fide emergency. (NOTE: When questions and supporting documentation per arise as to the emergency nature of paragraph 046393–1 of the care, forward the claim and all sup- NAVCOMPTMAN. porting documentation to the appropriate clinical specialist at the nearest (ii) Where reimbursement is re- naval hospital for review.) quested, the SF 1164 submitted per (iii) Prior approval was granted if a § 732.19(a)(3) will be completed, per bona fide emergency did not exist. paragraph 046377 of the (NOTE: If prior approval was not ob- NAVCOMPTMAN, and certified ap- tained and the condition treated is de- proved for payment by the adjudicating termined to have been nonemergent, authority. This form must accompany the claim may be denied.) Consider- the NAVMED 6320/10 and supporting ation should always be given to cases documentation. that would have received prior ap- (c) Amount payable. Amounts payable proval but, due to lack of knowledge of are those considered reasonable after the program, the member did not sub- taking into consideration all facts. mit a request. Normally, payment should be approved (iv) Care rendered was authorized at rates generally prevailing within the under the provisions of this part. geographic area where services or sup- (v) Care rendered was appropriate for plies were furnished. Although rates the specific condition treated. (NOTE: specially established by the Veterans When questions arise regarding appro- Administration, CHAMPUS, or those priateness of care, forward all docu- used in Medicare are not controlling, mentation to a clinical specialist at they should be considered along with the nearest naval hospital for review. If other facts. care is determined to have been inap- (1) Excessive charges. If any charge is propriate, the claim may be denied to excessive, the adjudication authority the extent the member was negligent.) will advise the provider of care of the (vi) Claimed benefits did not result conclusion reached and afford the pro- from a referral by a USMTF. If the vider an opportunity to voluntarily re- member was an inpatient or an out- duce the amount of the claim. If this patient in a USMTF immediately prior does not result in a proper reduction to being referred to a civilian source of and the claim is that of a physician or care, the civilian care is supplemental dentist, refer the difference in opinions

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to the grievance committee of the pro- ana, Iowa, Kentucky, Maine, Massa- vider’s professional group for an opin- chusetts, Michigan, Minnesota, Mis- ion of the reasonableness of the charge. souri, New Hampshire, New Jersey, If satisfactory settlement of any claim New York, Ohio, Pennsylvania, Rhode cannot thus be made, forward all docu- Island, Vermont, and Wisconsin are mentation to COMNAVMEDCOM served by 1 ODA and 1 OMA: (MEDCOM–333) for decision. Charges (i) Responsibility for dental matters determined to be above the allowed for States in the Northeast Region is amount or charges for unauthorized vested in: Commander, Naval Medical services are the responsibility of the Command, Northeast Region, Office of service member. Dental Affairs, Great Lakes, IL 60088, (2) Third party payment. Do not with- Tele: (A/V) 792–3940 or (C) (312) 688–3940. hold payment while seeking funds from (ii) Responsibility for medical mat- health benefit plans or from insurance ters for States in the Northeast Region policies for which premiums are paid is vested in: Commander, Naval Med- privately by service members (see ical Command, Northeast Region, Of- § 732.22 for possible recovery of pay- fice of Medical Affairs, Great Lakes, IL ments action). 60088, Tele: (A/V) 792–3950 or (C) (312) (3) No-fault insurance. In States with 688–3950. no-fault automobile insurance require- (2) National Capital Region. For the ments, adjudication authorities will States of Maryland and West Virginia; notify the insurance carrier identified the Virginia counties of Arlington, in item 16 of the NAVMED 6320/10 that Fairfax, Loudoun, and Prince William; Federal payment of the benefits in this the Virginia cities of Alexandria, Falls part is secondary to any no-fault insur- Church, and Fairfax; and the District ance coverage available to the poten- of Columbia, responsibility for medical tially covered member. and dental matters is vested in: Com- (d) Duplicate payments. Adjudication mander, Naval Medical Command, Na- authorities and disbursing activities tional Capital Region, Office of Medical should take precautions against dupli- Affairs, Bethesda, MD 20814, Tele: (A/V) cate payments per paragraph 046073 of 295–5322 or (C) (301) 295–5322. the NAVCOMPTMAN. (3) Mid-Atlantic Region. For the States of North Carolina, South Caro- § 732.20 Adjudication authorities. lina, and all areas of Virginia south (a) General. Controlling activities for and west of Prince William and medical care in the United States are Loudoun counties, responsibility for designated as ‘‘offices of medical af- medical and dental matters is vested fairs’’ (OMA) and for dental care, ‘‘of- in: Commander, Naval Medical Com- fices of dental affairs’’ (ODA). mand, Mid-Atlantic Region, 6500 Hamp- NAVMEDCOMINST 6010.3 delineates ton Boulevard, Norfolk, VA 23502, Attn: responsibilities and functional tasks of Office of Medical/Dental Affairs, Tele: OMAs and ODAs, including monthly re- (A/V) 565–1074/1075 or (C) (804) 445–1074 porting of receipt of claims and claims or 1075. payment. Commanders of geographic (4) Southeast Region. For the States of naval medical commands must commu- Alabama, Arkansas, Florida, Georgia, nicate with all activities in their re- Louisiana, Mississippi, Oklahoma, Ten- gions to ensure that messages and med- nessee, and Texas, medical and dental ical cognizance reports are properly responsibilities are vested in: Com- furnished per higher authority direc- manding Officer, Naval Medical Clinic, tives. Code O1A, New Orleans, LA 70146, Tele: (b) Within the United States (less Ha- (A/V) 485–2406/7/8 or (C) (504) 361–2406 waii). For the 48 contiguous United 2407 or 2408. States, the District of Columbia, and (5) Southwest Region. For the States Alaska, the following six regions are of Arizona and New Mexico; the coun- responsible for care rendered or to be ties of Kern, San Bernadino, San Luis rendered within their areas of responsi- Obispo, Santa Barbara, and all other bility. California counties south thereof; the (1) Northeast Region. The States of community of Bridgeport, California Connecticut, Delaware, Illinois, Indi- (Marine Corps cold-weather training

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site); and Nevada, except for NAS Luzon, Republic of the Philippines), for Fallon and its immediate area; medical care rendered in Afghanistan, Ban- and dental responsibilities are vested gladesh, Hong Kong, India, Nepal Paki- in: Commander, Naval Medical Com- stan, the Philippines, Southeast Asia, mand, Southwest Region, Office of Sri Lanka and Taiwan. Medical Affairs, San Diego, CA 92134– (3) Commanding Officer, U.S. Naval 7000, Tele: (A/V) 987–2611 or (C) 233–2611. Hospital, FPO Seattle 98765–1600 (U.S. (6) Northwest Region. The States of Naval Hospital, Yokosuka, Japan), for Alaska, Colorado, Idaho, Kansas, Mon- care rendered in Japan, Korea, and tana, Nebraska, North Dakota, Oregon, Okinawa. South Dakota, Utah, Washington, and (4) Commanding Officer, U.S. Naval Wyoming; the counties of Inyo, Kings, Hospital, FPO San Francisco 96630–1600 Tulare, and all other counties of Cali- (U.S. Naval Hospital, Guam, Mariana fornia north thereof; and NAS Fallon, Islands), for care rendered in New Zea- Nevada and its immediate area are land and Guam. served by 2 OMAs and 1 ODA: (5) Commanding Officer, U.S. Naval (i) Responsibility for dental matters Communications Station, FPO San for the area of responsibility of the Francisco 96680–1800 (U.S. Naval Com- Northwest Region is vested in: Com- munications Station, Harold E. Holt, mander, Naval Medical Command, Exmouth, Western Australia), for care Northwest Region, Office of Dental Af- rendered in Australia. fairs, Oakland, CA 94267–5025, Tele: (A/ (6) Commanding Officer, U.S. Naval V) 855–6200 or (C) (415) 633–6200. (ii) Responsibility for medical mat- Air Station, FPO New York 09560 (U.S. ters for the States of Colorado, Kansas, Naval Air Station, Bermuda), for care and Utah; the California counties of rendered in Bermuda. Inyo, Kings, Tulare, and all other coun- (7) Commanding Officer, U.S. Naval ties of California north thereof; and Hospital, FPO Miami 34051 (U.S. Naval NAS Fallon, Nevada and its immediate Hospital, Roosevelt Roads, Puerto area is vested in: Commander, Naval Rico), for maternity and medical care, Medical Command, Northwest Region, and Commanding Officer, U.S. Naval Oakland, CA 94627–5025, Attn: Office of Dental Clinic, FPO Miami 34051 (U.S. Medical Affairs, Tele: (A/V) 855–5705 or Naval Dental Clinic, Roosevelt Roads, (C) (415) 633–5705. PR), for dental care rendered in Puerto (iii) Responsibility for medical mat- Rico, the Virgin Islands, and other Car- ters for the States of Alaska, Idaho, ibbean Islands. Montana, Nebraska, North Dakota, Or- (8) Commanding Officer, Naval Med- egon, South Dakota, Washington, and ical Clinic, Box 121, Pearl Harbor, HI Wyoming is vested in: Commanding Of- 96860, for maternity and medical care, ficer, Naval Medical Clinic, Naval Sta- and Commanding Officer, Naval Dental tion, Seattle, WA 98115, Attn: Office of Clinic, Box 111, Pearl Harbor, HI 96860, Medical Affairs, Tele: (A/V) 941–3823 or for dental care rendered in the State of (C) (206) 526–3823. Hawaii, Midway Island, and the Central (c) Outside the United States (plus Ha- Pacific basin. waii). For all areas outside the United (9) The OMA for either the Southeast States plus Hawaii, the following ac- Region or the Southwest Region for tivities are vested with responsibility care rendered in Mexico to members for approval or disapproval of requests stationed within the respective areas of and claims for maternity, medical, and responsibility of these OMAs. Forward dental care: claims for care rendered in Mexico to (1) Executive Director, all other personnel to Commander, OCHAMPUSEUR, U.S. Army Medical Naval Medical Command, Washington, Command, APO New York 09102, for DC 20372–5120 (MEDCOM–333). care rendered within the U.S. European (10) Commander, Naval Medical Com- Command, Africa, the Malagasy Repub- mand, Washington, DC 20372–5120 lic, and the Middle East. (MEDCOM–333) for inpatient and out- (2) Commanding Officer, U.S. Naval patient emergency and nonemergency Hospital, FPO San Francisco 96652–1600 care of active duty Navy and Marine (U.S. Naval Hospital, Subic Bay, Corps members in Canada and under

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the circumstances outlined in para- § 732.21 Medical board. graph (d) of this section. When adjudication authorities un- (11) Outside the 50 United States, cover conditions which may be chronic commanding officers of operational or otherwise potentially disabling, units may either approve claims and they should make a determination direct payment by the disbursing offi- (with help from appropriate clinical cer serving the command or forward specialists) as to the need for a medical claims to the appropriate naval med- board. Chapter 18 of MANMED and ical command in paragraphs (b)(1) Medical Disposition and Physical through (c)(9) of this section. This is a Standards Notes, available from local policy decision to enhance the COMNAVMEDCOM (MEDCOM–25), pro- maintenance of good public relations. vide guidance. (12) The appropriate command in (a) Chronic conditions requiring a paragraphs (b)(1) through (c)(9) of this medical board include (but are not lim- section for care rendered aboard com- ited to): mercial vessels en route to a location (1) Arthritis, within the geographic areas listed. (2) Asthma, (13) The commanding officer author- (3) Diabetes, izing care in geographical areas not (4) Gout, specifically delineated elsewhere in (5) Heart disease, this section. (6) Hypertension, (d) The Commander, Naval Medical (7) Peptic ulcer disease, Command (MEDCOM–333), Navy Depart- (8) Psychiatric conditions, and ment, Washington, DC 20372–5120. Under (9) Allergic conditions requiring de- the following circumstances, responsi- sensitization. bility is vested in COMNAVMEDCOM (b) Other potentially disabling or chronic conditions may be referred to a for adjudication of claims: medical board by the adjudication au- (1) For reservists who receive treat- thority with the concurrence of an ap- ment after completion of their active propriate naval clinical specialist and duty or inactive duty training as pre- the commander of the regional medical scribed in § 732.12(b). command. (2) For care rendered in Mexico to personnel stationed outside the areas § 732.22 Recovery of medical care pay- of responsibility of the Southeast and ments. Southwest Regions. Adjudication authorities must sub- (3) For care rendered to members sta- mit evidence of payment to the action tioned in or passing through countries JAG designee per chapter 24 of the in Central and South America. Manual of the Judge Advocate General (4) For outpatient care rendered (JAGMAN), in each instance of pay- NATO active duty members. ment where a third party may be le- (5) When Departmental level review gally liable for causing the injury or is required prior to approval, adjudica- disease treated, or when a Government tion, or payment. These claims: claim is possible under workers com- (i) Will be considered on appeal. pensation, no-fault insurance, or under medical payments insurance (all auto- (ii) Must be forwarded by the member mobile accident cases). through the adjudication authority (a) To assist in identifying possible chain of command (In instances of un- third party liability cases, item 16 of usual or controversial denial of claims, each NAVMED 6320/10 must be com- the adjudication authority may for- pleted whenever benefits are received ward claims to COMNAVMEDCOM on in connection with a vehicle accident. appeal, via the chain of command, with Adjudication authorities should return notification to the member.). for completion, as applicable, any (6) For all inpatient and outpatient claim received without item 16 com- care of active duty Navy and Marine pleted. Corps members stationed in the United (b) The front of a NAVJAG Form States who receive care in Canada. 5890/12 (Hospital and Medical Care, 3rd

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Party Liability Case) must be com- is subsisted at Department of the Navy pleted and submitted by adjudication expense while hospitalized in a authorities with evidence of payment. nonnaval treatment facility. Subpart C Block 4 of this form requires an ap- contains the creditable accounting pended statement of the patient or an classification for inpatient subsistence accident report, if available. To ensure collections. that Privacy Act procedures are accomplished and documented, the per- § 732.24 Appeal procedures. son securing such a statement from a When a claim for care or a request recipient of care must show the recipi- for prior approval for nonemergency ent the Privacy Act statement printed care is initially denied by an adjudica- at the bottom of the form prior to se- tion authority, the member may appeal curing such a statement. The member the denial as outlined below. Any level should be asked to sign his or her name in the appeal process may over-rule the beneath the statement. previous decision and order payment of (c) For care rendered in States with the claim in whole or in part or grant no-fault insurance laws, comply with the request for prior approval of care. procedures outlined in § 732.19(c)(3). (a) Level I—Reconsideration by the adjudication authority making the ini- § 732.23 Collection for subsistence. tial denial. The member should submit The Navy Pay and Personnel Proce- any additional information that may dures Manual provides guidance re- mitigate the initial denial. garding pay account checkage proce- (b) Level II—Consideration by the dures to liquidate subsistence charges commander of the regional medical incurred by members entitled to care command having cognizance over the under the provisions of this part. Such adjudication authority which upheld members must also be entitled to basic the initial denial on reconsideration. allowance for subsistence (BAS) while (c) Level III—Consideration by hospitalized at Government expense. COMNAVMEDCOM (MEDCOM–333). The responsible activity (the adjudication authority or the naval MTF to which such a member is transferred) Subpart C—Accounting Classi- should follow procedures outlined in fications for Nonnaval Med- the Navy Pay and Personnel Proce- ical and Dental Care Ex- dures Manual when an eligible officer penses and Standard Docu- or enlisted member of the naval service ment Numbers

§ 732.25 Accounting classifications for nonnaval medical and dental care expenses.

Sub- OBJ.** Approp. Head Class BCN SA AAA TT PAA Cost Code Purpose

17*1804 188M 000 00018 M 000179 2D MDQ000 990010000MDQ Outpatient Care Serv- ice Ex- penses. 12 17*1804 188M 000 00018 M 000179 2D MDT000 990010000MDT Outpatient Care Supply Ex- penses. 13 17*1804 188M 000 00018 M 000179 2D MDE000 990010000MDE Ambulance Expenses. 1 17*1804 188M 000 00018 M 000179 2D MDQI00 990020000MDQ Inpatient Care Service Ex- pense. 12 17*1804 188M 000 00018 M 000179 2D MDTI00 990020000MDT Inpatient Care Supply Ex- penses. 13

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Sub- OBJ.** Approp. Head Class BCN SA AAA TT PAA Cost Code Purpose

17*1804 188M 006 00018 M 000179 3C MDZI00 990020000MDZ Inpatient Sub- sistence Collec- tions. 1

NOTES: *For the third digit of the appropriation, enter the last digit of the fiscal year current at the time claim is approved for payment. **Refer to NAVCOMPT Manual par. 027003 for appropriate Expenditure Category Codes when disbursement or collection involves a foreign or U.S. Contractor abroad. 1 Not applicable when care is procured from non-DOD sources for a patient receiving either inpatient or outpatient care at a naval medical facility. In such instances, the expenses incurred are payable from operations and maintenance funds available for support of the naval medical facility. 2 Service expenses include: hospital, emergency room clinic, office fees; physician and dentist professional fees; laboratory, radiology, operating room, anesthesia, physical therapy, and other services provided. 3 Supply expenses include: medications and pharmacy charges; IV solutions; whole blood and blood products; bandages; crutches; prosthetic devices; needles and syringes; and other supplies provided.

§ 732.26 Standard document numbers. 2277 (Voucher for Disbursement and/or Collection), NAVCOMPT 1164 (Claim Adjudication authorities will assign for Reimbursement for Expenditures on to each claim approved for payment, a Official Business) and on all other doc- unique 15 position alpha/numeric umentation accompanying claims. standard document number (SDN). Compose SNDs per the following exam- Prominently display this number on ple: N0016887MD00001 or the NAVMED 6320/10, the NAVCOMPT N0016887RV00001.

1 2 thru 6 7 & 8 9 & 10 11 thru 15 Position Entry MD or N 00168 87 RV 00001

Position Data entry

1 ...... ‘‘N’’ identifies Navy. 2 thru 6 ...... Unit Identification Code of document issuing activity. 7 and 8 ...... Last two digits of the fiscal year in which the claim is approved for payment. 9 and 10, ...... For NAVCOMPT 2277s, ‘‘MD’’ identifies the document as Miscellaneous Financial Docu- ment. or, 9 and 10 ...... For SF 1164s, ‘‘RV’’ identifies the document as a Reimbursement Voucher. 11 thru 15 ...... Consecutively assigned five digit serial number beginning with ‘‘00001’’ each fiscal year. Each subsequent claim will then be serially numbered ‘‘00002’’, ‘‘00003’’, etc.

PART 733—ASSISTANCE TO AND AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013; 37 U.S.C. 101, 401, 403; 50 U.S.C. App. 2210; E.O. SUPPORT OF DEPENDENTS; PA- 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as TERNITY COMPLAINTS amended.

Sec. SOURCE: 44 FR 42190, July 19, 1979, unless 733.1 Rates of basic allowance for housing otherwise noted. (BAH). 733.2 Delegations. § 733.1 Rates of basic allowance for 733.3 Information and policy on support of housing (BAH). dependents. (a) Except as otherwise provided by 733.4 Complaints of nonsupport and insuffi- law, a member of the naval service en- cient support of dependents. titled to basic pay is entitled to a BAH 733.5 Determination of paternity and support of illegitimate children. at the monthly rates according to the

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pay grade to which he or she is as- Federal Building, Cleveland, OH 44199, signed, in accordance with 37 U.S.C. with respect to personnel of the Navy, 403. and the Head, Personal Affairs Branch, (b) The term ‘‘dependent’’ with re- Manpower Department, Headquarters spect to a member of the naval service, United States Marine Corps, Wash- as used in this part, means: ington, DC 20380, with respect to per- (1) His or her spouse; sonnel of the Marine Corps, have been (2) His or her unmarried child (in- granted the authority by the Secretary cluding any of the following categories of the Navy to make determinations of children if such child is in fact de- including determinations of depend- pendent on the member: A stepchild; ency and relationship when required by an adopted child; or an illegitimate legislation or policy for eligibility for child whose alleged member-parent has BAH, transportation and medical care been judicially decreed to be the parent in behalf of dependents of Navy and of the child or judicially ordered to Marine personnel and to administer contribute to the child’s support, or matters involving adequacy of support whose parentage has been admitted in for dependents and waivers of support writing by the member) who either: of a spouse, and on the basis of new evi- (i) Is under 21 years of age; or dence or for other good cause to recon- (ii) Is incapable of self-support be- sider or modify any such determina- cause of a mental or physical inca- tion. pacity, and in fact dependent on the member for over one-half of his or her [44 FR 42190, July 19, 1979, as amended at 65 support; and FR 62617, Oct. 19, 2000] (3) His or her parent (including a stepparent or parent by adoption, and § 733.3 Information and policy on sup- any person, including a former step- port of dependents. parent, who has stood in loco parentis (a) Policy—(1) General. The naval to the member at any time for a con- service will not be a haven or refuge for tinuous period of at least 5 years before personnel who disregard or evade their he or she became 21 years of age) who obligations to their families. All mem- is in fact dependent on the member for bers of the naval service are expected over one-half of his or her support; to conduct their personal affairs satis- however, the dependency of such a par- factorily. This includes the require- ent is determined on the basis of an af- ment that they provide adequate and fidavit submitted by the parent and continuous support for their lawful de- any other evidence required under reg- pendents and comply with the terms of ulations prescribed by the Secretary of separation agreements and court or- the Navy, and he or she is not consid- ders. Failure to do so which tends to ered a dependent of the member claim- bring discredit on the naval service is a ing the dependency unless: proper subject of command consider- (i) The member has provided over ation for initiation of court-martial one-half of his or her support for the proceedings or other administrative or period prescribed by the Secretary; or disciplinary action. (ii) Due to changed circumstances (2) Adequacy of support. Every mem- arising after the member enters on ac- ber has an inherent natural and moral tive duty, the parent becomes in fact obligation to support his or her spouse dependent on the member for over one- and family. What is adequate and rea- half of is or her support. sonably sufficient support is a highly The relationship between a stepparent complex and individual matter depend- and his or her stepchild is terminated ent on numerous factors, and may be by the stepparent’s divorce from the resolved permanently only in the civil parent by blood. courts. Salient factors that should be [44 FR 42190, July 19, 1979, as amended at 65 considered are the pay of the member, FR 62617, Oct. 19, 2000] any other private income or resources of the member and the dependents, the § 733.2 Delegations. cost of necessities and every day living The Director, Navy Family Allow- expenses and financial obligations of ance Activity, Anthony J. Celebrezze the dependents, and the expenses and

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other financial obligations of the mem- solution of the marriage through di- ber in relation to his or her income. vorce, unless the judicial decree or The Department of the Navy does not order specifically negates the obliga- and cannot act as a court in these mat- tions of the member to support a child ters. It is desired that the amount of or children of the marriage. The fact support to be provided for dependents that a divorce decree is silent relative either be established by mutual under- to support of minor children or does standing between the parties concerned not mention a child or children will or adjudicated in the civil courts. The not be considered as relieving the serv- support scales set forth in paragraphs ice member of the inherent obligation (b) and (c) of this section are not in- to provide support for the child or chil- tended as a fixed rule. They are in- dren of the marriage. In many cases, tended as guidelines and the actual the courts may not be cognizant of the support may be increased or decreased existence of a child or children, or may as the facts and circumstances warrant not have jurisdiction over the child or until the amount of support to be fur- children. A commanding officer has nished is settled by agreement of the discretion to withhold action for al- parties or adjudicated by the civil courts. Because of the inherent arbi- leged failure to support a child under trary and temporary nature of the sup- the following conditions: port scales set forth below, it is not in- (i) Where the member cannot ascer- tended that they be used as bases for tain the whereabouts and welfare of any judicial proceedings, for to do so the child concerned. would lend excessive credence to ad- (ii) Where it is apparent that the per- ministrative tools which have been de- son requesting support for a child does signed for use only within the Navy not have physical custody of the child. and the Marine Corps. (iii) Where the member has been (3) Support of a lawful wife. The laws granted custody of the child by court of jurisdictions in the United States order but does not have physical con- impose a legal obligation upon a hus- trol of the child and the member is band to support his wife. Exemptions ready, willing, and able to care for and from support of a lawful wife may be in support the child if physical control is the form of an order of a civil court of obtained. competent jurisdiction, relinquishment (6) Adopted children. The natural par- by the wife or mutual agreement of the ents of an adopted child are relieved of parties, or a waiver of the naval sup- the obligation to support the child as port requirement granted by the Direc- such duty is imposed on the adoptive tor, Navy Family Allowance Activity parents. A Navy or Marine Corps mem- or the Commandant of the Marine ber who contemplates the adoption of a Corps, as appropriate. child should be aware of the legal obli- (4) Payments of alimony. Dependents gation to provide continuous support for whom basic allowance for quarters or other allowances are payable are de- for such child during minority. fined by law. For purposes of qualifying (7) Entitlement to basic allowance for for basic allowance for quarters, med- quarters. Entitlement of members to ical care or other benefits, a former basic allowance for quarters on behalf spouse is not a dependent even though of dependents is provided by statute. alimony has been decreed. Members are No member should be denied the right expected to comply with the terms of to submit a claim or application for court orders or divorce decrees which basic allowance for quarters, nor adjudge payments of alimony even should any command refuse or fail to though basic allowance for quarters is forward any such claim or application. not payable. In cases involving parents, the member (5) Support of children. The duty of a should furnish an estimate of the de- member to support his or her minor pendency situation to the best of his or children is not affected by desertion or her knowledge. Commanding officers other misconduct on the part of the should not contact parents for depend- spouse. The obligation to support a ency information to include in the child or children is not affected by dis- member’s application. This delays the

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application and serves no useful pur- (2) Single family. (i) For a single fam- pose, as such cases are thoroughly in- ily living in Government housing (ci- vestigated by the Navy Family Allow- vilian spouse): interim support shall be ance Activity or Headquarters Marine $200.00 per supported person, up to a Corps, which obtains necessary depend- maximum of 1⁄3 gross pay, per month. ency affidavits directly from the par- (ii) For a single family not living in ents. Any person, including a service Government housing (civilian spouse): member or dependent who obtains an interim support shall be either $200.00 allowance by fraudulent means is sub- per supported family member, or BAH ject to criminal prosecution. at the ‘‘with dependents’’ rate, which- (8) Application of the rule based on ever is greater, up to a maximum of 1⁄3 Robey v. United States 71 Ct. Cl. 561. De- gross pay, per month. terminations that no dependency exists (3) Multiple families (not including a may be made in disputed cases—if a spouse in the armed forces). Interim sup- member does not contribute to the support for each family member shall be port of spouse and child at least to the either $200.00 per supported family extent of: member, or the pro rata share of BAH (i) The full amount of his/her basic at the ‘‘with dependents’’ rate, which- allowance for quarters, or ever is greater, up to a maximum of 1⁄3 (ii) An amount specified in a court gross pay, per month. order or legal separation agreement, or (4) Both spouses in the armed forces. (i) (iii) An amount agreed to by the par- No children of the marriage: no support ties as acceptable, adequate support, obligation, regardless of any disparities whichever is lesser. Pertinent decisions in pay grade. of the Court of Claims or Comptroller General will be followed in determina- (ii) All the children of the marriage tions of dependency. in the custody of one spouse: interim support shall be either $200.00 per sup- (b) Navy members. (1) The amount of ported child, or BAH at the ‘‘with de- support to be provided in the absence pendents’’ rate, whichever is greater, of a mutual agreement or court order 1 is as follows: up to a maximum of ⁄3 gross pay, per month. For spouse only—1⁄3 gross pay (iii) If custody of children of the mar- For spouse and one minor child—1⁄2 gross pay riage is divided between the two par- For spouse and two or more children—3⁄5 ents: interim support shall be either gross pay $200.00 per supported family member, For one minor child—1⁄6 gross pay or the pro rata share of BAH at the For two minor children—1⁄4 gross pay ‘‘with dependents’’ rate, whichever is For three or more children—1⁄3 gross pay greater, up to a maximum of 1⁄3 gross (2) For purposes of this support pay, per month. guide, gross pay will include basic pay (5) Support amounts required pursu- and BAH, but does not include haz- ant to this section will be paid until a ardous duty pay, sea or foreign duty court order or written agreement is ob- pay, incentive pay, or basic allowance tained. for subsistence. (6) Form and timing of financial sup- (c) Marine Corps members. (See MCO port payments 5800.16A, Marine Corps Manual for (i) Unless otherwise required by court Legal Administration order or by written financial support (LEGADMINMAN)) agreement, a financial support pay- (1) In the absence of a court order or ment will be made in one of the fol- a written agreement between the par- lowing ways: ties as to an amount of support to be (A) Check. furnished by the Marine, the following (B) Money order. shall apply to establish interim support requirements. Note that gross pay (C) Electronic transfer. is defined as basic pay and BAH, but (D) Voluntary allotment. does not include hazardous duty pay, (E) Cash. incentive pay, or basic allowance for (F) Involuntary allotment. subsistence. (G) Garnishment.

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(ii) As an exception to paragraph command from the specific require- 15002.6a of the LEGADMINMAN, a comments of this regulation in the situa- manding officer may direct compliance tions described below. A commanding with the financial support require- officer may reconsider any prior deci- ments of this section by making in- sion made by himself/herself or by a kind financial support. For example, prior commanding officer: paying non-Government housing ex- (A) When the Marine cannot deter- penses on behalf of family members, mine the whereabouts and welfare of automobile loans, or charge accounts. the child concerned; (7) Alimony and child support. (i) De- (B) When it is apparent that the per- pendents for whom BAH or other allow- son requesting support for the child ances are payable are defined by law. does not have physical custody of the For purposes of qualifying for BAH, child; medical care, or other benefits, a (C) When the Marine has been the former spouse is not a dependent even victim of a substantiated instance of though alimony has been decreed. Ma- physical abuse (this section applies rines are expected to comply with the only to a requirement to support a terms of court orders which adjudge al- spouse, not dependent children. Com- imony payments (even though BAH is manding officers are strongly encour- not payable) until the responsibility aged to consult the installation family for compliance is terminated by a counseling center concerning such court of competent jurisdiction; a writ- issues. In addition, commanders should ten agreement between the persons exercise extreme caution in denying concerned; relinquishment by the dependent support in cases where the former spouse in writing; or the waiver servicemember is also a perpetrator of of the support requirement is granted spousal abuse.); or by the general court-martial (GCM) au- (D) The dependent is in jail. thority in writing. (vi) All command directed support (ii) If the decree is silent as to ali- waivers shall be in writing and a copy mony payments, it is presumed that shall be provided to the disenfranchised the court did not intend such pay- family member by the command. The ments. command shall also retain a copy. Al- (iii) When a valid court order exists leged verbal support waivers shall be and the Marine concerned is finan- given no force or effect. cially unable to comply, the Marine (vii) The natural parents of an adopt- will be advised that noncompliance ed child are relieved of the obligation with the terms of that order renders to support the child as such duty is im- the Marine liable to further civil court posed on the adoptive parent. A Marine action. who contemplates the adoption of a (iv) The duty of Marines to support child should be aware of the legal obli- their minor children is not terminated gation to provide continuous support, by desertion or other misconduct on once adopted, for such child during its the part of the Marine’s spouse. Simi- minority. larly, the obligation to support a child or children is not eliminated or re- [44 FR 42190, July 19, 1979, as amended at 65 duced by the dissolution of the mar- FR 62617, Oct. 19, 2000] riage through divorce, unless a judicial decree or order specifically negates the § 733.4 Complaints of nonsupport and obligation of child support. The fact insufficient support of dependents. that a divorce decree is silent relative (a) Upon receipt of a complaint alleg- to support of minor children, or does ing that a member is not adequately not mention a child or children, will supporting his or her lawful dependents not be interpreted by command au- (spouse or children), the member will thorities as relieving the Marine of the be interviewed and informed of the pol- inherent obligation to provide support icy of the Department of the Navy con- for the child or children of the mar- cerning support of dependents. In the riage. absence of a determination by a civil (v) A commanding officer may con- court or a mutual agreement of the sider releasing a Marine under his/her parties, the applicable guide in § 733.3

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will apply. The member will be in- (iii) The request for waiver of support formed that his/her Navy or Marine of a spouse should be submitted to the Corps career may be in jeopardy if he/ Director, Navy Family Allowance Ac- she does not take satisfactory action. tivity or in the case of a member of the The member may become ineligible to U.S. Marine Corps, the general court- reenlist or extend enlistment (in the martial convening authority, with a case of enlisted members), and may be complete statement of the facts and subject to administrative or discipli- substantiating evidence, and comments nary action that may result in separa- or recommendations of the com- tion from the Navy or Marine Corps. manding officer. (1) Waiver of support of spouse. If the (2) Action. After a written complaint member feels that he or she has legiti- that a member has failed or refused to mate grounds for a waiver of support furnish support for his or her spouse or for the spouse, the Director, Navy children has been received, and the Family Allowance Activity or in the member has been counseled with re- case of a member of the U.S. Marine gard to his/her rights and obligations Corps, the general court-martial con- in the support matter, continued fail- vening authority, may grant such a ure or refusal, without justification, to waiver for support of a spouse (but not furnish support for dependents in ac- children) on the basis of evidence of de- cordance with the provisions of a valid sertion without cause or infidelity on court order, written agreement, or, in the part of the spouse. The evidence the absence of a court order or agree- may consist of— ment, the appropriate support guide (i) U.S. Navy members. An affidavit of set forth above, will be a basis for con- the service member, relative, disin- sideration of disciplinary or adminis- terested person, public official, or law trative action which may result in the enforcement officer, and written ad- member’s separation from active serv- missions by the spouse contained in ice. letters written by that spouse to the (b) [Reserved] service member or other persons. How- ever, affidavits of the service member [44 FR 42190, July 19, 1979, as amended at 65 and relatives should be supported by FR 62618, Oct. 19, 2000] other corroborative evidence. All affidavits must be based upon the personal § 733.5 Determination of paternity and support of illegitimate children. knowledge of the facts set forth; statements of hearsay, opinion, and conclu- (a) Illegitimate children. If the service sion are not acceptable as evidence. member desires marriage, leave for (ii) U.S. Marine Corps members. The this purpose is recommended whenever Marine’s commander may consider all consistent with the needs or exigencies pertinent facts and circumstances. The of the service. When the blood parents general court-martial convening au- of an illegitimate child marry, the thority my consider any reliable evi- child is considered to be legitimized by dence including, but not necessarily the marriage unless a court finds the limited to, the following: affidavits of child to be illegitimate. the Marine, relatives, or other wit- (b) Judicial order or decree of paternity nesses; admissions of the spouse, in- or support. Normally any order or de- cluding verbal and written statements cree which specifies the obligation to or letters written by the spouse to the render support of illegitimate children Marine or other persons; pertinent pho- will include within it a determination tographs or court orders; and admis- of paternity of such children; however, sions by the person with whom the some jurisdictions provide for deter- spouse allegedly had sexual liaisons. minations of the legal obligation to Witness statements should ordinarily support illegitimate children without a state facts that were personally ob- determination of paternity. Either served. Statements that merely state a type of order or decree falls within the conclusion without providing the per- scope of this paragraph. If a judicial sonal observations on which the con- order or decree of paternity or support clusion is based are generally is rendered by a United States or for- unpersuasive. eign court of competent jurisdiction

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against a member of the Navy or Ma- or of a court-ordered obligation to fur- rine Corps on active duty, the member nish support, the member shall be pri- concerned will be informed of his moral vately consulted and asked, where ap- and legal obligations as well as his propriate, whether he or she admits ei- legal rights in the matter. The member ther paternity of, or the legal obliga- will be advised that he is expected to tion to support, the child or expected render financial assistance to the child child. If the answer is affirmative, the regardless of any doubts of paternity member shall be informed that he or that the member may have. If the she is expected to furnish support as court order or decree specifies an set forth in paragraph (b) of this sec- amount of support to be provided the tion. Where paternity or the legal obli- member will be expected to comply gation to support is admitted by a with the terms of such decree or order. male member, such member should be If no amount is specified, support informed of his moral obligation to as- should be rendered in accordance with sist in the payment of prenatal ex- such reasonable agreement as may be penses. made with the mother or legal guard- (d) Members not on active duty. Allega- ian of the child or, in the absence of tions of paternity against members of such agreement, in accordance with the naval service who are not on active the applicable guide set forth above. If duty will be forwarded to the indi- the member refuses to comply with the vidual concerned in such a manner as terms of the court order, administra- to insure that the charges are delivered tive action will be taken as indicated to the addressee only. The correspond- in § 733.4. ence should be forwarded via the com- (1) Court of competent jurisdiction. A mandant of the naval district in which court of competent jurisdiction is gen- the member resides. erally a court that has jurisdiction (e) Former members. (1) If a certified over the subject matter and the parties copy of a judicial order or decree of pa- involved. As a general rule, the com- ternity or support duly rendered by a petency of the court to render the judi- United States or foreign court of com- cial order or decree may be tested by petent jurisdiction against a former the enforceability of the order or de- member of the Navy or Marine Corps is cree. Normally, although not always, submitted, his or her last-known ad- personal service of the court’s process dress will be furnished to the complain- on the member is considered essential. ant with return of the correspondence With respect to a foreign judicial order and court order. The complainant will or decree, the general rule is that be informed of the date of discharge where the defendant was a citizen or and advised that the individual con- subject of the foreign country in which cerned is no longer a member of the the order or decree was issued, the Navy or Marine Corps in any capacity. court may have acquired jurisdiction (2) Where there has been no court ad- over the member by any mode of serv- judication, the correspondence will be ice or notice recognized as sufficient by returned to the complainant with an the laws of that country. It should be appropriate letter stating that the in- noted, however, that an order or decree dividual is no longer a member of the against a citizen or permanent resident Navy or the Marine Corps in any capac- of another country, without personal ity and giving the date of his or her service or personal notice of the action discharge or final separation except to him or her, is null and void unless that the last-known address of the the member voluntarily submitted to former member shall be furnished to the jurisdiction by appearing and con- the claimant if the complaint against testing the action. In the event there is the former member is supported by a doubt as to the competency of the document which establishes that the court to enter the order or decree, the former member has made an admission question shall be referred to the Judge or statement acknowledging paternity Advocate General. or responsibility for support of a child (2) [Reserved] before a court of competent jurisdic- (c) Nonjudicial determination. In the tion, administrative or executive agen- absence of an adjudication of paternity cy, or official authorized to receive it.

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In cases where the complaint, along fecting entitlements administered by with the corroboration of a physician’s other agencies, such as civilian em- affidavit, alleges and explains an un- ployees’ retirement benefits adminis- usual medical situation which makes it tered by the Office of Personnel Man- essential to obtain information from agement or compensation administered the alleged father in order to protect by the Veterans Administration. the physical health of either the prospective mother or the unborn child, [44 FR 42193, July 19, 1979, as amended at 47 FR 28371, June 30, 1982] the last-known address of the former member shall likewise be furnished to § 734.3 Service of process. the claimant. (a) It is the policy of the Department [44 FR 42190, July 19, 1979, as amended at 65 of the Navy to respond promptly to FR 62618, Oct. 19, 2000] legal process addressed to naval officials. Service of legal process affecting PART 734—GARNISHMENT OF PAY the pay of Department of the Navy per- OF NAVAL MILITARY AND CIVIL- sonnel shall be made on the following IAN PERSONNEL FOR COLLEC- designated officials in the manner and TION OF CHILD SUPPORT AND in the circumstances specified below: ALIMONY (1) Navy members. Process affecting the military pay of active duty, Re- Sec. serve, Fleet Reserve, or retired Navy 734.1 Purpose. members, wherever serving or residing, 734.2 Scope. may be served personnally or by reg- 734.3 Service of process. istered or certified mail, return receipt 734.4 Responsibilities. requested, on the Director, Navy Fam- 734.5 Administrative procedures. ily Allowance Activity, Anthony J. AUTHORITY: 42 U.S.C. 659 (Social Security Celebrezze Federal Building, Room 967, Act, sec. 459 added by Pub. L. 93–647, part B, Cleveland, Ohio 44199. sec. 101(a), 88 Stat. 2357, as amended by the (2) Marine Corps members. 42 U.S.C. 659 Tax Reform and Simplification Act of 1977, provides that pay of a servicemember, Pub. L. 95–30, title V, sec. 502, 91 Stat. 157). active duty or retired, shall be subject SOURCE: 44 FR 42193, July 19, 1979, unless to legal process brought for the en- otherwise noted. forcement against such member of legal obligations to provide child sup- § 734.1 Purpose. port or alimony payments. ‘‘Legal This part prescribes responsibilities process’’ means any writ, order, sum- and procedures applicable in the De- mons, or other similar process in the partment of the Navy when processing nature of garnishment. Upon receipt of and honoring legal process brought for such legal process, it will be forwarded the enforcement of legal obligations to directly to: Defense Finance and Ac- provide child support or make alimony counting Service, Cleveland Center, payments under 42 U.S.C. 659 (Social Garnishment Operations Directorate Security Act, section 459 added by Pub. (DFAS-CL/L), P.O. Box 998002, Cleve- L. 93–647, part B, sec. 101(a), 88 Stat. land, Ohio 44199–8002. The letter of 2357, as amended by the Tax Reform transmittal will state the date of serv- and Simplification Act of 1977, Pub. L. ice and method by which service was 95–30, title V, sec. 502, 91 Stat. 157). made. Detailed instructions for disbursing officers and commanding offi- § 734.2 Scope. cers are contained in DFAS-KC 7220.31– The provisions of this part shall R, chapter 7. apply to legal process affecting any (3) Civilian Employees. Process affect- Federal pay administered by the De- ing the pay of active civilian employ- partment of the Navy and due and payees of the Department of the Navy: able to all categories of naval military (i) If currently employed at Navy or or civilian personnel including per- Marine Corps activities (including non- sonnel of Navy or Marine Corps non- appropriated-fund instrumentalities) appropriated-fund activities. This part or installations situated within the is not applicable to legal process af- territorial jurisdiction of the issuing

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court, such process may be served per- amended by the Tax Reform and Sim- sonally, or by registered or certified plification Act of 1977, Pub. L. 95–30, mail, return receipt requested, on the title V, sec. 502, 91 Stat. 157). Where commanding officer or head of such ac- service of process is offered to an offi- tivity or installation, or principal as- cial not authorized to accept it under sistant specifically designated in writ- paragraph (a) of this section, the per- ing by such official. son offering such service shall be re- (ii) In other cases involving civilian ferred to the appropriate official des- employees, such process may be served ignated in paragraph (a) of this section. personally or by registered or certified mail, return receipt requested, in the [44 FR 42193, July 19, 1979, as amended at 65 FR 62619, Oct. 19, 2000] manner indicated below: (A) If pertaining to civil service per- § 734.4 Responsibilities. sonnel of the Navy or Marine Corps, such process may be served on the Di- (a) Designated officials. Within their rector of Civilian Personnel Law, Of- respective areas of cognizance as set fice of the General Counsel, Navy De- forth in § 734.3, the designated officials partment, Washington, DC 20390. are responsible for the following func- (B) If pertaining to non-civil service tions with regard to legal process: civilian personnel of Navy Exchanges (1) Sending such notifications and di- or related nonappropriated-fund instru- rections to the member concerned and mentalities administered by the Navy his or her commanding officer as may Resale System Office, such process be required. may be served on the Commanding Of- (2) Obtaining or providing an appro- ficer, Navy Resale System Office, At- priate review by qualified legal coun- tention: Industrial Relations Officer, sel. 29th Street and Third Avenue, Brook- (3) Taking or directing actions, tem- lyn, New York 11232. porary and final, as are necessary to (C) If pertaining to non-civil service comply with 42 U.S.C. 659, as amended civilian personnel of Navy clubs, (see § 734.3(b)), the MCO 5800.16A, Ma- messes, or recreational facilities (non- rine Corps Manual for Legal Adminis- appropriated funds), such process may tration (LEGADMINMAN), Navy be served on the Chief of Naval Per- Comptroller Manual, and the court’s sonnel, Director, Recreational Services order in the case, and Division (Pers/NMPC–72), Washington, (4) Apprising the cognizant United DC 20370. States Attorney of the Department of (D) If pertaining to non-civil service the Navy’s disposition, as required, civilian personnel of other non- and, in coordination with the Judge appropriated-fund instrumentalities Advocate General, effecting liaison which fall outside the purview of the with the Department of Justice or Chief of Naval Personnel or the Com- United States Attorneys in instances manding Officer, Navy Resale Systems of noncompliance with process or other Office, such as locally established mo- circumstances requiring such action. rale, welfare, and other social and (b) Command responsibility. (1) The hobby clubs, such process may be Commanding officer of the member or served on the commanding officer of employee concerned shall, upon receipt the activity concerned. of notification from the appropriate (E) If pertaining to non-civil service designated official, ensure that the civilian personnel of any Marine Corps member or employee has received writ- nonappropriated-fund instrumental- ten notification of the pendency of the ities, such process may be served on action and that the member or em- the commanding officer of the activity ployee is afforded counseling con- concerned. cerning his or her obligations in the (b) The Department of the Navy offi- matter, and legal assistance if applica- cials designated above are authorized ble, in dealing with the legal action to to accept service of process within the affect his or her Federal pay. The com- purview of 42 U.S.C. 659 (Social Secu- manding officer shall comply with the rity Act, sec. 459 added by Pub. L. 93– directions of the designated official in 647, part B, sec. 101(a), 88 Stat. 2357, as responding to the legal process.

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(2) For the purposes of this part, the SOURCE: 51 FR 15321, Apr. 23, 1986, unless Director, Navy Family Allowance Ac- otherwise noted. tivity, Cleveland, Ohio, will function as the commanding officer with regard to § 735.1 Purpose. retired Navy military personnel and To promulgate latest guidance on re- members of the Fleet Reserve. porting births and deaths, including (c) Legal services. The Judge Advocate births to which part 138 of this title is General is responsible for the following applicable. functions pertaining to legal process within the purview of this part: § 735.2 Background. (1) Providing overall technical direc- For Armed Forces members and their tion and guidance, as required, for all dependents on duty overseas, registra- Department of the Navy military and tion of vital statistics with an appro- civilian attorneys engaged in reviewing priate foreign government may be a such process or advising on its disposi- distinct advantage should documentary tion. evidence, acceptable in all courts, be (2) Ensuring, as Director, Naval required at any future time. Depart- Legal Sevice, the availability of attor- ment of Defense (DOD) policy is that neys in Naval Legal Service Offices military services will require their who are qualified to advise and assist members to make official record of the designated officials concerning the births, deaths, marriages, etc., with disposition of legal process, and local civil authorities in whose juris- (3) Where required, ensuring effective diction such events occur. liaison with the Department of Justice or United States Attorneys. § 735.3 Action. [44 FR 42193, July 19, 1979, as amended at 65 When a medical officer has knowl- FR 62619, Oct. 19, 2000] edge of a birth or death occurring under the following conditions, he or § 734.5 Administrative procedures. she shall refer the matter to the com- The designated officials specified in manding officer for assurance of com- § 734.3, shall, in consultation with the pliance with DOD policy. Judge Advocate General and Com- (a) Births. (1) In accordance with mander, Navy Accounting and Finance local health laws and regulations, the Center or the Commandant of the Ma- commanding officer of a naval hospital rine Corps (FD), as appropriate, estab- in the United States (U.S.) shall report lish procedures for effectively exe- to proper civil authorities all births, cuting their assigned responsibilities. including stillbirths, occurring at the Implementing procedures shall con- hospital. Medical officers on ships and form with 42 U.S.C., 659, as amended, aircraft operating within U.S. political the MCO 5800.16A, Marine Corps Man- boundaries, or at stations other than ual for Legal Administration naval hospitals in the U.S., shall report (LEGADMINMAN), the Navy Comp- all births occurring within their profes- troller Manual, and the Federal Per- sional cognizance. It shall be the duty sonnel Manual. of the medical officer to determine the requirements of local civil authorities [44 FR 42193, July 19, 1979, as amended at 65 FR 62619, Oct. 19, 2000] for these reports. (2) When births occur on aircraft or ships operating beyond U.S. political PART 735—REPORTING BIRTHS AND boundaries, the medical officer respon- DEATHS IN COOPERATION WITH sible for delivery shall make a report OTHER AGENCIES to the commanding officer, master of the ship, or to the officer in command Sec. of any aircraft, in every case to be re- 735.1 Purpose. corded in the ship or aircraft log. A re- 735.2 Background. port shall also be made to local civil 735.3 Action. authorities in the first port of entry if AUTHORITY: 70A Stat. 278; 80 Stat. 379, 383; required by law and regulation of such 5 U.S.C. 301, 552; and 10 U.S.C. 5031. authorities when births occur on a

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course inbound to the U.S. Addition- for any births occurring on courses des- ally, the medical officer shall: tined for islands in the Pacific Ocean (i) Furnish the parents with appro- over which the United States has juris- priate certificates and shall, if the re- diction as well as for those births port is not accepted by the local reg- which are otherwise accepted by civil istrar of vital statistics or other civil authorities for Hawaii. authority, or in any case in which local (4) Part 138 of this title prescribes authority has indicated in writing that policy, responsibilities, and procedures such a report will not be accepted, on birth registration of infants born to (ii) Advise the parents to seek the ad- U.S. citizens, in military medical fa- vice of the nearest office of the U.S. cilities outside the United States and Immigration and Naturalization Serv- its possessions. ice (USINS), at the earliest practicable time. USINS offices are located in (b) Deaths. When a death occurs at a ports of entry and in major cities of naval activity in any State, Territory, the United States. or insular possession of the United (iii) For births occurring on courses States, the commanding officer or des- out-bound and beyond the continental ignated representative shall report the limits of the U.S., report to the U.S. death promptly to proper civil authori- consular representative at the next ap- ties in accordance with Naval Medical propriate foreign port. When the air- Command directives. If requested by craft or ship does not enter a foreign these civil authorities, the civil death port, procedures described in certificate may be prepared and signed § 735.3(a)(2)(ii) shall be followed. by the cognizant naval medical officer. (3) Attention is invited to the fact Local agreements concerning reporting that reports of birth may be forwarded and preparation of death certificates to the Bureau of Health Statistics, De- should be made between the naval fa- partment of Health, Honolulu, Hawaii cility and local civil authorities.

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CROSS REFERENCE: For joint procurement The Federal Property Act places the regulations of the Armed Forces, see chapter responsibility for the disposition of ex- I of this title. cess and surplus property located in the United States, Puerto Rico, the PART 736—DISPOSITION OF Virgin Islands, American Samoa, PROPERTY Guam, and the Trust Territory of the Pacific Islands with the Administrator Sec. of General Services, and for disposition 736.1 General. 736.2 Dispositions under contracts. of such property located in foreign 736.3 Sale of personal property. areas, with the head of each executive 736.4 Disposition of real property. agency. The Act of August 10, 1956 (70A 736.5 Disposition of real and personal prop- Stat. 451; 10 U.S.C. 7304, 7305, 7307) and erty under special statutory authority. Executive Order 11765 of January 21, 736.6 Certification prior to disposition. 736.7 Approval by the Attorney General. 1974, (39 FR 2577) provide authority for the disposal of warships as well as AUTHORITY: Secs. 5031, 6011, 70A Stat. 278, as amended; 10 U.S.C. 5031, 6011. Interpret or other vessels stricken from the Naval apply R.S. 3618, 3678, 3709, 38 Stat. 1084, 44 Vessel Register. The United States Stat. 605, 49 Stat. 885, 53 Stat. 811, 54 Stat. Maritime Commission, however, is au- 396, 57 Stat. 380, 59 Stat. 260, sec. 27, 60 Stat. thorized to dispose of surplus vessels, 856, sec. 5, 60 Stat. 998, sec. 4, 62 Stat. 286, other than warships, or 1,500 gross tons secs. 7(c), 8(a-b), 62 Stat. 452, 63 Stat. 377, 64 or more which the Commission deter- Stat. 1109, 65 Stat. 645, 68 Stat. 832, sec. 501(c)(3), 68A Stat. 163, secs. 2481, 2541, 2542, mines to be merchant vessels or capa- 2571–2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, ble of conversion to merchant use (40 7230, 7304–7308, 7541–7547, 7601–7604, 70A Stat. U.S.C. 484(i)). Accordingly, in disposing 141, sec. 5003, 72 Stat. 1252, 72 Stat. 1793, sec. of its property, the Department of the 616, 73 Stat. 381, as amended; 31 U.S.C. 487, Navy is subject to applicable regula- 628, 41 U.S.C. 5, 31 U.S.C. 686, 686a, 40 U.S.C. 304a, 50 U.S.C. 98–98h, 22 U.S.C. 521, 44 U.S. C. tions of the Administrator of General 366–380, 42 U.S.C. 1572, 24 U.S.C. 37, 20 U.S.C. Services and the Secretary of Defense, 77d, 15 U.S.C. 328, 49 U.S.C. 1156(c), 1157(a-b), and, in regard to potential merchant 40 U.S.C. 471 et seq., 42 U.S.C. 1855–1855g, 22 vessels other than warships, to deter- U.S.C. 1611–1613c, 1750 et seq., 26 U.S.C. minations of the United States Mari- 501(c)(3), 10 U.S.C. 2481, 2541, 2542, 2571–2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, 7230, 7304– time Commission. In general, property 7308, 7541–7547, 7601–7604, 38 U.S.C. 5003, 42 of the Department of the Navy, which U.S.C. 1891–1893, 40 U.S.C. 483a, E.O. 10885, 25 becomes excess to its needs, may not FR 8471, 40 U.S.C. 471; 40 U.S.C. 486; 10 U.S.C. be disposed of to the general public 2576; 33 U.S.C. 1401; Pub. L. No. 96–41 (50 until it has been determined to be sur- U.S.C. 98); Pub. L. No. 93–288 (42 U.S.C. 5121). plus after screening such property with SOURCE: 25 FR 4674, May 27, 1960, unless the other military departments of the otherwise noted. Department of Defense and all other § 736.1 General. agencies of the Government, and after it has been offered for donation to edu- Real and personal property under the cational institutions, and law enforce- jurisdiction of the Department of the ment and marine research activities. Navy, exclusive of battleships, aircraft carriers, cruisers, destroyers, and sub- (a) Within the limitations indicated marines (referred to as warships in this in the introductory paragraph of this part) and certain public domain lands section, the Department of the Navy is and mineral interests, may be disposed authorized to sell its surplus personal of under the authority contained in the property under the authority of the Federal Property and Administrative Federal Property Act and the Act of Services Act of 1949 (63 Stat. 377), as August 10, 1956 (70A Stat. 451; 10 U.S.C. amended (40 U.S.C. 471), in this part re- 7305), and to report its real property, ferred to as the Federal Property Act.

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when excess to the needs of the Depart- tractor under terms vesting title in the ment of Defense, to the General Serv- Government but in excess of the ices Administration for ultimate dis- amount required for performance of a position by that agency or the Depart- contract) may be sold to the contractor ment of the Navy. The Department of or otherwise disposed of in accordance the Navy is also authorized to transfer with the terms and conditions set forth real and personal property to other de- in the contract and applicable Navy in- partments or agencies of the Govern- structions. See also parts 8 and 13 and ment, and to sell, transfer and other- §§ 30.2 and 30.3 of this title. wise dispose of certain vessels and (b) Industrial and plant equipment other personal property under special provided by the Government to a con- statutory authority. Ships other than tractor for the performance of a con- warships are sold pursuant to the Fed- tract may, subject to applicable statu- eral Property Act (40 U.S.C. 484(i)) by tory authority and Navy instructions the U.S. Maritime Commission if over be disposed of in accordance with the 1500 gross tons and determined by the applicable contract terms and condi- Maritime Commission to be merchant tions. vessels or capable of conversion to (c) Transfer to nonprofit education or merchant use. In certain cases, Navy research institutions of title to equip- vessels and other property may be ment purchased with funds available transferred or otherwise made avail- for grants or contracts for the conduct able to other agencies without reim- of basic or applied research is author- bursement (sec. 616, 73 Stat. 381; 40 ized by the act of September 6, 1958 U.S.C. 483a). (sec. 2, 72 Stat. 1793; 42 U.S.C. 1892) and (b) This part sets forth the general implementing regulations (§§ 13.800 to procedures and authority with respect 13.803 of this title). to the disposition of property under the control of the Department of the Navy § 736.3 Sale of personal property. except disposition of property to for- (a) The sale of personal property de- eign governments under the authority termined to be surplus or foreign ex- of such statutes as the Aid to Amer- cess or for exchange purposes is au- ican Republics Act (54 Stat. 396; 22 thorized by the Federal Property Act U.S.C. 521) and the Mutual Defense As- and regulations of the Administrator of sistance Control Act of 1951 (65 Stat. General Services (see § 736.1(a)). Certain 644; 22 U.S.C. 1611–1613c). vessels stricken from the Naval Vessel (c) The Department of Defense Mate- Register may be sold under the act of rial Disposition Manual and directives August 19, 1956, (70A Stat. 451, 10 U.S.C. issued by the Department of the Navy 7305). cover the disposition of all property of (b) Sales are by sealed bid, auction, the Department including disposition spot bid or, under limited conditions under the Federal Property Act. The prescribed by law, negotiated method. Defense Material Disposition Manual is A deposit, generally 20 percent of the available on the internet at amount bid, is normally required of www.drms.dla.mil. Section XXIV of each bidder. Awards are usually made Navy Procurement Directives contains to the highest acceptable bidder. Nor- similar information applicable to the mally property may not be removed disposition of contractor inventory. from Government control until full These publications are available for in- payment is made. Arrangements must spection at the offices of the Com- be made by the successful bidder to re- mandants of the several Naval Dis- move the property within the time tricts; and at various Navy and Marine limit prescribed in the invitation to Corps installations. bid or sales contract. The Government [25 FR 4674, May 27, 1960, as amended at 39 reserves the right to withdraw any FR 18442, May 28, 1974; 41 FR 26008, June 24, property from sale when in the best in- 1976; 65 FR 53590, Sept. 5, 2000] terest of the Government. (1) The Department of Defense has a § 736.2 Dispositions under contracts. contact point for any person interested (a) Contractor inventory (that is, in purchasing surplus Department of personal property acquired by a con- Defense personal property within the

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United States. The contact point is the Commonwealth of Puerto Rico, the Defense Surplus Bidders Control Office, Virgin Islands, American Samoa, Defense Reutilization and Marketing Guam, and the Trust Territory of the Office, Federal Center Building, Battle Pacific Islands, Department of the Creek, Michigan. This office maintains Navy real property determined to be a single bidders list for all military de- excess to the Department of Defense is partments. The list is arranged to show disposed of directly by the Commander, each person’s buying interests, both Naval Facilities Engineering Com- geographically and with respect to cat- mand, Field Division Directors, and egories of property. The categories of District or Area Public Works Officers. property (together with an application blank) are listed in a pamphlet ‘‘How (5 U.S.C. 301, 40 U.S.C. 471–514) to Buy Surplus Personal Property [35 FR 10008, June 18, 1970, as amended at 41 From The Department of Defense,’’ FR 26008, June 24, 1976] prepared by the Defense Reutilization and Marketing Office, Defense Logis- § 736.5 Disposition of real and per- tics Agency, Battle Creek, Michigan. sonal property under special statu- (2) Retail sales at fixed prices based tory authority. on the current market value are con- In addition to the authority to sell ducted by certain Defense property dis- personal property to the general public posal offices. and to transfer real property to the [39 FR 18442, May 28, 1974, as amended at 65 General Services Administration under FR 53590, Sept. 5, 2000] the provisions of §§ 736.3 and 736.4, the Department of the Navy has further § 736.4 Disposition of real property. authority to dispose of personal and (a) Real property, including related real property as described in para- personal property, determined to be ex- graphs (a) through (h) of this section. cess to the needs of the Department of (a) Disposition to other Government Defense is subject to disposition under agencies. The Department of the Navy the Federal Property Act. In the States is authorized to transfer real and per- of the United States, the District of sonal property to other governmental Columbia, the Commonwealth of Puer- departments or agencies under statutes to Rico, the Virgin Islands, American applicable to particular agencies, the Samoa, Guam, and the Trust Territory act of March 4, 1915 (38 Stat. 1084) as of the Pacific Islands, Department of amended (31 U.S.C. 686) and, as to cer- the Navy real property determined to tain personal property, under direc- be excess to the Department of Defense tives of the General Services Adminis- and not required for the needs and the tration. discharge of the responsibilities of all (b) Leases. Real and personal property Federal agencies, is generally disposed under the control of the Department of of by the General Services Administra- the Navy not excess to its needs and tion as surplus property. Exceptions, not for the time being required for pub- however, are property worth less than lic use may be leased, when the Sec- $1,000; certain leases, permits, licenses, retary of the Navy shall deem it to be easements or similar interests; certain advantageous to the Government, to fixtures, structures, and improve- such lessee or lessees and upon such ments; and other special classes of terms and conditions as in his judg- property which, when determined to be ment will promote the national defense surplus, are disposed of by the Com- or will be in the public interest. Such mander, Naval Facilities Engineering leases shall be for a period of not ex- Command, Field Division Directors, ceeding five years unless the Secretary and District or Area Public Works Offi- determines that a longer period will cers under authority delegated in Title promote the national defense or will be II, Regulations of the General Services in the public interest. Such leases are Administration, or under special dele- authorized by the act of August 10, 1956 gations from the Administrator of Gen- (70A Stat. 150; 10 U.S.C. 2667). Leases of eral Services. Government-owned real property where (b) Outside the States of the United the estimated annual rental is more States, the District of Columbia, the than 50,000 must be deferred for 30 days

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after reporting the proposed trans- change or sell similar items which are action to the Armed Services Commit- not excess to its needs, and apply the tees of Congress in accordance with the exchange allowance or proceeds of sale act of August 10, 1956 70A Stat. 147), as in whole or part payment for the items amended (10 U.S.C. 2662). acquired. (c) Disposition of strategic materials. (f) Donations and loans of personal Strategic materials may be disposed of property. (1) Certain personal property by the Department of the Navy under of the Department of the Navy, includ- the authority described in § 736.3 only ing vessels, which become surplus, may when such property is excess to the be donated or loaned under the author- needs of the Department of Defense and ity contained in the Federal Property when the Director of the Office of Civil Act and the act of August 10, 1956 (70A and Defense Mobilization (acting Stat. 453; 10 U.S.C. 2572, 7308, 7545) to: through the Defense Materials Service (i) Schools such as maritime acad- of the General Services Administra- tion) determines that the amounts of emies or military, naval, Air Force or such materials to be disposed of are so Coast Guard preparatory schools, des- small as to make transfer thereof ignated by the Secretary of Defense as under the act of June 7, 1939 (53 Stat. educational activities of special inter- 811) as amended (50 U.S.C. 98–98h) eco- est to the armed services. nomically impractical, or such mate- (ii) Accredited schools, colleges and rials are not necessary for stockpile re- universities and educational institu- quirements determined in accordance tions which have been exempted from with section 2 of said act. taxation under section 501(c)(3) of the (d) Disposition of vessels. Vessels Internal Revenue Code of 1954 and stricken from the Naval Vessel Reg- State Departments of Education for ister may be sold by the Department of use by tax exempt educational institu- the Navy under the authority and sub- tions. Applications for donation shall ject to the limitations of the Federal be approved by the Department of Property Act (sections 203(i), 63 Stat. Health and Human Services and the 386, 40 U.S.C. 484(i)) and the act of Au- Administrator of General Services and gust 10, 1956, (70A Stat. 451; 10 U.S.C. may be filed with the field representa- 7304, 7305, 7307) and Executive Order tive of the Department of Health and 11765 (39 FR 2577). However, pursuant to Human Services located nearest the ap- section 203(i) of the Federal Property plicant. Act (40 U.S.C. 484(i)), the United States (iii) States, Territories, Common- Maritime Commission disposes of ves- wealths, or possessions of the United sels, other than warships, if over 1,500 States and political subdivisions, mu- gross tons and determined by the Mari- nicipal corporations, veterans associa- time Commission to be merchant ves- tions, soldiers’ monument associations, sels or capable of conversion to mer- State museums, and non-profit edu- chant use. Vessels may be sold for scrapping or for use under such author- cational museums, subject in certain ity or, if such sale is not feasible, the cases to the approval of the Curator for Naval Sea Systems Command may ar- the Navy and to objection by a concur- range for the demolition of a vessel and rent resolution of the Congress. sale of the resulting materials by an (2) Applications other than those to authorized selling activity as set forth be filed with the field representative of in § 736.3. the Department of Health and Human (e) Exchange or sale of property for Services shall be filed with the Depart- replacement purposes. Under the au- ment of the Navy and referred to the thority of section 201(c) of the Federal cognizant Command or Headquarters Property Act (40 U.S.C. 481(c)) and con- for action except that applications for sistent with Department of Defense im- vessels and district craft shall be re- plementing regulations, DOD 4140.1–R ferred to the Chief of Naval Operations, and the Defense Federal Acquisition applications for boats to the Naval Sea Regulation Supplement, the Depart- Systems Command, and applications ment of the Navy is authorized in the for barges, floating drydocks, and other acquisition of new equipment to ex- floating construction equipment to the

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Naval Facilities Engineering Com- nique or invention), or of patents, proc- mand. Detailed instructions with re- esses, techniques or inventions, irre- spect to such applications are set forth spective of cost, the Department of the in the Defense Material Disposition Navy must notify the Attorney Gen- Manual. eral of the proposed disposal and the (g) Disposition of equipment for re- probable terms and conditions thereof. search. Under the act of September 6, Within a reasonable time, in no event 1958 (72 Stat. 1793; 42 U.S.C. 1891–1893), to exceed sixty days after receiving equipment purchased with research such notification, the Attorney Gen- grant or contract funds may be trans- eral will advise the Department of the ferred for the conduct of basic or ap- Navy, whether, insofar as he can deter- plied scientific research to (1) non-prof- mine, the proposed disposition would it institutions of higher education or tend to create or maintain a situation (2) non-profit organizations whose pri- inconsistent with the antitrust laws. In mary purpose is the conduct of sci- such cases, the Department of the entific research. An annual report of Navy must obtain from the proposed such transfers must be made to the ap- purchaser information regarding its fi- propriate Committees of Congress. nancial status, the anticipated use to (h) Assistance in major disaster relief. be made of the property and any other Under the Disaster Relief Act of 1974 information as may be required by the (Pub. L. No. 93–288) and subject to di- Attorney General; the award or final rections of the Federal Emergency sale must be delayed until the Attor- Management Agency, certain excess ney General advises of his determina- personal property may be utilized for tion. or donated to States and local governments for relief of suffering and dam- PART 744—POLICIES AND PROCE- age resulting from major disasters. DURES FOR THE PROTECTION OF Surplus property may also be disposed PROPRIETARY RIGHTS IN TECH- of to States for sale to small business NICAL INFORMATION PROPOSED concerns affected by specific disasters FOR RELEASE TO FOREIGN GOV- such as hurricanes. ERNMENTS [25 FR 4674, May 27, 1960, as amended at 25 FR 11066, Nov. 22, 1960, 26 FR 12158, Dec. 20, Sec. 1961; 35 FR 10008, June 18, 1970; 39 FR 18442, 744.1 Purpose. May 28, 1974; 41 FR 26008, June 24, 1976; 47 FR 744.6 Authorization for release without con- 28371, June 30, 1982; 65 FR 53590, Sept. 5, 2000; sent of the owner. 65 FR 67628, Nov. 13, 2000] AUTHORITY: Sec. 301, 80 Stat. 379, secs. 5031, 6011, 70A Stat. 278, 375 as amended; 5 U.S.C. § 736.6 Certification prior to disposi- 301, 10 U.S.C. 5031, 6011. Interpret or apply tion. the Mutual Security Act of 1954 (68 Stat. 832) The transfer, sale, or other disposi- as amended, 22 U.S.C. 1750 et seq., and Act of tion of a battleship, aircraft carrier, Sept. 4, 1961 (Pub. L. 87–195, 75 Stat. 424), 22 cruiser, destroyer, or submarine shall U.S.C. 2151–2406 (2351, 2356). not be made unless and until the Chief § 744.1 Purpose. of Naval Operations, in accordance with the act of August 10, 1956 (70A This part implements part 264 of this Stat. 452; 10 U.S.C. 7307), has certified title and the Technical Property Inter- that such material is not essential to change Agreements between the United the defense of the United States. States and foreign governments which agreements are designed to facilitate § 736.7 Approval by the Attorney Gen- the interchange of patent rights and eral. technical information for defense pur- Prior to the disposition, either com- poses. petitively or by negotiation, to private [26 FR 12217, Dec. 21, 1961] interests of a plant or plants, or other property, which cost the Government § 744.6 Authorization for release with- $1,000,000 or more if real property, or out consent of the owner. $3,000,000 or more if personal property (a) Military equipment including the (other than a patent, process, tech- information essential for its operation,

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maintenance and repair and technical AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031; 40 information, known or claimed to be U.S.C. 486(c); and 41 CFR 101–4.1. proprietary, which is being considered SOURCE: 41 FR 55712, Dec. 22, 1976, unless for release in accordance with otherwise noted. § 264.4(d)(3), may be released when the Chief of Naval Operations or his des- § 746.1 Purpose. ignee or a bureau chief or deputy bu- This part implements Department of reau chief determines under the au- Defense Directive 5535.3 of November 2, thority of the Act that such action 1973 and 41 CFR subpart 101–4.1, and clearly warrants the assumption of fi- sets forth the policy, terms, conditions, nancial liability that may be incurred and procedures for the licensing of and there is no acceptable substitute rights in domestic patents and patent equipment or information for which applications vested in the United consent to release is obtainable or States of America and in the custody which is not proprietary. of the Department of the Navy. (b) Where any technical information is released in accordance with this sec- § 746.2 Policy. tion, such release shall be subject to the conditions of release set forth in (a) A major premise of the Presi- § 264.4(f). dential Statement fo Government Pat- (c) Military equipment, including the ent Policy, August 23, 1971 (36 FR 16887, information essential for its operation, August 26, 1971), is that government in- maintenance, and repair, known or ventions normally will best serve the claimed to be privately owned and for public interest when they are devel- which consent for release cannot be ob- oped to the point of practical applica- tained may be furnished to foreign gov- tion and made available to the public ernments in accord with § 264.4(d)(3) in the shortest possible time. The without further legal authorization, granting of express nonexclusive or ex- provided such release is made pursuant clusive licenses for the practice of to the grant aid provisions of the Mu- these inventions may assist in the actual Security Act of 1954, as amended, complishment of the national objective and provided further, there is no ac- to achieve a dynamic and efficient ceptable substitute equipment or infor- economy. mation for which consent for release is (b) The granting of nonexclusive li- obtainable or which is not proprietary. censes generally is preferable, since the invention is thereby laid open to all in- [24 FR 10715, Dec. 25, 1959, as amended at 44 terested parties and serves to promote FR 30686, May 29, 1979] competition in industry, if the invention is in fact promoted commercially. PART 746—LICENSING OF GOV- However, to obtain commercial utiliza- ERNMENT INVENTIONS IN THE tion of the invention, it may be nec- CUSTODY OF THE DEPARTMENT essary to grant an exclusive license for OF THE NAVY a limited period of time as an incentive for the investment of risk capital to Sec. achieve practical application of an in- 746.1 Purpose. vention. 746.2 Policy. (c) Whenever the grant of an exclu- 746.3 Delegation of authority. sive license is deemed appropriate, it 746.4 Definitions. shall be negotiated on terms and condi- 746.5 Government inventions available for tions most favorable to the public in- licensing. terest. In selecting an exclusive li- 746.6 Nonexclusive license. censee, consideration shall be given to 746.7 Limited exclusive license. the capabilities of the prospective li- 746.8 Additional licenses. 746.9 Royalties. censee to further the technical and 746.10 Reports. market development of the invention, 746.11 Procedures. his plan to undertake the development, 746.12 Litigation. the projected impact on competition, 746.13 Transfer of custody of Government and the benefit to the Government and inventions. the public. Consideration shall be given

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also to assisting small business and mi- ditions as to establish that the inven- nority business enterprises, as well as tion is being worked and that its bene- economically depressed, low income, fits are reasonably accessible to the and labor surplus areas, and whether public. each or any applicant is a United States citizen or corporation. Where § 746.5 Government inventions avail- there is more than one applicant for an able for licensing. exclusive license, that applicant shall Government inventions normally will be selected who is determined to be be made available for the granting of most capable of satisfying the criteria express nonexclusive or limited exclu- and achieving the goals set forth in sive licenses to responsible applicants this part. according to the factors and conditions (d) Subject to the following: (1) Any set forth in §§ 746.6 and 746.7, subject to existing or future treaty or agreement the applicable procedures of § 746.11. between the United States and any for- The Chief of Naval Research may re- eign government or inter-govern- move a prior designation of avail- mental organization, or ability for licensing of any patent(s) or (2) Licenses under or other rights to patent application(s), provided that no inventions made or conceived in the outstanding licenses to that invention course of or under Department of the are in effect. Navy research and development contracts where such licenses or other § 746.6 Nonexclusive license. rights to such inventions are provided for in the contract and retained by the (a) Availability of licenses. Each gov- party contracting with the Department ernment invention normally shall be of the Navy, no license shall be granted made available for the granting of non- or implied in a government invention, exclusive revocable licenses, subject to except as provided for in this part. the provisions of any other licenses, in- (e) No grant of a license under this cluding those under § 746.8. part shall be construed to confer upon (b) Terms of grant. (1) The duration of any licensee any immunity from the the license shall be for a period as spec- antitrust laws or from a charge of pat- ified in the license agreement, provided ent misuse, and the acquisition and use that the licensee complies with all the of rights pursuant to this part shall not terms of the license. be immunized from the operation of (2) The license shall require the li- state or federal law by reason of the censees to bring the invention to the source of the grant. point of practical application within a period specified in the license, or such § 746.3 Delegation of authority. extended period as may be agreed upon, The Chief of Naval Research is dele- and to contine to make the benefits of gated the authority to administer the the invention reasonably accessible to patent licensing program, with the au- the public. thority to redelegate such authority. (3) The license may be granted for all or less than all fields of use of the in- § 746.4 Definitions. vention, and throughout the United (a) Government invention means an in- States of America, its territories and vention covered by a domestic patent possessions, the Commonwealth of or patent application that is vested in Puerto Rico, and the District of Colum- the United States and in the custody of bia, or in any lesser geographic portion the Department of the Navy, and is thereof. designated by the Chief of Naval Re- (4) After termination of a period search as appropriate for the grant of specified in the license agreement, the an express non-exclusive or exclusive Chief of Naval Research may restrict license. the license to the fields of use and/or (b) To the point of practical application geographic areas in which the licensee means to manufacture in the case of a has brought the invention to the point composition or product, to practice in of practical application and continues the case of a process, or to operate in to make the benefits of the invention the case of a machine, under such con- reasonably accessible to the public.

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(5) The license may extend to subsidi- (b) Selection of exclusive licensee. An aries and affiliates of the licensee but exclusive licensee will be selected on shall be nonassignable without ap- bases consistent with the policy set proval of the Chief of Naval Research, forth in § 746.2 and in accordance with except to the successor of that part of the procedures set forth in § 746.11. the licensee’s business to which the in- (c) Terms of grant. (1) The license may vention pertains. be granted for all or less than all fields (6) The Government shall make no of use of the government invention, representation or warranty as to the and throughout the United States of validity of any licensed application(s) America, its territories and posses- or patent(s), or of the scope of any of sions, the Commonwealth of Puerto the claims contained therein, or that Rico, and the District of Columbia, or the exercise of the license will not rein any lesser geographic portion there- sult in the infringement of any other of. patent(s), nor shall the Government as- (2) Subject to the rights reserved to sume any liability whatsoever result- the Government in paragraphs (c)(6) ing from the exercise of the license. and (c)(7) of § 746.7, the licensee shall be granted the exclusive right to practice § 746.7 Limited exclusive license. the invention in accordance with the (a) Availability of licenses. Each gov- terms and conditions specified in the ernment invention may be made avail- license. able for the granting of a limited ex- (3) The duration of the license shall clusive license, provided that: be negotiated but shall be for a period less than the terminal portion of the (1) The invention has been published patent, the period remaining being suf- as available for licensing pursuant to ficient to make the invention reason- paragraph (a) of § 746.11 for a period of ably available for the grant of a non- at least six months; exclusive license; and such period of (2) The Chief of Naval Research has exclusivity shall not exceed 5 years un- determined that: less the Chief of Naval Research deter- (i) The invention may be brought to mines, on the basis of a written sub- the point of practical application in mission supported by a factual show- certain fields of use and/or in certain ing, that a longer period is reasonably geographical locations by exclusive li- necessary to permit the licensee to censing; enter the market and recoup his rea- (ii) The desired practical application sonable costs in so doing. has not been achieved under any non- (4) The license shall require the li- exclusive license granted on the inven- censee to bring the invention to the tion; and point of practical application within a (iii) The desired practical application period specified in the license, or with- is not likely to be achieved expedi- in a longer period as approved by the tiously in the public interest under a Chief of Naval Research, and to con- nonexclusive license or as a result of tinue to make the benefits of the in- further government-funded research or vention reasonably accessible to the development; public. (3) The notice of the prospective li- (5) The license shall require the licensee has been published, pursuant to censee to expend a specified minimum paragraph (d) of § 746.11 for at least 60 amount of money and/or take other days; and specified actions, within a specified pe- (4) After termination of the period riod of time after the effective date of set forth in paragraph (a)(3) of § 746.7 the license, in an effort to bring the in- the Chief of Naval Research has deter- vention to the point of practical appli- mined that no applicant for a non- cation. exclusive license has brought or will (6) The license shall be subject to the bring, within a reasonable period, the irrevocable, royalty-free right of the invention to the point of practical ap- Government of the United States to plication, as specified in the exclusive practice and have practiced the inven- license, and that to grant the exclusive tion throughout the world, by or on be- license would be in the public interest. half of the Government of the United

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States, and by or on behalf of any for- tions when he determines that to do so eign government or intergovernmental would provide for an equitable ex- organization pursuant to any existing change of patent rights. The following or future treaty or agreement with the exemplify circumstances wherein such United states. If the Chief of Naval Re- licenses may be granted: search finds it to be in the public inter- (a) In consideration of the settlement est, this license may also be expressly of an interference; subject to this same royalty-free right (b) In consideration of a release of a by or on behalf of state and municipal claim of infringement; or governments. (c) In exchange for, or as part of, the (7) The license shall reserve to the consideration for a license under ad- Chief of Naval Research the right to re- versely held patents. quire the licensee to grant sublicenses to responsible applicants on terms that § 746.9 Royalties. are reasonable in the circumstances: (a) Nonexclusive license. Normally, (i) The extent that the invention is royalties shall not be changed under required for public use by government nonexclusive licenses granted to regulations, or United States citizens and United (ii) As may be necessary to fulfill States corporations on government in- health or safety needs, or ventions; however, the Chief of Naval (iii) For other public purposes stipu- Research may require other consider- lated in the license. ation. (8) The license may extend to subsidi- (b) Limited exclusive license. A limited aries and affiliates of the licensee but exclusive license on a government in- shall be nonassignable without ap- vention shall contain a royalty provi- proval of the Chief of Naval Research, sion and/or other consideration flowing except to successors of that part of the to the Government. licensee’s business to which the invention pertains. § 746.10 Reports. (9) An exclusive licensee may grant A license shall require the licensee to sublicenses under his license, subject submit periodic reports on his efforts to the approval of the Chief of Naval to achieve practical application of the Research. Each sublicense granted by invention. The reports shall contain in- an exclusive licensee shall make ref- formation within his knowledge, or erence to the exclusive license, includ- which he may acquire under normal ing the rights retained by the Govern- business practices, pertaining to the ment under the exclusive license, and a commercial use being made of the in- copy of such sublicense shall be fur- vention, and other information which nished to the Chief of Naval Research. the Chief of Naval Research may deter- (10) The license may be subject to mine is pertinent to its licensing ac- such other terms as may be in the pub- tivities and is specified in the license. lic interest. (11) The Government shall make no § 746.11 Procedures. representation or warranty as to valid- (a) Publication requirements. The Chief ity of any licensed application(s) or of Naval Research shall cause to be patent(s), or of the scope of any of the published in the FEDERAL REGISTER, claims contained therein, or that the the Official Gazette of the United exercise of the license will not result in States Patent and Trademark Office, the infringement of any other pat- and at least one other publication that ent(s), nor shall the Government as- the Chief of Naval Research deems sume any liability whatsoever result- would best serve the public interest, a ing from the exercise of the license. list of the government inventions available for licensing under the condi- § 746.8 Additional licenses. tions specified in this part. The list Subject to any outstanding licenses, shall be revised periodically to include nothing in this part shall preclude the directly, or by reference to a pre- Chief of Naval Research from granting viously published list, all inventions additional nonexclusive or limited ex- currently available for licensing. Other clusive licenses for government inven- publications on inventions available

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for licensing are encouraged, and may and marketing required to achieve the include abstracts, when appropriate, as practical application of the invention; well as information on the design, con- (3) A statement describing the time, struction, use, and potential market expenditure, and other acts which the for the inventions. applicant considers necessary to (b) Contents of a nonexclusive license achieve practical application of the in- application. An application for a non- vention and the applicant’s offer to in- exclusive license under a government vest that sum to perform such acts if invention should be addressed to the the license is granted; Chief of Naval Research (Code 300), Ar- (4) A statement that contains the ap- lington, VA 22217, and shall include: plicant’s best knowledge of the extent (1) Identification of the invention for to which the government invention is which the license is desired, including being practiced by private industry and the patent application serial number or the Government; patent number, title, and date, if known, and any other identification of (5) Identification of other exclusive the invention; licenses granted to applicant under in- (2) Name and address of the person, ventions in the custody of other gov- company, or organization applying for ernment agencies; and the license, and whether the applicant (6) Any other facts which the appli- is a United States citizen or a United cant believes are evidence that it is in States corporation; the public interest for the Chief of (3) Name and address of the rep- Naval Research to grant an exclusive resentative of applicant to whom cor- license rather than a nonexclusive li- respondence should be sent; cense, and that such exclusive license (4) Nature and type of applicant’s should be granted to the applicant. business; (d) Published notices. (1) A notice that (5) Source of information concerning a prospective exclusive licensee has the availability of a license on this in- been selected shall be published in the vention; FEDERAL REGISTER, and a copy of the (6) Purpose for which the license is notice shall be sent to the Attorney desired and a brief description of appli- General. The notice shall include: cant’s plan to achieve that purpose; (i) Identification of the invention; (7) A statement of the fields of use (ii) Identification of the selected li- for which applicant intends to practice censee; the invention; and (iii) Duration and scope of the con- (8) A statement as to the geographic templated license; and areas in which the applicant would (iv) A statement to the effect that practice the invention. the license will be granted unless: (c) Contents of an exclusive license application. An application for an exclu- (A) An application for a nonexclusive sive license should be addressed to the license, submitted by a responsible ap- Chief of Naval Research (Code 300), Ar- plicant pursuant to paragraph (b) of lington, VA 22217, and, in addition to § 746.11, is received by the Chief of the information indicated in paragraph Naval Research within 60 days from the (b) of § 746.11, an application for an ex- publication of the notice in the FED- clusive license shall include: ERAL REGISTER, and the Chief of Naval (1) Applicant’s status, if any, in any Research determines in accordance one or more of the following categor- with his prescribed procedures, under ies: which procedures the Chief of Naval (i) Small business firm; Research shall record and make avail- (ii) Minority business enterprise; able for public inspection all decisions (iii) Location in a surplus labor area; made pursuant thereto and the basis (iv) Location in a low-income area; therefore, that the applicant has estab- and lished that he has already achieved or (v) Location in an economically deis likely to bring the invention to the pressed area; point of practical application withing a (2) A statement of applicant’s capa- reasonable period under a nonexclusive bility to undertake the development license; or

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(B) The Chief of Naval Research de- search shall furnish the licensee and termines that third party has pre- any sublicensee of record a written no- sented evidence and argument which tice of intention to modify or revoke has established that it would not be in the license, and the licensee and any the public interest to grant the exclu- sublicensee shall be allowed 30 days sive license. after such notice to remedy any breach (2) If an exclusive license has been of any covenant or agreement as re- granted pursuant to this part, notice ferred to in paragraph (e)(1) of § 746.11, thereof shall be published in the FED- or to show cause why the license ERAL REGISTER. Such notice shall in- should not be modified or revoked. clude: (f) Appeals. An applicant for a license, (i) Identification of the invention; a licensee, or such other third party (ii) Identification of the licensee; and who has participated under paragraph (iii) Duration and scope of the li- (d)(1)(iv)(B) of § 746.11 shall have the cense. right to appeal, in accordance with pro- (3) If an exclusive license has been cedures prescribed by the Chief of modified or revoked pursuant to para- Naval Research, any decision con- graph (e) § 746.11, notice thereof shall be cerning the granting, denial, interpre- published in the FEDERAL REGISTER. tation, modification, or revocation of a Such notice shall include: license. (i) Identification of the invention; (ii) Identification of the licensee; and § 746.12 Litigation. (iii) Effective date of the modification or revocation. The property interest in a patent is (e) Modification or revocation. (1) Any the right to exclude. It is not the in- license granted pursuant to this part tent of the Government to transfer the may be modified or revoked by the property right in a patent when a li- Chief of Naval Research if the licensee cense is issued pursuant to this part. at any time defaults in making any re- Accordingly, the right to sue for in- port required by the license or commits fringement shall be retained with re- any breach of covenant or agreement spect to all licenses so issued by the therein contained. Government. (2) A license may also be revoked by the Chief of Naval Research if the li- § 746.13 Transfer of custody of Govern- censee willfully makes a false statement inventions. ment of material fact or willfully The Chief of Naval Research may omits a material fact in the license ap- enter into an agreement to transfer plication or any report required in the custody of a Government invention to license agreement. another government agency for pur- (3) Before modifying or revoking any poses of administration, including the license granted pursuant to this part granting of licenses pursuant to this for any cause, the Chief of Naval Re- part.

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PART 750—GENERAL CLAIMS 750.54 Payment of costs, settlements, and judgments related to certain medical or REGULATIONS legal malpractice claims. 750.55 Attorney’s fees. Subpart A—General Provisions for Claims 750.56–750.60 [Reserved]

Sec. Subpart D—Claims Not Cognizable Under 750.1 Scope of subpart A. Any Other Provision of Law 750.2 Investigations: In general. 750.3 Investigations: The report. 750.61 Scope of subpart D. 750.4 Claims: In general. 750.62 Statutory authority. 750.5 Claims: Proper claimants. 750.63 Definitions. 750.6 Claims: Presentment. 750.64 Claim procedures. 750.7 Claims: Action by receiving command. 750.65 Statute of limitations. 750.8 Claims: Responsibility of the Tort 750.66 Officials with authority to settle. Claims Unit Norfolk. 750.67 Scope of liability. 750.9 Claims: Payments. 750.68 Claims not payable. 750.10 Claims: Settlement and release. 750.69 Measure of damages. 750.11 Claims: Denial. AUTHORITY: 5 U.S.C. 301, 5 U.S.C. 552, 10 750.12 Claims: Action when suit filed. U.S.C. 5013, and 5148. 750.13 Claims: Single service responsibility. 750.14–750.20 [Reserved] SOURCE: 57 FR 4722, Feb. 7, 1992, unless otherwise noted. Subpart B—Federal Tort Claims Act 750.21 Scope of subpart B. Subpart A—General Provisions for 750.22 Exclusiveness of remedy. Claims 750.23 Definitions. 750.24 Statutory/regulatory authority. § 750.1 Scope of subpart A. 750.25 Scope of liability. (a) General. (1) The Judge Advocate 750.26 The administrative claim. General is responsible for the adminis- 750.27 Information and supporting documentation. tration and supervision of the resolu- 750.28 Amendment of the claim. tion of claims arising under the Fed- 750.29 Investigation and examination. eral Tort Claims Act (subpart B of this 750.30 Denial of the claim. part), the Military Claims Act (subpart 750.31 Reconsideration. C of this chapter), the Nonscope Claims 750.32 Suits under the Federal Tort Claims Act (subpart D of this part), the Per- Act (FTCA). sonnel Claims Act (part 751 of this 750.33 Damages. chapter), the Foreign Claims Act, the 750.34 Settlement and payment. International Agreements Claims Act 750.35 Attorney’s fees. 750.36 Time limitations. pertaining to cost sharing of claims 750.37–750.40 [Reserved] pursuant to international agreements, the Federal Claims Collection Act (sub- Subpart C—Military Claims Act part A of part 757 of this chapter), the Medical Care Recovery Act and Health 750.41 Scope of subpart C. Care Services Incurred on Behalf of 750.42 Statutory authority. Covered Beneficiaries: Collection from 750.43 Claims payable. 750.44 Claims not payable. Third-party Payers (subpart B of part 750.45 Filing claim. 757 of this chapter), and postal claims. 750.46 Applicable law. (2) The Deputy Assistant Judge Ad- 750.47 Measure of damages for property vocate General (Claims and Tort Liti- claims. gation) (Code 15) is the manager of the 750.48 Measure of damages in injury or Navy claims system established to death cases. evaluate, adjudicate, and provide liti- 750.49 Delegations of adjudicating author- gation support for claims arising under ity. 750.50 Advance payments. the acts listed above and is responsible 750.51 Final disposition. to the Judge Advocate General for the 750.52 Appeal. management of that system. The 750.53 Cross-servicing. claims system consists of the Claims

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and Tort Litigation Division of the Of- from the appropriate Naval Legal Serv- fice of the Judge Advocate General ice Command activity. (Code 15), and the attorneys and sup- (c) Recovery barred. Even when recov- port personnel assigned to the Tort ery must be barred by statute or case Claims Unit at Naval Station, Norfolk, law, all deaths, serious injuries, and Virginia. For economy of language, substantial losses to property that are Naval Legal Service Offices and Naval likely to give rise to claims must be in- Legal Service Office Detachments are vestigated while the evidence is avail- referred to as Naval Legal Service able. Claims against persons in the Command Activities. naval service arising from the perform- (3) Commanding officers of com- ance of their official duties shall be in- mands receiving claims are responsible vestigated as though they were claims for complying with the guidance on in- against the United States. When an investigations in Sec. 750.2 and Sec. 750.3, cident involves an actual or potential the guidance on handling and for- claim against the United States for warding claims found in Sec. 750.5, and property damage only and the total the guidance provided in the JAG In- amount likely to be paid does not ex- struction 5800.7E (JAGMAN) 1 of 20 ceed $5,000.00, an abbreviated investiga- June 2007. tive report may be submitted. Where (b) This subpart A delineates general this monetary figure may be exceeded, investigative and claims-processing re- but the circumstances indicate an ab- quirements to be followed in the han- breviated report may be adequate to dling of all incidents and claims within preserve the facts and protect the Gov- the provisions of this part. Where the ernment’s claims interests, approval to general provisions of this subpart A submit a limited investigative report conflict with the specific provisions of may be sought from the Office of the any subsequent subpart of this part, Judge Advocate General (Claims and the specific provisions govern. Tort Litigation Division) (Code 15), the [57 FR 4722, Feb. 7, 1992, as amended at 72 FR Tort Claims Unit Norfolk, or the near- 53417, Sept. 19, 2007] est Naval Legal Service Command activity. § 750.2 Investigations: In general. (d) Developing the facts. Any inves- (a) Conducting the investigation. The tigation convened for claims purposes command where the incident giving must focus on developing the facts of rise to the claim is alleged to have hap- the incident, i.e., the who, what, where, pened is responsible for conducting an when, why, and how of the matter. investigation in accordance with this Opinions on the possible liability of the part. United States under any of the claims (b) Thorough investigation. Every inci- statutes listed above shall not be ex- dent that may result in a claim against pressed. Early and continuous con- or in favor of the United States shall sultation with claims attorneys at be promptly and thoroughly inves- Naval Legal Service Command activi- tigated under this part. Investigations ties is essential to ensure the timely convened for claims purposes are suffi- development of all necessary facts, the ciently complex that they should be identification and preservation of rel- performed with the assistance and evant evidence, and to void the need under the supervision of a judge advo- for supplemental inquiries. cate or other attorney. Where the com- (e) Attorney work product. (1) The con- mand has an attorney assigned, he vening order and the preliminary state- shall be involved in every aspect of the ment of an investigative report pre- proceedings. When an attorney is not pared to inquire into the facts of an in- assigned to the investigating com- cident giving or likely to give rise to a mand, consultation shall be sought claim against the United States shall include the following: 1 JAG Instruction 5800.7E (JAGMAN) may This investigation has been convened and be retrieved at the official Web site of the conducted, and this report prepared, in con- United States Navy Judge Advocate Gen- templation of claims adjudication and litiga- eral’s Corps at http://www.jag.navy.mil. tion and for the express purpose of assisting

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attorneys representing the interests of the and medical, hospital, and associated United States. bills necessary to permit an evaluation (2) When an investigation is prepared of the claimant’s loss; by or at the direction of an attorney (4) To obtain maintenance records of representing the Department of the the Navy motor vehicle, plane, or other Navy and is prepared in reasonable an- piece of equipment involved in the ticipation of litigation, it is exempt claim; from mandatory disclosure under the (5) To reduce to writing and incor- Freedom of Information Act exemption porate into an appropriate investiga- (b)(5) and is normally privileged from tive report all pertinent statements, discovery in litigation under the attor- summaries, exhibits, and other evi- ney work product privilege. 5 U.S.C. dence considered by the investigator in 552(b)(5). Unless an attorney prepares arriving at his conclusions; and, the report or personally directs its (6) To furnish claim forms to any per- preparation, the investigation may not son expressing an interest in filing a be privileged, even if it was prepared in claim and to refer such personnel to reasonable anticipation of litigation. the Office of the Judge Advocate Gen- (f) Advance copy. An advance copy of an investigation conducted because a eral, Tort Claims Unit Norfolk, 9620 claim has been, or is likely to be, sub- Maryland Avenue, Suite 100, Norfolk, mitted shall be forwarded to the Tort Virginia 23511–2989. Claims Unit Norfolk. (c) Content of the report. The written report of investigation shall contain [57 FR 4722, Feb. 7, 1992, as amended at 72 FR information answering the questions 53418, Sept. 19, 2007] mentioned in § 750.3(a) and, depending § 750.3 Investigations: The report. on the nature of the incident, will include the following: (a) Purpose. The purpose of investigations into claims incidents is to gather (1) Date, time, and exact place the all relevant information about the in- accident or incident occurred, speci- cident so adjudicating officers can ei- fying the highway, street, or road; ther pay or deny the claim. The essen- (2) A concise but complete statement tial task of the investigating officer is of the incident with reference to phys- to answer the questions of who, what, ical facts observed and any statements where, when, why and how? The Navy’s by the personnel involved; best interests are served when the in- (3) Names, grades, organizations, and vestigation is thorough and is per- addresses of military personnel and ci- formed in a timely manner so the vilian witnesses; claimant can be advised promptly of (4) Opinions as to whether military the action on the claim. or civilian employees involved in the (b) Duties of the investigating officer. It incident were acting within the scope is the investigating officer’s responsi- of their duties at the time; bility: (5) Description of the Government (1) To interview all witnesses to the property involved in the incident and incident and prepare summaries of the nature of any damage it sustained; their comments. Obtaining signed and, statements of Government witnesses is (6) Descriptions of all private prop- not necessary. Summaries of the witnesses’ remarks prepared by the inves- erty involved. tigating officer are quite sufficient and (d) Immediate report of certain events. generally expedite the gathering of in- The Navy or Marine Corps activity formation. On the other hand, written most directly involved in the incident signed statements should be obtained shall notify the Judge Advocate Gen- from the claimant, wherever possible; eral immediately by message, elec- (2) To inspect the property alleged to tronic mail, or telephone in any of the have been damaged by the action of following circumstances: Government personnel; (1) Claims or possible claims arising (3) To determine the nature, extent, out of a major disaster or out of an in- and amount of any damage, and to ob- cident giving rise to five or more pos- tain pertinent repair bills or estimates sible death or serious injury claims.

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(2) Upon filing of a claim that could shall ordinarily have priority over any result in litigation that would involve other assignments he may have. a new precedent or point of law. (h) Contents of the report of investiga- (3) Claims or possible claims that in- tion. The report should include the fol- volve or are likely to involve an agency lowing items in addition to the require- other than the Department of the ments in § 750.3(c): Navy. (1) If pertinent to the investigation, (e) Request for assistance. When an in- the investigating officer should obtain cident occurs at a place where the a statement from claimant’s employer naval service does not have an installa- showing claimant’s occupation, wage tion or a unit conveniently located for or salary, and time lost from work as a conducting an investigation, the com- result of the incident. In case of per- manding officer or officer in charge sonal injury, the investigating officer with responsibility for performing the should ask claimant to submit a writ- investigation may request assistance ten statement from the attending phy- from the commanding officer or officer sician setting forth the nature and ex- in charge of any other organization of tent of injury and treatment, the dura- the Department of Defense. Likewise, tion and extent of any disability, the if a commanding officer or officer in prognosis, and the period of hos- charge of any other organization of the pitalization or incapacity. Department of Defense requests such (2) A Privacy Act statement for each assistance from a naval commanding person who was asked to furnish per- officer or officer in charge, the latter sonal information shall be provided. should normally comply. If a complete Social Security numbers of military investigation is requested it will be personnel and civilian employees of the performed in compliance with the regu- U.S. Government should be included in lations of the requested service. These the report but should be obtained from investigations are normally conducted available records, not from the indi- without reimbursement for per diem, vidual. mileage, or other expenses incurred by the investigating unit or installation. (3) Names, addresses, and ages of all (f) Report of Motor Vehicle Accident, civilians or military personnel injured Standard Form 91. RCS OPNAV 5100–6. or killed; names of insurance compa- The operator of any Government motor nies; information on the nature and ex- vehicle involved in an accident of any tent of injuries, degree of permanent sort shall be responsible for making an disability, prognosis, period of hos- immediate report on the Operator’s Re- pitalization, name and address of at- port of Motor Vehicle Accident, Stand- tending physician and hospital, and ard Form 91. This operator’s report amount of medical, hospital, and burial shall be made even though the operator expenses actually incurred; occupation of the other vehicle, or any other per- and wage or salary of civilians injured son involved, states that no claim will or killed; and names, addresses, ages, be filed, or the only vehicles involved relationship, and extent of dependency are Government owned. An accident of survivors of any such person fatally shall be reported by the operator re- injured should be included. gardless of who was injured, what prop- (4) If straying animals are involved, a erty was damaged, or who was respon- statement as to whether the jurisdic- sible. The operator’s report shall be re- tion has an ‘‘open range law’’ and, if so, ferred to the investigating officer, who reference to such statute. shall be responsible for examining it (5) A statement as to whether any for completeness and accuracy and who person involved violated any State or shall file it for future reference or for Federal statute, local ordinance, or in- attachment to any subsequent inves- stallation regulation and, if so, in what tigative report of the accident. respect. The statute, ordinance, or reg- (g) Priority of the investigation. To en- ulation should be set out in full. sure prompt investigation of every in- (6) A statement on whether a police cident while witnesses are available investigation was made. A copy of the and before damage has been repaired, police report of investigation should be the duties of an investigating officer included if available.

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(7) A statement on whether arrests thority for a claim subsequently filed, were made or charges preferred, and one copy of the report shall be retained the result of any trial or hearing in by such authority for at least 2 years civil or military courts. after the incident. (i) Expert opinions. In appropriate (3) It is essential that each investiga- cases the opinion of an expert may be tive report reflect that a good faith ef- required to evaluate the extent of dam- fort was made to comply with the Pri- age to a potential claimant’s property. vacy Act of 1974 (5 U.S.C. 552a) as im- In such cases the investigating officer plemented by 32 CFR 701, subpart F. should consult Navy-employed experts, Any indication of noncompliance shall experts employed by other departments be explained either in the preliminary of the U.S. Government, or civilian ex- statement of the forwarding endorse- perts to obtain a competent assessment of claimant’s damages or otherwise to ments and, when required, corrected. protect the Government’s interest. Any [57 FR 4722, Feb. 7, 1992, as amended at 72 FR cost involved with obtaining the opin- 53418, Sept. 19, 2007] ion of an expert not employed by the Navy shall be borne by the command § 750.4 Claims: In general. conducting the investigation. Any cost (a) Claims against the United States. involved in obtaining the opinion of a Claims against the United States shall Navy-employed expert shall be borne receive prompt and professional dis- by the command to which the expert is position. Every effort will be made to attached. Medical experts shall be em- ensure an investigation is thoroughly ployed only after consultation with the and accurately completed, the claim- Chief, Bureau of Medicine and Surgery. (j) Action by command initiating the in- ant’s allegations evaluated promptly, vestigation and subsequent reviewing au- and where liability is established, a thorities. (1) The command initiating check issued as quickly as possible to the investigation in accordance with prevent further harm to a meritorious § 750.3 or § 750.5 shall review the report claimant. Similarly, claims not payble of investigation. If additional inves- will be processed promptly and the tigation is required or omissions or claimant advised of the reasons for the other deficiencies are noted, the inves- denial. tigation should be promptly returned (b) Claims in favor of the United States. with an endorsement indicating that a Potential claims in favor of the United supplemental investigative report will States will be critically evaluated and, be submitted. If the original or supple- where appropriate, promptly asserted mental report is in order, it shall be and aggressively pursued. forwarded by endorsement, with any (c) Assistance to claimants. Claimants pertinent comments and recommenda- or potential claimants who inquire tions. An advance copy of the inves- about their rights or the procedures to tigation shall be forwarded to the Tort be followed in the resolution of their Claims Unit Norfolk. claims should be referred to the Tort (2) A reviewing authority may direct Claims Unit Norfolk. The Tort Claims that additional investigation be con- Unit Norfolk will provide claims forms, ducted, if considered necessary. The initial investigation should not be re- advise where the forms should be filed, turned for such additional investiga- and inform the requester of the type of tion, but should be forwarded by an en- substantiating information required. dorsement indicating that the supple- Claims officers may provide advice on mental material will be submitted. The the claims process but shall not pro- report shall be endorsed and forwarded vide advice or opinions about the mer- to the next-level authority with appro- its or the wisdom of filing a particular priate recommendations including an claim. While claims officers have a re- assessment of the responsibility for the sponsibility to provide general infor- incident and a recommendation as to mation about claims, they must con- the disposition of any claim that may sider 18 U.S.C. 205, which makes it a subsequently be filed. If a reviewing crime for an officer or employee of the authority may be an adjudicating au- United States to act as an agent or an

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attorney in the prosecution of any poration, or the case of an adminis- claim against the United States. trator or executor of the estate of a person deceased, or an insurer sub- [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007] rogated to the rights of the insured. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR § 750.5 Claims: Proper claimants. 53418, Sept. 19, 2007] (a) Damage to property cases. A claim for damage to, or destruction or loss of, § 750.6 Claims: Presentment. property shall be presented by the (a) Written demand and Standard Form owner of the property or a duly author- 95. A claim shall be submitted by pre- ized agent or legal representative. senting a written statement with the ‘‘Owner’’ includes a bailee, lessee, or amount of the claim expressed in a sum mortgagor, but does not include a certain, and, as far as possible, describ- mortgagee, conditional vendor, or ing the detailed facts and cir- other person having title for security cumstances surrounding the incident purposes only. from which the claim arose. The Claim (b) Personal injury and death cases. A for Damage or Injury, Standard Form claim for personal injury shall be pre- 95, shall be used whenever practical for sented by the person injured or a duly claims under the Federal Tort and authorized agent or legal representa- Military Claims Acts. Claims under the tive, or, in the case of death, by the Personnel Claims Act shall be sub- properly appointed legal representative mitted on DD Form 1842. 2 The claim of the deceased’s estate or survivor and all other papers requiring the sig- where authorized by State law. nature of the claimant shall be signed (c) Subrogation. A subrogor and a by the claimant personally or by a duly subrogee may file claims jointly or sep- authorized agent. If signed by an agent arately. When separate claims are filed or legal representative, the claim shall and each claim individually is within indicate the title or capacity of the the Tort Claims Unit Norfolk’s adjudi- person signing and be accompanied by cating authority limits, they may be evidence of appointment. When more processed by the Tort Claims Unit, than one person has a claim arising even if the aggregate of such claims ex- from the same incident, each person ceeds the Tort Claims Unit’s monetary shall file a claim separately. authority. However, if the aggregate of (b) To whom submitted. Claims under the claims exceeds the sum for which the Federal Tort and Military Claims approval of the Department of Justice Acts should be submitted to the Tort (DoJ) is required, currently $200,000.00 Claims Unit Norfolk at the address pro- under the Federal Tort Claims Act, vided in Sec. 750.3 above, or the Office then the Tort Claims Unit Norfolk of the Judge Advocate General, Claims must obtain DoJ approval via the Of- and Tort Litigation Division, 1322 Pat- fice of the Judge Advocate General, terson Avenue, SE., Suite 3000, Wash- Claims and Tort Litigation Division, ington Navy Yard, Washington, DC before the claims may be settled. 20374–5066. Claims may also be sub- (d) Limitation on transfers and assign- mitted to the commanding officer of ment. All transfers and assignments the Navy or Marine Corps activity in- made of any claim upon the United volved if known, the commanding offi- States, and all powers of attorney, or- cer of any Navy or Marine activity, ders, or other authorities for receiving preferably the one nearest to where the payment of any such claim, are abso- accident occurred, or the local Naval lutely null and void unless they are Legal Service Command activity. The made after the allowance of such a claim should be immediately forwarded claim, the ascertainment of the to the Tort Claims Unit Norfolk. amount due, and the issuing of a war- [72 FR 53418, Sept. 19, 2007] rant for the payment thereof. 31 U.S.C. 203. This statutory provision does not 2 The Claim for Damage or Injury, Stand- apply to the assignment of a claim by ard Form 95 and the DD Form 1842 are avail- operation of law, as in the case of a re- able at the Web site of the United States ceiver or trustee in bankruptcy ap- Navy Judge Advocate General’s Corps at pointed for an individual, firm, or cor- http://www.jag.navy.mil.

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§ 750.7 Claims: Action by receiving be considered ‘‘presented’’ until it is command. received in proper form. (a) Record date of receipt. The first (c) Adjudicating the claim. (1) The Tort command receiving a claim shall Claims Unit Norfolk shall evaluate and stamp or mark the date of receipt on either approve or disapprove all claims the letter or claim form. The envelope within its authority, except where the in which the claim was received shall payment of multiple Federal Torts be preserved. Claims Act claims arising from the (b) Determine the military activity in- same incident will exceed $200,000.00 in volved. The receiving command shall the aggregate and thereby require ap- determine the Navy or Marine Corps proval of DoJ. In this latter instance, activity most directly involved with the Torts Claims Unit Norfolk shall the claim—usually the command where contact the Office of the Judge Advo- the incident is alleged to have oc- cate General, Claims and Tort Litiga- curred—and forward a copy of the tion Division (OJAG Code 15). claim to that activity. The original (2) The Tort Claims Unit Norfolk claim (and the transmittal letter, if a shall evaluate and, where liability is copy is forwarded to a more appro- established, attempt to settle claims priate activity) should immediately be for amounts within its adjudicating au- sent to the Tort Claims Unit Norfolk. thority. Negotiation at settlement fig- (c) Initiate an investigation. A ures above the Tort Claims Unit Nor- JAGMAN Litigation Report Investiga- folk’s payment limits may be at- tion shall be commenced immediately tempted if the claimant is informed by the command most directly in- that the final decision on the claim volved with the claim. Once the inves- will be made at a higher level. tigation has been completed, an ad- (3) If a substantiated claim cannot be vance copy shall be forwarded by the approved, settled, or compromised convening authority to the Tort within the settlement authority limits Claims Unit Norfolk. Waiting until en- of the Tort Claims Unit Norfolk, the dorsements have been obtained before Tort Claims Unit Norfolk shall contact providing a copy of the investigation to OJAG Code 15 to seek additional settle- the Tort Claims Unit Norfolk is neither ment authority. To obtain the addi- required nor desirable. The facts of the tional settlement authority, the fol- incident must be made known to cog- lowing materials shall be forwarded to nizant claims personnel as soon as pos- OJAG Code 15: sible. (i) A letter of transmittal containing [57 FR 4722, Feb. 7, 1992, as amended at 72 FR a recommendation on resolution of the 53419, Sept. 19, 2007] claim. (ii) A memorandum of law containing § 750.8 Claims: Responsibility of the a review of applicable law, an evalua- Tort Claims Unit Norfolk. tion of liability, and a recommendation (a) Reviewing prior actions. The adju- on the settlement value of the case. dicating authority (Tort Claims Unit This memorandum should concentrate Norfolk) determines whether an ade- on the unusual aspects of applicable quate investigation has been con- law, chronicle the attempts to resolve ducted, whether the initial receipt date the case, provide information about the is recorded on the face of the claim, availability of witnesses, and outline and whether all holders of the inves- any other information material to a tigation, if completed, are advised of resolution of the claim, i.e., prior deal- the receipt of the claim. ings with the claimant’s attorney, (b) Determining the sufficiency of the local procedural rules, or peculiarities claim. The claim should be reviewed that may make trial difficult. The and a determination of its sufficiency memorandum should be tailored to the made. If the claim is not sufficient as complexity of the issues presented and received, it shall be immediately re- provide any expert opinions that have turned to the party who submitted it been obtained in the case by the Navy along with an explanation of the insuf- or the claimant. ficiency. This does not constitute de- (d) Preparing litigation reports. The nial of the claim. The claim shall not Tort Claims Unit Norfolk will prepare

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a litigation report when a lawsuit is tive settlement of Federal tort claims filed and the complaint is received. The or the civil action provisions of 28 report is sent directly to the DoJ offi- U.S.C. 1346(b) also constitutes a com- cial or the U.S. Attorney having cog- plete release of any claim against any nizance of the matter. The report is a employee of the Government whose act narrative summary of the facts upon or omission gave rise to the claim. which the suit is based and has as enclosures the claims file and a memo- [57 FR 4722, Feb. 7, 1992, as amended at 72 FR randum of law on the issues presented. 53419, Sept. 19, 2007] A copy of the report and all enclosures should be sent to the Judge Advocate § 750.11 Claims: Denial. General (OJAG Code 15). A final denial of any claim within [72 FR 53419, Sept. 19, 2007] this chapter shall be in writing and sent to the claimant, his attorney, or § 750.9 Claims: Payments. legal representative by certified or reg- Claims approved for payment shall be istered mail with return receipt re- expeditiously forwarded to the dis- quested. The denial notification shall bursing office or the General Account- include a statement of the reason or ing Office depending on the claims act reasons for the denial. The notification involved and the amount of the re- shall include a statement that the quested payment. Generally, payment claimant may: of a Federal tort claim above $2,500.00 (a) If the claim is cognizable under requires submission of the payment the Federal Tort Claims Act, file suit voucher to the General Accounting Of- in the appropriate United States Dis- fice. All other field authorized pay- trict Court within 6 months of the date ment vouchers are submitted directly of the denial notification. to the servicing disbursing office for (b) If the claim is cognizable under payment. the Military Claims Act, appeal in writing to the Office of the Judge Ad- § 750.10 Claims: Settlement and release. vocate General, Claims and Tort Liti- gation Division within 30 days of the (a) Fully and partially approved claims. receipt of the denial notification. The When a claim is approved for payment in the amount claimed, settlement notice of denial shall inform the claim- agreement may not be necessary. When ant or his representative that is suit is a federal tort, military, or non-scope not possible under the act. claim is approved for payment in a [57 FR 4722, Feb. 7, 1992, as amended at 72 FR lesser amount than that claimed, the 53419, Sept. 19, 2007] claimant must indicate in writing a willingness to accept the offered § 750.12 Claims: Action when suit filed. amount in full settlement and final (a) Action required of any Navy official satisfaction of the claim. In the latter receiving notice of suit. The commence- instance, no payment will be made until a signed settlement agreement ment, under the civil action provisions has been received. of the Federal Tort Claims Act (28 (b) Release. (1) Acceptance by the U.S.C. 1346(b)), of any action against claimant of an award or settlement the United States and involving the made by the Secretary of the Navy or Navy, that comes to the attention of designees, or the Attorney General or any official in connection with his offi- designees, is final upon acceptance by cial duties, shall be reported imme- the claimant. Acceptance is a complete diately to the Tort Claims Unit Nor- release by claimant of any claim folk to take any necessary action and against the United States by reason of provide prompt notification to the the same subject manner. Claimant’s Judge Advocate General. The com- acceptance of an advance payment does mencement of a civil action against an not have the same effect. employee of the Navy for actions aris- (2) The claimant’s acceptance of an ing from the performance of official du- award or settlement made under the ties shall be reported in the same man- provisions governing the administra- ner.

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(b) Steps upon commencement of civil claims and demands by the United action. Upon receipt by the Judge Ad- States Government; and vocate General or Tort Claims Unit (8) Public Law 87–212 (10 U.S.C. 2736), Norfolk of notice from the DoJ or advance or emergency payments. other source that a civil action involv- (b) Single service assignments for ing the Navy has been initiated under processing claims mentioned above are the civil action provisions of the Fed- as follows: eral Tort Claims Act, and there being (1) Department of the Army: Austria, no investigative report available at the Belgium, El Salvador, the Federal Re- headquarters, a request shall be made public of Germany, Grenada, Honduras, to the commanding officer of the appropriate Naval Legal Service Com- Hungary, Korea, Iraq, Kuwait, Latvia, mand activity for an investigative re- Lithuania, the Marshall Islands, the port into the incident. If there is not a Netherlands, Poland, Romania, Slo- completed investigation, the request vakia, Slovenia and Switzerland, and shall be forwarded to the appropriate as the Receiving State Office in the naval activity to convene and complete United States under 10 U.S.C. Sections such a report. The commanding officer 2734a—2734b and the NATO Status of of the Naval Legal Service Command Forces Agreement, and other Status of activity shall contact the Tort Claims Forces Agreements with countries not Unit Norfolk to determine whether an covered by the NATO agreement. administrative claim had been filed Claims arising from Operation Joint and, if available information indicates Endeavor, including the former Yugo- none had, the Tort Claims Unit Norfolk slavia, Hungary, Slovakia and the shall advise the Office of the Judge Ad- Czech Republic, as well as the Rwanda vocate General (Claims and Tort Liti- Refugee Crisis Area are also assigned gation Division) immediately. to the Army. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR (2) Department of the Navy: Bahrain, 53419, Sept. 19, 2007] Greece, Iceland, Israel, Italy, Spain and the United Arab Emirates. § 750.13 Claims: Single service respon- (3) Department of the Air Force: Aus- sibility. tralia, Azores, Canada, Cyprus, Den- (a) The Department of Defense has mark, India, Japan, Luxembourg, Mo- assigned single-service responsibility rocco, Nepal, Norway, Pakistan, Saudi for processing claims in foreign coun- Arabia, Tunisia, Turkey, the United tries under the following acts. The Kingdom, Egypt, Oman, and claims in- service and country assignments are in volving, or generated by, the United DODDIR 5515.8 of 9 June 1990. States Central Command (CENTCOM) (1) Foreign Claims Act (10 U.S.C. and the United States Special Oper- 2734); ations Command (SOCOM), that arise (2) Military Claims Act (10 U.S.C. in countries not specifically assigned 2733); to the Departments of the Army and (3) International Agreements Claims the Navy. Act (10 U.S.C. 2734a and b), on the pro- (c) U.S. forces afloat cases under rata cost sharing of claims pursuant to $2,500.00. Notwithstanding the single international agreement; service assignments above, the Navy (4) NATO Status of Forces Agree- may settle claims under $2,500.00 ment (4 UST 1792, TIAS 2846) and other caused by personnel not acting within similar agreements; the scope of employment and arising in (5) Medical Care Recovery Act (42 foreign ports visited by U.S. forces U.S.C. 2651–2653) claims for reimbursement for medical care furnished by the afloat and may, subject to the concur- United States; rence of the authorities of the receiv- (6) Nonscope Claims Act (10 U.S.C. ing state concerned, process such 2737), claims not cognizable under any claims. other provision of law; [57 FR 4722, Feb. 7, 1992, as amended at 72 FR (7) Federal Claims Collection Act (31 53420, Sept. 19, 2007] U.S.C. Sections 3701, 3702, and 3711),

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§§ 750.14–750.20 [Reserved] similar circumstances. Negligent conduct can result from either an act or a Subpart B—Federal Tort Claims failure to act. The law of the place Act where the conduct occurred will determine whether a cause of action lies § 750.21 Scope of subpart B. against the Government. 28 U.S.C. 1346(b) and 2674. This subpart provides information regarding the administrative processing (b) Intentional torts. Although any and consideration of claims against the employee who commits an intentional United States under the FTCA. The tort is normally considered to be act- FTCA is a limited waiver of sovereign ing outside the scope of employment, immunity. Under the FTCA, an indi- the FTCA does allow claimants to seek vidual can seek money damages for compensation for injuries arising out personal injury, death, or property of the intentional torts of assault, bat- damage caused by the negligent or tery, false imprisonment, false arrest, wrongful act or omission of a Federal abuse of process, and malicious pros- employee acting within the scope of ecution, if committed by a Federal in- employment. The FTCA also provides vestigative or law enforcement officer. for compensation for injuries caused by An ‘‘investigative or law enforcement certain intentional, wrongful conduct. officer’’ is any officer of the United The liability of the United States is de- States empowered by law to execute termined in accordance with the law of searches, to seize evidence, or to make the State where the act or omission arrests for violations of Federal law. 28 occured. U.S.C. 2680(h). (c) Government employees—(1) General. § 750.22 Exclusiveness of remedy. ‘‘Employee of the Government,’’ de- (a) The Federal Employees Liability fined at 28 U.S.C. 2671, includes officers Reform and Tort Compensation Act of or employees of any Federal agency, 1988, Public Law 100–694 (amending 28 members of the U.S. military or naval U.S.C. 2679(b) and 2679(d)), provides forces, and persons acting on behalf of that the exclusive remedy for damage a Federal agency in an official capac- or loss of property, or personal injury ity. or death arising from the negligent or (2) Government contractors. Govern- wrongful acts or omissions of all Fed- ment (also referred to as independent) eral employees, acting within the scope contractors, are those individuals or of their employment, will be against businesses who enter into contracts the United States. This immunity from with the United States to provide personal liability does not extend to allegations of constitutional torts, nor to goods or services. Because the defini- allegations of violations of statutes tion of ‘‘Federal agency,’’ found at 28 specifically authorizing suits against U.S.C. 2671, specifically excludes ‘‘any individuals. contractor with the United States,’’ (b) Other statutory provisions create the United States is generally not lia- immunity from personal liability for ble for the negligence of Government specific categories of Federal employ- contractors. There are, however, three ees whose conduct, within the scope of limited exceptions to the general rule, their employment, gives rise to claims under which a cause of action against against the Government. Department the United States has been found to of Defense health care providers are exist in some jurisdictions. They are: specifically protected by 10 U.S.C. 1089, (i) Where the thing or service con- the Gonzalez Act. DOD attorneys are tracted for is deemed to be an ‘‘inher- specifically protected by 10 U.S.C. 1054. ently dangerous activity’’; (ii) where a nondelegable duty in the § 750.23 Definitions. employer has been created by law; or, (a) Negligent conduct. Generally, neg- (iii) where the employer retains con- ligence is the failure to exercise that trol over certain aspects of the con- degree of care, skill, or diligence a rea- tract and fails to discharge that con- sonable person would exercise under trol in a reasonable manner.

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(3) Employees of nonappropriated-fund egories of exclusions from FTCA liabil- activities. Nonappropriated-fund activi- ity. ties are entities established and oper- (1) Statutory exclusions. Section 2680 ated for the benefit of military mem- of Title 28 lists claims not cognizable bers and their dependents, and have under the FTCA. They include: been judicially determined to be (i) Claims based on the exercise or ‘‘arms’’ of the Federal government. performance of, or the failure to exer- These entities operate from self-gen- cise or perform, a discretionary Gov- erated funds, rather than from funds ernment function; appropriated by Congress. Examples in- (ii) Admiralty claims under 46 U.S.C. clude Navy and Marine Corps Ex- 741–752 or 781–790. Claims under the changes, officer or enlisted clubs, and Death on the High Seas Act (46 U.S.C. recreational services activities. A 761), however, are cognizable under the claim arising out of the act or omission FTCA. All admiralty claims will be re- of an employee of a nonappropriated- ferred to the Judge Advocate General fund activity not located in a foreign for adjudication. Admiralty claims country, acting within the scope of em- against the Navy shall be processed ployment, is an act or omission com- under part 752 of this Chapter; mitted by a Federal employee and will (iii) Claims arising from intentional be handled in accordance with the torts, except those referred to in FTCA. § 750.23(b); (d) Scope of employment. ‘‘Scope of (iv) Claims arising from the combat employment’’ is defined by the law of activities of the military or naval respondeat superior (master and serv- forces, or the Coast Guard, during time ant) of the place where the act or omis- of war. sion occurred. Although 28 U.S.C. 2671 (2) Additional claims not payable. Al- states that acting within the scope of though not expressly statutorily ex- employment means acting in the line cepted, the following types of claims of duty, the converse is not always shall not be paid under the FTCA: true. For administrative purposes, a (i) A claim for personal injury or Government employee may be found death of a member of the armed forces ‘‘in the line of duty,’’ yet not meet the of the United States incurred incident criteria for a finding of ‘‘within the to military service or duty. Compare scope of employment’’ under the law of United States v. Johnson, 481 U.S. 681 the place where the act or omission oc- (1987); Feres v. United States, 340 U.S. 135 curred. (1950) with Brooks v. United States, 337 U.S. 49 (1949); § 750.24 Statutory/regulatory author- (ii) Any claim by military personnel ity. or civilian employees of the Navy, paid The statutory provisions of the Fed- from appropriated funds, for personal eral Tort Claims Act (FTCA) are at 28 property damage occurring incident to U.S.C. 1346(b), 2671–2672, and 2674–2680. service or Federal employment, cog- The Attorney General of the United nizable under 31 U.S.C. 3721 and the ap- States has issued regulations on ad- plicable Personnel Claims Regulations, ministrative claims filed under the 32 CFR part 751; FTCA at 28 CFR part 14. If the provi- (iii) Any claim by employees of non- sions of this section and the Attorney appropriated-fund activities for per- General’s regulations conflict, the At- sonal property damage occurring inci- torney General’s regulations prevail. dent to Federal employment. These claims will be processed as indicated in § 750.25 Scope of liability. 32 CFR part 756; (a) Territorial limitations. The FTCA (iv) Any claim for personal injury or does not apply to any claim arising in death covered by the Federal Employ- a foreign country. 28 U.S.C. 2680(k) and ees’ Compensation Act (5 U.S.C. 8116c); Beattie v. United States, 756 F.2d 91 (D.C. (v) Any claim for personal injury or Cir. 1984). death covered by the Longshore and (b) Exclusions from liability. Statutes Harbor Workers’ Compensation Act (33 and case law have established cat- U.S.C. 905 and 5 U.S.C. 8171);

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(vi) That portion of any claim for to the appropriate agency, if ascertain- personal injury or property damage, able, or returned to the claimant. A caused by the negligence or fault of a claimant presenting identical claims Government contractor, to the extent with more than one agency should such contractor may have assumed li- identify every agency to which the ability under the terms of the contract claim is submitted on every claim form (see United States v. Seckinger, 397 U.S. presented. Claims officers shall coordi- 203 (1969) and § 750.23(c)(2); nate with all other affected agencies (vii) Any claim against the Depart- and ensure a lead agency is designated. ment of the Navy by another Federal 28 CFR 14.2. agency. Property belonging to the Gov- ernment is not owned by any one de- § 750.27 Information and supporting partment of the Government. The Gov- documentation. ernment does not reimburse itself for (a) Proper documentation. Depending the loss of its own property except on the type of claim, claimants may be where specifically provided for by law; required to submit information, as fol- and lows: (viii) Any claim for damage to a vehicle rented pursuant to travel orders. (1) Death. (i) An authenticated death certificate or other competent evidence § 750.26 The administrative claim. showing cause of death, date of death, (a) Proper claimant. See § 750.5 of this and age of the decedent; part. (ii) Decedent’s employment or occu- (b) Claim presented by agent or legal pation at time of death, including representative. A claim filed by an agent monthly or yearly earnings and the du- or legal representative will be filed in ration of last employment; the name of the claimant; be signed by (iii) Full names, addresses, birth the agent or legal representative; show dates, relationship, and marital status the title or legal capacity of the person of the decedent’s survivors, including signing; and be accompanied by evi- identification of survivors dependent dence of the individual’s authority to for support upon decedent at the time file a claim on behalf of the claimant. of death; (c) Proper claim. A claim is a notice in (iv) Degree of support provided by de- writing to the appropriate Federal cedent to each survivor at time of agency of an incident giving rise to death; Government liability under the FTCA. (v) Decedent’s general physical and It must include a demand for money mental condition before death; damages in a definite sum for property (vi) Itemized bills for medical and damage, personal injury, or death al- burial expenses; leged to have occurred by reason of the (vii) If damages for pain and suffering incident. The Attorney General’s regu- are claimed, a physician’s detailed lations specify that the claim be filed statement specifying the injuries suf- on a Standard Form 95 or other written fered, duration of pain and suffering, notification of the incident. If a letter any drugs administered for pain, and or other written notification is used, it is essential that it set forth the same the decedent’s physical condition dur- basic information required by Standard ing the interval between injury and Form 95. Failure to do so may result in death; and, a determination that the administra- (viii) Any other evidence or informative claim is incomplete. A suit may be tion which may affect the liability of dismissed on the ground of lack of sub- the United States. ject matter jurisdiction based on (2) Personal injury. (i) A written re- claimant’s failure to present a proper port by attending physician or dentist claim as required by 28 U.S.C. 2675(a). on the nature and extent of the injury, (d) Presentment. A claim is deemed nature and extent of treatment, any presented when received by the Navy in degree of temporary or permanent dis- proper form. A claim against another ability, the prognosis, period of hos- agency, mistakenly addressed to or pitalization, any diminished earning filed with the Navy shall be transferred capacity. In addition, the claimant

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may be required to submit to a phys- be submitted in writing and must be ical or mental examination by a physi- signed by the claimant or duly author- cian employed by any Federal agency. ized agent or legal representative. No Upon written request, a copy of the re- finally denied claim for which recon- port of the examining physician shall sideration has not been requested be provided; under § 750.31 may be amended. (ii) Itemized bills for medical, dental, and hospital expenses incurred, or § 750.29 Investigation and examina- itemized receipts of payments of such tion. expenses; Subpart A of this part requires an in- (iii) A statement of expected ex- vestigation for every incident that may penses for future treatment; result in a claim against or in favor of (iv) If a claim is made for lost wages, the United States. Where a previously a written statement from the employer unanticipated claim is filed against the itemizing actual time and wages lost; Government and an investigation has (v) If a claim is made for lost self-em- not already been conducted, the appro- ployed income, documentary evidence priate claims officer shall immediately showing the amount of earnings actually lost; and request an investigation. See subpart A (vi) Any other evidence or informa- of this part for specific action required tion which may affect the liability of by an adjudicating authority. the United States for the personal in- § 750.30 Denial of the claim. jury or the damages claimed. (3) Property damage. (i) Proof of own- Final denial of an administrative ership; claim shall be in writing and shall be (ii) A detailed statement of the sent to the claimant, his duly author- amount claimed for each item of prop- ized agent or legal representative by erty; certified or registered mail, with re- (iii) An itemized receipt of payment turn receipt requested. The notifica- for necessary repairs or itemized writ- tion of final denial shall include the ten estimates of the cost of repairs; reasons for the denial. The notification (iv) A statement listing date of pur- shall include a statement informing chase, purchase price, and salvage the claimant of his right to file suit in value where repair is not economical; the appropriate Federal district court and not later than 6 months after the date (v) Any other evidence or informa- of the mailing of the notification. 28 tion which may affect the liability of CFR 14.9(a). the United States for the property damage claimed. § 750.31 Reconsideration. (b) Failure to submit necessary docu- (a) Request. Prior to the commence- mentation. If claimant fails to provide ment of suit and prior to the expiration sufficient supporting documentation, of the 6-month period for filing suit, a claimant should be notified of the defi- claimant or his duly authorized agent ciency. If after notice of the deficiency, or legal representative may present a including reference to 28 CFR 14.4, the request for reconsideration to the au- information is still not supplied, two thority who denied the claim. The re- follow-up requests should be sent by quest shall be in writing and shall certified mail, return receipt re- state the reasons for the requested requested. If after a reasonable period of consideration. A request for reconsider- time the information is still not pro- ation is presented on the date it is re- vided, the appropriate adjudicating au- ceived by the DON. 28 CFR 14.9(b). thority should deny the claim. (b) Proper basis. A request for recon- [57 FR 4722, Feb. 7, 1992, as amended at 72 FR sideration shall set forth claimant’s 53420, Sept. 19, 2007] reasons for the request, and shall include any supplemental supporting evi- § 750.28 Amendment of the claim. dence or information. Any writing A proper claim may be amended at communicating a desire for reconsider- any time prior to settlement, denial, or ation that reasonably appears to have the filing of suit. An amendment must been presented solely for the purpose of

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extending the statutory period for fil- (4) Preservation of evidence. Tort liti- ing suit, shall not be treated as a re- gation is often accomplished over an quest for reconsideration. Claimant or extended period of time. Every effort claimant’s authorized representative shall be made to preserve files, docu- shall be notified promptly that the ments, and other tangible evidence writing is not considered a proper re- that may bear on litigation. Destruc- quest for reconsideration. tion of such evidence, even in accord- (c) Effect of presentment of request. The ance with routine operating proce- presentment of a proper request for re- dures, undermines defense of a case. consideration starts a new 6-month pe- § 750.33 Damages. riod for the DON to act on the request to reconsider. The claimant may not (a) Generally. The measure of dam- file suit until the expiration of the new ages is determined by the law of the 6-month period, or until after the date place where the act or omission oc- of mailing of the final denial of the re- curred. When there is a conflict be- quest. Final denial of a request for re- tween local and applicable Federal law, consideration shall be accomplished in the latter governs. 28 U.S.C. 1346(b). the manner prescribed in § 750.30. 28 (b) Limitations on liability. The United CFR 14.9(b). States is not liable for interest prior to judgment or for punitive damages. In a § 750.32 Suits under the Federal Tort death case, if the place where the act Claims Act (FTCA). or omission complained of occurred provides for only punitive damages, the (a) Venue. Venue is proper only in the United States will be liable in lieu judicial district where the plaintiff re- thereof, for actual or compensatory sides or where the act or omission com- damages. 28 U.S.C. 2674. plained of occurred. 28 U.S.C. 1402. (c) Setoff. The United States is not (b) Jury trial. There is no right to obligated to pay twice for the same in- trial by jury in suits brought under the jury. Claimants under the FTCA may FTCA. 28 U.S.C. 2402. have received Government benefits or (c) Settlement. The Attorney General services as the result of the alleged of the United States, or designee, may tort. The cost of these services or bene- arbitrate, compromise, or settle any fits shall be considered in arriving at action filed under the FTCA. 28 U.S.C. any award of damages. For example, 2677. the cost of medical or hospital services (d) Litigation support—(1) Who pro- furnished at Government expense, in- vides. The adjudicating authority hold- cluding TRICARE payments, shall be ing a claim at the time suit is filed considered. Additionally, benefits or shall be responsible for providing nec- services received under the Veterans essary assistance to the Department of Act (38 U.S.C. 101–800) must be consid- Justice official or U.S. Attorney re- ered. Brooks v. United States, 337 U.S. 49 sponsible for defending the Govern- (1949). ment’s interests. (d) Suit. Any damage award in a suit (2) Litigation report. A litigation re- brought under the FTCA is limited to port, including a legal memorandum the amount claimed administratively emphasizing anticipated issues during unless based on newly discovered evi- litigation, shall be furnished to the ap- dence. 28 U.S.C. 2675(b). Plaintiff must propriate Department of Justice offi- prove the increased demand is based on cial or U.S. Attorney. facts not reasonably discoverable at (3) Pretrial discovery. Complete and the time of the presentment of the timely responses to discovery requests claim or on intervening facts relating are vital to the effective defense of tort to the amount of the claim. litigation. Subject to existing per- [57 FR 4722, Feb. 7, 1992, as amended at 72 FR sonnel and resources available, appro- 53420, Sept. 19, 2007] priate assistance shall be provided. The Judge Advocate General should be no- § 750.34 Settlement and payment. tified promptly when special problems (a) Settlement agreement—(1) When re- are encountered in providing the required. A settlement agreement, signed quested assistance. by the claimant, must be received prior

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to payment in every case in which the the prior written approval of the Attor- claim is either: ney General or designee. Title 28 CFR (i) Settled for less than the full 14.6 requires consultation with the De- amount claimed, or partment of Justice prior to com- (ii) The claim was not presented on a promise or settlement of a claim in any Standard Form 95. amount when: (2) Contents. Every settlement agree- (i) A new precedent or a new point of ment must contain language indicating law is involved; payment is in full and final settlement (ii) A question of policy is or may be of the applicable claim. Each settle- involved; ment agreement shall contain lan- (iii) The United States is or may be guage indicating acceptance of the set- entitled to indemnity or contribution tlement amount by the claimant, or from a third party and the agency is his agent or legal representative, shall unable to adjust the third party claim; be final and conclusive on the claim- (iv) The compromise of a particular ant, or his agent or legal representa- claim, as a practical matter, will or tive, and any other person on whose be- may control the disposition of a re- half or for whose benefit the claim has lated claim in which the amount to be been presented, and shall constitute a paid may exceed $100,000.00; or complete release of any claim against (v) The DON is informed or is other- the United States and against any em- wise aware that the United States or ployee of the Government whose con- an employee, agent, or cost-plus conduct gave rise to the claim, by reason tractor of the United States is involved of the same subject matter. 28 CFR in litigation based on a claim arising 14.10(b). In cases where partial payment out of the same incident or trans- will benefit both claimant and the Gov- action. ernment, such as payment for property (2) Specific delegation and designa- damage to an automobile, the settle- tion—(i) Payment authority. ment agreement shall be tailored to reflect the terms of the partial settle- DELEGATED AND DESIGNATED AUTHORITY ment. All settlement agreements shall FEDERAL TORT CLAIMS ACT contain a recitation of the applicable Judge Advocate General—$200,000.00 statutory limitation of attorneys fees. Deputy Judge Advocate General— 28 U.S.C. 2678. $200,000.00 (b) DON role in settlement negotiations Assistant Judge Advocate General involving the U.S. Attorney or DOJ. (General Law)—$200,000.00 Agency concurrence is generally Deputy Assistant Judge Advocate Gen- sought by the Department of Justice or eral (Claims and Tort Litigation) U.S. Attorney’s office prior to settle- and Deputy Division Director— ment of suits involving the DON. Re- $200,000.00 quests for concurrence in settlement Head, Tort Claims Branch (Claims and proposals shall be referred to the ap- Tort Litigation)—$200,000.00 propriate DON adjudicating authority with primary responsibility for moni- Any payment of over $200,000.00 must toring the claim. Adjudicating authori- be approved by DoJ. The Judge Advo- ties shall consult with the Judge Advo- cate General, the Deputy Judge Advo- cate General concerning proposed set- cate General, the Assistant Judge Ad- tlements beyond their adjudicating au- vocate General (General Law), Deputy thority. Assistant Judge Advocate General (c) Payment of the claim—(1) Statutory (Claims and Tort Litigation), and the authority. Pursuant to 28 U.S.C. 2672 Head, Tort Claims Branch (Claims and and in accordance with 28 CFR 14.6(a), Tort Litigation) may deny Federal the Secretary of the Navy or designee, Tort Claims in any amount. acting on behalf of the United States (ii) Adjudicating authority. The De- may compromise or settle any claim partment of the Navy’s tort claims ad- filed against the Navy under the FTCA, judication function is consolidated as provided any award, compromise, or the Tort Claims Unit Norfolk (TCU) lo- settlement by the Navy in excess of cated at Naval Station, Norfolk, VA. $200,000.00 may be effected only with The address is as follows: Department

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of the Navy, Office of the Judge Advo- The failure of the DON to make final cate General, Tort Claims Unit Nor- disposition of a claim within 6 months folk, 9620 Maryland Avenue Suite 100, after it is presented shall, at the option Norfolk, VA 23511–2989. of the claimant any time thereafter, be (3) Funding. Claims approved for deemed a final denial of the claim. 28 $2,500.00 or less are paid from DON ap- U.S.C. 2675(a). propriations. Claims approved in excess of $2,500.00 are paid from the judgment §§ 750.37–750.40 [Reserved] fund and must be forwarded to the United States General Accounting Of- fice (GAO) for payment. 28 CFR Subpart C—Military Claims Act 14.10(a). Claims arising out of the oper- § 750.41 Scope of subpart C. ation of nonappropriated-fund activities and approved for payment shall be This section prescribes the sub- forwarded to the appropriate non- stantive bases and special procedural appropriated-fund activity for pay- requirements for the settlement of ment. claims against the United States for [57 FR 4722, Feb. 7, 1992, as amended at 72 FR death, personal injury, or damage, loss, 53420, Sept. 19, 2007] or destruction of property: (a) Caused by military personnel or ci- § 750.35 Attorney’s fees. vilian employees of the Department of the Attorney’s fees are limited to 20 per- Navy (DON) (hereinafter DON personnel). cent of any compromise or settlement For the purposes of this section, DON of an administrative claim, and are personnel include all military per- limited to 25 percent of any judgment sonnel of the Navy and Marine Corps, rendered in favor of a plaintiff, or of volunteer workers, and others serving any settlement accomplished after suit as employees of the DON with or with- is filed. These amounts are to be paid out compensation, and members of the out of the amount awarded and not in National Oceanic and Atmospheric Ad- addition to the award. 28 U.S.C. 2678. ministration or of the Public Health § 750.36 Time limitations. Service when serving with the DON. DON personnel does not include DON (a) Administrative claim. Every claim contractors or their employees. filed against the United States under (b) Incident to noncombat activities of the FTCA must be presented in writing within 2 years after the claim accrues. the DON. Claims for personal injury or 28 U.S.C. 2401(b). Federal law deter- death of a member of the Armed Forces mines the date of accrual. A claim ac- or Coast Guard, or civilian officer or crues when the claimant discovers or employee of the U.S. Government reasonably should have discovered the whose injury or death is incident to existence of the act giving rise to the service, however, are not payable. claim. In computing the statutory time (c) Territorial limitation. There is no period, the day of the incident is ex- geographical limitation on the applica- cluded and the day the claim was pre- tion of the MCA, but if a claim arising sented included. in a foreign country is cognizable (b) Amendments. Upon timely filing of under the Foreign Claims Act (10 an amendment to a pending claim, the U.S.C. 2734), the claim shall be proc- DON shall have 6 months to make a essed under that statute. See 10 U.S.C. final disposition of the claim as amend- 2733(b)(2). ed, and the claimant’s option to file (d) Suit. The MCA authorizes the ad- suit under 28 U.S.C. 2675(a) shall not ministrative settlement and payment accrue until 6 months after the pre- of certain claims. The United States sentment of an amendment. 28 CFR has not consented to be sued. 14.2(c). (c) Suits. A civil action is barred un- § 750.42 Statutory authority. less suit is filed against the United States not later than 6 months after 10 U.S.C. 2733, as amended, commonly the date of mailing of notice of final referred to as the Military Claims Act denial of the claim. 28 U.S.C. 2401(b). (MCA).

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§ 750.43 Claims payable. (2) Property bailed to the DON. Claims (a) General. Unless otherwise pre- for damage to or loss of personal prop- scribed, a claim for personal injury, erty bailed to the DON, under an ex- death, or damage or loss of real or per- press or implied agreement are payable sonal property is payable under this under the MCA, even though legally provision when: enforceable against the U.S. Govern- (1) Caused by an act or omission de- ment as contract claims, unless by ex- termined to be negligent, wrongful, or press agreement the bailor has as- otherwise involving fault of DON per- sumed the risk of damage, loss, or de- sonnel acting within the scope of their struction. Claims filed under this para- employment; or graph may, if in the best interest of the (2) Incident to noncombat activities U.S. Government, be referred to and of the DON. A claim may be settled processed by the Office of the General under this provision if it arises from Counsel, DON, as contract claims. authorized activities essentially mili- (3) Real property. Claims for damage tary in nature, having little parallel in to real property incident to the use and civilian pursuits, and in which the U.S. occupancy by the DON, whether under Government has historically assumed a an express or implied lease or other- broad liability, even if not shown to wise, are payable under the MCA even have been caused by any particular act though legally enforceable against the or omission by DON personnel while DON as contract claims. Claims filed acting within the scope of their em- under this paragraph may, if in the ployment. Examples include practice best interest of the U.S. Government, firing of missiles and weapons, sonic be referred to and processed by the Of- booms, training and field exercises, and fice of the General Counsel, DON, as maneuvers that include operation of contract claims. aircraft and vehicles, use and occu- (4) Property of U.S. military personnel. pancy of real estate, and movement of Claims of U.S. military personnel for combat or other vehicles designed espe- property lost, damaged, or destroyed cially for military use. Activities inci- under conditions in § 750.43(a) (1) and (2) dent to combat, whether or not in time occurring on a military installation, of war, and use of DON personnel dur- not payable under the Military Per- ing civil disturbances are excluded. sonnel and Civilian Employees’ Claims (b) Specific claims payable. Claims Act, are payable under the MCA. payable by the DON under § 750.43(a) (1) (5) Health care and Legal Assistance and (2) shall include, but not be limited Providers. Claims arising from the per- to: sonal liability of DON health care and (1) Registered or insured mail. Claims legal assistance personnel for costs, for damage to, loss, or destruction, settlements, or judgments for neg- even if by criminal acts, of registered ligent acts or omissions while acting or insured mail while in the possession within the scope of assigned duties or of DON authorities are payable under employment are payable under the the MCA. This provision is an excep- MCA. See § 750.54. tion to the general requirement that compensable damage, loss, or destruc- § 750.44 Claims not payable. tion of personal property be caused by (a) Any claim for damage, loss, de- DON personnel while acting within the struction, injury, or death which was scope of their employment or otherwise proximately caused, in whole or in incident to noncombat activities of the part, by any negligence or wrongful act DON. The maximum award to a claim- on the part of the claimant, or his ant under this section is limited to agent or employee, unless the law of that to which the claimant would be the place where the act or omission entitled from the Postal Service under complained of occurred would permit the registry or insurance fee paid. The recovery from a private individual award shall not exceed the cost of the under like circumstances, and then item to the claimant regardless of the only to the extent permitted by the fees paid. Claimant may be reimbursed law. for the postage and registry or insur- (b) Any claim resulting from action ance fees. by the enemy or resulting directly or

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indirectly from any act by armed (n) Any claim to which the excep- forces engaged in combat. tions in 28 U.S.C. 2680 apply. (c) Any claim for reimbursement of [57 FR 4722, Feb. 7, 1992, as amended at 72 FR medical, hospital, or burial expenses to 53420, Sept. 19, 2007] the extent already paid by the U.S. Government. § 750.45 Filing claim. (d) Any claim cognizable under: (a) Who may file. Under the MCA, spe- (1) Military Personnel and Civilian cifically, the following are proper Employees’ Claims Act, as amended. 31 claimants: U.S.C. 3721. (1) U.S. citizens and inhabitants. (2) Foreign Claims Act. 10 U.S.C. 2734. (2) U.S. military personnel and civil- (3) 10 U.S.C. 7622, relating to admi- ian employees, except not for personal ralty claims. See part 752 of this Chap- injury or death incident to service. ter. (3) Persons in foreign countries who (4) Federal Tort Claims Act. 28 U.S.C. are not inhabitants. 2671, 2672, and 2674–2680. (4) States and their political subdivi- (5) International Agreements Claims sions (including agencies). Act. 10 U.S.C. 2734a and 2734b. (5) Prisoners of war for personal prop- (6) Federal Employees’ Compensation erty, but not personal injury. Act. 5 U.S.C. 8101–8150. (6) Subrogees, to the extent they paid (7) Longshore and Harbor Workers’ the claim. Compensation Act. 33 U.S.C. 901–950. (b) Who may not file. (1) Inhabitants (e) Any claim for damage to or loss of foreign nations for loss or injury oc- or destruction of real or personal prop- curring in the country they inhabit. erty founded in written contract [ex- (2) U.S. Government agencies and de- cept as provided in § 750.43(b) (2) and partments. (3)]. (c) When to file/statute of limitations. (f) Any claim for rent of real or per- Claims against the DON must be pre- sonal property [except as provided in sented in writing within 2 years after § 750.43(b) (2) and (3)]. they accrue. In computing the 2 year (g) Any claim involving infringement period, the day the claim accrues is ex- of patents. cluded and the day the claim is pre- (h) Any claim for damage, loss, or de- sented is included. If the incident oc- struction of mail prior to delivery by curs in time of war or armed conflict, the Postal Service to authorized DON however, or if war or armed conflict in- personnel or occurring due to the fault tervenes within 2 years after its occurrence, an MCA claim, on good cause of, or while in the hands of, bonded per- shown, may be presented within 2 years sonnel. after the war or armed conflict is ter- (i) Any claim by a national, or cor- minated. For the purposes of the MCA, poration controlled by a national, of a the date of termination of the war or country in armed conflict with the armed conflict is the date established United States, or an ally of such coun- by concurrent resolution of Congress or try, unless the claimant is determined by the President. See 10 U.S.C. to be friendly to the United States. 2733(b)(1). (j) Any claim for personal injury or (d) Where to file. The claim shall be death of a member of the Armed Forces submitted by the claimant to the com- or civilian employee incident to his manding officer of the naval activity service. 10 U.S.C. 2733(b)(3). involved, if it is known. Otherwise, it (k) Any claim for damage to or loss shall be submitted to the commanding of bailed property when bailor specifi- officer of any naval activity, preferably cally assumes such risk. the one within which, or nearest to (l) Any claim for taking private real which, the incident occurred, or to the property by a continuing trespass or by Office of the Judge Advocate General technical trespass such as overflights of the Navy, (Claims and Tort Litiga- of aircraft. tion), 1322 Patterson Avenue, SE., (m) Any claim based solely on com- Suite 3000, Washington Navy Yard, DC passionate grounds. 20375–5066.

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(e) Claim form. A claim is correct in tributory or comparative negligence by form if it constitutes written notifica- the claimant to determine the relative tion of an incident, signed by the merits of the claim. If there is no for- claimant or a duly authorized agent or eign law on contributory or compara- legal representative, with a claim for tive negligence, apply traditional rules money damages in a sum certain. A of contributory negligence. Apply for- Standard Form 95 is preferred. A claim eign rules and regulations on operation should be substantiated as discussed in of motor vehicles (rules of the road) to section 750.27 of this part. A claim the extent those rules are not specifi- must be substantiated as required by cally superseded or preempted by U.S. this part in order to be paid. See 10 Armed Forces traffic regulations. U.S.C. 2733(b)(5). (c) Principles applicable to all MCA (f) Amendment of claim. A proper claims. (1) ‘‘Scope of employment’’ is claim may be amended by the claimant determined in accordance with Federal at any time prior to final denial or law. Reported FTCA cases provide payment of the claim. An amendment guidance on this determination; shall be submitted in writing and (2) Claims for emotional distress will signed by the claimant or a duly au- be considered only from the injured thorized agent or legal representative. person or members of the injured per- (g) Payment. Claims approved for pay- son’s immediate family. Claims from ment shall be forwarded to such dis- the injured person’s immediate ‘‘zone bursing officer as may be designated by of danger’’ (i.e., immediate vicinity of the Comptroller of the Navy for pay- the incident) and the claimant substan- ment from appropriations designated tiates the claim with proof of the phys- for that purpose. If the Secretary of ical manifestation(s) of the emotional the Navy considers that a claim in ex- distress; and cess of $100,000.00 is meritorious and would otherwise be covered by 10 (3) Claims under the MCA do not in- U.S.C. 2733 and § 750.43, he may make a clude the principles of absolute liabil- partial payment of $100,000.00 and refer ity and punitive damages. the excess to the General Accounting (d) Clarification of terms. Federal law Office for payment from appropriations determines the meaning and construc- provided therefore. tion of the MCA. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] 53420, Sept. 19, 2007]

§ 750.46 Applicable law. § 750.47 Measure of damages for property claims. (a) Claims arising within the United States, Territories, Commonwealth, and Determine the measure of damages in Possessions. The law of the place where property claims arising in the United the act or omission occurred will be ap- States or its territories, common- plied in determining liability and the wealth, or possessions under the law of effect of contributory or comparative the place where the incident occurred. negligence on claimant’s right of re- Determine the measure of damages in covery. property claims arising overseas under (b) Claims within foreign countries. (1) general principles of American tort Where the claim is for personal injury, law, stated as follows: death, or damage to or loss or destruc- (a) If the property has been or can be tion of real or personal property caused economically repaired, the measure of by an act or omission determined to be damages shall be the actual or esti- negligent, wrongful, or otherwise in- mated net cost of the repairs necessary volving fault of DON personnel acting to substantially restore the property to within the scope of their employment, the condition that existed immediately liability of the United States will be prior to the incident. Damages shall assessed under general principles of not exceed the value of the property tort law common to the majority of immediately prior to the incident less American jurisdictions. the value thereof immediately after (2) Apply the law of the foreign coun- the incident. To determine the actual try governing the legal effect of con- or estimated net cost of repairs, the

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value of any salvaged parts or mate- accordance with general principles of rials and the amount of any net appre- American tort law. The following is ciation in value effected through the provided as guidance. repair shall be deducted from the ac- (1) Measure of damages for overseas tual or estimated gross cost of repairs. personal injury claims. Allowable com- The amount of any net depreciation in pensation includes reasonable medical the value of the property shall be added and hospital expenses necessarily in- to such gross cost of repairs, if such ad- curred, compensation for lost earnings justments are sufficiently substantial and services, diminution of earning ca- in amount to warrant consideration. pacity, anticipated medical expenses, Estimates of the cost of repairs shall physical disfigurement, and pain and be based upon the lower or lowest of suffering. two or more competitive bids, or upon (2) Wrongful death claims arising in for- statements or estimates by one or eign countries. (i) Allowable compensa- more competent and disinterested per- tion includes that in paragraph (b)(1) of sons, preferably reputable dealers or of- this section, burial expenses, loss of ficials familiar with the type of prop- support and services, loss of compan- erty damaged, lost, or destroyed. ionship, comfort, society, protection, (b) If the property cannot be eco- and consortium, and loss of training, nomically repaired, the measure of guidance, education, and nurturing, as damages shall be the value of the prop- applicable. erty immediately prior to the incident (ii) The claim may be presented by or less the value immediately after the on behalf of the decedent’s spouse, par- incident. Estimates of value shall be ent, child, or dependent relative. made, if possible, by one or more com- Claims may be consolidated for joint petent and disinterested persons, pref- presentation by a representative of erably reputable dealers or officials fa- some or all of the beneficiaries or may miliar with the type of property dam- be filed by a proper beneficiary individ- aged, lost, or destroyed. ually. (c) Loss of use of damaged property which is economically repairable may, § 750.49 Delegations of adjudicating if claimed, be included as an additional authority. element of damage to the extent of the (a) Settlement authority. (1) The Sec- reasonable expense actually incurred retary of the Navy may settle or deny for appropriate substitute property, for claims in any amount. The Secretary such period reasonably necessary for may pay the first $100,000.00 and report repairs, as long as idle property of the the excess to the Comptroller General claimant was not employed as a sub- for payment under 31 U.S.C. 1304. See 10 stitute. When substitute property is U.S.C. 2733(d). not obtainable, other competent evi- (2) The Judge Advocate General has dence such as rental value, if not spec- delegated authority to settle claims for ulative or remote, may be considered. $100,000.00 or less. When substitute property is reasonably (3) The Deputy Judge Advocate Gen- available but not obtained and used by eral, the Assistant Judge Advocate the claimant, loss of use is normally General (General Law), the Deputy As- not payable. sistant Judge Advocate General (Claims and Tort Litigation), and § 750.48 Measure of damages in injury Head, Tort Claims Branch (Claims and or death cases. Tort Litigation), have delegated au- (a) Where an injury or death arises thority to settle claims for $25,000.00 or within the United States or its terri- less, and have denial authority in any tories, commonwealth, or possessions, amount. determine the measure of damages (4) Individuals with settlement au- under the law of the location where the thority under paragraph (a)(3) of this injury arises. section may delegate all or part of (b) Where an injury or death arises in their settlement authority. Such dele- a foreign country and is otherwise cog- gation must be in writing. nizable and meritorious under this pro- (b) Appellate authority. Adjudicating vision, damages will be determined in authorities have the same authority as

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delegated in paragraph (a) of this sec- cate at the U.S. Naval Station, Pan- tion to act upon appeals. No appellate ama Canal have delegated authority to authority below the Secretary of the make advance payments up to $3,000.00. Navy may deny an appeal of a claim it (6) Overseas commands with a Judge had previously denied. Advocate General’s Corps officer or a [57 FR 4722, Feb. 7, 1992, as amended at 72 FR judge advocate of the Marine Corps at- 53420, Sept. 19, 2007] tached, have delegated authority to make advance payments up to $3,000.00. § 750.50 Advance payments. (d) Conditions for advance payments. (a) Scope. This paragraph applies ex- Prior to making an advance payment clusively to the payment of amounts under 10 U.S.C. 2736, the adjudicating not to exceed $100,000.00 under 10 U.S.C. authority shall ascertain that: 2736 in advance of submission of a (1) The injury, death, damage, or loss claim. would be payable under the MCA (10 (b) Statutory authority. Title 10 U.S.C. U.S.C. 2733); 2736 authorizes the Secretary of the (2) The payee, insofar as can be deter- Navy or designee to pay an amount not mined, would be a proper claimant, or in excess of $100,000.00 in advance of the is the spouse or next of kin of a proper submission of a claim to or for any per- claimant who is incapacitated; son, or the legal representative of any person, who was injured or killed, or (3) The provable damages are esti- whose property was damaged or lost, as mated to exceed the amount to be paid; the result of an accident for which al- (4) There exists an immediate need of lowance of a claim is authorized by the person who suffered the injury, law. Payment under this law is limited damage, or loss, or of his family, or of to that which would be payable under the family of a person who was killed, the MCA (10 U.S.C. 2733). Payment of for food, clothing, shelter, medical, or an amount under this law is not an ad- burial expenses, or other necessities, mission by the United States of liabil- and other resources for such expenses ity for the accident concerned. Any are not reasonably available; amount so paid shall be deducted from (5) The prospective payee has signed any amount that may be allowed under a statement that it is understood that any other provision of law to the per- payment is not an admission by the son or his legal representative for in- Navy or the United States of liability jury, death, damage, or loss attrib- for the accident concerned, and that utable to the accident concerned. the amount paid is not a gratuity but (c) Officials with authority to make ad- shall constitute an advance against vance payments. (1) The Secretary of and shall be deducted from any amount the Navy has authority to make ad- that may be allowed under any other vance payments up to $100,000.00 provision of law to the person or his (2) The Judge Advocate General has legal representative for injury, death, delegated authority to make advance damage, or loss attributable to the ac- payments up to $100,000.00. cident concerned; and (3) The Deputy Assistant Judge Ad- (6) No payment under 10 U.S.C. 2736 vocate General (Claims and Tort Liti- may be made if the accident occurred gation) and the Head, Tort Claims in a foreign country in which the Branch (Claims and Tort Litigation) NATO Status of Forces Agreement (4 have delegated authority to make ad- U.S.T. 1792, TIAS 2846) or other similar vance payments up to $25,000.00. agreement is in effect and the injury, (4) Naval Legal Service Office com- death, damage, or loss manding officers and the Officer in (i) Was caused by a member or em- Charge, U.S. Sending State Office for ployee of the DON acting within the Italy have delegated authority to make scope of employment or advance payments up to $5,000.00. (ii) Occurred ‘‘incident to noncombat (5) Officers in Charge of Naval Legal Service Office Detachments, when spe- activities’’ of the DON as defined in cifically designated by cognizant Com- § 750.43. manding Officers of Naval Legal Serv- [57 FR 4722, Feb. 7, 1992, as amended at 72 FR ice Offices; and the Staff Judge Advo- 53421, Sept. 19, 2007]

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§ 750.51 Final disposition. claim. Where the adjudicating author- (a) Claimant to be notified. The adjudi- ity does not reach a final agreement on cating authority shall notify the an appealed claim, it shall send the en- claimant, in writing, of the action tire claim file to the next higher set- taken on the claim. tlement authority, who is the appellate (b) Final denial. A final denial, in authority for that claim. whole or in part, of any MCA claim (d) The appellate authority shall no- shall be in writing and sent to the tify the claimant in writing of the de- claimant, or his attorney or legal rep- termination on appeal; that such deter- resentative, by certified or registered mination constitutes the final adminis- mail, return receipt requested. The no- trative action on the claim; and there tification of denial shall include a is no right to sue under the MCA. statement of the reason or reasons for § 750.53 Cross-servicing. denial and that the claimant may appeal. The notification shall also inform (a) See § 750.13 or information about the claimant: single-service claims responsibility (1) The title of the appellate author- under DODDIR 5515.8 of 9 June 1990. ity who will act on the appeal and that (b) Claims settlement procedures. Where the appeal will be addressed to the ad- a single service has been assigned a judicating authority who last acted on country or area claims responsibility, the claim. that service will settle claims cog- (2) No form is prescribed for the ap- nizable under the MCA under the regu- peal, but the grounds for appeal should lations of that service. The forwarding be set forth fully. command shall afford any assistance (3) The appeal must be submitted necessary to the appropriate service in within 30 days of receipt by the claim- the investigation and adjudication of ant of notice of action on the claim. such claims.

§ 750.52 Appeal. § 750.54 Payment of costs, settlements, (a) A claim which is disapproved in and judgments related to certain whole or in part may be appealed by medical or legal malpractice claims. the claimant at any time within 30 (a) General. Requests for reimburse- days after receipt of notification of dis- ment/indemnification of costs, settle- approval. An appeal shall be in writing ments, and judgments cognizable under and state the grounds relied upon. An 10 U.S.C. 1089(f) [for personal injury or appeal is not an adversary proceeding death caused by any physician, dentist, and a hearing is not authorized; how- nurse, pharmacist, paramedic, or other ever, the claimant may obtain and sub- supporting personnel (including med- mit any additional evidence or written ical and dental technicians, nurse as- argument for consideration by the ap- sistants, and therapists)] or 10 U.S.C. pellate authority. 1054(f) (for damages for injury or loss of (b) Upon receipt, the adjudicating au- property caused by any attorney, para- thority examines the appeal, deter- legal, or other member of a legal staff) mines whether the appeal complies while acting as DON personnel will be with this regulation, and reviews the paid if: claims investigative file to ensure it is (1) The alleged negligent or wrongful complete. The claim, with the com- actions or omissions arose in connec- plete investigative file and a memo- tion with either providing health care randum of law, will be forwarded to the functions or legal services and within appellate authority for action. If the the scope of employment; and evidence in the file, including informa- (2) Such personnel furnish prompt no- tion submitted by the claimant with tification and delivery of all process the appeal, indicates the appeal should served or received, and other docu- be approved, the adjudicating author- ments, information, and assistance as ity may treat the appeal as a request requested; and cooperate in defending for reconsideration. the action on the merits. (c) Processing of the appeal may be (b) Requests for Indemnification. All delayed pending further efforts by the requests for indemnification for per- adjudicating authority to settle the sonal liability of DON personnel for

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acts or omissions arising out of as- a means of transportation on land. See signed duties shall be forwarded to the 1 U.S.C. 4. Judge Advocate General for action. (c) Government installation. Any Fed- eral facility having fixed boundaries § 750.55 Attorney’s fees. and owned or controlled by the U.S. Attorney’s fees not in excess of 20 Government. It includes both military percent of any settlement may be al- bases and nonmilitary installations. lowed. Attorney’s fees so determined are to be paid out of the amount § 750.64 Claim procedures. awarded and not in addition to the (a) The general provisions of subpart award. These fee limitations shall be A of this part shall apply in deter- incorporated in any settlement agree- mining what is a proper claim, who is ment secured from a claimant. a proper claimant, and how a claim is to be investigated and processed under §§ 750.56–750.60 [Reserved] 10 U.S.C. 2737 and this section. (b) A claim is presented when the Subpart D—Claims Not Cog- DON receives from a claimant or the nizable Under Any Other Pro- claimant’s duly authorized agent, writ- vision of Law ten notification of a nonscope claim incident accompanied by a demand for § 750.61 Scope of subpart D. money damages in a sum certain. This section provides information on (c) A claimant may amend a claim at payment of claims against the United any time prior to final action. Amend- States, not payable under any other ments will be submitted in writing and statute, caused by the act or omission, signed by the claimant or the claim- negligent, wrongful, or otherwise in- ant’s duly authorized agent. volving fault, of Department of the (d) Claims submitted under the provi- Navy (DON) military and civilian per- sions of the Federal Tort Claims Act sonnel (hereinafter DON personnel) (FTCA) or Military Claims Act (MCA) acting outside the scope of their em- shall be considered automatically for ployment. an award under this section when payment would otherwise be barred be- § 750.62 Statutory authority. cause the DON personnel were not in Section 2737 of title 10, United States the scope of their employment at the Code, provides authority for the admin- time of the incident. If a tender of pay- istrative settlement in an amount not ment under this section is not accepted to exceed $1,000.00 of any claim against by the claimant in full satisfaction of the United States not cognizable under the claim, no award will be made, and any other provision of law for damage, the claim will be denied pursuant to loss, or destruction of property or for the rules applicable to the statute personal injury or death caused by under which it was submitted. military personnel or a civilian official (e) Damages caused by latent defects or employee of a military department of ordinary, commercial type, Govern- incident to the use of a vehicle of the ment equipment that were not payable United States at any place, or any under the MCA, Foreign Claims Act, or other property of the United States on FTCA are payable under this section. a Government installation. There is no (f) Nonscope claims for damages right to sue. There are no territorial caused by local national DON employ- limitations and the Act has worldwide ees overseas are also payable under application. this section if the injury was caused by the use of Government equipment. § 750.63 Definitions. (g) Payment may not be made on a (a) Civilian official or employee. Any nonscope claim unless the claimant ac- civilian employee of the DON paid from cepts the amount offered in full satis- appropriated funds at the time of the faction of the claim and signs a settle- incident. ment agreement. (b) Vehicle. Includes every description (h) Payment for nonscope claims ad- of carriage or other artificial contriv- judicated by field commands will be af- ance used, or capable of being used, as fected through their local disbursing

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office by use of funds obtained from the § 750.68 Claims not payable. Judge Advocate General. (a) A claim for damage, loss, or de- (i) Claims submitted solely under 10 struction of property or the personal U.S.C. 2737 shall be promptly consid- injury or death caused wholly or partly ered. If a nonscope claim is denied, the by a negligent or wrongful act of the claimant shall be informed of reasons in writing and advised he may appeal claimant or his agent or employee. in writing to the Secretary of the Navy (b) A claim, or any part thereof, that (Judge Advocate General) provided the is legally recoverable by the claimant appeal is received within 30 days of the under an indemnifying law or indem- notice of denial. The provisions of nity contract. § 750.51(b) of subpart C also apply to de- (c) A subrogated claim. nials of nonscope claims. § 750.69 Measure of damages. § 750.65 Statute of limitations. Generally, the measure-of-damage (a) A claim must be presented in provisions under the MCA are used to writing within 2 years after it accrues. determine the extent of recovery for It accrues at the time the claimant dis- nonscope claims. Compensation is com- covers, or in the exercise of reasonable puted in accordance with §§ 750.47 and care should have discovered, the exist- 750.48 of subpart C, except damages for ence of the act or omission for which personal injury or death under this sec- the claim is filed. tion shall not be for more than the cost (b) In computing time to determine of reasonable medical, hospital, and whether the period of limitation has burial expenses actually incurred and expired, exclude the incident date and not otherwise furnished or paid for by include the date the claim was pre- the United States. sented.

§ 750.66 Officials with authority to set- PART 751—PERSONNEL CLAIMS tle. REGULATIONS Judge Advocate General; Deputy Subpart A—Claims Against the United Judge Advocate General; Assistant States Judge Advocate General (General Law); Deputy Assistant Judge Advocate Gen- Sec. eral (Claims and Tort Litigation); and 751.1 Scope. Head, Tort Claims Branch (Claims and 751.2 Claims against the United States: In Tort Litigation) may settle a nonscope general. claim. 751.3 Authority. 751.4 Construction. [72 FR 53421, Sept. 19, 2007] 751.5 Definitions. 751.6 Claims payable. § 750.67 Scope of liability. 751.7 Claims not payable. (a) Subject to the exceptions in 751.8 Adjudicating authorities. § 750.68 of specific claims not payable, 751.9 Presentment of claim. the United States shall not pay more 751.10 Form of claim. than $1,000.00 for a claim against the 751.11 Investigation of claim. United States, not cognizable under 751.12 Payments. any other provision of law, except Arti- 751.13 Partial payments. cle 139, UCMJ. 751.14 Reconsideration and appeal. (b) Article 139, UCMJ, 10 U.S.C. 939, is 751.15–751.20 [Reserved] not preemptive. The prohibition in 10 Subpart B [Reserved] U.S.C. 2737 on paying claims ‘‘not cognizable under any other provisions of law’’ applies only to law authorizing AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 5013 and 5148; E.O. 12473, 3 CFR, 1984 Comp., p. 201. claims against the United States. Arti- cle 139 authorizes claims against SOURCE: 57 FR 5055, Feb. 12, 1992, unless servicemembers. See part 755 of this otherwise noted. chapter.

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Subpart A—Claims Against the within 2 years of the incident that gave United States rise to the claim. [72 FR 53422, Sept. 19, 2007] § 751.1 Scope. § 751.4 Construction. This part prescribes procedures and substantive bases for administrative The provisions of this section and the settlement of claims against the Personnel Claims Act provide limited United States submitted by Depart- compensation to service members and ment of Navy (DoN) personnel and ci- civilian employees of the DON for loss and damage to personal property in- vilian employees of the naval estab- curred incident to service. This limited lishment. compensation is not a substitute for [72 FR 53422, Sept. 19, 2007] private insurance. Although not every loss may be compensated under the § 751.2 Claims against the United Personnel Claims Act, its provisions States: In general. shall be broadly construed to provide (a) Maximum amount payable. The reasonable compensation on meri- Military and Civilian Employees’ Per- torious claims. Adjudications must be based on common sense and the rea- sonnel Claims Act (Personnel Claims soned judgment of the claims examiner Act, 31 U.S.C. 3701, 3702, and 3721 (2004)), giving the benefit of realistic doubt to provides that the maximum amount the claimant. payable for any loss or damage arising from a single incident is limited to § 751.5 Definitions. $40,000.00. Where the loss of or damage (a) Proper claimants—(1) Members of to personal property arose from emer- the DON. All Navy and Marine Corps gency evacuations or other extraor- active duty members and reservists on dinary circumstances, the maximum is active duty for training under Federal $100,000.00. law whether commissioned, enrolled, (b) Additional instructions. The Judge appointed, or enlisted. A retired mem- Advocate General of the Navy may ber may only claim under this Act if issue additional instructions or guid- loss or damage occurred while the ance as necessary to give full force and claimant was on active duty or in con- effect to this section. nection with the claimant’s last move- (c) Preemption. The provisions of this ment of personal property incident to section and the Personnel Claims Act service. are preemptive of other claims regula- (2) Civilian employees of the Navy. Fed- eral employees of the naval establish- tions. Claims not allowable under the ment paid from appropriated funds. Personnel Claims Act may, however, be This term does not include Red Cross allowable under another claims act. employees, USO personnel, and em- (d) Other claims. Claims arising from ployees of Government contractors (in- the operation of a ship’s store, laundry, cluding technical representatives). dry cleaning facility, tailor shop, or (3) Claims by non-appropriated fund cobbler shop should be processed in ac- employees. Claims by employees of cordance with NAVSUP P487. Navy and Marine Corps non-appropriated fund activities for loss, dam- [57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53422, Sept. 19, 2007] age, or destruction of personal property incident to their employment will § 751.3 Authority. be processed and adjudicated in accordance with this part and forwarded to The Personnel Claims Act provides the appropriate local non-appropriated the authority for maximum payment fund activity that employs the claim- up to $40,000, $100,000 in extraordinary ant for payment from non-appropriated circumstances for loss, damage, or de- funds. struction of personal property of mili- (4) Separation from service. Separation tary personnel or civilian employees from the service or termination of em- incident to their service. No claim may ployment shall not bar former military be paid unless it is presented in writing personnel or civilian employees from

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filing claims or bar designated per- vices were damaged by a power surge sonnel from considering, ascertaining, may be paid when lightning has actu- adjusting, determining, and author- ally struck the claimant’s residence or izing payment of claims otherwise fall- objects outside the residence, such as a ing within the provision of these regu- transformer box, or when power com- lations when such claim accrued prior pany records or similar evidence shows to separation or termination. that a particular residence or group of (5) Agent or legal representative. The residences was subjected to a power authorized agent or legal representa- surge of unusual intensity. In areas tive of a proper claimant may file on subject to frequent thunderstorms or behalf of the claimant if the agent pro- power fluctuations, claimants are ex- vides a power of attorney that complies pected to use surge suppressors, if with local law. Certain relatives of a available, to protect delicate items deceased proper claimant may file any such as computers or videocassette re- claim the claimant could have filed. corders. The PCA identifies these relatives in (d) Personal property. Property includ- order of priority. If multiple persons ing but not limited to household goods, who the statute lists as equals in pri- unaccompanied baggage, privately ority file separate claims, the first owned vehicles (POV’s), mobile homes, claim settled extinguishes the rights of and boats. the other claimants. The estate of a de- (e) Intangible property. Property that ceased proper party claimant is not a has no intrinsic marketable value such proper claimant, nor is an executor or as bankbooks, checks, promissory personal representative who cannot file notes, non-negotiable stock certifi- as a survivor. The PCA ranks surviving cates, bonds, baggage checks, insur- relatives in the following order of pri- ance policies, money orders, and trav- ority: elers checks. (i) Spouse; (f) Vehicles. Include automobiles, mo- (ii) Child or children; torcycles, mopeds, jet skis, utility (iii) Father, mother, or both; trailers, camping trailers, trucks, (iv) Brother, sister, or both. mounted camper bodies, motor homes, (b) Improper claimants. Insurers, as- boats, boat trailers, bicycles, and air- signees, subrogees, vendors, craft. Mobile homes and other property lienholders, contractors, subcontrac- used as dwelling places are not consid- tors and their employees, and other ered vehicles. persons not specifically mentioned as proper claimants. [57 FR 5055, Feb. 12, 1992, as amended at 72 (c) Unusual occurrence. Serious events FR 53422, Sept. 19, 2007] and natural disaster not expected to take place in the normal course of § 751.6 Claims payable. events and hazards outside the normal Claims for loss, damage, or destruc- risks of day-to-day living and working. tion of property may be considered as Two different types of incidents may be set out below if possession of the prop- considered unusual occurrences: those erty was reasonable and useful under of an unusual nature and those of a the circumstances and the loss did not common nature that occur to an unex- result from the negligence of the pected degree of severity. Examples of claimant. The following are examples unusual occurrences include structural of more common claims. Not all situa- defects in quarters, faulty plumbing tions that may result in a claim are maintenance, termite or rodent dam- covered, but the processes described in age, unusually large size hail, and haz- the examples on how to approach, in- ardous health conditions due to Gov- vestigate, and adjudicate claims are ernment use of toxic chemicals. Exam- applicable to all claims filed. ples of occurrences that are not un- (a) Transportation and storage losses. usual include potholes or foreign ob- (1) Incurred during transportation jects in the road, ice and snow sliding under orders, whether in possession of off a roof onto a vehicle, and tears, the Government, carrier, storage ware- rips, snags, or stains on clothing. house, or other Government con- Claims that electrical or electronic de- tractor.

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(2) Incurred during travel under or- small, easily pilferable items. Nor- ders, including temporary duty. mally, such items should be kept in a (3) Incurred during travel on a space locked container within a secured available basis on a military aircraft, room. It is also advisable that the vessel, or vehicle. locked container be large enough that (4) Do-it-yourself (DITY) moves. In cer- it is not convenient for a thief to carry tain circumstances, loss of or damage off. Bicycles located at quarters or on to property during a DITY move is base must be secured to a fixed object. compensable. Claimants, however, are Overseas housing is considered as- required to substantiate the fact of loss signed quarters for claimants who are or damage in shipment. Claimants who not local inhabitants. do not prepare inventories have dif- (c) Vehicle losses. (1) Losses incurred ficulty substantiating thefts. In addi- while a vehicle is used in the perform- tion, unless evidence shows that some- ance of a military duty, if such use was thing outside the claimant’s control authorized or directed for the conven- caused the damage, breakage is pre- ience of the Government, provided the sumed to be the result of improper travel did not include commuting to or packing by the claimant. For example, from a permanent place of duty, and if a claimant’s truck is rear-ended by a did not arise from mechanical or struc- drunk driver during a DITY move, it is tural defect of the vehicle. There is no out of claimant’s control. If the claim- requirement that the loss be due to ant can substantiate that he was free fire, flood, hurricane, or other unusual from negligence, he can file a claim for occurrence, or to theft or vandalism. damages to his household goods. As a general rule, however, travel is (5) Shipment or storage at the claim- not considered to be for the conven- ant’s expense. The Government will not compensate a claimant for loss or dam- ience of the Government unless it was age that occurs while property is being pursuant to written orders authorizing shipped or stored at the claimant’s ex- use for which the claimant is entitled pense, even if the Government reim- to reimbursement. The claimant must burses the claimant for the shipment be free from negligence in order to be or storage fees. The reason for this is paid for a collision loss. Travel by the that there is no contract, called a Gov- claimant to other buildings on the in- ernment Bill of Lading, between the stallation is not loss. Travel by the Government and the carrier. In such claimant to other buildings on the in- cases, the claimant must claim against stallation is not considered to be under the carrier. orders for the convenience of the Gov- (b) Losses at assigned quarters or other ernment. Travel off the installation authorized places. Damage or loss without written orders may only be caused by fire, explosion, theft, van- deemed to be for the convenience of the dalism, lightning, flood, earthquake, Government if the claimant was au- and unusual occurrences is cognizable. thorized mileage reimbursement for Losses due to theft may only be paid if the travel. The issuance of written or- the claimant took reasonable measures ders after the fact raises the presump- to safeguard the property and theft oc- tion that travel was not authorized for curred as a result of a forced entry. the convenience of the Government. Claimants are expected to secure win- The maximum payment authorized by dows and doors of their barracks, quar- the Allowance List-Depreciation Guide ters, wall lockers, and other storage (ALDG) still applies to loss of or dam- areas so that the thief must force an age to vehicles and contents. This max- entry. If a police report states that imum does not apply to DITY moves. there were no signs of forced entry and (2) Losses incurred while a vehicle is the claimant asserts with absolute cer- shipped at Government expense are tainty that the area was in fact secure, compensable provided the loss or dam- the claims examiner must consider age did not arise from mechanical or whether forced entry would have left structural defect of the vehicle during visible signs. Claimants are also ex- such shipment. Damage caused during pected to take extra measures to pro- shipment at the claimant’s expense or tect cash, valuable jewelry, and similar while the vehicle is being moved to or

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from the port by an agent of the claim- (6) Rental vehicles. Damage to rental ant is not compensable. vehicles is considered under paragraphs (3) Losses incurred while a vehicle is of the Joint Federal Travel Regula- located at quarters or other authorized tions (JFTR), rather than as a loss in- place of lodging, including garages, cident to service. carports, driveways, assigned parking (d) Mobile homes and contents in ship- spaces, if the loss or damage is caused ment. Claims for damage to mobile by fire, flood, hurricane, theft, or van- homes and contents in shipment are dalism, or other unusual occurrence. payable unless the damage was caused Vandalism is damage intentionally by structural or mechanical defects or caused. Stray marks caused by chil- by the claimant’s negligence in secur- dren playing, falling branches, gravel ing the mobile home or packing its thrown by other vehicles, or similar oc- contents. currences are not vandalism. The (e) Borrowed property (including vehi- amount payable on vandalism claims is cles). Loss or damage to borrowed prop- limited to the maximum payment au- erty is compensable if it was borrowed thorized by the ALDG. for claimant’s or dependent’s own use. (4) Incurred while a vehicle is located A statement will be provided by the at places other than quarters but on a owner of the property attesting to the military installation, if the loss or use of the property by the claimant. damage is caused by fire, flood, hurri- (f) Clothing and articles being worn. cane, theft, or vandalism, or other un- Repairs/replacement of clothing and usual occurrence. ‘‘Military installa- articles being worn while on a military tion’’ is used broadly to describe any installation or in the performance of fixed land area, wherever situated, con- official duty may be paid if loss is trolled, and used by military activities caused by fire, flood, hurricane, theft, or the Department of Defense (DOD). A or vandalism, or other unusual occur- vehicle properly on the installation rence. This paragraph shall be broadly should be presumed to be used incident construed in favor of compensation, to the claimant’s service. A vehicle but see § 751.5(c) for the definition of that is not properly insured or reg- unusual occurrence. Articles being istered in accordance with local regula- worn include hearing aids, eyeglasses, tions is not properly on the installa- and items the claimant is carrying, tion. A vehicle left in a remote area of such as a briefcase. the installation that is not a des- (g) Personal property held as evidence ignated long-term parking area for an or confiscated property. If property be- undue length of time is presumed not longing to the victim of a crime is to to be on the installation incident to be held as evidence for an extended pe- service. riod of time (in excess of 2 months) and (5) Theft of property stored inside a ve- the temporary loss of the property will hicle. A loss resulting from theft of work a grave hardship on the claimant, property stored inside a vehicle is com- a claim for the loss may be considered pensable if it was reasonable for the for payment. This provision will not be claimant to have the property in the used unless every effort has been made vehicle and neither the claimant nor to determine whether secondary evi- the claimant’s agents were negligent in dence, such as photographs, may be protecting the property. Neither the substituted for the item. No compensa- passenger compartment nor the trunk tion is allowed to a person suspected of of a vehicle is a proper place for the an offense for property seized from that long-term storage of property same person in the investigation of unconnected with the use of the vehi- that offense. This also applies to prop- cle. The passenger compartment of a erty a foreign government unjustly vehicle does not provide adequate secu- confiscates or an unjust change in a rity, except for very short periods of foreign law that forces surrender or time for articles that are not of high abandonment of property. value or easily pilferable. Car covers (h) Theft from possession of claimant. and bras are payable if bolted or se- Theft from the person of the claimant cured to the vehicle with a wire lock- is reimbursable if the theft occurred by ing device. use of force, violence, or threat to do

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bodily harm, or by snatching or fee is compensable if it is not going to pickpocketing, and at the time of theft be credited toward the cost of repair. If the claimant was either on a military it is to be credited toward the cost of installation, utilizing a recreation fa- repair, it is not compensable regardless cility operated or sponsored by the De- of whether the claimant chooses to partment of Defense or any agency have the work done. When an estimate thereof, or in the performance of offi- fee is claimed, the file must reflect cial duty. The theft must have been re- whether the fee is to be credited. ported to appropriate police authori- [57 FR 5055, Feb. 12, 1992, as amended at 72 ties as soon as practicable, and it must FR 53422, Sept. 19, 2007] have been reasonable for the claimant to have had on his person the quality § 751.7 Claims not payable. and the quantity of the property alleg- (a) Losses in unassigned quarters in the edly stolen. United States. Claims for property dam- (i) Property used for the benefit of the aged or lost at quarters occupied by Government. Compensation is author- the claimant within the United States ized where property is damaged or lost that are not assigned or otherwise pro- while being used in the performance of vided by the Government. Government business at the direction (b) Currency or jewelry shipped or or request of superior authority or by stored in baggage. Claims for lost cur- reason of military necessity. rency, shipped or stored in baggage are (j) Money deposited for safekeeping, not payable. Small, valuable, highly transmittal, or other authorized disposi- pilferable items should normally be tion. Compensation is authorized for hand-carried rather than shipped, how- personal funds delivered to and accept- ever, if expensive or valuable jewelry ed by military and civilian personnel or coin collections are shipped, a full authorized by the commanding officer description of each item of expensive to receive these funds for safekeeping, jewelry and of any coin or money col- deposit, transmittal, or other author- lection must be listed and described on ized disposition, if the funds were nei- the inventory for its loss to be payable. ther applied as directed by the owner Each item must also be listed as miss- nor returned to the owner. ing at the time of delivery. If not noted (k) Fees—(1) For obtaining certain doc- at the time of delivery, the claimant uments. The fees for replacing birth cer- must satisfactorily explain why. tificates, marriage certificates, college (c) Enemy property or war trophies. diplomas, passports, or similar docu- This includes only property that was ments may be allowed if the original or originally enemy property or a war tro- a certified copy is lost or destroyed in- phy that passed into the hands of a col- cident to service. In general, com- lector and was then purchased by a pensation will only be allowed for re- claimant. placing documents with a raised seal (d) Unserviceable or Worn-Out Prop- that are official in nature. No com- erty. pensation will be allowed for docu- (e) Loss or damage to property to the ments that are representative of value, extent of any available insurance cov- such as stock certificates, or for per- erage. Except for claims for loss or sonal letters or records. damage to household goods or pri- (2) Estimate fees. An estimate fee is a vately-owned vehicles (POVS) while fixed cost charged by a person in the shipped or stored at Government ex- business of repairing property to pro- pense, when the property lost, dam- vide an estimate of what it would cost aged, or destroyed is insured, the to repair property. An estimate fee in claimant must make a demand for pay- excess of $75.00 should be examined ment against the insurance company with great care to determine whether under the terms of the policy. it is reasonable. A person becomes obli- (f) Inconvenience or loss of use. Ex- gated to pay an estimated fee when the penses arising from late delivery of estimate is prepared. An estimate fee personal property, including but not should not be confused with an ap- limited to the expenses for food, lodg- praisal fee, which is not compensable ing, and furniture rental, loss of use, (see § 751.7(m)). A reasonable estimate interest, carrying charges, attorney’s

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fees, telephone calls, additional costs placement or repair, is defined as a of transporting claimant or family valuation of an item provided by a per- members, time spent in preparation of son who is not in the business of selling claim, or cost of insurance are not or repairing that type of property. Nor- compensable. While such claims do not mally, claimants are expected to ob- lie against the Government, members tain appraisals on expensive items at should be referred to the Personal their own expense. Property Office for assistance in filing (n) Quantities of property not reason- their inconvenience claims against the able or useful under the circumstances are commercial carriers. not compensable. Factors to be consid- (g) Items of speculative value. Theses, ered are claimant’s living conditions, manuscripts, unsold paintings, or a family size, social obligations, and any similar creative or artistic work done particular need to have more than av- by the claimant, friend, or a relative is erage quantities, as well as the actual limited to the cost of materials only. circumstances surrounding the acquisi- The value of such items is speculative. tion and loss. Compensation for a utilitarian object (o) Intangible Property, such as made by the claimant, such as a quilt Bankbooks, Checks, Promissory Notes, or bookcase, is limited to the value of Stock Certificates, Bonds, Bills of Lad- an item of similar quality. ing, Warehouse Receipts, Baggage (h) Loss or damage to property due to Checks, Insurance Policies, Money Or- negligence of the claimant. Negligence is ders, and Traveler’s Checks are not a failure to exercise the degree of care Compensable. expected under the circumstances that (p) Property Owned by the United is the proximate cause of the loss. States, Except where the Claimant is Losses due, in whole or in part, to the Responsible to an Agency of the Gov- negligence of the claimant, the claim- ernment other than the DON. ant’s spouse, child, houseguest, em- (q) Contractual coverage. Losses, or ployee, or agent are not compensable. any portion thereof, that have been re- (i) Business property. Losses of items covered or are recoverable pursuant to acquired for resale or use in a private contract are not compensable. business are not compensable. If property is acquired for both business and [57 FR 5055, Feb. 12, 1992, as amended at 72 personal use, compensation will not be FR 53423, Sept. 19, 2007] allowed if business use is substantial, § 751.8 Adjudicating authorities. or is the primary purpose for which the item was purchased, or if the item is (a) Claims by Navy personnel. (l) The designed for professional use and is not following officials are authorized to ad- normally intended for personal use. judicate and authorize payment of PCA (j) Motor vehicles. Collision damage is claims up to $100,000: not payable unless it meets the criteria (i) The Judge Advocate General; for payment as property used for the (ii) The Deputy Judge Advocate Gen- benefit of the Government as estab- eral; lished in § 751.6(c)(1). (iii) Any Assistant Judge Advocate (k) Violation of law or directives. Prop- General; and erty acquired, possessed, or trans- (iv) The Deputy Assistant Judge Ad- ported unlawfully or in violation of vocate General (Claims and Tort Liti- competent regulations or directives. gation). This includes vehicles, weapons, or (2) Any individual, when designated property shipped to accommodate an- by the Deputy Assistant Judge Advo- other person, as well as property used cate General (Claims and Tort Litiga- to transport contraband. tion Division), may adjudicate and au- (l) Sales tax. Sales taxes associated thorize payment of PCA claims up to with repair or replacement costs will any designated amount. not be considered unless the claimant (b) Claims by Marine Corps personnel. provides proof that the sales tax was (1) The following officials are author- actually paid. ized to adjudicate and authorize pay- (m) Appraisal fees. An appraisal, as ment of PCA claims up to $40,000: distinguished from an estimate of re- (i) Commandant of the Marine Corps;

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(ii) Deputy Commandant, Manpower normally the day of delivery or the day and Reserve Affairs Department; the claimant loses entitlement to stor- (iii) Director, Personal and Family age at Government expense (whichever Readiness Division; occurs first) is the day the claim ac- (iv) Head, Military Personnel Serv- crues. If a claimant’s entitlement to ices Branch; Government storage terminates, but (v) Head, Personal Property Claims the property is later delivered at Gov- Section; and ernment expense, the claim accrues on (vi) Any individual personally des- delivery. In computing the 2 years, ex- ignated by the Commandant of the Ma- clude the first day (day of delivery or rine Corps may adjudicate and author- incident) and include the last day. If ize payment of PCA claims up to any the last day falls on a non-workday, ex- delegated amount not to exceed $40,000. tend the 2 years to the next workday. (2) The Assistant Head, Personal (c) Substantiation. The claimant is re- Property Claims Section is authorized sponsible for substantiating ownership to adjudicate and authorize payment of or possession, the fact of loss or dam- PCA claims up to $25,000. age, and the value of property. Claim- (3) Any individual at Marine Corps ants are expected to report losses Field Transportation Management Of- promptly. The greater the delay in re- fice/Claims Activities, when personally designated by the Director, Personal porting a loss, the more substantiation and Family Readiness Division, may be the claimant is expected to provide. authorized to adjudicate and authorize (1) Obviously damaged or missing inven- payment of PCA claims up to any dele- tory items that are not reported at deliv- gated amount not to exceed $40,000. ery. Claimants are expected to list missing inventory items and obvious [72 FR 53423, Sept. 19, 2007] damage at time of delivery. Claimants who do not should be questioned. Obvi- § 751.9 Presentment of claim. ously some claimants will simply not (a) General. A claim shall be sub- notice readily apparent damage. If, mitted in writing and, if practicable, be however, the claimant cannot provide presented to the Personnel Claims Unit an explanation or lacks credibility, or Marine Corps claims office serving payment should be denied based on the area where the claim accrued, such lack of evidence that the item was lost as where the House Hold Goods were or damaged in shipment. delivered. If submission in accordance (2) Later-discovered shipment loss or with the foregoing is impractical under the circumstance, the claim may be damage. A claimant has 70 days to un- submitted in writing to any installa- pack, discover, and report loss and tion or establishment of the Armed damage that is not obvious at delivery. Forces which will forward the claim to In most cases, loss and damage that is the appropriate Navy or Marine Corps discovered later and reported in a claims office for processing. To con- timely manner should be deemed to stitute a filing, a claim must be pre- have been incurred in shipment. sented in writing to one of the military (3) Damage to POVs in shipment. Per- departments. sons shipping POVs are expected to list (b) Statute of limitations. A claim must damage on DD Form 788 (Private Vehi- be presented in writing to a military cle Shipping Document for Auto- installation within 2 years after it ac- mobile) when they pick up the vehicle. crues. This requirement is statutory Obvious external damage that is not and may only be waived if a claim ac- listed is not payable. Damage the crues during armed conflict, or armed claimant could reasonably be expected conflict intervenes before the 2 years not to notice at the pickup point have run, and good cause is shown. In should be considered if the claimant re- this situation, a claim may be pre- ports the damage to claims or trans- sented not later than 2 years after the portation office personnel within a end of the armed conflict. A claim ac- short time, normally a few days after crues on the day the claimant knows or arriving at the installation. should know of the loss. For losses that (4) Credibility. Factors that indicate a occur in shipment of personal property, claimant’s credibility is questionable

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include amounts claimed that are ex- copy of the power of attorney must be aggerated in comparison with the cost included with the claim. of similar items, insignificant or al- [57 FR 5055, Feb. 12, 1992, as amended at 72 most undetectable damage, very recent FR 53424, Sept. 19, 2007] purchase dates for most items claimed, and statements that appear incredible. § 751.11 Investigation of claim. Such claimants should be required to Upon receipt of a claim, the claim provide more evidence than is nor- shall be stamped with the date and re- mally expected. ceiving office, forwarded to the cog- (5) Inspections. Whenever a question nizant PCU and be referred to a claims arises about damage to property, the examiner. The examiner shall consider best way to determine a proper award all information and evidence submitted is to examine the items closely to de- with the claim and shall conduct such termine the nature of the damage. For further investigation as may be nec- furniture, undersurfaces and the edges essary and appropriate. of drawers and doors should be exam- [72 FR 53424, Sept. 19, 2007] ined to determine whether the material is solid hardwood, fine quality veneer § 751.12 Payments. over hardwood, veneer over pressed Payment of approved personnel wood, or other types of material. If the claims will be made by the Navy or Ma- inspection is conducted at the claim- rine Corps disbursing officer serving ant’s quarters, the general quality of the adjudicating authority. Payments property should be determined. Obser- will be charged to funds made available vations by repairmen and transpor- to the adjudicating authority for this tation inspectors are very valuable, but purpose. on occasion, claims examiners may request an inspection. Such inspections [72 FR 53424, Sept. 19, 2007] are necessary to reduce the number of § 751.13 Partial payments. reconsiderations and fraudulent claims and are invaluable in enabling claims (a) Partial payments when hardship ex- When claimants suffer a signifi- personnel to understand the facts in ists. cant, compensable loss of items that many situations. are needed for daily living, and can [57 FR 5055, Feb. 12, 1992, as amended at 72 demonstrate a need for immediate FR 53423, Sept. 19, 2007] funds to replace some of those items (e.g., food, clothes, baby items, etc.) § 751.10 Form of claim. the adjudicating authority may au- The claim should be submitted on DD thorize a partial payment of an appro- Form 1842 (Claim for Personal Prop- priate amount, normally one-half of erty) accompanied by DD Form 1844 the estimated total payment. When a (List of Property). If DD Forms 1842 partial payment is made a copy of the and 1844 1 are not available, any writing payment voucher and all other information related to the partial payment will be accepted and considered if it as- shall be placed in the claim file. Action serts a demand for a specific sum and shall be taken to ensure the amount of substantially describes the facts nec- the partial payment is deducted from essary to support a claim cognizable the adjudicated value of the claim under these regulations. The claim when final payment is made. must be signed by a proper claimant (b) Marine hardship payments. The (see § 751.5) or by a person with a power Marine claimant’s Transportation of attorney for a proper claimant. A Management Office shall ensure compliance with all requirements of 1 Copies of these forms may be obtained by § 751.14(a), and may request authority contacting the legal office or personal prop- for payment by message from the Com- erty office serving the installation where the mandant of the Marine Corps (MRP–2). claimant is stationed, or nearest to the point (c) Effect of partial payment. Partial where the loss or damage occurred or on the payments are to be subtracted from the Internet at http://www.jag.navy.mil. adjudicated value of the claim before

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payment of the balance due. Overpay- §§ 751.15–751.20 [Reserved] ments are to be properly recouped. [72 FR 53424, Sept. 19, 2007] Subpart B [Reserved]

§ 751.14 Reconsideration and appeal. PART 752—ADMIRALTY CLAIMS (a) General. When a claim is denied either in whole or in part, the claimant Sec. shall be given written notification of 752.1 Scope. the initial adjudication and of the 752.2 Organization. right to submit a written request for 752.3 Claims against the Navy. reconsideration to the original adjudi- 752.4 Affirmative claims. cating authority within 6 months from 752.5 Salvage. the date the claimant receives notice AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013, 5148 of the initial adjudication of the claim. and 7621–7623; 32 CFR 700.105 and 700.331. If a claimant requests reconsideration and if it is determined that the original § 752.1 Scope. action was erroneous or incorrect, it This part applies to admiralty-tort shall be modified and, when appro- claims. These include claims against priate, a supplemental payment shall the United States for damage caused be approved. If full additional payment by a vessel in the naval service or by is not granted, the file shall be for- other property under the jurisdiction warded for reconsideration to the next of the Navy, or damage caused by a higher adjudicating authority. For maritime tort committed by an agent claims originally adjudicated by the or employee of the Navy for which the Head, Personnel Claims Unit Norfolk, Navy has assumed an obligation to re- the files will be forwarded to the Judge spond for damage. Affirmative claims Advocate General (Claims and Tort by the United States for damage Litigation)(Code 15) for final action. caused by a vessel or floating object to The claimant shall be notified of this Navy property are covered under this action either by letter or by copy of part. the letter forwarding the file to higher adjudicating authority. The forwarding [72 FR 56268, Oct. 3, 2007] letter shall include a synopsis of action taken on the file and reasons for the § 752.2 Organization. action or denial, as well as a rec- (a) Administrative authority of the Sec- ommendation of further action or de- retary of the Navy. The Secretary of the nial. Navy has administrative authority for (b) Files forwarded to JAG. For files settlement and direct payment where forwarded to JAG in accordance with the amount paid does not exceed § 751.14(a), the forwarding endorsement $15,000,000 and where the matter is not shall include the specific reasons why in litigation, of claims for damage the requested relief was not granted caused by naval vessels or by other and shall address the specific points or property under the jurisdiction of the complaints raised by the claimant’s re- Navy, or damage caused by a maritime quest for reconsideration. tort committed by an agent or em- (c) Appeals procedure for claims sub- ployee of the Navy, and for towage or mitted by Marine Corps personnel. Where salvage services rendered to naval ves- any of the Marine Corps adjudication sels (10 U.S.C. 7622). The Secretary also authorities listed in § 751.8(b) fail to has authority to settle affirmative ad- grant the relief requested, or otherwise miralty claims for damage caused by a resolve the claim to the satisfaction of vessel or floating object to property the claimant, the request for reconsid- under the jurisdiction of the Navy (10 eration shall be forwarded together U.S.C. 7623). with the entire original file and the ad- (b) Admiralty and Maritime Law Divi- judicating authority’s recommenda- sion of the Office of the Judge Advocate tion, to the Judge Advocate General. General. The Navy’s admiralty-tort [72 FR 53424, Sept. 19, 2007] claims are processed and adjudicated in

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the Admiralty and Maritime Law Divi- nature which arise out of these oper- sion of the Office of the Judge Advo- ations. These include claims for cargo cate General. All correspondence with damage, charter hire, redelivery, gen- the Admiralty and Maritime Law Divi- eral average, and claims arising under sion should be addressed to the Office MSC ship-repair contracts. of the Judge Advocate General (Code (f) Damage caused by Navy contract 11), 1322 Patterson Avenue SE, Suite stevedores. Office of Counsel, Naval 3000, Washington Navy Yard, DC 20374– Supply Systems Command, has cog- 5066. nizance of admiralty claims for damage (c) Mission and policy. The primary caused by Navy contract stevedores. mission of the Admiralty and Maritime Under these stevedore contracts, the Law Division is to effect prompt and stevedoring companies are responsible equitable settlements of admiralty for negligent acts of their employees claims, both against and in favor of the which result in vessel damage. It is im- United States. The settlement proce- portant that the extent of any such dure has evolved to eliminate the ex- damage be accurately determined and penses and delays arising out of litiga- promptly reported to the contracting tion and to obtain results advan- officer having cognizance of the par- tageous to the financial interests of ticular stevedore contract involved. the United States. Where settlements (g) Resolving conflicts. Admiralty-tort cannot be made, litigation ensues in claims, such as collision, personal-in- the Federal Courts. The final test of jury, and death claims, are dealt with whether a settlement is justified is the by the Admiralty and Maritime Law probable result of litigation. Settle- Division, irrespective of whether an ments are therefore considered and de- MSC vessel or other naval vessel is in- termined by the probable results of volved. Whether any particular claim litigation. The policy of the Navy is to is to be handled by JAG or by MSC, effect fair and prompt settlements of therefore, is determined by the nature admiralty claims wherever legal liabil- of the claim. Cases may arise which ity exists. could be handled by either office. If (d) Admiralty-tort claims. As indicated doubt exists, such matters should be above, the Admiralty and Maritime reported both to JAG and to MSC. An Law Division primarily handles admi- agreement will then be reached be- ralty-tort claims. These are claims for tween the Admiralty and Maritime damage caused by vessels in the naval Law Division and the Office of Counsel, service or by other property under the MSC, as to how the incident should be jurisdiction of the Navy, or damage handled. caused by a maritime tort committed [39 FR 9962, Mar. 15, 1974, as amended at 55 by an agent or employee of the Navy, FR 12173, Apr. 2, 1990; 65 FR 60861, 60862, Oct. and claims for damage caused by a pri- 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, vately owned vessel to a vessel or prop- Oct. 3, 2007] erty of the Navy (affirmative claims). The Admiralty and Maritime Law Divi- § 752.3 Claims against the Navy. sion also handles claims for towage and (a) Settlement authority. 10 U.S.C. 7622 salvage services rendered to a vessel in provides settlement authority for dam- the naval service. age caused by a vessel in the naval (e) Admiralty-contract claims. Admi- service or by other property under the ralty-contract claims arising out of the jurisdiction of the Department of the operations of the Military Sealift Com- Navy; compensation for towage or sal- mand (MSC) are handled by its Office vage service, including contract sal- of Counsel. MSC is responsible for the vage, rendered to a vessel in the naval procurement of vessels and space for service or to other property of the the commercial ocean transportation Navy; or damage caused by a maritime of Department of Defense cargo, mail, tort committed by any agent or em- and personnel. It is also responsible for ployee of the Department of the Navy the maintenance, repair, and alteration or by property under the jurisdiction of of Government-owned vessels assigned the Department of the Navy. The limit to it. The Office of Counsel, MSC, deals on the Secretary’s settlement author- with the various claims of a contract ity is payment of $15,000,000. A claim

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which is settled for an amount over nizance of the Department of Justice, $15,000,000 is certified to Congress for and the Secretary of the Navy is no payment. Section 7622 provides that longer able to entertain a claim or to the Secretary may delegate his settle- make administrative settlement. ment authority in matters where the amount to be paid is not over $1,000,000. [39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12173, Apr. 2, 1990; 65 FR 60861, 60862, Oct. Under the Secretary’s delegation, set- 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, tlements not exceeding $500,000 may be Oct. 3, 2007] effected by the Judge Advocate Gen- eral. Under the Secretary’s delegation, § 752.4 Affirmative claims. settlements not exceeding $250,000 may (a) Settlement authority. The Navy has be effected by the Deputy Assistant the same authority to settle affirma- Judge Advocate General (Admiralty tive admiralty claims as it does claims and Maritime Law). against the Navy. The statute confer- (b) Settlement is final. The legislation ring this authorization is codified in 10 specifically authorizes the Secretary to U.S.C. 7623, and is the reciprocal of 10 settle, compromise, and pay claims. U.S.C. 7622 referred to in § 752.3. The settlement, upon acceptance of payment by the claimant, is final and (b) Scope. 10 U.S.C. 7623 is a tort conclusive for all purposes. claims-settlement statute. It is not (c) Settlement procedures. Where the limited to affirmative claims arising amount paid is over $500,000, after out of collision, but embraces all in- agreement is reached with counsel or stances of damage caused by a vessel or claimants, the procedure is to prepare floating object to property of the a settlement recommendation for the United States under the jurisdiction of approval of the Secretary of the Navy. the Department of the Navy or for When settlement has been approved, which the Department of the Navy has the voucher required for effecting pay- assumed an obligation to respond. Per- ment is prepared. The settlement haps the most frequent instance is check is then exchanged, in keeping where a privately owned vessel dam- with the commercial practice, for an ages a Navy pier or shore structure. To executed release. In some situations, eliminate any issue of whether the where the exchange of documents is damaging instrumentality was a ves- impracticable, a claimant is requested sel, the words ‘‘or floating object’’ were to forward the executed release by included. mail, on the understanding that the re- (c) Statute of limitation. The United lease does not become effective until States is subject to a three-year stat- the check is received in payment. ute of limitation when it asserts an af- Claims settled under 10 U.S.C. 7622 are firmative claim for money damages paid out of annual Department of De- grounded in tort. This limitation is fense appropriations. subject to the usual exclusions, such as (d) Limitation period. The Secretary’s inability to prosecute due to war, un- settlement authorization is subject to availability of the ‘‘res’’ or defendant, a two-year limitation. This limitation and certain exemptions from legal is not extended by the filing of claim process (28 U.S.C. 2415, 2416). nor by negotiations or correspondence. (d) Litigation. 10 U.S.C. 7623 does not A settlement agreement must be apply to any claim where suit is filed. reached before the end of the two-year If the Admiralty and Maritime Law Di- period. If settlement is not accom- vision is unable to effect settlement, plished, then the claimant must file the matter is referred to the Depart- suit under the appropriate statute to ment of Justice for the filing of a com- avoid the limitation bar. The agree- plaint against the offending party. ment reached in negotiations must re- Thereafter, as in the case of adverse ceive the approval of the Secretary of litigated claims, the Navy has no fur- the Navy or his designee, depending on ther authority to effect settlement. the amount involved, prior to the expi- [39 FR 9962, Mar. 15, 1974, as amended at 55 ration of the two-year period. FR 12174, Apr. 2, 1990; 65 FR 60861, Oct. 13, (e) Matters in litigation. When suit is 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, filed, the matter comes within the cog- Oct. 3, 2007]

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§ 752.5 Salvage. 755.6 Action where offenders are members of one command. (a) Scope. This section relates to sal- 755.7 Action where offenders are members of vage claims against or by the Navy for different commands. compensation for towage and salvage 755.8 Reconsideration and appeal. services, including contract salvage, 755.9 Effect of court-martial proceedings. rendered to a vessel in the naval service or to other property under the ju- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and5148; E.O. 11476, as reported in 3 CFR, 1969 risdiction of the Department of the Comp., p. 132; 32 CFR 700.206 and 700.1202. Navy, or for salvage services rendered by the Department of the Navy. Suits SOURCE: 56 FR 42232, Aug. 27, 1991, unless for salvage may be maintained under otherwise noted. the Public Vessels Act, and salvage NOTE 1: This part 755 is chapter IV of the claims are within the Secretary of the Manual of the Judge Advocate General of the Navy’s administrative-settlement au- Navy. NOTE 2: The Uniform Code of Military Jus- thority under 10 U.S.C. 7622. Salvage tice (10 U.S.C. 801-940) is referred to in this claims against the Navy are reported part 755 as the ‘‘UCMJ’’. The Manual for to and processed by the Judge Advo- Courts-Martial, United States, 1984 (E.O. cate General (Admiralty and Maritime 12473 of August 1, 1984) is referred to in this Law Division). Both claims and suits part 755 as ‘‘MCM 1984’’. for salvage against the United States are subject to the two-year limitation § 755.1 Statutory authority. of the Public Vessels Act and the Article 139, UCMJ, redress of injuries Navy’s settlement authority. to property, is the basis for this chap- (b) Affirmative claims. Authorization ter. for the settlement of affirmative salvage claims is contained in 10 U.S.C. § 755.2 Scope. 7365. Assertion of such claims is handled in the first instance by the Assist- This chapter provides for assess- ant Supervisor of Salvage (Admiralty), ments against the pay of members of USN, Naval Sea Systems Command the naval service in satisfaction of (SEA OOCL), 2531 Jefferson Davis High- claims for property damage caused way, NC/3 Room 11E54, Arlington, VA under certain circumstances. Claims 22242–5160. Salvage claims are referred for damage, loss, or destruction of pri- to the Admiralty Division only if the vately owned property caused by a per- Assistant Supervisor of Salvage (Admi- son or persons in the naval service, are ralty) is unsuccessful in making collec- payable under Article 139, UCMJ, only tion. Any money received in settle- if such damage, loss, or destruction is ment of affirmative salvage claims is caused by riotous conduct, willful con- credited to appropriations for main- duct, or acts showing such reckless or taining salvage facilities by the Navy, wanton disregard of the property rights pursuant to 10 U.S.C. 7367. of others that willful damage or destruction is implied. Acts of the type [39 FR 9962, Mar. 15, 1974, as amended at 41 punishable under Article 109, UCMJ, FR 26866, June 30, 1976; 55 FR 12174, Apr. 2, are cognizable under Article 139, 1990; 65 FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004] UCMJ. Charges against pay under these regulations shall be made only against the pay of persons shown to PART 755—CLAIMS FOR INJURIES have been principal offenders or acces- TO PROPERTY UNDER ARTICLE sories. 139 OF THE UNIFORM CODE OF MILITARY JUSTICE § 755.3 Claims not cognizable. The following claims are not cog- Sec. nizable under this chapter. 755.1 Statutory authority. (a) Claims resulting from simple neg- 755.2 Scope. ligence. 755.3 Claims not cognizable. 755.4 Limitation on claims. (b) Claims of subrogees. 755.5 Complaint by the injured party and in- (c) Claims for personal injury or vestigation. death.

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(d) Claims arising from acts or omis- supporting materials shall be for- sions within the scope of employment warded to the Chief of Naval Personnel of the offender. or the Commandant of the Marine (e) Claims for reimbursement for Corps, as appropriate, for action. damage, loss, or destruction of Govern- (c) The investigation shall inquire ment property. into the circumstances surrounding the claim, gather all relevant information § 755.4 Limitation on claims. about the matter (answering the who, (a) Time limitations. A claim must be what, where, when, why, and how ques- submitted within 90 days of the inci- tions) and make findings and opinions, dent giving rise to it. as appropriate, about the validity of (b) Acts of property owner. When the the claim under Article 139, UCMJ, and acts or omissions of the property these regulations. The investigation owner, his lessee, or agent were a prox- shall determine the amount of damage imate contributing factor to the loss or suffered by the property owner. damage of the property, assessments (d) The investigation shall make rec- will not be made against members of ommendations about the amount to be the naval service in excess of the assessed against the pay of the respon- amount for which they are found to be sible parties. If more than one person is directly responsible, i.e., comparative found responsible, recommendations responsibility for the loss will be the shall be made about the assessments standard for determining financial re- against all individuals. sponsibility. (c) Only direct damages considered. As- § 755.6 Action where offenders are sessment will be made only for direct members of one command. physical damages to the property. Indi- (a) Action by commanding officer. The rect, remote, or inconsequential damage will not be considered. commanding officer shall ensure the alleged offenders are shown the inves- § 755.5 Complaint by the injured party tigative report and are advised they and investigation. have 20 days within which to submit a (a) A claim shall contain a statement statement or additional information on setting forth the amount of the claim, the incident. If the member declines to the facts and circumstances sur- submit information, he shall so state rounding the claim and any other in- in writing within the 20 day period. formation that will assist in the inves- The commanding officer shall review tigation and resolution of the matter. the investigation and determine wheth- When there is more than one complaint er the claim is properly within the pro- resulting from a single incident, each visions of Article 139, UCMJ, and these claimant must file a claim separately regulations, and whether the facts indi- and individually. The claim shall be cate responsibility for the damage on personally signed by the claimant or members of the command. If the com- his duly authorized representative or manding officer finds the claim pay- agent. able under these regulations, he shall (b) Where the claim alleges mis- fix the amount to be assessed against conduct by members of the command, a the offenders. commanding officer to whom the claim (b) Review. If the commanding officer is submitted shall convene an inves- has authority to convene a general tigation under this Manual to inquire court-martial, no further review of the into the matter. Where a complaint is investigation is required as to the re- received by a commanding officer to dress of injuries to property. If the whose command the alleged offenders commanding officer does not have gen- do not report, he shall forward the eral court-martial convening author- claim and other pertinent information ity, the investigation and the com- about the matter to the member’s commanding officer’s action thereon shall manding officer who will convene an be forwarded to the officer exercising investigation into the incident. Where general court-martial jurisdiction the command of the alleged offenders (OEGCM) over the command for review cannot be determined, the claim and and action on the claim. That officer’s

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action on the claim shall be commu- retary of the Navy (Judge Advocate nicated to the commanding officer who General) who will take action in the will take action consistent with the de- matter. Commanding officers, in such a termination. situation, are not to make charges (c) Charge against pay. Where the against the pay of their members until amount does not exceed $5,000.00, the directed by the Secretary of the Navy amount ordered by the commanding of- (Judge Advocate General). ficer shall, as provided in the Navy Comptroller Manual, be charged § 755.8 Reconsideration and appeal. against the pay of the offenders and (a) The OEGCM may, the amounts so collected will be paid Reconsideration. to the claimant. Where the amount ex- upon a receipt of a request for recon- ceeds $5,000.00, the claim, the investiga- sideration by either the claimant or a tion, and the commanding officer’s rec- member who has been assessed pecu- ommendation shall be forwarded for re- niary liability, reopen the investiga- view prior to checkage to Head- tion or take any other action he be- quarters, U.S. Marine Corps (Code lieves is necessary in the interests of JAR) or the Judge Advocate General, justice. If the OEGCM contemplates as appropriate. The amount charged in acting favorably on the request, he will any single month against the pay of of- provide all individuals interested in fenders shall not exceed one-half of the claim with notice and an oppor- basic pay, as defined in paragraph tunity to respond. The basis for any 126h(2), Manual for Courts-Martial. The change will be noted in the OEGCM’s action of the commanding officer in or- decision. dering the assessment shall be conclu- (b) Appeal. In claims involving sive on any disbursing officer for pay- $5,000.00 or less, a claimant or member ment to the claimant of the damages who has been assessed pecuniary liabil- assessed, approved, charged, and col- ity may appeal the decision to the lected. OEGCM. An appeal must be submitted § 755.7 Action where offenders are within 5 days of the receipt of the members of different commands. OEGCM’s decision. Appeals will be forwarded, via the OEGCM, to the Judge (a) Action by common superior. The investigative report shall be forwarded to Advocate General for review and final the common superior exercising gen- action. In the event of an appeal, the eral court-martial jurisdiction over the imposition of the OEGCM’s decision commands to which the alleged offend- will be held in abeyance pending the ers are assigned. That officer shall en- final action by JAG. If it appears that sure the alleged offenders are shown good cause exists that would make it the investigative report and permitted impracticable for an appeal to be sub- to comment on it, should they desire, mitted within 5 days, the OEGCM may, before action is taken on the claim. in his discretion, grant an extension of That officer shall review the investiga- time, as appropriate. His decision on tion and determine whether the claim extensions is final and nonappealable. is properly within the provisions of Ar- ticle 139, UCMJ, and these regulations, § 755.9 Effect of court-martial pro- and whether the facts indicate respon- ceedings. sibility for the damage on members of Administrative action under these his command. If the claim is found pay- regulations is separate and distinct able under these regulations, he shall from and is not affected by any dis- fix the amount to be assessed against ciplinary action against the offender. the offenders and direct the appro- The two proceedings are independent. priate commanding officers to take ac- Acquittal or conviction of the alleged tion accordingly. offender by court-martial is evidence (b) Forwarding to SECNAV (JAG). for the administrative action, but is Where it is not practical or possible to carry out the procedure in § 755.7(a) of not determinative on the issue of re- this section, the investigation or inves- sponsibility for damages under these tigations shall be forwarded to the Sec- regulations.

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PART 756—PROCEDURES FOR § 756.3 Notification. PROCESSING CLAIMS INVOLV- (a) Some NAFI’s, such as flying ING NON-APPROPRIATED FUND clubs, carry private commercial insur- ACTIVITIES AND THEIR EMPLOY- ance to protect them from claims for EES property damage and personal injury attributable to their operations. The Sec. Commandant of the Marine Corps, the 756.1 Scope. Chief of Naval Personnel, and the Com- 756.2 Definitions. mander, Naval Supply Systems Com- 756.3 Notification. mand determine whether NAFI’s with- 756.4 Responsibility. in their cognizance shall carry liability 756.5 Investigation. insurance or become self-insurers, in 756.6 Negotiation. whole or in part. 756.7 Payment. (b) The Marine Corps requires manda- 756.8 Denial. tory participation in the Morale, Wel- 756.9 Claims by employees. fare and Recreation (MWR) Composite AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 5013 and Insurance Program by the following 5148. operations: MWR operations and retail services, food and hospitality, recre- SOURCE: 57 FR 4736, Feb. 7, 1992, unless oth- ation; and special NAFI activities in- erwise noted. cluding flying clubs, rod and gun clubs, § 756.1 Scope. Interservice Rifle Fund, Marine Corps Marathon and Dependent Cafeteria This part explains how to settle Fund. The following organizations may claims for and against the United also participate in the MWR Composite States for property damage, personal Insurance Program, if desired: Child injury, or death arising out of the oper- welfare centers, billeting funds, chapel ation of non-appropriated fund activi- funds, and civilian welfare funds. ties (NAFI). 1 (c) When the operations of NAFI’s re- [72 FR 53425, Sept. 19, 2007] sult in property damage or personal injury, the insurance carrier, if any, § 756.2 Definitions. should be given immediate written notification. Notification should not be (a) Nonappropriated-fund instrumen- postponed until a claim is filed. When tality (NAFI). An instrumentality of the the activity is self-insured, the self-in- Federal Government established to surance fund shall be notified of the po- generate and administer non- tential liability by the activity. appropriated-funds for programs and services contributing to the mental § 756.4 Responsibility. and physical well-being of Department (a) All claims resulting from NAFIs of Defense personnel and their depend- should be submitted to the command ents. A NAFI is not incorporated under having cognizance over the NAFI in- the laws of any State and enjoys the volved. The claim will then be for- privileges and immunities of the Fed- warded to the Tort Claims Unit (TCU) eral Government. Norfolk located at the following ad- (b) Nonappropriated-funds. Funds gen- dress: Department of the Navy, Office erated through the use and patronage of the Judge Advocate General, Tort of NAFI’s, not including funds appro- Claims Unit Norfolk, 9620 Maryland priated by Congress. Avenue, Suite 100, Norfolk, VA 23511– (c) Employees of NAFIs. Personnel em- 2989. ployed by NAFIs whose salaries are (b) The TCU Norfolk has cognizance paid from non-appropriated funds. over all DoN claims. Normally, the [57 FR 4736, Feb. 7, 1992, as amended at 72 FR TCU Norfolk has primary responsi- 53425, Sept. 19, 2007] bility for the negotiation and settlement of NAFI claims. This is because 1 DoD Directive 5515.6 establishes policy NAFIs are Federal agencies within the governing the administrative processing of meaning of the Federal Tort Claims claims arising out of the operation of non- Act (FTCA) if the NAFI is charged with appropriated fund activities. an essential function of the DoN and if

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the degree of control and supervision negotiates a final settlement, however, by the Navy is more than casual or per- request for payment will be forwarded functory. Compare United States v. to the insurer or TPA for payment. Holcombe, 277 F.2d 143 (4th Cir. 1960) and Concurrence by the insurer or TPA in Scott v. United States, 226 F. Supp. 846, the amount of the settlement is not (D. Ga. 1963). Consequently, to the ex- necessary. tent sovereign immunity is waived by (c) When the NAFI is not insured. the FTCA, 28 U.S.C. 1346(b), 2671–2672, When there is no private commercial 2674–2680, the United States remains ul- insurer and the NAFI has made no timately liable for payment of NAFI independent arrangements for negotia- claims. tions, the TCU Norfolk is responsible [72 FR 53425, Sept. 19, 2007] for conducting negotiations. When an appropriate settlement is negotiated § 756.5 Investigation. by the Navy, the recommended award Claims arising out of the operation of will be forwarded to the NAFI for pay- NAFIs, in and outside the United ment from non-appropriated funds. States, shall be investigated in accordance with the procedures for inves- [72 FR 53425, Sept. 19, 2007] tigating similar claims against appropriated fund activities. The Manual of § 756.7 Payment. the Judge Advocate General (a) Claims that can be settled for less (JAGMAN), Chapter II 2 provides guid- than 1,500.00. A claim not covered by ance in conducting an investigation of insurance (or not paid by the insurer), an incident or event likely to result in that can be settled for $1,500.00 or less, claims or civil litigation against or for may be adjudicated by the TCU Nor- DoN or the United States. folk or single-service authority and [72 FR 53425, Sept. 19, 2007] forwarded to the commanding officer of the activity concerned or designee for § 756.6 Negotiation. payment out of funds available to the (a) General. Claims from NAFIs commanding officer. The TCU Norfolk should be processed primarily through or single-service authority will obtain procedures, regulations, and statutes the required release from the claimant. applicable to similar appropriated fund (b) Claims that cannot be settled for less activity claims. than $1,500.00. A claim negotiated by (b) When the NAFI is insured. When a the Navy, not covered by insurance, NAFI is insured, the insurer or the con- that is for more than $1,500.00 will be tracted third-party claims adminis- forwarded to the appropriate non-ap- trator (TPA) will normally conduct ne- propriated fund headquarters command gotiations with claimants. The TCU for payment from its non-appropriated Norfolk shall monitor the negotiations funds. conducted by the insurer or TPA. Mon- (c) When payment is possible under an- itoring is normally limited to other statute. In some cases, neither the ascertaining that someone has been as- NAFI nor its insurer may be legally re- signed to negotiate, to obtain periodic sponsible. In those instances when status reports, and to close files on set- there is no negligence, and payment is tled claims. Any dissatisfaction with authorized under some other statute, the insurer’s or TPA’s handling of the such as the Foreign Claims Act, 10 negotiations should be referred di- U.S.C. 2734–2736, the claim may be con- rectly to the Judge Advocate General (Claims and Tort Litigation) for appro- sidered for payment from appropriated priate action. If requested by the in- funds or may be referred to the TCU surer or TPA, the TCU Norfolk may Norfolk for appropriate action. conduct negotiations. If TCU Norfolk (d) Other claims. A NAFI’s private insurance policy is usually not available to cover losses that result from some 2 JAGMAN Chapter II (JAG Instruction 5800.7E) is available at the Web site of the act or omission of a mere participant Navy Judge Advocate General’s Corps at in a non-appropriated fund activity. In http://www.jag.navy.mil. the event the NAFI declines to pay the

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claim, the file shall be forwarded to the tected by private insurance of the TCU Norfolk for determination. NAFI or by other arrangements. When a non-appropriated fund activity has [72 FR 53426, Sept. 19, 2007] elected not to obtain insurance cov- § 756.8 Denial. erage or to make other arrangements, compensation is separately provided by Claims resulting from non-appro- Federal statute, military regulations, priated fund activities may be denied and agreements with foreign countries. only by the TCU Norfolk. The denial See 5 U.S.C. 8172, DoD 1401.1–M, Per- will begin the six-month limitation on sonnel Policy Manual for Non-appro- filing suit against the United States priated Fund Instrumentalities and for claims filed under the FTCA. Denial BUPERINST 5300.10A, NAF Personnel of a claim shall be in writing and in ac- Manual. cordance with subparts A and B of part 750 of this chapter, as appropriate. The [72 FR 53426, Sept. 19, 2007] TCU Norfolk should not deny claims that have initially been processed and PART 757—AFFIRMATIVE CLAIMS negotiated by a non-appropriated fund REGULATIONS activity, its insurer, or TPA, until the activity or its insurer has clearly stat- Subpart A—Property Damage Claims ed in writing that it does not intend to pay the claim and has elected to defend Sec. the claim in court. 757.1 Scope of subpart A. 757.2 Statutory authority. [72 FR 53426, Sept. 19, 2007] 757.3 Regulatory authority. 757.4 Claims that may be collected. § 756.9 Claims by employees. 757.5 Assertion of claims and collection procedures. (a) Property. Claims by employees of 757.6 Waiver, compromise, and referral of NAFIs for loss, damage, or destruction claims. of personal property incident to their 757.7–757.10 [Reserved] employment shall be processed and adjudicated in accordance with subparts Subpart B—Medical Care Recovery Act A or B of part 751 of this chapter, as ap- (MCRA) Claims and Claims Asserted propriate. The claims will then be for- Pursuant to 10 U.S.C. 1095 warded to the appropriate NAFI for 757.11 Scope of Subpart B. payment from non-appropriated funds. 757.12 Statutory authorities. (b) Personal injury or death—(1) Per- 757.13 Responsibility for MCRA actions. sonal injury or death of citizens or perma- 757.14 Claims asserted. nent residents of the United States em- 757.15 Claims not asserted. ployed anywhere, or foreign nationals em- 757.16 Claims asserted only with OJAG ap- ployed within the United States. Com- proval. pensation is provided by the Longshore 757.17 Statute of limitations. 757.18 Asserting the claim. and Harbor Workers’ Compensation 757.19 Waiver and compromise. Act (33 U.S.C. 901–950) for employees of 757.20 Receipt and release. NAFIs who have suffered injury or death arising out of, and in the course AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; of, their employment (5 U.S.C. 8171). 32 CFR 700.206 and 700.1202. That Act is the exclusive basis for Gov- ernment liability for such injuries or SOURCE: 57 FR 5072, Feb. 12, 1992, unless deaths that are covered (5 U.S.C. 8173). otherwise noted. A claim should first be made under that Act if there is a substantial possi- Subpart A—Property Damage bility the injury or death is covered Claims under the Act’s provisions. (2) Personal injury or death of foreign § 757.1 Scope of subpart A. nationals employed outside of the conti- Subpart A describes how to assert, nental United States. Employees who are administer, and collect claims for dam- not citizens or permanent residents, age to or loss or destruction of Govern- and who are employed outside the con- ment property through negligence or tinental United States, may be pro- wrongful acts.

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§ 757.2 Statutory authority. against Government personnel who (a) General. All affirmative claims for rented the vehicle. (c) Any other claim for damage to or loss of Government prop- Other claims. money or property in favor of the erty in favor of the United States are United States cognizable under the processed in accordance with the Fed- Federal Claims Collections Act not eral Collections Claims Act (31 U.S.C. specifically listed above. 3711), as amended by the Debt Collec- tion Act of 1982, PL 97–365, 96 Stat. 1749 [72 FR 53427, Sept. 19, 2007] (25 October 1982), PL 101–552, 104 Stat. 2736 (15 November 1990) and the Debt § 757.5 Assertion of claims and collec- Collection Improvement Act of 1996, PL tion procedures. 104–134, 110 Stat. 1321, 1358 (26 April (a) General. The controlling proce- 1996). Department of Defense Directive dures for administrative collection of designees, the authority granted to the claims are established in 31 CFR part Secretary of Defense under the Federal 901. Claims Collection Act. (b) Officials authorized to pursue (b) Statute of limitations. Subject to claims. The Judge Advocate General; specific provisions in other statutes, the Deputy Judge Advocate General; there is a general 3-year statute of lim- any Assistant Judge Advocate General; itations on affirmative Government the Deputy Assistant Judge Advocate tort claims pursuant to 28 U.S.C. General (Claims and Tort Litigation) 2415(b). are authorized to pursue and collect all [72 FR 53427, Sept. 19, 2007] affirmative claims in favor of the United States, except in countries § 757.3 Regulatory authority. where another service has single service responsibility in accordance with The regulations published in 31 CFR Chapter IX control the collection and DoD Directive 5515.8. (c) Dollar limitations. All of the offi- settlement of affirmative claims. This section supplements the material con- cers listed in § 757.5(b) are authorized to tained in those regulations. Where this compromise and terminate collection section conflicts with the materials action on affirmative claims of and procedure published in 31 CFR $100,000.00 or less. (d) Determining liability. Liability Chapter IX, the latter controls. must be determined in accordance with [57 FR 5072, Feb. 12, 1992, as amended at 72 the law of the place in which the dam- FR 53427, Sept. 19, 2007] age occurred, including the applicable traffic laws, elements of tort, and pos- § 757.4 Claims that may be collected. sible defenses. (a) Against responsible third parties for (e) Assertion of a claim. (1) Assertion damage to Government property, or the of the claim is accomplished by mail- property of non-appropriated fund activi- ing to the tortfeasor a ‘‘Notice of ties. It should be noted, however, that Claim.’’ The notice is to be mailed cer- as a general rule, the Government does tified mail, return receipt requested, not seek payment from service mem- and should include the following infor- bers and Government employees for mation: damages caused by their simple neg- (i) Reference to the statutory right ligence while acting within the scope to collect; of their employment. Exceptions to (ii) A demand for payment or restora- this general policy will be made when tion; the incident involves aggravating cir- (iii) A description of damage and es- cumstances. timate of repair; (b) For money paid or reimbursed by the (iv) A description of the incident, in- government for damage to a rental car in cluding date and place; and accordance with the Joint Federal Travel (v) The name, phone number, and of- regulations (volume 1, paragraph U 3415– fice address of the claims personnel to C and volume 2, paragraph C 2101–2). contact. Collection action shall be taken (2) See also 31 CFR part 901. against third parties liable in tort. Col- (f) Full payment. When a responsible lection action shall not be taken party or insurer tenders full payment

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or a compromise settlement on a posited in the Navy Industrial Fund of claim, the payment should be in the the activity in accordance with the form of a check or money order made provisions of the Navy Comptroller payable to ‘‘United States Treasury.’’ Manual. When a claim is based on a The check or money order shall then be loss or damage sustained by such an forwarded to the disbursing officer activity, a notation to this effect shall serving the collecting activity for de- be included in any claim file forwarded posit in accordance with the provisions to the Judge Advocate General. of the Navy Comptroller Manual. For (j) Replacement in kind or repair. The collections for damages to real prop- responsible party, or insurer, may want erty, the collection is credited to the to repair or replace in kind damaged account available for the repair or re- property. The commanding officer or placement of the real property at the officer in charge of the activity sus- time of recovery. (10 U.S.C. 2782.) For taining the loss is authorized to accept damages to personal property, the repair or replacement if, in his discre- money is returned to the general treas- tion, it is considered to be in the best ury. interests of the United States. (g) Installment payments. See 31 CFR (k) Release. The Supervisory Attor- 901.8 for specific procedures. In general, ney, Tort Claims Unit, Norfolk is au- if the debtor is financially unable to thorized to execute a release of the pay the debt in one lump sum, an in- claim when all repairs have been com- stallment payment plan may be ar- pleted to the Government’s satisfac- ranged. Installment payments will be tion, and when all repair bills have required on a monthly basis and the been paid. No prior approval from the size of payment must bear a reasonable Judge Advocate General is required for relation to the size of the debt and the this procedure. If repair or replacement debtor’s ability to pay. The install- is made, a notation shall be made in ment agreements should specify pay- any investigation or claims file. ments of such size and frequency to liquidate the Government’s claim in not [57 FR 5072, Feb. 12, 1992, as amended at 72 more than 3 years. Installment pay- FR 53427, Sept. 19, 2007] ments of less than $50.00 per month should be accepted only if justified on § 757.6 Waiver, compromise, and referral of claims. the grounds of financial hardship or for some other reasonable cause. In all in- (a) Officials authorized to compromise stallment arrangements, a confession claims. The officers identified in of judgment note setting out a repay- § 757.5(b) may collect the full amount ment schedule should be executed. on all claims, and may compromise, (h) Damage to nonappropriated-fund execute releases or terminate collec- instrumentality (NAFI) property. Any tion action on all claims of $20,000.00 or amount collected for loss or damage to less. Collection action may be termi- property of a NAFI shall be forwarded nated for the convenience of the Gov- to the headquarters of the non- ernment if the tortfeasor cannot be lo- appropriated-fund activity for deposit cated, is found to be judgment-proof, with that activity. In those situations has denied liability, or has refused to where the recovery involves damage to respond to repeated correspondence both NAFI-owned property and other concerning legal liability involving a Government property, e.g., destruction small claim. A termination for the con- of an exchange building resulting in venience of the Government is made damage to both the building and the after it is determined that the case exchange-owned property inside, recov- does not warrant litigation or that it is ery for the exchange-owned property not cost-effective to pursue recovery shall be forwarded to the NAFI. Recov- efforts. ery for building damage shall be depos- (b) Claims over $100,000.00. Claims in ited in accordance with § 757.5(f) above. excess of $100,000.00 may not be com- (i) Damage to industrial-commercial promised for less than the full amount property. When a loss or cost of repair or collection action terminated with- has been borne by an industrial-com- out approval from the Department of mercial activity, payment shall be de- Justice (DOJ).

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(c) Notification. The Judge Advocate § 757.13 Responsibility for MCRA ac- General shall be notified prior to all re- tions. quests made to the DOJ to com- (a) JAG designees. (1) Primary respon- promise, terminate collection, or refer- sibility for investigating, asserting, ral for further collection action or liti- and collecting Department of the Navy gation. (DON) MCRA claims and properly for- (d) Litigation reports. Litigation re- warding MCRA claims to other Federal ports prepared in accordance with 31 departments or agencies rests with the CFR part 904 shall be forwarded following personnel: through the Judge Advocate General (i) Deputy Assistant Judge Advocate (Claims and Tort Litigation) to the De- General (Claims and Tort Litigation partment of Justice along with any Division) (Code 15); and the case file for further collection action (ii) Commanding Officer, Naval Legal or litigation as required by the Federal Service Command Europe and South- Claims Collections Standards. west Asia (NLSC EURSWA), Naples, Italy, in its area of geographic respon- [57 FR 5072, Feb. 12, 1992, as amended at 72 sibility. FR 53428, Sept. 19, 2007] (2) JAG designee may assert and receive full payment on any MCRA §§ 757.7–757.10 [Reserved] claim. Code 15 may agree to compromise or waive claims for $100,000 or Subpart B—Medical Care Recov- less. NLSC EURSWA may agree to ery Act (MCRA) Claims and compromise or waive claims for Claims Asserted Pursuant to $40,000.00 or less. NLSC EURSWA claims in excess of $40,000.00 may be 10 U.S.C. 1095 compromised or waived only with Code § 757.11 Scope of Subpart B. 15 approval. See Sec. 757.19 for further discussion of waiver and compromise. Subpart B describes the assertion and (b) Navy Medical Treatment Facility collection of claims for medical care (MTF). (1) Naval MTFs are responsible under the MCRA and 10 U.S.C. 1095. The for ensuring potential MCRA/10 U.S.C. MCRA states that when the Federal 1095 claims are brought to the atten- government provides treatment or pays tion of the appropriate JAG designee. for treatment of an individual who is (2) The MTF reports all potential injured or suffers a disease, the Gov- MCRA/10 U.S.C. 1095 cases by for- ernment is authorized to recover the warding a copy of the daily injury log reasonable value of that treatment entries and admission records to the from any third party who is legally lia- cognizant JAG designee within 7 days ble for the injury or disease. Title 10 of treatment for which a third party U.S.C. 1095 provides for the collection may be liable. The JAG designee makes from third-party payers for the value the determination of liability. Recov- of health care services incurred by the ery for the costs of MTF care is based Government on behalf of covered bene- on Diagnostic Related Group rates or a ficiaries. Relative Value Unit. Rates are established by the Office of Management and [72 FR 53428, Sept. 19, 2007] Budget and/or the DoD, and published annually in the FEDERAL REGISTER. § 757.12 Statutory authorities. (c) TRICARE Fiscal Intermediary. The (a) Medical Care Recovery Act, 42 TRICARE fiscal intermediary is re- U.S.C. 2651–2653 (2005). quired to identify and promptly mail (b) Title 10 U.S.C. 1095 (Health Care claims involving certain diagnostic Services Incurred on Behalf of Covered codes to the cognizant JAG designee. Beneficiaries: Collection from Third- Claims are asserted for the actual Party Payers). amount that TRICARE paid. (c) Title 10 U.S.C. 1079a (CHAMPUS: (d) Department of Justice (DoJ). Only the DoJ may authorize compromise or Treatment of Refunds and Other waiver of an MCRA/10 U.S.C. 1095 claim Amounts Collected). in excess of $100,000.00 or settle an [72 FR 53428, Sept. 19, 2007] MCRA/10 U.S.C. 1095 claim in which the

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third party has filed a suit against the (e) Alternate theories of recovery. (1) United States as a result of the inci- Often, recovery under the MCRA is not dent which caused the injury and upon possible because no third-party tort li- which the claim is based. ability exists. For example, if a member, retiree, or dependent is driving a [72 FR 53428, Sept. 19, 2007] vehicle and is injured in single-car accident, there is no tortfeasor. Title 10 § 757.14 Claims asserted. U.S.C. 1095 provides the Government (a) General. The DoN asserts MCRA alternate means for recovery as a and 10 U.S.C. 1095 claims when medical third-party beneficiary of an insurance care is furnished to Navy and Marine contract of the injured party. Corps active duty personnel, retirees, (2) Recovery may also be possible or their dependents, or any other per- under State workers’ compensation son when appropriate, and third-party laws. Case law in this area is still tort or contract liability exists for pay- emerging, but in most jurisdictions, ment of medical expenses resulting the United States stands in the posi- from an injury or disease. Claims are tion of a lien claimant for services ren- asserted when the injured party is dered. treated in a MTF or when the DoN is [57 FR 5072, Feb. 12, 1992, as amended at 72 responsible for reimbursing a non-Fed- FR 53428, Sept. 19, 2007] eral care provider. (b) Independent cause of action. The § 757.15 Claims not asserted. MCRA creates an independent cause of In some cases, public policy consider- action for the United States. The Gov- ations limit the DoN’s assertion of ernment can administratively assert claims against apparent third-party and litigate MCRA claims in its own tortfeasors or a contract where the name and for its own benefit. Proce- Government would be a third party dural defenses, such as a failure of the beneficiary. Claims are not asserted injured person to properly file and/or against: serve a complaint on the third party, (a) Federal Government agencies. that may prevent the injured person Claims are not asserted against any de- from recovering, do not prevent the partment, agency or instrumentality of United States from pursuing its own the United States. ‘‘Agency or instru- action to recover the value of medical mentality’’ includes self-insured, non- treatment provided to the injured per- appropriated-fund activities but does son. The right arises directly from the not include private associations. statute; the statutory reference to sub- (b) Injured service members, depend- rogation pertain only to one mode of ents, and employees of the United States. enforcement. In creating an inde- Claims are not asserted directly pendent right in the Government, the against a servicemember, the depend- Act prevents a release given by the in- ent of a servicemember, or an em- jured person to a third party from af- ployee of the United States who is in- fecting the Government’s claim. jured as a result of his own willful or (c) Liable parties. MCRA and 10 U.S.C negligent acts. The United States does 1095 claims may be asserted against in- assert, however, against policies that dividuals, corporations, associations cover the injury. and non-Federal Government agencies (c) Employers of merchant seamen. subject to the limitation described in Claims are not asserted against the § 757.15. employer of a merchant seaman who (d) Reasonable value of medical care. receives Federal medical care under 42 The reasonable value of medical care U.S.C. 249. provided to an injured person is deter- (d) Department of Veterans’ Affairs care mined: for service-connected disability. Claims (1) By using the rate set as described are not asserted for care provided to a in § 757.13 (b)(2) in bills issued by the veteran by the Department of Vet- MTF; or erans’ Affairs when the care is for a (2) By the actual amount paid by the service-connected disability. The Federal Government to non-Federal United States will, however, claim for medical care providers. the reasonable value of care provided

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an individual before he is transferred § 757.18 Asserting the claim. to a Department of Veterans’ Affairs (a) Initial action by the JAG designee. hospital. This policy does not apply in When advised of a potential claim, the cases where the MTF referred the pa- JAG designee will determine the Fed- tient to the Veterans’ Affairs hospital eral agency or department responsible and then paid for the care. for investigating and asserting the [57 FR 5072, Feb. 12, 1992, as amended at 72 claim. FR 53428, Sept. 19, 2007] (1) When DoN has reimbursed a non- Federal provider for health care, or § 757.16 Claims asserted only with when TRICARE has made payment for OJAG approval. a Navy health care beneficiary, the (a) Certain Government contractors. JAG designee will assert any resulting JAG approval is required before assert- claim. ing a claim against a Federal govern- (2) When care is provided in a Federal ment contractor when the contract treatment facility, the status of the in- provides that the contractor will be injured person will determine the agency demnified or held harmless by the Fed- that will assert a resulting claim. Cost eral government for tort liability. of treatment provided or paid for by an (b) U.S. personnel. JAG approval is re- MTF is deposited in that MTF’s account, regardless of which service is quired before asserting MCRA claims making the collection. directly against servicemembers, their (i) Where DoN members, retirees, or dependents and federal employees and their dependents receive medical treat- their dependents for injury to another ment from another Federal agency or person. No approval is necessary to as- department, the DoN will assert any sert claims against their insurance claim on behalf of the United States policies, however, except for injuries based on information provided by the caused by servicemembers and federal treating agency or department. employees acting ‘‘within the scope of (ii) Similarly, where a DoN MTF pro- their employment.’’ Intra-familial tort vides care to personnel of another Fed- immunity would not preclude the Gov- eral agency or department, that other ernment from asserting any claims for agency or department will assert any care furnished to a tortfeasor’s family claim on behalf of the United States. members. (3) If the claim is one which the DoN [72 FR 53429, Sept. 19, 2007] should assert, the JAG designee will forward all available information to § 757.17 Statute of limitations. the appropriate department or agency. (a) Federal. Claims asserted under the (4) If the claim is one which the DoN MCRA or against an automobile liabil- should assert, the JAG designee will ity insurer through 10 U.S.C. 1095 are ensure an appropriate investigation founded in tort and must be brought into the circumstances underlying the within 3 years after the action ‘‘first claim is initiated and will provide no- accrues’’ (28 U.S.C. 2415b). Normally, a tice to the injured party and all third medical care claim ‘‘first accrues’’ on parties who may be liable to the in- the initial date of treatment. jured person and the United States under the MCRA or 10 U.S.C. 1095. (b) Claims asserted under 10 U.S.C. (b) Investigating the claim. While there 1095. Although legal arguments can be is no prescribed form or content for in- made that claims asserted under 10 vestigating these claims, the claims U.S.C. 1095 against a no-fault or per- file will contain sufficient information sonal injury protection insurer are on which to base valuation, assertion, founded in contract and can be brought settlement, waiver, and/or compromise within 6 years (28 U.S.C. 2415a), all decisions. claims should be asserted within 3 (c) Notice of claim. (1) The JAG des- years of the date when the claim ac- ignee will assert claims by mailing a crued. However, some states require notice of claim to identified third- notice of such claims to be filed within party tortfeasors and their insurers or a shorter period of time. insurers for third-party beneficiary [72 FR 53429, Sept. 19, 2007] coverage. Many insured tortfeasors fail

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to notify their insurance companies of (3) If the injured person is not bring- incidents. This failure may be a breach ing an action for damages or is refusing of the cooperation clause in the policy to include the Federal Government’s and may be grounds for the insurer to interest, the JAG designee will pursue refuse to defend the insured or be re- independent collection. The United sponsible for any liability. The United States is specifically allowed to inter- States, as a claimant, may preclude vene or join in any action at law such an invocation by giving the req- brought by or through the injured per- uisite notification itself. The purpose son against the liable third person or of the insurance clause is satisfied if brings an original suit in its own name the insurer receives actual notice of or in the name of the injured person. the incident, regardless of the inform- The JAG designee will ensure all par- ant. This notice should be mailed as ties are aware that the United States soon as it appears an identified third must be a party to all subsequent col- party may be liable for the injuries. lection negotiation. The prompt assertion of the claim will (4) When the Government’s interests ensure that the government is named are not being represented by the in- on the settlement draft. If the United jured person or his/her attorney, and States is not so named, and the claim independent collection efforts have has been asserted, the insurer settles failed, the JAG designee will refer the at its own risk. claims to the DoJ for possible suit. (2) The JAG designee will also notify (e) Access to DoN records and informa- the injured person or his legal rep- tion. (1) Copies of medical records in resentative of the Government’s inter- cases that have potential claims will est in the value of the medical care be sent by the MTFs to the cognizant provided by the United States. This no- JAG designee. It is considered a rou- tice will advise that: tine use of the records for the JAG designee to release them to an insurance (i) The United States may be entitled company, if requested, in order to sub- to recover the reasonable value of med- stantiate the claim. However, only the ical care furnished or paid by the Fed- MTF as ‘‘keepers of the records’’ has eral government; the authority to make official releases (ii) The injured person is required to of medical records to anyone else. cooperate in the efforts of the United Records will be protected in accord- States to recover the reasonable value ance with the provisions of the Privacy of medical care furnished or paid for by Act, 5 U.S.C. 552a, and confidentiality the Federal government; of quality assurance medical records, (d) Administering the claim. (1) After 10 U.S.C. 1102. Non-routine release re- investigating and asserting the claim, quires the authorization from the in- the JAG designee will maintain con- jured individual or legal representative tact with all parties, their legal rep- or an order from a court of competent resentatives, and insurers. jurisdiction. A clerk or attorney signed (2) An effort should be made to co- subpoena is not ‘‘an order from a court ordinate collection of the Federal gov- of competent jurisdiction.’’ Subpoenas ernment’s interest with the injured are processed in accordance with 32 person’s action to collect on a claim CFR part 725. for damages. (2) Requests for testimony of any (i) Attorneys representing an injured Navy employees will be processed in person may be authorized to include accordance with DoD Directive 5405.2, the Federal government’s claim as an 32 CFR part 725, and SECNAVINST item of special damages with the in- 5820.8A. If the injured person, or his or jured person’s claim or suit. her attorney has signed an agreement (ii) An agreement that the Govern- to protect the Government’s interest ment’s claim will be made a party of and is requesting the testimony of a lo- the injured person’s action should be in cally available physician who treated writing and state the counsel fees will the injured person, however, this re- not be paid by the Government or com- quest falls within an exception to the puted on the basis of the Government’s regulations. See 32 CFR 725.5(g)(3). In portion of recovery. this situation, the injured person or

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the attorney need only ask the JAG $40,000.00 may be compromised or designee for assistance in scheduling waived only with Code 15 approval. the testimony of the treating physician (b) Waiver and compromise. The JAG and the JAG designee will coordinate designee may waive the Federal gov- with the physician’s command to de- ernment’s MCRA interest when a re- termine availability. Such testimony sponsible third-party tortfeasor cannot is limited to factual issues. The defini- be located, is judgment proof, or has tion of factual issues is slightly dif- refused to pay and litigation is not fea- ferent under the regulations than it is sible. Waiver or compromise is also ap- in civil litigation. Opinions that are propriate when, upon written request formed prior to, or contemporaneously by the injured person or legal rep- with, the treatment at issue and are resentative, it is determined that col- routinely required in the course of the lection of the full amount of the claim proper performance of professional du- would result in undue hardship to the ties constitute essentially factual mat- injured person. In assessing undue ters. For example, the physician will hardship, the following should be con- have opined at the time of treatment if sidered: further treatment will be necessary. (1) Permanent disability or disfigure- The physician may testify to that as ment; factual, not opinion, testimony. Opin- (2) Lost earning capacity; ions that are formed after treatment (3) Out-of-pocket expenses; and are not required for continuing (4) Financial status; treatment, especially those that re- (5) Disability, pension and similar spond to hypothetical questions, are benefits available; not factual and are considered to be ex- (6) Amount of settlement or award pert testimony. This expert testimony, from third-party tortfeasor or contract regardless of who requests it, will be insurer; and processed in accordance with 32 CFR (7) Any other factors which objec- part 725, and must be forwarded to tively indicate fairness requires waiv- OJAG Code 14, General Litigation Divi- er. sion. Requests for expert testimony are rarely granted. [57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53430, Sept. 19, 2007] [72 FR 53429, Sept. 19, 2007] § 757.20 Receipt and release. § 757.19 Waiver and compromise. The JAG designee will execute and (a) General. OJAG Code 15 (Claims deliver appropriate releases to third and Tort Litigation) may authorize parties who have made full or agreed waiver or compromise of any claim upon compromised payments. A copy of that does not exceed $100,000.00. NLSO the release will be kept in the claims EURSWA may agree to compromise or file. waive claims for $40,000.00 or less. NLSO EURSWA claims in excess of [72 FR 53430, Sept. 19, 2007]

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PART 761—NAVAL DEFENSIVE SEA (2) Areas placed under the Secretary AREAS; NAVAL AIRSPACE RES- of the Navy for administrative pur- ERVATIONS, AREAS UNDER NAVY poses by Executive order of the Presi- dent (see § 761.3(b)). ADMINISTRATION, AND THE (3) The Trust Territory of the Pacific TRUST TERRITORY OF THE PACIFIC Islands (see § 761.3(c)). ISLANDS (b) The entry authorizations issued under the authority of this part do not Subpart A—Introduction supersede or eliminate the need for Sec. visas or other clearances or permits re- 761.1 Scope. quired by other law or regulation. 761.2 Background and general policy. [28 FR 13778, Dec. 18, 1963, as amended at 35 761.3 Authority. FR 10008, June 18, 1970] 761.4 Special provisions. 761.5 Definitions. § 761.2 Background and general policy. Subpart B—Criteria and Basic Controls (a) Certain areas, due to their strategic nature or for purposes of defense, 761.6 Criteria. have been subjected to restrictions re- 761.7 Basic controls. garding the free entry of persons, ships, and aircraft. Free entry into the areas Subpart C—Entry Authorization listed and defined in this part, and 761.8 General. military installations contiguous to or 761.9 Entry Control Commanders. within the boundaries of defense areas, 761.10 Persons: Group authorizations. is subject to control as provided for by 761.11 Persons: Individual authorizations. Executive order or other regulation. 761.12 Ships: Group authorizations. The object of controls over entry into 761.13 Ships: Individual authorizations. naval defensive sea areas, naval air- 761.14 Aircraft: Group authorizations. space reservations, administrative 761.15 Aircraft: Individual authorizations. areas, and the Trust Territory of the 761.16 Notice of action. 761.17 Revocation. Pacific Islands, is to provide for the 761.18 Appeals. protection of military installations as 761.19 Forms. well as other facilities, including the personnel, property, and equipment as- Subpart D—Additional Instructions signed to or located therein. Persons, ships, and aircraft are excluded unless 761.20 Additional regulations governing per- and until they qualify for admission sons and vessels in Naval Defensive Sea Areas. under the applicable Executive order or regulation. AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 5031, 6011, (b) The control of entry into or move- 18 U.S.C. 2152. The text of part 761 contains ment within defense areas by persons, additional references, including Executive Orders. ships, or aircraft will be exercised so as to fully protect the physical security SOURCE: 28 FR 13778, Dec. 18, 1963, unless of, and insure the full effectiveness of, otherwise noted. bases, stations, facilities and other installations within or contiguous to de- Subpart A—Introduction fense areas. However, unnecessary interference with the free movement of § 761.1 Scope. persons, ships, and aircraft is to be (a) This part provides regulations avoided. governing the entry of persons, ships, (c) This part will be administered so and aircraft into: as to provide for the prompt processing (1) Naval Defensive Sea Areas and of all applications and to insure uni- Naval Airspace Reservations estab- formity of interpretation and applica- lished by Executive order of the Presi- tion, insofar as changing conditions dent (see § 761.3(a)). permit.

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(d) In cases of doubt, the determina- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., tion will be made in favor of the course p. 919) and Executive Order 9881 of Au- of action which will best serve the in- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 terests of the United States and na- Comp., p. 662). tional defense as distinguished from (vi) Midway Island Naval Defensive the private interests of an individual or Sea Area; Midway Island Naval Air- group. space Reservation: Executive Order [28 FR 13778, Dec. 18, 1963, as amended at 35 8682 of February 14, 1941 (6 FR 1015; 3 FR 10008, June 18, 1970] CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 of April 2, § 761.3 Authority. 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., (a) Naval Defensive Sea Areas and p. 919) and Executive Order 9881 of Au- Naval Airspace Reservations. By Execu- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 tive orders, as amended, the President Comp., p. 662). has reserved, set aside, and established (vii) Wake Island Naval Defensive the following Naval Defensive Sea Sea Area; Wake Island Naval Airspace Areas and Naval Airspace Reservations Reservation: Executive Order 8682 of under the control of the Secretary of February 14, 1941 (6 FR 1015; 3 CFR, 1943 the Navy. Incorporated therein are pro- Cum. Supp., p. 894) as amended by Ex- visions for the exercise of control by ecutive Order 8729 of April 2, 1941 (6 FR the Secretary over the entry of per- 1791; 3 CFR, 1943 Cum. Supp., p. 919) and sons, ships, and aircraft into the areas Executive Order 9881 of August 4, 1917 so described. (See § 761.4(b) for delinea- (12 FR 5325; 3 CFR, 1943–1948 Comp., p. tion of areas where entry controls are 662). suspended.) (viii) Kiska Island Naval Defensive (1) Atlantic areas. Guantanamo Bay Sea Area; Kiska Island Naval Airspace Naval Defensive Sea Area; Guanta- Reservation: Executive Order 8680 of namo Bay Naval Airspace Reservation: February 14, 1941 (6 FR 1014; 3 CFR 1943 Executive Order 8749 of May 1, 1941 (6 Cum. Supp., p. 892) as amended by Ex- FR 2252; 3 CFR, 1943 Cum. Supp., p. 931). ecutive Order 8729 of April 2, 1941 (6 FR (2) Pacific areas. (i) Honolulu Defen- 1791; 3 CFR, 1943 Cum. Supp., p. 919). sive Sea Area: Executive Order 8987 of December 20, 1941 (6 FR 6675; 3 CFR, (ix) Kodiak Naval Defensive Sea 1943 Cum. Supp., p. 1048). Area: Executive Order 8717 of March 22, (ii) Kaneohe Bay Naval Defensive Sea 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., Area; Kaneohe Bay Naval Airspace p. 915). Kodiak Naval Airspace Reserva- Reservation: Executive Order 8681 of tion: Executive Order 8597 of November February 14, 1941 (6 FR 1014; 3 CFR, 1943 18, 1940 (5 FR 4559; 3 CFR, 1943 Cum. Cum. Supp., p. 893). Supp., p. 837) as amended by Executive (iii) Pearl Harbor Defensive Sea Order 9720 of May 8, 1946 (11 FR 5105; 3 Area: Executive Order 8143 of May 26, CFR, 1943–1948 Comp., p. 527). 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., (x) Unalaska Island Naval Defensive p. 504). Sea Area, Unalaska Island Naval Air- (iv) Johnston Island Naval Defensive space Reservation: Executive Order Sea Area; Johnston Island Naval Air- 8680 of February 14, 1941 (6 FR 1014; 3 space Reservation: Executive Order CFR, 1943 Cum. Supp., p. 892) as amend- 8682 of February 14, 1941 (6 FR 1015; 3 ed by Executive Order 8729 of April 2, CFR, 1943 Cum. Supp., p. 894) as amend- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., ed by Executive Order 8729 of April 2, p. 919). See § 761.4(d) for delineation of 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., areas where entry controls are sus- p. 919) and Executive Order 9881 of Au- pended. gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 (b) Administrative areas. By Executive Comp., p. 662). orders, as amended, the President has (v) Kingman Reef Naval Defensive reserved, set aside, and placed under Sea Area; Kingman Reef Naval Air- the control and jurisdiction of the Sec- space Reservation: Executive Order retary of the Navy for administrative 8682 of February 14, 1941 (6 FR 1015; 3 purposes the following named areas in- CFR, 1943 Cum. Supp., p. 894) as amend- cluding their appurtenant reefs and ed by Executive Order 8729 of April 2, territorial waters:

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(1) Johnston Island—Executive Order tory, shall be made to the High Com- 6935 of December 29, 1934 as amended by missioner for processing in accordance Executive Order 11048 of September 4, with the laws and regulations of the 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. Trust Territory: Provided, That prior to 241). the issuance of an authorization to (2) Kingman Reef—Executive Order enter the Trust Territory, the High 6935 of December 29, 1934 as amended by Commissioner shall provide the De- Executive Order 11048 of September 4, partment of the Navy in all cases (with 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. the exception of alien individuals who 241). possess a valid U.S. visa and seek ad- (3) Midway Island—Executive Order mission to the Trust Territory for a pe- 11048 of September 4, 1962 (27 FR 8851; 3 riod of 30 days or less for the purpose of CFR, 1962 Supp., p. 241). tourism) information on the applicants (4) Sand Island—Executive Order 6935 for its consideration and comment, of December 29, 1934 as amended by Ex- granting thereby the Department of ecutive Order 11048 of September 4, 1962 the Navy the right to object to the (27 FR 8851; 3 CFR, 1962 Supp., p. 241). issuance of an authorization. (c) Trust Territory of the Pacific Is- (3) Ships and aircraft: (i) The entry of lands. The Trust Territory of the Pa- ships and aircraft, other than U.S. pub- cific Islands is a strategic area admin- lic ships and aircraft, documented istered by the United States under the under either the laws of the United provisions of a trusteeship agreement States or the laws of the Trust Terri- with the United Nations. Under Execu- tory into areas of the Trust Territory, tive Order 11021 of May 7, 1962 (27 FR excepting those areas where entry is 4409; 3 CFR, 1959–1963 Comp., p. 600), the controlled by the Department of the Secretary of the Interior is charged Army (Kwajalein Atoll) and the De- with responsibility for administration fense Nuclear Agency (Eniwetok Atoll), of the civil government of the Trust shall be controlled solely by the High Territory of the Pacific Islands. Under Commissioner. July 1, 1963 amendment two agree- (ii) Applications for entry into the ments effective July 1, 1951 and July 1, Trust Territory, except for those areas 1962 between the Department of the under military control, of ships and Navy and the Department of the Inte- aircraft not documented under the laws rior concerning responsibility for ad- of the United States or the laws of the ministration of the Government of the Trust Territory, shall be made to the Trust Territory, the entry of individ- High Commissioner for processing in uals, ships and aircraft into the Trust accordance with the laws and regula- Territory (other than areas under the tions of the Trust Territory: Provided, control of the Department of the Army That prior to the issuance of an au- (Kwajalein Atoll) and of the Defense thorization to enter the Trust Terri- Nuclear Agency (Eniwetok Atoll) see tory, the High Commissioner shall pro- § 761.4) is controlled by the High Com- vide the Department of the Navy in all missioner of the Trust Territory and cases with information on the appli- the Department of the Navy as follows: cants for its consideration and com- (1) Entry of U.S. citizens and nation- ment, granting thereby the right of the als and citizens of the Trust Territory, Department of the Navy to object to into areas of the Trust Territory other the issuance of an authorization. than those areas under control of the (d) [Reserved] Department of the Army and the De- (e) Exercise of authority. The author- fense Nuclear Agency as outlined ity of the Secretary of the Navy to con- above, shall be controlled by the High trol entry of ships, planes, and persons Commissioner. into the areas listed is exercised (2) All other persons: Applications for through the Chief of Naval Operations entry into the Trust Territory except and certain of his subordinates as pre- for those areas under control of the De- scribed in this part. partment of the Army or of the Defense (f) Penalties. Penalties are provided Nuclear Agency, of all persons who are by law: (1) For violations of orders or not U.S. citizens, U.S. nationals, or regulations governing persons or ships who are not citizens of the Trust Terri- within the limits of defensive sea areas

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(62 Stat. 799; 18 U.S.C. 2152); (2) for en- entry into the following Naval Defen- tering military, naval or Coast Guard sive Sea Areas and Naval Airspace Res- property for prohibited purposes or ervations and Administrative Areas after removal or exclusion therefrom have been suspended subject to rein- by proper authority (62 Stat. 765; 18 statement without notice at any time U.S.C. 1382); (3) for violation of regula- when the purposes of national defense tions imposed for the protection or se- may require. curity of military or naval aircraft, (1) All Naval Airspace Reservations, airports, air facilities, vessels, harbors, except the Guantanamo Bay Naval Air- ports, piers, waterfront facilities, space Reservation bases, forts, posts, laboratories, sta- (2) Honolulu Defensive Sea Area. tions, vehicles, equipment, explosives, (3) Kiska Island Naval Defensive Sea or other property or places subject to Area. the jurisdiction, administration, or in (4) Kodiak Island Naval Defensive the custody of the Department of De- Sea Area. fense, any department or agency of (5) Unalaska Island Naval Defensive which said department or agency con- Sea Area. sists, or any officer of employee of said (6) Wake Island Naval Defensive Sea department or agency (sec. 21 of the In- Area except for entry of foreign flag ternal Security Act of 1950 (50 U.S.C. ships and foreign nationals. 797) and Department of Defense Direc- (7) The portion of Kaneohe Defensive tive 5200.8 of 20 August 1954 (19 FR Sea Area lying beyond a 500 yard buffer 5446)); and (4) for knowingly and will- zone around the perimeter of the fully making a false or misleading Kaneohe Marine Corps Air Station statement or representation in any (Mokapu Peninsula) and eastward matter within the jurisdiction of any therefrom to Kapoho Point, Oahu. department or agency of the United (e) Suspension of restrictions on States (18 U.S.C. 1001). entry into a naval airspace reservation, naval defensive sea area, or naval ad- [28 FR 13778, Dec. 18, 1963, as amended at 35 ministrative area, does not affect the FR 10008, June 18, 1970; 36 FR 21889, Nov. 17, 1971; 41 FR 28957, July 14, 1976] authority of a commanding officer or other appropriate commander to con- § 761.4 Special provisions. trol entry into or passage through any base, station, or other installation or (a) Entry into islands in the Kwaja- area, including port or harbor facilities lein Atoll under military jurisdiction under Navy control. is controlled by the Department of the Army. Inquiries concerning entries [41 FR 28957, July 14, 1976] into islands under military control in the Kwajalein Atoll should be directed § 761.5 Definitions. to: National Range Commander, U.S. (a) Defense area. A naval defensive Army Safeguard System Command, sea area, naval airspace reservation, or ATTN: SSC-R, P.O. Box 1500, Hunts- naval administrative area established ville, AL 35807. by Executive order of the President. (b) Entry into Eniwetok Atoll is con- (b) Department of Defense. The De- trolled by the Defense Nuclear Agency. partment of Defense, including the De- Inquiries concerning entries into Eni- partments of the Army, Navy, and Air wetok Atoll should be directed to: Force. Commander, Field Command, Defense (c) Entry authorization. A document Nuclear Agency, Kirtland Air Force which authorizes a ship, aircraft, or Base, NM 87115. person to enter a defense area. (c) Entry into Johnston Atoll is con- (d) Entry Control Commander. A com- trolled by the Defense Nuclear Agency. mander empowered to issue entry au- Inquiries concerning entries into John- thorizations for one or more defense ston Atoll should be directed to: Com- areas (see § 761.9). mander, Johnston Atoll (FCDNA), APO (e) Excluded person. A person who San Francisco, CA 96305. does not hold a currently valid entry (d) Suspension of restrictions. Restric- authorization for the area concerned tions imposed under the authority of and who has been notified by an Entry the above cited Executive Orders on Control Commander that authority for

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him to enter any defense area has been Subpart B—Criteria and Basic denied, suspended or revoked. Controls (f) Foreign nationals. Persons who are not citizens or nationals of the United § 761.6 Criteria. States. (a) General. (1) Entry authorizations (g) Military installation. A military may be issued only after an Entry Con- (Army, Navy, Air Force, Marine Corps, trol Commander, or a duly authorized and/or Coast Guard) activity ashore, subordinate acting in his behalf, has having a commanding officer, and lo- determined that the presence of the cated in an area having fixed bound- person, ship, or aircraft will not, under aries, within which all persons are sub- existing or reasonably foreseeable fu- ject to military control and to the im- ture conditions, endanger, place an mediate authority of a commanding of- undue burden upon, or otherwise jeop- ficer. ardize the efficiency, capability, or ef- (h) Public vessel or aircraft. A ship or fectiveness of any military installation aircraft owned by or belonging to a located within or contiguous to a de- government and not engaged in com- fense area. Factors to be considered mercial activity. shall include, but not be limited to, the (i) Territorial sea—(1) Trust Territory. true purpose of the entry, the personal In accordance with title 19, section history, character and present or past 101(3), of the Trust Territory Code associates of the individuals involved, ‘‘* * * that part of the sea com- the possible burdens or threats to the prehended within the envelope of all defense facilities which the presence of arcs of circles having a radius of three the ship, aircraft or the individual or marine miles drawn from all points of individuals involved impose or might the barrier reef, fringing reef, or other reasonably be expected to impose on reef system of the Trust Territory, the related base complex. measured from the low water line, or, (2) Requests for entry authorizations in the absence of such reef system, the will be evaluated and adjudged as to distance to be measured from the low whether the entry at the time and for water line of any island, islet, atoll, the purpose stated will or will not be reef, or rocks within the jurisdiction of inimical to the purposes of national de- the Trust Territory.’’ fense. (2) Other areas. That part of the sea (b) Adverse. Substantial evidence of included within the envelope of all arcs any of the following shall preclude the of circles having a radius of three ma- granting of entry authorization except rine miles with centers on the low with the specific approval of the Chief water line of the coast. For the purpose of Naval Operations in each case: of this definition, the term ‘‘coast’’ in- (1) Prior noncompliance with entry cludes the coasts of islands, islets, control regulations or failure to ob- rocks, atolls, reefs and other areas of serve terms under which any entry au- land permanently above the high water thorization may have been granted; 1 mark. (2) Willfully furnishing false, incom- (j) Trust Territory Registry. Registra- plete, or misleading information in an tion of a ship or aircraft in accordance application for an entry authorization;1 with the laws of the Trust Territory. (3) Advocacy of the overthrow or al- (k) U.S. Registry. Registration of a teration of the Government of the ship or aircraft in accordance with the United States by unconstitutional laws and regulations of the United means; States. (4) Commission of, or attempt or (l) U.S. Armed Forces. Military per- preparation to commit, an act of espio- sonnel of the Department of Defense, nage, sabotage, sedition, or treason, or the Departments of the Army, Navy, conspiring with or aiding or abetting Air Force, and the United States Coast another to commit such an act; Guard. [28 FR 13778, Dec. 18, 1963, as amended at 35 1 The criteria so marked are applicable FR 10009, June 18, 1970; 41 FR 28958, July 14, only to those applications concerning entry 1976] into areas under military cognizance.

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(5) Performing, or attempting to per- (13) Conviction of larceny of property form, duties, or otherwise acting so as of the United States, willful injury to to serve the interest of another govern- or destruction of property of the ment to the detriment of the United United States, fraudulent enlistment, States; impersonation of a commissioned offi- (6) Deliberate unauthorized disclo- cer of the United States or any state or sure of classified defense information; territory thereof, or any offense involv- (7) Knowing membership with the ing moral turpitude, except offenses, specific intent of furthering the aims which, in the jurisdiction within which of, or adherence to and active partici- the conviction was obtained, are pun- pation in, any foreign or domestic or- ishable by imprisonment for not more ganization, association, movement, than one year or a fine of not more group, or combination of persons (here- than one thousand dollars. 1 inafter referred to as organizations) (c) Aliens. (1) Entry of aliens for em- which unlawfully advocates or prac- ployment or residence in an area en- tices the commission of acts of force or tirely within the borders of a defense violence to prevent others from exer- area is not authorized except when cising their rights under the Constitu- such entry would serve the interests of tion or laws of the United States or of National Defense, and then only for any State, or which seeks to overthrow specified periods and under prescribed the Government of the United States conditions. or any State or subdivision thereof by unlawful means; (2) Entry of aliens for any purpose (8) Serious mental irresponsibility into areas over which the United evidenced by having been adjudged in- States exercises sovereignty is further sane, or mentally irresponsible, or an subject to requirements imposed by incompetent, or a chronic alcoholic, or law for the obtaining of a United treated for serious mental or neuro- States visa. Naval authorization for logical disorders or for chronic alco- entry into areas covered by this part holism, without evidence of cure; 1 will not be issued to foreign nationals (9) Conviction of any of the following for purposes, places, or periods of time offenses under circumstances indic- in excess of those stipulated in the ative of a criminal tendency poten- visa. tially dangerous to the security of a (3) Alien spouses and bona fide de- strategic area containing military es- pendents of U.S. citizen employees of tablishments; arson, unlawful traf- the United States may, if otherwise ficking in drugs, murder, kidnaping, qualified, be granted entry authoriza- blackmail, or sex offenses involving tion so long as the U.S. citizen sponsor minors or perversion. or principal remains on duty or resi- (10) Chronic alcoholism or addiction dent within the defense area. to the use of narcotic drugs without (d) Renewals. Entry authorizations adequate evidence of rehabilitation; 1 having been granted and utilized may (11) Illegal presence in the United be extended or renewed upon request at States, its territories or possessions, the expiration of the period for which having been finally subject to deporta- the entry was originally authorized or tion order, or voluntary departure in extended, provided the justification for lieu of deportation order, by the United remaining in the area or for making a States Immigration and Naturalization reentry meets the criteria set forth in Service; 1 this part. It shall be the responsibility (12) Being the subject of proceedings of every applicant to depart the defense for deportation or voluntary departure area for which entry was authorized in lieu of deportation for any reasons upon expiration of the time prescribed which have not been determined in the in the authorization, unless such au- applicant’s favor; 1 thorization has been extended or renewed. Failure to comply herewith will 1 The criteria so marked are applicable be considered as evidence of violation only to those applications concerning entry into areas under military cognizance.

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of this part and may result in denial of quest disposition instructions from the future authorizations. appropriate Entry Control Commander. [28 FR 13778, Dec. 18, 1963, as amended at 36 (d) Trust Territory. An authorization FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, from the High Commissioner is re- 1976] quired for all persons desiring to enter the Trust Territory, except for those § 761.7 Basic controls. areas under military jurisdiction where (a) General. Except for such persons, entry is controlled by the Department ship, or aircraft as are issued an au- of the Army (Kwajalein Atoll) and the thorization to enter by an Entry Con- Defense Nuclear Agency (Eniwetok trol Commander: Atoll). (1) No person, except persons aboard (e) Military areas. Entries authorized public vessels or aircraft of the United under this Instruction do not affect the States, shall enter any defense area. authority of a commanding officer or (2) No vessel or other craft, except other appropriate commander to im- public vessels of the United States pose and enforce proper regulations shall enter any naval defensive sea pertaining to movement into or within area or other defense area. naval stations or other military instal- (3) No aircraft, except public aircraft lations. of the United States, shall be navigated (f) Waiver prohibited. No officer of the within any naval airspace reservation U.S. Armed Forces, except as author- of the airspace over other defense ized in writing by the Chief of Naval areas. Operations, has authority to waive the (b) Excluded persons—(1) Entry prohib- requirements of this part, and any ited. Excluded persons, as defined in waiver must be in writing and signed § 761.5(e), are prohibited from entering by an authorized person. any defense area. In a bona fide emergency which requires an excluded per- [28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, son’s presence in or transit through a 1976] military installation which is also a defense area, the commanding officer of the installation may grant permis- Subpart C—Entry Authorization sion to enter or transit subject to such § 761.8 General. restrictions as may be imposed by regulation or which may, in his discretion, (a) As indicated in § 761.7(a), certain be required. persons, ships, and aircraft must be (2) Carrying prohibited. Except in a specifically authorized under the provi- bona fide emergency and after being sions of this part to enter defense authorized by the appropriate local au- areas. thority, no vessel or aircraft, except (b) When entering or transiting a de- public vessels and aircraft of the fense area each person, ship, or aircraft United States, shall enter into or be must have a valid authorization or sat- navigated within any defense area isfactory evidence thereof. while carrying any excluded person, as defined in this part, as passenger, offi- § 761.9 Entry Control Commanders. cer or crew member. The following commanders are des- (c) Control of violators. No com- ignated Entry Control Commanders manding officer of a military installa- with authority to approve or dis- tion shall permit any ship or aircraft approve individual entry authoriza- which has entered the limits of his tions for persons, ships, or aircraft as command by passing through a defense indicated (Commander Seventeenth area without authorization to land, ex- Coast Guard District has been des- cept in emergency, or, if permitted to ignated an Entry Control Commander land, to disembark passengers or cargo by the authority of the Commandant, except as authorized by the appropriate U.S. Coast Guard and Commander, Entry Control Commander. Com- Western Area, U.S. Coast Guard); manding officers will take appropriate (a) Chief of Naval Operations. Author- action to apprehend violators who ization for all persons, ships, or air- come within their jurisdiction and re- craft to enter all defense areas.

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(b) Commander in Chief, U.S. Atlantic Naval District, as representative of the Fleet. Authorization for all persons, Secretary of the Navy, retains respon- ships, or aircraft to enter defense areas sibility for security of the Honolulu in the Atlantic. Defensive Sea Area, as required by (c) Commander in Chief, U.S. Pacific naval interest, and, as such, issues am- Fleet. Authorization for all persons, plifying instructions relating to the ships, or aircraft to enter defense areas Honolulu Defensive Sea Area. in the Pacific. [41 FR 28958, July 14, 1976] (d) Commander U.S. Naval Forces Car- ibbean. Authorization for all persons, § 761.10 Persons: Group authoriza- ships, and aircraft to enter the Guanta- tions. namo Bay Naval Defensive Sea Area Persons in the following categories, and the Guantanamo Naval Airspace except those persons who have been de- Reservation. (This authority delegated nied individual authorization or have to Commander U.S. Naval Base, Guan- had a prior authorization revoked, may tanamo Bay.) enter the defense areas indicated with- (e) Commander U.S. Naval Base, Guan- out individual authorization: tanamo Bay. Authorization for all per- (a) Persons aboard U.S. public vessels sons, ships, and aircraft to enter the or aircraft entering a Naval Defensive Guantanamo Bay Naval Defensive Sea Sea Area or a Naval Airspace Reserva- Area and the Guantanamo Naval Air- tion. space Reservation. (b) Military members of the U.S. (f) Commander Third Fleet. Authoriza- Armed Forces or U.S. civil service em- tion for U.S. citizens and U.S. reg- ployees of the Department of Defense istered private vessels to enter Midway when traveling on official orders. Island, Kingman Reef, Kaneohe Bay (c) U.S. ambassadors, cabinet mem- Naval Defensive Sea Area, Pearl Har- bers, elected U.S. Government officers bor Defensive Sea Area and Filipino and U.S. citizen civil service employees workers employed by U.S. contractors of the U.S. Government traveling on to enter Wake Island. official orders on U.S. Government (g) Commander U.S. Naval Forces, Mar- business may enter defense areas as re- ianas. Authorization in conjunction quired by their orders. with the High Commissioner, for non- (d) Dependents of military members U.S. citizens, ships, or aircraft docu- of the U.S. Armed Forces and U.S. cit- mented under laws other than those of izen dependents of U.S. civil service the United States or the Trust Terri- employees traveling on official orders tory to enter those portions of the and entering for purposes of joining a Trust Territory where entry is not con- principal permanently stationed in an trolled by the Department of the Army area covered by this part. or the Defense Nuclear Agency. (e) U.S. Navy Technicians, U.S. Army (h) Senior naval commander in defense Contract Technicians, or U.S. Air area. Emergency authorization for per- Force Contract Technicians, who are sons, ships, or aircraft in cases of emer- traveling on official (does not include gency or distress. In all cases the Chief invitational) travel orders on U.S. Gov- of Naval Operations, and as appro- ernment business, may enter defense priate, the Commander in Chief, U.S. areas as specifically required by such Atlantic Fleet or the Commander in orders. Chief, U.S. Pacific Fleet, and other in- (f) [Reserved] terested commands, shall be informed (g) Individuals on board any foreign immediately of the nature of the emer- public vessel or aircraft which has been gency, and action taken. granted diplomatic or other official (i) U.S. Coast Guard. The U.S. Coast U.S. Government authorization to Guard regulates the movement of ship- enter an area covered by this part. ping within the Honolulu Harbor under (h) Through passengers and bona fide the authority of Executive Orders 10173 regularly employed crew members, un- and 10289; such shipping is considered less otherwise excluded, on nonpublic to be under U.S. authorized supervision vessels authorized to enter areas cov- within the meaning of Executive Order ered by this part. This does not include 8987. The Commandant, Fourteenth an authorization to disembark at a

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port contiguous to or within the areas activity has information regarding the covered in this part. Application for applicant or his employer, appropriate authorization to disembark may be comment and/or recommendation for submitted to an Entry Control Com- disposition will be included in the for- mander having jurisdiction over the warding letter. particular port. (b) Form. (1) Applications for entry (i) Through passengers and bona fide authorizations will be made on the regularly employed crew members, un- standard form Statement of Personal less otherwise excluded, on nonpublic History, DD 398, which is available at aircraft authorized to enter areas cov- most military installations. In addi- ered by this part. Such persons are sub- tion to the information required by the ject to local regulations governing form, an entry application shall in- entry into or movement within mili- clude the following additional informa- tary air stations or facilities. Applica- tion under Item 20, ‘‘Remarks’’: tion for authorization to disembark may be submitted to an Entry Control 21. Purpose of proposed visit: (Detailed statement including names of principal per- Commander having jurisdiction over sons, firms, or establishments to be visited) the air facility. 22. Proposed duration of visit: (j) U.S. citizen news correspondents 23. Estimated date of arrival: and photographers when properly ac- 24. Address to which authorization should credited by the Department of Defense be mailed: to enter areas covered by this part except that special authorization is re- In the event that a DD 398 form is not quired to enter the restricted areas available, a locally produced form con- listed in § 761.4(a). taining identical information including the certification and signature of ap- [28 FR 13778, Dec. 18, 1963, as amended at 36 plicant and witness may be utilized. FR 21890, Nov. 17, 1971] (2) Incomplete forms will be returned § 761.11 Persons: Individual authoriza- for completion. tions. (3) When time is of the essence, emergency applications may be forwarded (a) Application; filing. Applications for authorization to enter defense areas by message to the appropriate Entry shall be filed with one of the following: Control Commander. Such messages (1) Chief of Naval Operations. shall include the following: (2) Commander in Chief, U.S. Atlan- (i) Name of applicant. tic Fleet. (ii) Date and place of birth. (3) Commander in Chief, U.S. Pacific (iii) Citizenship. Fleet. (iv) Residence for last ten (10) years. (4) Any Naval Sea Frontier Com- (v) Employers and their addresses for mander. last ten (10) years. (5) Any Naval Fleet or Force Com- (vi) Results of Local Agency Check, if mander. pertinent. (6) Any Naval District Commandant. (vii) Place to be entered and date of (7) Any Naval Attache. The Com- entry. mander or Attache with whom the ap- (viii) Purpose of entry and duration plication is filed is responsible for tak- of stay. ing such action on the application as (ix) Comments and/or recommenda- he may be empowered to do or for for- tions of forwarding officer as appro- warding the application to the nearest priate. Entry Control Commander authorized (x) A statement that a completed DD by this part to take action thereon. 398 or appropriate substitute has been Applications received in the United mailed prior to the sending of the mes- States and those received indicating sage. that the applicant has resided in the (c) Processing. The Entry Control United States for the major portion of Commander empowered to issue entry ten years immediately prior to date of authorizations shall upon receipt of an request will normally be forwarded to application take the following action: the Chief of Naval Operations for ac- (1) Initiate or conduct such investigation. In all cases where the forwarding tion as may be required to establish

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facts upon which to make a determina- ances, to enter defense areas as author- tion that the entry of the applicant at ized by controlling Defense Depart- the time and for the purpose indicated ment agency. is or is not in accordance with the cri- (c) [Reserved] teria set forth in § 761.6. (d) Privately owned local craft, reg- (2) Request additional information istered with and licensed by appro- from the applicant if required, or priate local U.S. Government authori- (3) Issue an entry authorization as re- ties, and owned and operated by local quested or modified as circumstances inhabitants who have been granted an require, or authorization to enter the local defense (4) Deny the request and advise the area at the discretion of the local com- applicant of his right to appeal, or, manders. (5) Forward the application to the (e) Foreign flag ships traveling on next superior in command together diplomatic or other special clearance with a statement of the investigation or for which special arrangements have conducted and the reason for for- been made under international agree- warding and comments or rec- ments or treaties. ommendations as appropriate. (f) Ships operating under a group au- (d) Authorizations. Entry authoriza- thorization issued by the Chief of tions will state the purpose for which Naval Operations. the entry is authorized and such other (g) Ships in distress, subject to local information and conditions as are per- clearances and control by senior officer tinent to the particular authorization. present. Authorizations to enter and re-enter may be issued to resident U.S. citizens [28 FR 13778, Dec. 18, 1963, as amended at 36 and be valid for a specified time not to FR 21890, Nov. 17, 1971] exceed two years. Authorizations may § 761.13 Ships: Individual authoriza- be issued to U.S. citizens residing tions. abroad and to aliens to enter and re- (a) Applications; form; filing. Applica- enter for a specified period of time re- tions for authorization to navigate quired to accomplish the purpose for ships within the limits of defense areas which the authorization was issued not shall be filed with the cognizant Entry to exceed one year. Control Commander by letter or tele- [28 FR 13778, Dec. 18, 1963, as amended at 41 gram including the following informa- FR 28958, July 14, 1976] tion and any additional information that may be relative to the proposed § 761.12 Ships: Group authorizations. operation: Ships or other craft in the following (1) Name of ship. categories, except those ships which (2) Place of registry and registry have been denied individual authoriza- number. tion or have had a prior authorization (3) Name, nationality and address of revoked, may enter the defense areas operator. indicated without individual authoriza- (4) Name, nationality and address of tions: owner. (a) U.S. Public vessels, to enter all (5) Gross tonnage of ship. defense areas. (6) Nationality and numbers of offi- (b) U.S. private vessels which are: (1) cers and crew (include crewlist when Under charter to the Department of practicable). Defense (including the Military Sealift (7) Number of passengers (include list Command), or (2) operating under a when practicable). contract or charter with the Depart- (8) Last port of call prior to entry ment of Defense providing for the em- into area for which clearance is re- ployment of such vessels, or (3) routed quested. by a Naval Control of Shipping Office, (9) Purpose of visit. or (4) employed exclusively in support (10) Proposed date of entry and esti- of and in connection with a Depart- mated duration of stay. ment of Defense construction, mainte- (b) Processing. Authorization for sin- nance, or repair contract and whose gle entries or for multiple entries for a crews carry individual entry clear- period not to exceed one year may be

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granted or denied by an Entry Control (2) If landing at U.S. Air Force avia- Commander. Authorizations for mul- tion facilities, a Civil Aircraft Landing tiple entries for a period to exceed one Permit must be obtained, in accord- year or for special group entries must ance with Department of the Airforce be forwarded to the Chief of Naval Op- Regulation 55–20, Use of United States erations with appropriate comments Air Force installations by other than and recommendations. United States Department of Defense aircraft. § 761.14 Aircraft: Group authoriza- (3) Foreign public aircraft must ob- tions. tain diplomatic clearance or clearance Aircraft in the following categories, under applicable special agreements or except those aircraft which have been treaties. denied individual authorization or have (b) Application; Form; Filing. Applica- had a prior authorization revoked, may tions for authorization to navigate air- enter the defense areas indicated with- craft within the limits of defense areas out individual authorization: shall be made by letter or telegram ad- (a) U.S. public aircraft to enter all dressed to the appropriate entry con- defense areas. trol commander as indicated in § 761.9 (b) U.S. private aircraft which are with information copies to the Chief of under charter to the Department of De- Naval Operations, Commander in Chief, fense (including the Military Airlift U.S. Atlantic (or Pacific) Fleet, as ap- Command), or operating under a con- propriate, and other local commanders tract with the Department of Defense who are known to be concerned. Appli- providing for the employment of such cations shall include the following: aircraft to overfly U.S. island positions (1) Type and serial number of aircraft to enter defense areas as authorized by (the number of aircraft in flight if a controlling Defense Department agen- mass movement is involved), nation- cy. If landing at U.S. military facilities ality and name of registered owner. is required, see § 761.15(a). (2) Name and rank of senior pilot. (c) Foreign flag aircraft for which *(3) Number in crew. special arrangements have been made *(4) Number of passengers and wheth- under international agreements or er military or civilian; include name treaties. (and rank) of distinguished passengers. (d) Aircraft operated by companies (5) Purpose of flight. authorized to utilize naval facilities in (6) Plan of flight route, including: defense areas for regular commercial (i) Point of origin of flight and its activity, to enter defense areas associ- destination. ated therewith. For landing clearance (ii) Estimated date and times of ar- at U.S. military facilities, see rival and departure at all airspaces § 761.15(a). covered by this part 761 including stops (e) Any aircraft in distress, subject to within the Trust Territory, when perti- local clearance and control by senior nent. officer present. (7) Radio call signs of aircraft and radio frequencies available. [41 FR 28958, July 14, 1976] (8) Whether cameras are to be carried and whether they will be used. § 761.15 Aircraft: Individual authorizations. *(9) Whether arms are to be carried. *(10) Whether authorization to land (a) Special procedures. In addition to as indicated in § 761.15(a) has been ob- the entry authorization to enter or tained. navigate within the defense area con- NOTE: Information on those items marked cerned, certain special procedures must with an asterisk (*) need not be reported be followed by aircraft: when the aircraft will only overfly the areas (1) If landing at U.S. naval aviation covered by this part. facilities, an Aviation Facility License (c) Processing. Authorization for indi- must be obtained, in accordance with vidual entries or for multiple entries Secretary of the Navy Instruction for a period not to exceed three months 3770.1B, Use of Department of the Navy may be granted by an Entry Control aviation facilities by other than United States Department of Defense aircraft. *See ‘‘Note’’ to this paragraph.

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Commander. Authorizations for mul- (b) Appeal letters shall be forwarded tiple entries over a period to exceed promptly to the next superior Entry three months and applications for Control Commander with an endorse- group authorizations must be for- ment setting forth the reasons for the warded to the Chief of Naval Oper- denial or revocation and a rec- ations with appropriate comments and ommendation as to the action to be recommendations. taken by the superior. (c) The superior may act on the ap- [41 FR 28958, July 14, 1976] peal and notify the applicant of the decision, or he may forward the appeal to § 761.16 Notice of action. the next superior and notify the appli- All applicants will be kept advised of cant of this referral. action being taken relative to the processing of applications. Individuals [28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28959, July 14, 1976] whose applications cannot be processed promptly (usually within ten working § 761.19 Forms. days) or whose applications must be forwarded to another office for proc- The following forms shall be used in essing will be notified of the antici- connection with the processing of applications for authorization to enter pated delay and advised of the approxi- defense areas and for revocation of au- mate time when action may be ex- thorizations as indicated: pected to be taken. Under no cir- (a) Application. Statement of Per- cumstances will a notice of disapproval sonal History (Form DD 398, Stock include a statement of the reason Number 0102–004–220) may be obtained therefor. Copies of all notices will be from NAVPUBFORMCEN, Building 26, distributed to commands and Entry 5801 Tabor Ave., Philadelphia, PA 19120. Control Commanders concerned. Copies (b) Entry authorization. (1) Defense of all notices of disapproval will be Area Entry Authorization mailed to the Chief of Naval Oper- (OPNAVForm 4600–2 (Rev. 5–59) may be ations concurrently with the mailing obtained from Office of the Chief of to the applicant. Naval Operations (OP–09B33), Navy De- partment, Washington, DC 20350. § 761.17 Revocation. (2) Letter or message authorization. Entry authorizations will be revoked (c) Disapproval of request for entry au- only by an Entry Control Commander thorization. upon being advised of the discovery of information which would have been MY DEAR llllll: Your application of lll has been reviewed and we regret to ad- ground for denial of the initial request. vise you that the requested authorization for Such a revocation will be confirmed in llllllll to enter llllllll is writing to the holder of an entry au- not granted as the entry at this time for the thorization. No reason for revocation purpose stated is not considered to be in the of the entry authorization will be interest of national defense. given. When an entry authorization is The application may be resubmitted again revoked, a one-way permit will be in six months at which time it will be recon- sidered in the light of then existing cir- issued as appropriate, to permit the cumstances. ship, aircraft, or person to transit the If you desire to appeal this decision, you defense area in order to depart from a may do so by submitting a letter to this of- contiguous area. fice setting forth in full why you consider that the granting of the application would be § 761.18 Appeals. in the interest of national defense and any other information that you believe will be of (a) Appeals may be filed with the value of this person considering the appeal. Entry Control Commander who issued Your letter will be forwarded to the appro- the denial or revocation. It shall con- priate authority for review and you will be tain a complete statement of the pur- advised in due course of his determination. pose of the proposed entry and a state- Sincerely yours, ment of reasons why the entry should be authorized, including a showing that (d) Revocation of entry authorization. the entry will be consistent with the MY DEAR llllll: This is to notify you purposes of national defense. that entry authorization to enter

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llllllll granted by (issuing activity) regulations prescribed in Executive on llll is hereby revoked effective this Order 9275. date. (4) Any person violating section 1 of Sincerely yours, Executive Order 9275 (restated in para- [41 FR 28959, July 14, 1976] graph (a)(1) of this section) shall be liable to prosecution as provided in section 44 of the Criminal Code as amend- Subpart D—Additional Instructions ed and reenacted in 18 U.S.C. 2152. § 761.20 Additional regulations gov- (b) The regulations stated in para- erning persons and vessels in Naval graph (a) of this section are not a limi- Defensive Sea Areas. tation on prosecution under any other (a) By virtue of the authority vested statute that may have been violated by in the President by section 44 of the acts or omissions prohibited by Execu- United States Criminal Code, as tive Order 9275. amended and reenacted in 18 U.S.C. 2152, the President has prescribed the PART 762 [RESERVED] following additional regulations in Ex- ecutive Order 9275 of November 23, 1942 PART 763—RULES GOVERNING (7 FR 9767; 1943 Cum. Supp. p. 1227) to PUBLIC ACCESS govern persons and vessels within the limits of defensive sea areas thereto- Subpart A—Entry Regulations for fore or thereafter established. Kaho’olawe Island, Hawaii (1) No person shall have in his possession within the limits of any defensive Sec. sea area, any camera or other device 763.1 Purpose. for taking pictures, or any film, plate 763.2 Definition. 763.3 Background. or other device upon or out of which a 763.4 Entry restrictions. photographic imprint, negative or posi- 763.5 Entry procedures. tive, can be made, except in the per- 763.6 Violations. formance of official duty or employ- AUTHORITY: 50 U.S.C. 797; DOD Dir. 5200.8 of ment in connection with the national August 20, 1954; 5 U.S.C. 301; 10 U.S.C. 6011, 32 defense, or when authorized pursuant CFR 700.702; 32 CFR 700.714; E.O. No. 10436, 3 to the provisions of the Act approved CFR 1949–1953 Comp. p. 930, (1958). June 25, 1942 (Pub. L. 627, 77th Con- SOURCE: 47 FR 27553, June 25, 1982, unless gress), as amended (50 U.S.C. App. 781– otherwise noted. 785), and the regulations promulgated thereunder (7 FR 7307; 32 CFR 765.19(b)). (2) It shall be the duty of the master Subpart A—Entry Regulations for or officer in charge of any vessel to Kaho’olawe Island, Hawaii take custody of and safeguard all cam- § 763.1 Purpose. eras or other devices for taking pictures, or film, plate or other device The purpose of this subpart is to pro- upon or out of which a photographic mulgate regulations for entry to imprint, positive or negative, can be Kaho’olawe Island, Hawaii, and its ad- made, the possession of which is pro- jacent waters. hibited by Executive Order 9275, from any person, prior to the time any ves- § 763.2 Definition. sel enters any defensive sea area or For the purpose of this subpart, upon the boarding by any person of any Kaho’olawe Island includes that por- vessel while within a defensive sea tion reserved for naval purposes by Ex- area, and to retain custody thereof ecutive Order No. 10436 of February 20, until such vessel is outside the defen- 1953. sive sea area or the person is about to disembark. § 763.3 Background. (3) There shall be prominently dis- (a) Kaho’olawe Island is used by the played on board all vessels, except pub- armed forces of the United States as a lic war vessels of the United States training area including bombing and manned by personnel in the naval serv- gunnery training ranges under author- ice, a printed notice containing the ity granted by Executive Order No.

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10436. Training operations frequently sources, persons and organizations involve the use of live ordnance, cre- wishing access to Kaho’olawe Island ating an obvious danger to persons on must comply with the following appro- or near the island. Moreover, a large priate procedures: Civilians (except au- amount of unexploded ordnance is thorized U.S. and State representa- present on Kaho’olawe Island and in tives) must: adjacent waters. (1) Request, in writing, access au- (b) Individuals who enter the island thorization from Commander Naval of Kaho’olawe without authority ex- Base (Code 01K), Pearl Harbor, Hawaii pose themselves to extremely haz- 96860, at least 15 days prior to the ac- ardous conditions. In addition, the cess requested, providing therein con- presence of unauthorized persons on firmed access plans (including the Kaho’olawe Island or in adjacent exact number of visitors, time, and lo- waters is likely to interfere with the cation of access, designation of person use of the island for military training. in charge, and any other pertinent in- Accordingly, it is necessary to prohibit formation); and entry to Kaho’olawe Island except (2) Submit to Commander Naval Base under the controlled circumstances set (at the aforementioned address) prop- forth in this subpart. erly endorsed Standard Liability Re- lease Form (obtainable from Com- § 763.4 Entry restrictions. mander Naval Base), for each access (a) Entry by any person upon participant, at least five (5) days prior Kaho’olawe Island for any purpose is to the requested access. prohibited without advance authoriza- (b) In evaluating each request, the tion from Commander Naval Base. This factors just enumerated will be prohibition applies to all areas of weighed against training commit- Kaho’olawe Island reserved for naval ments, safety requirements, specical purposes by Executive Order 10436. projects, and the amount and cost of (b) Entry by any person into the re- military supervision necessitated by a stricted waters adjacent to Kaho’olawe granting of the request. Requests for Island for any purpose is prohibited entry will be considered on an indi- without advance authorization from vidual basis. If a request is granted, the Commander Naval Base. This prohibi- permission to enter Kaho’olawe Island tion applies to all waters described in authorizes one visit only, and shall not 33 CFR 204.223(4). be construed as authorization for more [47 FR 27553, June 25, 1982, as amended at 52 than one entry unless the authoriza- FR 20074, May 29, 1987] tion itself specifically states otherwise. Moreover, entry pursuant to advance § 763.5 Entry procedures. consent, which is not in accordance (a) It is the policy of the Commander with the terms and conditions per- Naval Base to authorize, in accordance mitted by Commander Naval Base, with the spirit of the American Indian shall be deemed a violation of this sub- Religious Freedom Act (1978), reason- part. able access to Kaho’olawe Island dur- (c) For safety reasons, it is not Com- ing periods when it is not used for mili- mander Naval Base policy to permit tary training. However, because there children below the age of 15 access to are bombs and other explosives on and Kaho’olawe Island. under the surface and in the waters of (d) The following safety regulations the island, and because there are sig- are applicable to visitors to nificant archaeological resources Kaho’olawe Island: thereon (in 1981, the island was placed (1) All visitors to the island are re- on the National Register of Historical quired to execute and submit a waiver Places as an Archaeological District), of government liability form to a des- Navy representatives accompany each ignated Navy representative prior to island visitation to safeguard both the arrival at the island. vistitor(s) and the island’s archae- (2) Visitors to the island will be es- ological resources. In this regard, in corted by Navy designated Explosive order to ensure the safety of visitors to Ordnance Disposal (EOD) technicians the island and its archaeological re- to ensure that they stay on cleared

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paths, avoid impact areas, and do not or the State of Hawaii Penal Code, as touch high explosives. For visitor safe- incorporated under the Federal Assimi- ty, the directions of the military es- lative Crimes Act, while on the island corts must be followed. of Kaho’olawe. Any individual who vio- (3) No person will interfere with any lates any provisions of these penal EOD escort in the performance of his codes may be prosecuted by the Fed- duties. eral Government and/or barred from (4) Any actual or suspected ordnance any future access to Kaho’olawe. found by a visitor shall be reported to (9) No person shall deface, alter, re- the Special Assistant for Kaho’olawe as move, spoil, or destroy any archeo- soon as possible. If he is not in the vi- logical object, feature, or site on the is- cinity, a description and location of land. the ordnance should be provided to the (10) Children shall remain with their nearest EOD technician. Everyone, parents at all times while on the is- other than EOD personnel, shall re- land. main clear of any ordnance found. (11) Visitors are responsible for re- (5) Only the qualified EOD techni- moving their own trash from the is- cians shall touch, examine, remove, at- land. tempt to remove, handle either di- (12) Individuals failing to abide by rectly or indirectly, or detonate any these safety guidelines will be pre- ordnance, whether found on the sur- cluded from future visitations. face, beneath the surface or in the waters surrounding Kaho’olawe. [47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987; 52 FR 45455, Nov. 30, (6) Any proposed hike and procession 1987] route shall be provided to the Special Assistant for Kaho’olawe (or his des- § 763.6 Violations. ignated representative) for approval (a) Any person who violates this sub- and escort coordination at least twen- part is subject to prosecution under 18 ty-four hours in advance of the planned U.S.C. 1382, which provides in relevant event. Deviation from approved routes part: will not be allowed. Proposed camp- sites for overnight hikes shall be simi- Whoever * * * goes upon any * * * naval larly provided to, and approved by, the * * * reservation * * * for any purpose pro- Special Assistant for Kaho’olawe or his hibited by law or lawful regulation * * * designated representative. shall be fined not more than $500 or impris- (7) No person shall move about the is- oned not more than six months, or both. land after sunset unless a bonafide (b) Additionally, persons who violate emergency situation arises. The senior this Subpart are subject to prosecution Naval officer present shall be imme- under the Internal Security Act of 1950 diately notified in case of such emer- (50 U.S.C. 797), violations of which may gency. result in a maximum penalty of impris- (8) No person shall commit any of- onment for one year, or a fine of $5,000 fense proscribed by either Federal law or both.

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PART 765—RULES APPLICABLE TO thorities. The receipt of Absentee THE PUBLIC Wanted by the Armed Forces (DD Form 553) or oral or written notification Sec. from military officials or Federal law 765.1–765.5 [Reserved] enforcement officials that the person is 765.6 Regulations for Pearl Harbor, Hawaii. absent and that his return to military 765.9–765.11 [Reserved] control is desired is authority for ap- 765.12 Navy and Marine Corps absentees; re- prehension and will be considered as an wards. offer of a reward. When such a reward 765.13 Insignia to be worn on uniform by has been offered, persons or agency rep- persons not in the service. 765.14 Unofficial use of the seal, emblem, resentatives (except salaried officers or names, or initials of the Marine Corps. employees of the Federal Government, or service members) apprehending or AUTHORITY: Secs. 5031, 6011, 70A Stat. 278, delivering absentees or deserters to 375, as amended; sec. 133, 76 Stat. 517; sec. 301, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133, 956, military control will be entitled to a 5031, 6011, 7881; DOD 7000.14–R, Financial payment of Management Regulation, Vol. 10. (i) $50 for the apprehension and detention until military authorities as- §§ 765.1–765.5 [Reserved] sume control, or (ii) $75 for the apprehension and de- § 765.6 Regulations for Pearl Harbor, livery to military control. Hawaii. Payment of reward will be made to the The Commander, U.S. Naval Base, person or agency representative actu- Pearl Harbor, Hawaii, is responsible for ally making the arrest and the turn- prescribing and enforcing such rules over or delivery to military control. If and regulations as may be necessary two or more persons or agencies join in for insuring security and for governing performing these services, payment the navigation, movements, and an- may be made jointly or severally but chorage of vessels in the waters of the total payment or payments will Pearl Harbor and in the entrance chan- not exceed $50 or $75 as applicable. Pay- nel thereto. ment of a reward is authorized whether (Sec. 1, 37 Stat. 341, 62 Stat. 799; 18 U.S.C. the absentee or deserter voluntarily 2152, 33 U.S.C. 475; E.O. 8143, 4 FR 2179, 3 CFR surrenders to civil authorities or is ap- 1943 Cum. Supp. 504) prehended. Payment is not authorized [31 FR 16620, Dec. 29, 1966] for information merely leading to the apprehension of an absentee or de- §§ 765.9–765.11 [Reserved] serter. (2) Payment procedure. The disbursing § 765.12 Navy and Marine Corps absen- officer, special disbursing agent or tees; rewards. agent officer of the military activity to The following is set forth as it ap- which an absentee or deserter is first plies to Navy and Marine Corps absen- delivered will be responsible for pay- tees. The term ‘‘absentee,’’ as used in ment of the reward. Payment of re- this section, refers to a service member wards will be made on SF 1034 or who commits the offense of absence NAVCOMPT Form 2277 supported by a without leave. Cf. article 86 of the Uni- copy of DD Form 553 or other form or form Code of Military Justice (10 notification that an individual is ab- U.S.C. 886). sent and that his return to military (a) Payment of rewards—(1) Authority. control is desired, and a statement When authorized by military officials signed by the claimant specifying that of the Armed Forces, any civil officer he apprehended (or accepted voluntary having authority to arrest offenders surrender) and detained the absentee or may apprehend an individual absent deserter until military authorities as- without leave from the military serv- sumed control, or that he apprehended ice of the United States and deliver (or accepted voluntary surrender) and him into custody of the military au- delivered the absentee or deserter to

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military control. If oral notification (2) Payment procedure. The disbursing was made in lieu of written notifica- officer or special disbursing agent of tion, the claimant will so certify and the military activity to which an ab- provide the date of notification and the sentee or deserter is first delivered will name, rank or rate, title, and organiza- be responsible for making reimburse- tion of the person who made the au- ment for actual expenses. Reimburse- thorized notice of reward for apprehen- ment will be effected on SF 1034 or sion of the absentee or deserter. NAVCOMPT Form 2277 supported by an (b) Reimbursement for actual expenses— itemized statement in triplicate signed (1) Authority. When a reward has not by the claimant and approved by the been offered or when conditions for commanding officer. payment of a reward otherwise cannot (c) Reimbursement for subsistence fur- be met, reimbursement, not to exceed $75, may be made to any person or nished—(1) Authority. Civil authorities agency for actual expenses incurred in may be reimbursed for the cost of sub- the apprehension and detention or de- sistence furnished absentees or desert- livery to military control of an absen- ers placed in their custody for safe- tee or deserter. If two or more persons keeping at the request of military au- or agencies join in performing these thorities. Such reimbursement will be services, payment may be made jointly in addition to rewards and reimburse- or severally, but the total payment or ment for actual expenses authorized in payments may not exceed $25. Reim- paragraphs (a) and (b) of this section. bursement may not be made for the (2) Payment procedure. The disbursing same apprehension and detention or de- officer or special disbursing agent of livery for which a reward has been the military activity requesting the paid. Actual expenses for which reim- safekeeping confinement will be re- bursement may be made include: sponsible for making reimbursement (i) Transportation costs, including for subsistence furnished by civil au- mileage at the rate established by the thorities. Reimbursement will be ef- Joint Travel Regulation for travel by fected on SF 1034 or NAVCOMPT Form privately owned vehicle, for a round 2277 supported by an itemized state- trip from either the place of apprehen- ment signed by the claimant and ap- sion or civil police headquarters to proved by the officer who requested the place of return to military control; confinement. (ii) Meals furnished the service member for which the cost was assumed by (d) Nothing said in this section shall the apprehending person or agency rep- be construed to restrict or exclude au- resentative; thority to apprehend an offender in ac- (iii) Telephone or telegraph commu- cordance with law. nication costs; (Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret (iv) Damages to property of the ap- or apply secs. 808, 7214, 70A Stat. 40, 445; 10 prehending person or agency if caused U.S.C. 808, 7214) directly by the service member during the apprehension, detention, or deliv- [25 FR 1075, Feb. 6, 1960, as amended at 51 FR 22283, June 19, 1986; 65 FR 53172, Sept. 1, 2000] ery; (v) Such other reasonable and nec- § 765.13 Insignia to be worn on uni- essary expenses incurred in the actual form by persons not in the service. apprehension, detention, or delivery as may be considered justifiable and reim- (a) Under title 10 U.S.C., section 773, bursable by the commanding officer. members of military societies com- Reimbursement will not be made for: posed of persons discharged honorably (a) Lodging at nonmilitary confine- or under honorable conditions from the ment facilities; United States Army, Navy, Air Force (b) Transportation performed by the or Marine Corps, regular or reserve, use of official Federal, State, county, may, when authorized by regulations or municipal vehicles; prescribed by the President, wear the (c) Personal services of the appre- uniform duly prescribed by such soci- hending, detaining, or delivering per- eties to be worn by the members there- son or agency. of.

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(b) The law cited in paragraph (a) of (f) Marine Corps Uniform Regulations this section further provides that in- may be examined and individual copies structors and members of duly orga- of pertinent provisions thereof may be nized cadet corps at certain institu- purchased in accordance with § 701.1 of tions of learning may wear the uniform this chapter. duly prescribed by the authorities of (Sec. 773, 70A Stat. 35; 10 U.S.C. 773) such institutions. [13 FR 8971, Dec. 28, 1948, as amended at 26 (c) The law cited in paragraph (a) of FR 11794, Dec. 12, 1961; 37 FR 6472, Mar. 30, this section further provides that the 1972; 44 FR 37610, June 28, 1979] uniform worn by members of the military societies or by members and in- § 765.14 Unofficial use of the seal, em- structors of the cadet corps referred to blem, names, or initials of the Ma- in paragraph (a) of this section shall rine Corps. include some distinctive mark or insig- (a) Purpose. To establish procedures nia prescribed by the Secretary of the to determine whether to grant permis- military department concerned to dis- sion to use or imitate the seal, em- tinguish such uniforms from the uni- blem, names, or initials of the Marine forms of the Army, Navy, Air Force, or Corps in connection with commercial Marine Corps. and certain noncommercial activities (d) Accordingly, except as otherwise pursuant to 10 U.S.C. 7881. The Sec- provided in this paragraph, the fol- retary of the Navy, in Secretary of the lowing mark is hereby designated to be Navy Instruction 5030.7, has provided worn by all persons wearing the Navy the policy and delegated to the Com- or Marine Corps uniform as provided in mandant of the Marine Corps (CMC), paragraphs (a), (b), and (c) of this sec- power to subdelegate to certain subordinate officers in writing, the author- tion: A diamond, 31⁄2 inches long in the ity to grant permission required by vertical axis, and 2 inches wide in the section 7881(b) of 10 U.S.C. for such use horizontal axis, of any cloth material, or imitation. white on blue clothing, forestry green (b) Scope. The provisions of this Order on khaki clothing, and blue on white requiring prior approval of the Sec- clothing. The figure shall be worn on retary of the Navy, CMC, or the des- all outer clothing on the right sleeve, ignee apply only to the use or imita- at the point of the shoulder, the upper tion of the seal, emblem, names, or ini- tip of the diamond to be one-fourth tials of the Marine Corps that suggest inch below the shoulder seam. For per- official approval, endorsement, or au- sons who are participating in United thorization is in connection with a pro- States Marine Corps Junior ROTC promotion, goods, services, or commercial grams, the following mark is des- activity. ignated to be worn: A round patch, (c) Standards—(1) No unofficial use or three inches in diameter, which con- imitation of the Marine Corps seal. Re- tains a gold Marine Corps emblem cen- production and use of the Marine Corps tered on a scarlet field. The scarlet seal, as designated in Executive Order field is surrounded with a blue border No. 10538 of June 22, 1954, is restricted containing the words ‘‘United States to materials emanating from Head- Marine Corps Junior ROTC’’ in white quarters Marine Corps. Except for man- lettering. Surrounding the blue field ufacture of official letterhead sta- will be a gold border. Unless otherwise tionery and related items of official directed, the patch will be worn in the Marine Corps use, reproduction and use manner described above in connection of the Marine Corps seal is prohibited. with the ‘‘diamond’’ insignia. (2) Unofficial use or imitation of the (e) Within the meaning of paragraph Marine Corps emblem, names, or initials. (a) of this section, the occasions when Requests from civilian enterprises to members of the military societies may use or imitate the Marine Corps em- wear the uniform of their respective so- blem, names, or initials will ordinarily ciety are official functions which such be approved where use or imitation a member attends in his capacity as a merely provides a Marine Corps accent war veteran or as a member of such or flavor to otherwise fungible goods. military society. Disapproval, however, usually may be

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expected where such use or imitation Marine Corps emblem, names, or ini- reasonably would: tials to the Director, Administration (i) Imply any official or unofficial Resource Management (ARDE). Prior connection between the Marine Corps to granting approval for commercial and the user; usage of the Marine Corps insignia, the (ii) Tend to create the impression CMC (ARDE) shall forward such re- that the Marine Corps or the United quests to the Head, Marine Corps Ex- States is in any way responsible for change Service Branch, Facilities and any financial or legal obligation of the Services Division, Installations and Lo- user; gistics Department (CMC) (LFE)) and (iii) Give the impression that the Ma- to the Counsel for the Commandant rine Corps selectively benefits the par- (CMC (CL)) for comment and concur- ticular manufacturer, commercial enti- rence. All other requests shall be rout- ty, or other user, as in displaying the ed to the Director, Judge Advocate Di- Marine Corps emblem, names, or ini- vision (CMC (JAR)) for comment and tials on musical instruments, weapons, concurrence. or the like, and in using the emblem, (3) Procedures for obtaining written per- names, or initials in connection with mission. Requests for written permis- advertising, naming, or describing sion to use or imitate the Marine Corps products and services such as insur- emblem, names, or initials shall be in ance, real estate, or financial services; writing and shall be directed to the or CMC (ARDE). The request should, at a (iv) Tend to subject the Marine Corps minimum, contain the following infor- to discredit or would be inimical to the mation: health, safety, welfare, or morale of (i) Name and address of the re- the members of the Marine Corps. quester. (3) Acceptable use of imitation of the (ii) A description of the type of activ- Marine Corps insignia. No request for ity in which the requester is engaged permission is required when a use or or proposes to engage. imitation of the Marine Corps emblem, (iii) A statement of whether the re- names, or initials includes prominent quester considers the proposed use or display of the disclaimer, ‘‘Neither the imitation to be commercial or non- United States Marine Corps nor any commercial, and why. other component of the Department of (iv) A brief description and illustra- Defense has approved, endorsed, or au- tion or sample of the proposed use or thorized this product (or promotion, or imitation, as well as a description of service, or activity)’’ as an integral the product or service in connection part of the use of imitation. A ‘‘promi- with which it will be used. This de- nent display’’ is one located on the scription will provide sufficient detail same page as the first use of the insig- to enable the Marine Corps to deter- nia, prominent in that use, and printed mine whether there is a reasonable in letters at least one half the size and tendency to suggest such use or imita- density of the insignia. tion is approved, endorsed, or author- (d) Action—(1) When permission re- ized by the Marine Corps or any other quired. Commercial or noncommercial component of the Department of De- use or imitation of the Marine Corps fense. emblem, names, or initials is prohib- (v) In the case of a noncommercial ited unless permission is first obtained use of imitation, a copy of the charter, in writing from the CMC, except when constitution, bylaws, and similar orga- such use does not suggest that the use nizational documents of the requester, or imitation is approved, endorsed, or together with a detailed description of authorized by the Marine Corps or any its function or purpose. Insufficiently other component of the Department of specific requests will be returned for Defense. additional information. (2) Redelegation of authority. The CMC (e) Reserve applicability. This Order is hereby redelegates, pursuant to the au- applicable to the Marine Corps Re- thorization in paragraph 4 of the Sec- serve. retary of the Navy 5030.7, authority to [51 FR 45467, Dec. 19, 1986, as amended at 65 grant written permission to use the FR 62619, Oct. 19, 2000]

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PART 766—USE OF DEPARTMENT OF (2) Leased aircraft. U.S. Government- THE NAVY AVIATION FACILITIES owned aircraft delivered by the Gov- BY CIVIL AIRCRAFT ernment to a lessee subject to terms prescribed in an agreement which does Sec. not limit the lessee’s use of the aircraft 766.1 Purpose. to Government business. 766.2 Definition of terms. (c) Civil aviation. All flying activity 766.3 Authority. by civil aircraft including: 766.4 Policy. (1) Commercial aviation. Transpor- 766.5 Conditions governing use of aviation tation by aircraft of passengers or facilities by civil aircraft. 766.6 Approving authority for landings at cargo for hire and the ferrying of air- Navy/Marine Corps aviation facilities. craft as a commercial venture. 766.7 How to request use of naval aviation (2) General aviation. All types of civil facilities. aviation other than commercial avia- 766.8 Procedure for review, approval, execution as defined above. tion and distribution of aviation facility (d) Facility. A separately located and licenses. 766.9 Insurance requirements. officially defined area of real property 766.10 Cancellation or suspension of the in which the Navy exercises a real aviation facility license (OPNAV Form property interest and which has been 3770/1). designated as a Navy or Marine Corps 766.11 Fees for landing, parking and storage. aviation facility by cognizant author- 766.12 Unauthorized landings. ity; or where the Department of the 766.13 Sale of aviation fuel, oil, services and supplies. Navy has jurisdiction over real property agreements, expressed or implied, AUTHORITY: 49 U.S.C. 1507. with foreign governments, or by rights SOURCE: 35 FR 14451, Sept. 15, 1970, unless of occupation. (This definition does not otherwise noted. include aircraft carriers nor any other NOTE: The provisions of this part 766 are type of naval vessel with a landing area SECNAV Instruction 3770.1B of 30 June 1970. for aircraft.) § 766.1 Purpose. (e) Government aircraft. Aircraft owned or operated by any department This part establishes the policy and or agency of either the United States procedures for the use of Navy and Ma- or a foreign government (except a for- rine Corps aviation facilities by air- eign government-owned aircraft oper- craft other than U.S. Department of ated for commercial purposes). Also Defense aircraft. aircraft owned by any department, § 766.2 Definition of terms. agency, or political subdivision of a State, territory, or possession of the For the purpose of this part certain United States when such local govern- terms are defined as follows: ment has sole responsibility for oper- (a) Alternate use. Use of the aviation ating the aircraft. Government aircraft facility, specified in the flight plan, to includes: which an aircraft may divert when a landing at the point of first intended (1) Military aircraft. Aircraft used in landing becomes impractical because of the military services of any govern- weather. (Aircraft may not be dis- ment. patched, prior to takeoff from the air- (2) Bailed aircraft. U.S. Government- port of origin, to a facility licensed for owned aircraft delivered by the Gov- alternate use.) ernment to a Government contractor (b) Civil aircraft. Domestic or foreign for a specific purpose directly related aircraft operated by private individuals to a Government contract. or corporations, or foreign govern- (3) Loaned aircraft. U.S. Government- ment-owned aircraft operated for com- owned aircraft delivered gratuitously mercial purposes. This includes: by any Department of Defense agency (1) Contract aircraft. Civil aircraft op- to another Government agency, to a erated under charter or other contract U.S. Navy or Marine Corps Flying to any U.S. Government department or Club, or to a U.S. Army or Air Force agency. Aero Club.

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(f) Joint-use facility. A Navy or Marine § 766.3 Authority. Corps facility where a specific agree- Section 1107(a) of the Federal Avia- ment between the Department of the tion Act of 1958 (49 U.S.C. 1507, 1508) Navy and a civilian community, or be- states that ‘‘Air navigation facilities tween the U.S. Government and a for- owned or operated by the United States eign government, provides for civil air- may be made available for public use craft use of the runways and taxiways. under such conditions and to such ex- Civil aircraft terminal, parking, and tent as the head of the department or servicing facilities are established and other agency having jurisdiction there- controlled by civil authorities in an of deems advisable and may by regula- area separate from those of the Navy tion prescribe.’’ (See § 766.13 for restric- or Marine Corps. tions imposed by the Federal Aviation (g) Official business. Business, in the Act of 1958.) interest of the U.S. Government, which personnel aboard an aircraft must § 766.4 Policy. transact with U.S. Government organi- Navy and Marine Corps aviation fa- zations or personnel at or near the cilities are established to support the naval aviation facility concerned. Use operation of Navy and Marine Corps of a facility to solicit U.S. Government aircraft. Equipment, personnel and ma- business is not ‘‘official business.’’ terial are maintained only at a level (h) Provisional use. Use of a naval necessitated by these requirements and aviation facility for the purpose of pro- shall not be used to support the oper- viding adequate service to a commu- ation or maintenance of civil aircraft nity where, because of repair, construc- or non U.S. Government aircraft, ex- tion or the performance of other work, cept as noted below. (Nothing in this the regular civil airport servicing the part, however, should be interpreted to community is not available for an ex- prohibit any aircraft from landing at tended period. (An aircraft may be dis- any suitable Navy or Marine Corps patched prior to takeoff from the air- aviation facility in case of a bona fide port of origin to a naval aviation facil- emergency.) (See § 766.5(i).) ity authorized for provisional use.) (a) General. Subject to the procedures (i) Scheduled use. Use of a facility on established elsewhere in this part, civil aircraft and government aircraft, other a scheduled or regularly recurring than those belonging to the U.S. Gov- basis by an air carrier certified by the ernment may use Navy or Marine Civil Aeronautics Board to provide pas- Corps facilities, if necessary, Provided, senger and cargo service to a commu- That: nity or area. (1) They do not interfere with mili- (j) Services in connection with Govern- tary requirements, and the security of ment contracts. This type of operation, military operations, facilities, or cited on the Aviation Facility License, equipment is not compromised. indicates the use of a facility for trans- (2) No adequate civil airport is avail- porting the contractor’s supplies and able. (Exception to this provision may personnel for the performance of work be made when the aircraft is operated at the facility under the terms of a spe- in connection with official business as cific U.S. Government contract. defined in this part.) (k) Technical stop. An en route land- (3) Pilots comply with regulations ing for the purpose of obtaining fuel, promulgated by the cognizant military oil, minor repairs, or crew rest. This agency and the commanding officer of does not include passenger accom- the facility. modations nor passenger/cargo enplan- (4) Civil aircraft users assume the ing or deplaning privileges unless spe- risk in accordance with the provisions cifically authorized by the Chief of of the Aviation Facility License. Naval Operations. (5) Each aircraft is equipped with (l) User. An individual, corporation, two-way radio which provides a capa- or company named in the Aviation Fa- bility for voice communications with cility License and the Certificate of In- the control tower on standard Navy/ surance. Marine Corps frequencies.

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(6) The user, or requesting governmental purposes, if the contract so pro- ment, has obtained permission through vides, or if it is determined to be in the diplomatic channels from the host best interests of the U.S. Government country wherein the facility of in- to do so. Unless otherwise provided in tended landing is located, if applicable. the contract, an Aviation Facility Li- (b) Civil Aircraft owned and operated cense is required, and the user shall by—(1) Military personnel. Private air- furnish a Certificate of Insurance as craft owned and operated by active provided in this part. duty U.S. military personnel or by (e) Aircraft demonstrations. Manufac- Navy/Marine Corps Reservists on inac- turers of aircraft or installed equip- tive duty may be authorized to land at ment may be authorized to use Navy/ a facility, provided such aircraft is not Marine Corps facilities in dem- engaging in air commerce, and such onstrating and/or showing aircraft or landing is for official business required installed equipment to officials of the by written orders. Under no conditions U.S. Government when: shall such aircraft be allowed to base (1) It is determined to be in the best or operate from a facility for personal interest of the U.S. Government. convenience nor base at a facility (2) The aircraft was produced in ac- under the guise of official business. cordance with U.S. Government speci- (2) Civil employees of the U.S. Govern- fications either with or without the aid ment. Private aircraft owned and oper- of Federal funds. ated by civil employees of the U.S. (3) There is an expressed interest on Government may be authorized to land the part of the U.S. Government offi- at a facility, provided such aircraft is cials responsible for procurement, ap- not engaging in air commerce, and proval, or certification of the aircraft. such landing is for official business re- (f) Joint use. When a specific agree- quired by written orders. Such aircraft ment is entered into by the Depart- shall not be allowed to base or operate ment of the Navy pertaining to joint from a facility for personal conven- civil/military use of a Navy or Marine ience. (Employees of U.S. Government Corps facility, the terms of that agree- contractors are not considered civil ment shall take precedence over the employees of the U.S. Government.) provisions of this part. (3) Non-U.S. Government personnel. An (g) Diplomatic agreements. For diplo- individual or corporation owned and/or matic agreements and clearances to operated aircraft may be authorized to use U.S. Navy and Marine Corps avia- land at a facility for: tion facilities in foreign countries, the (i) Sales or service representation to provisions of this part are subject to authorized military agents (e.g. the ex- the provisions of status of forces agree- change, commissary, or contracting of- ments, treaties of mutual cooperation ficer). or other international agreements. (ii) Services in connection with U.S. This part shall be used as a guide in ne- Government contracts. Contracting gotiating agreements at the local level agency and contract number(s) must be with representatives of a foreign mili- cited in the application for an Aviation tary service, the U.S. Embassy, and the Facility License. host government concerning the use of (c) Department of defense charter or naval facilities by other than U.S. contract. Aircraft operating under a military aircraft. Approval shall be ob- Military Traffic Management and Ter- tained from the Chief of Naval Oper- minal Service (MTMTS), Military Air- ations for proposed terms which are in lift Command (MAC), or Navy charter conflict with this part. or contract for the movement of DOD passengers or cargo may be authorized § 766.5 Conditions governing use of to use Navy or Marine Corps aviation aviation facilities by civil aircraft. facilities when required for loading, en (a) Risk. The use of Navy or Marine route or terminal stops. Corps aviation facilities by civil air- (d) Test and experimental use. Aircraft craft shall be at the risk of the oper- being produced for a military agency ator. Except as hereinafter provided for under contract may use Navy/Marine U.S. Government contractors, the De- Corps facilities for testing and experi- partment of the Navy shall assume no

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liability or responsibility by reason of tion (en Route) Instrument Flight the condition of the landing area, Rules—Supplement, then the ceiling taxiways, radio and navigational aids, and visibility must be at or above these or other equipment or for notification minimums in the applicable control of such condition; or by the acts of its zone. agents in connection with the granting (2) Instrument flight operations shall of the right to use such naval facility. be conducted in accordance with FAR, No responsibility is assumed for the se- § 91.116 of this title. curity of or damage to aircraft while (f) Inspection. The commanding offi- on property owned or controlled by the cer may conduct such inspection of a U.S. Government. transiting civil aircraft and its crew, (b) Military rules. Operators of civil passengers and cargo as he may con- aircraft utilizing a Navy or Marine sider appropriate or necessary to the Corps aviation facility shall be re- carrying out of his duties and respon- quired to comply with the air and sibilities. ground rules promulgated by the De- (g) Customs, immigration, agriculture, partment of the Navy and the com- and public health inspection. (1) The manding officer of the aviation facil- civil aircraft commander shall be re- ity. Such compliance shall pertain spe- sponsible for compliance with all appli- cifically to clearance authorization for cable customs, immigration, agri- the entry, departure, or movement of culture, and public health laws and aircraft within the confines of the ter- regulations. He shall also be respon- minal area normally controlled by the sible for paying fees, charges for over- commanding officer of the aviation fa- time services, and for all other costs cility. connected with the administration of (c) Federal aviation regulations. Opera- such laws and regulations. tors of civil aircraft shall be required (2) The commanding officer of the to comply with all Federal Aviation Navy/Marine Corps aviation facility Administration (FAA) rules and regu- will inform the appropriate public offi- lations including filing of flight plans. cials of the arrival of civil aircraft sub- When such flight plans are required, ject to such laws and regulations. He they shall be filed with the com- will not issue clearances for a civil air- manding officer or his authorized rep- craft to takeoff until such laws and resentative prior to the departure of regulations have been complied with. the aircraft. When such a flight plan is Procedures for insuring compliance not required, a list of passengers and with such laws and regulations shall be crew members, the airport of first in- as mutually agreed to by the com- tended landing, the alternate airport, manding officer of the aviation facility and fuel supply in hours shall be placed and the local public officials. on file prior to takeoff, with the com- (h) Weather alternate. If a Navy/Ma- manding officer or with the local com- rine Corps aviation facility has been pany representative as appropriate. approved for use as an alternate air- (d) Hours of operation. The use of a port, radio clearance must be obtained Navy/Marine Corps aviation facility by from such facility as soon as the deci- civil aircraft shall be limited to the sion is made en route for such use. hours when the facility is normally in (i) Emergency landings. Any aircraft operation. may land at a Navy/Marine Corps avia- (e) Weather minimums. Civil aircraft tion facility when necessary as a result shall comply with weather minimums of a bona fide emergency. However, as follows: whenever the nature of the emergency (1) Visual Flight Operations shall be permits the pilot to select the time and conducted in accordance with Federal place of landing, it is preferred that the Aviation Regulations (FAR), § 91.105 of pilot land his aircraft at a civil field. this title. If more stringent visual (1) The commanding officer of the flight rules minimums have been estab- aviation facility will require that the lished for the point of departure or des- pilot of the aircraft pay all fees and tination, as noted in the aerodrome re- charges and execute the Aviation Fa- marks section of the Department of cility License. A statement explaining Defense Flight Information Publica- the circumstances of the emergency

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landing must be noted in § 766.5 of the Government as a direct result of the license application. If a narrative re- emergency landing. Such costs will in- port from the pilot is available, it may clude those associated with labor, ma- be attached to the application. terial, rental of equipment, vehicles or (2) Clearance of runway. The Depart- tools, etc., for: ment of the Navy reserves the right to (a) Spreading foam on runway before use any method to clear a runway of the aircraft attempts emergency land- aircraft or wreckage consistent with ing. operational requirements. Care will be (b) Fire and crash control and rescue. exercised to preclude unnecessary dam- (c) Movement and storage of aircraft age in removing wrecked aircraft; how- or wreckage. ever, the Navy assumes no liability as (d) Damage to runway, lights, navi- a result of such removal. gation aids, etc. (3) Repairs. (i) Aircraft requiring major repairs may be stored tempo- (ii) There will be no charge for naval rarily in damaged condition. If repairs meteorological services and naval com- cannot be completed within a reason- munications facilities for the handling able time, the aircraft must be re- of arrival and departure reports, air moved from the facility by the owner traffic control messages, position re- or operator of the aircraft without ports and safety messages. delay. (iii) The determination as to whether (ii) No aircraft will be given a major landing fees shall be charged pursuant or minor overhaul. to an emergency landing for mainte- (iii) Engine or air frame minor com- nance or repair shall be the prerogative ponents may be furnished, when not of the commanding officer of the facil- available through commercial sources, ity. provided such supplies can be spared [35 FR 14451, Sept. 15, 1970, as amended at 51 and are not known to be in short sup- FR 22804, June 23, 1986] ply. The issuance of such supplies must be approved by the commanding offi- § 766.6 Approving authority for land- cer. ings at Navy/Marine Corps aviation (iv) Minor components in short sup- facilities. ply or major components for which (a) Except as indicated in paragraphs there is a repeated demand can be fur- (b) and (c) of this section, the com- nished only on message authority ob- manding officer of an active Navy/Ma- tained from the Aviation Supply Of- rine Corps aviation facility may ap- fice, Philadelphia, PA (for continental prove or disapprove landings of civil facilities) or local fleet air command or aircraft at his facility when such land- major aviation supply depot (for ing is: extracontinental facilities). Complete (1) Directly connected with or in sup- engines, airplane wings, or other major port of U.S. Government business (ex- items of equipment shall not be fur- cept those listed in paragraph (c) of nished under this authority. this section). (v) If the commanding officer believes it is desirable to furnish re- (2) In connection with U.S. Govern- quested material or services in excess ment or community interests on an in- of the restrictions stated herein, he frequent basis when no adequate civil shall request instructions from the airport is reasonably available. Chief of Naval Operations, giving a (3) By aircraft owned and operated by brief description of the material or Navy/Marine Corps Flying Clubs or services requested together with his U.S. Army or Air Force Aero Clubs recommendations. which are operated as instrumental- (4) Reimbursement for costs. (i) The ities of the U.S. Government. civil user making an emergency land- (4) By aircraft owned and operated by ing will be billed in accordance with U.S. Government personnel when such paragraphs 032500–032503 of the use is in accordance with § 766.4(b) (1) NAVCOMPT Manual and paragraphs and (2). 25345–25363 of the NAVSUP Manual for (5) By civil aircraft either owned or payment of all costs incurred by the personally chartered by:

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(i) The President or Vice President of ment and the government of the air- the United States or a past President craft’s registry, or of the United States. (ii) The facility is located in a coun- (ii) The head of any Federal depart- try other than that in which the for- ment or agency. eign aircraft is registered. (iii) A Member of Congress. (6) By a bailed, leased, or loaned air- § 766.7 How to request use of naval craft (as defined in § 766.2) when oper- aviation facilities. ated in connection with official busi- (a) Forms required. Each applicant de- ness only. siring use of a Navy/Marine Corps avia- (7) By aircraft owned and operated by tion facility will be required to: States, counties, or municipalities of (1) Execute an application for an the United States when used for offi- Aviation Facility License (OPNAV cial business of the owner. Form 3770/1 (Rev. 7–70)). (b) Except as limited by paragraph (c) (2) Submit a Certificate of Insurance of this section, the Commander in (NAVFAC 7–11011/36) showing coverage Chief, U.S. Naval Forces, Europe; Chief as provided by § 766.9 of this part. of Naval Material; Commander in (b) Exceptions. Exceptions to the fore- Chief, U.S. Atlantic Fleet; Commander going requirements are: in Chief, U.S. Pacific Fleet; Chief of (1) Aircraft owned and operated by Naval Air Training; Commander, Pa- departments or agencies of the U.S. cific Missile Range; Commander, Ma- Government for official business. rine Corps Air Bases, Eastern Area; (2) Aircraft owned and operated or Commander, Marine Corps Air Bases, noncommercial purposes by agencies of Western Area; and Commanding Gen- a foreign government, except in cases eral, Fleet Marine Force, Pacific may where the foreign government charges approve civil aircraft use of any active fees for U.S. Government aircraft. aviation facility under their control. (3) Aircraft owned and operated by (At overseas locations, aircraft landing States, possessions, and territories of authorizations must be in consonance the United States and political subdivi- with the provisions of applicable inter- sions, thereof, when used for official national agreements.) business of the owner. (c) The Chief of Naval Operations (4) Aircraft owned and operated by ei- may approve any of the above requests, ther Navy/Marine Corps Flying Clubs and is the only agency empowered to or Aero Clubs of other military serv- approve all other requests for use of ices which are operated as instrumen- naval facilities by civil and govern- talities of the U.S. Government. ment aircraft, for example: (5) Bailed aircraft, provided the bail- (1) Applications for use of more than ment contract specifies that the U.S. one facility when the facilities are not Government is the insurer for liability. under the control of one major com- (c) Obtaining forms. The applicant mand. may obtain the required forms listed in (2) Application for use of naval avia- paragraph (a) of this section, from the tion facilities when participating in commanding officer of any Navy or U.S. Government or Department of De- Marine Corps aviation facility or from fense single-manager contract and the Chief of Naval Operations (OP–53C). charter airlift operations; i.e., Military Navy units may obtain the forms Airlift Command (MAC) or Military through regular supply channels as a Traffic Management and Terminal Cog ‘‘I’’ item. Service (MTMTS). (d) Preparation of forms. (1) The li- (3) Application for a facility to be cense application will be completed in used as a regular civil airfield for a quadruplicate by the applicant in ac- community, by either commercial or cordance with detailed instructions set general aviation. forth in Aviation Facility License (4) Requests for use of a facility by (OPNAV Form 3770/1 (REV. 7–70)). foreign civil or government aircraft (2) The Certificate of Insurance will when: be completed by the insurer. Only the (i) Such use is not covered by an signed original certificate and one copy agreement between the U.S. Govern- are required to be submitted.

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(e) Submission of forms. (1) The forms nish a security deposit as stipulated in executed by the applicant shall be sub- § 766.7(f). mitted to the commanding officer of (b) Processing application. The com- the aviation facility concerned, except manding officer will approve/dis- that applications requiring approval by approve the application or forward it higher authority shall be submitted to to higher authority for approval as re- the appropriate approving authority, quired by § 766.6(b) or (c). If the applica- as indicated in paragraph (b) or (c) of tion is approved, the approving author- this section at least 30 days prior to ity will then forward all copies of the the first intended landing. license and Certificate of Insurance to (2) Once the NAVFAC 7–11011/36, Cer- the Commander, Naval Facilities Engi- tificate of Insurance, is on file with an neering Command or his designated executing authority, it is valid until representative for review and execu- insurance expiration date and may be tion of the license. used by that executing authority as a (c) Action by the Commander, Naval basis for his action on any subsequent Facilities Engineering Command or his OPNAV Forms 3770/1 submitted for ap- designated representative. (1) Upon re- proval. ceipt, the Commander, Naval Facilities Engineering Command, or his des- (f) Security deposit. All applications, ignated representative, will review the other than those listed in § 766.11(a) license and Certificate of Insurance. He contemplating more than one landing shall determine whether the insurance per month, will be accompanied by a coverage conforms to the requirements security deposit in the form of a cer- prescribed by § 766.9 of this part or to tified check payable to the ‘‘Treasurer such requirements as may be promul- of the United States’’ in payment of gated from time to time by the Chief of the estimated costs of landing, hangar Naval Material. and outside parking fees, for 3 months (2) Upon approval, he will then exe- in advance, calculated as provided in cute the license in triplicate, conform § 766.11 (c) and (d). Security deposits all additional copies, and make dis- will be handled as set forth in para- tribution as provided in paragraph (d) graph 032102 of the NAVCOMPT Man- of this section. Applications which are ual. not approved will be returned to the (g) Nonexclusive use airports. When ei- applicant with an explanation of defi- ther the Chief of Naval Operations or ciencies which must be corrected prior Commandant of the U.S. Marine Corps to execution. does not have exclusive operational (d) Distribution. (1) After execution of control over a landing area, the air- a license, distribution will be made as craft operator will obtain permission follows: to land from the appropriate civil or military authority. Original—To the licensee. Executed copy—To the commanding officer. Executed copy—To the Commander, Naval § 766.8 Procedure for review, approval, Facilities Engineering Command or his execution and distribution of avia- designated representative. tion facility licenses. Conformed copy—To the Chief of Naval Oper- (a) Review of application by the com- ations (OP–53). manding officer. The commanding offi- Conformed copy—To the cognizant com- cer will review each application for mander under § 766.6(b). Conformed copy—To the disbursing officer Aviation Facility License and Certifi- serving the performing activity in the case cate of Insurance received and deter- of local deposits, and to the Office of the mine whether such forms have been Navy Comptroller (NAFC3) in the case of completed by the applicant in accord- central deposits held at the Washington, ance with the instructions for their DC level. preparation as indicated in the Avia- Conformed copy—To the Military Airlift tion Facility License (OPNAV Form Command (MAC) for DOD contract or charter airlift operations. 3770/1 (REV. 7–70)) and the Certificate Conformed copy—To the Military Traffic of Insurance (NAVFAC 7–11011/36(7–70)). Management and Terminal Service As appropriate, the commanding offi- (MTMTS) for DOD contract or charter air- cer will require each applicant to fur- lift operations.

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(2) Licenses issued under this author- (ii) Property damage liability. At least ity are to be disposed of under provi- $1 million for each accident. sions of paragraph 4280 of (iii) Passenger liability. At least SECNAVINST 5212.5B, Disposal of $100,000 for each passenger, with a min- Navy and Marine Corps Records. In ac- imum for each accident determined as cordance therewith, official executed follows: multiply the minimum for copies of licenses are to be retained for each passenger, $100,000 by the next a period of 6 years after completion or highest whole number resulting from termination of the agreement. They taking 75 percent of the total number may be transferred to the nearest Fed- of passenger seats (exclusive of crew eral records center when superseded, seats). For example: The minimum pas- revoked, canceled, or expired for reten- senger coverage for each accident for tion by the center until expiration of an aircraft with 94 passenger seats is the 6-year retention period. computed: 94 × 0.75 = 70.5—next highest whole number resulting in 71. There- § 766.9 Insurance requirements. fore, 71 × $100,000 = $7,100,000. (a) Control of insurance. The Com- (3) Privately owned noncommer- mander, Naval Facilities Engineering cially-operated aircraft of less than Command, or his designee, shall be re- 12,500 pounds will be insured for: sponsible for requiring aircraft owners (i) Bodily injury liability (excluding or operators to procure and maintain passengers). At least $100,000 for each liability insurance conforming to the person in any one accident with at standards prescribed by the Chief of least $500,000 for each accident. Naval Material. The insurance policy (ii) Property damage liability. At least must be obtained at the expense of the $500,000 for each accident. civil aircraft owner or operator and (iii) Passenger liability. At least with a company acceptable to the U.S. $100,000 for each passenger, with a min- Navy. imum for each accident determined by (b) Insurance coverage. Except for multiplying the minimum for each pas- those aircraft exempted by paragraph senger, $100,000 by the total number of (c) below, each civil aircraft is required passenger seats (exclusive of crew to be covered by insurance of the types seats). and minimum limits established by the (4) Aircraft insured for a single limit Chief of Naval Material. The Certifi- of liability must have coverage equal cate of Insurance, must state all cov- to or greater than the combined re- erages in U.S. dollars. Current mini- quired minimums for bodily injury, mums are: property damage, and passenger liabil- (1) Privately owned commercially-op- ity for the type of use requested and erated aircraft used for cargo carrying for the passenger capacity and gross only and aircraft being flight-tested or takeoff weight of the aircraft being op- ferried without passengers will be in- erated. For example: the minimum sin- sured for: gle limit of liability acceptable for an (i) Bodily injury liability. At least aircraft operating as described in para- $100,000 for each person in any one acci- graph (b)(2) of this section is $1,000,000 dent with at least $1 million for each + $1,000,000 + $7,100,000 = $9,100,000. accident. (5) Aircraft insured by a combination (ii) Property damage liability. At least of primary and excess policies must $1 million for each accident. have combined coverage equal to or (2) Privately owned commercially-op- greater than the required minimums erated aircraft used for passenger car- for bodily injury, property damage, and rying and privately owned noncommer- passenger liability, for the type of use, cially-operated aircraft of 12,500 pounds and for the passenger capacity and or more certified maximum gross take- gross takeoff weight of the aircraft. off weight will be insured for: (6) Each policy must specifically pro- (i) Bodily injury liability (excluding vide that: passengers). At least $100,000 for each (i) The insurer waives any right to person in any one accident with at subrogation the insurer may have least $1 million for each accident. against the United States by reason of

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any payment under the policy for dam- (b) Suspension. The approving author- age or injury which might arise out of ity, or the commanding officer of the or in connection with the insured’s use facility, may suspend an approved of any Navy installation or facility. Aviation Facility License when such li- (ii) The insurance afforded by the censed use would be inconsistent with policy applies to the liability assumed Navy/Marine Corps or national defense by the insured under OPNAV Form interests. Whenever possible, the De- 3770/1, Aviation Facility License. partment of the Navy will avoid sus- (iii) If the insurer cancels or reduces pension of licenses which have been the amount of insurance afforded under issued for official business or scheduled the listed policy, the insurer shall send air carrier use. In all cases, suspensions written notice of the cancellation or will be lifted as quickly as possible. A reduction to Commander, Naval Facili- suspension will not have the effect of ties Engineering Command, Depart- extending the expiration date of an ap- ment of the Navy, Washington, DC proved Aviation Facility License. 20390 by registered mail at least 30 days in advance of the effective date of the § 766.11 Fees for landing, parking and cancellation; the policy must state storage. that any cancellation or reduction will (a) The commanding officer of a facil- not be effective until at least 30 days ity will collect landing, parking, and after such notice is sent, regardless of storage fees, as applicable, from all the effective date specified therein. users required to have an Aviation Fa- (iv) If the insured requests cancella- cility License by § 766.7 except for the tion or reduction, the insurer shall no- following: tify the Commander, Naval Facilities (1) Government aircraft (see defini- Engineering Command, Department of tion § 766.2(g)) except that foreign gov- the Navy, Washington, DC 20390 imme- ernment aircraft will be charged fees if diately upon receipt of such request. their government charges similar fees (c) Exemption. Government aircraft, for U.S. Government aircraft. as defined in § 766.2(e) are exempt from (2) Aircraft being produced under a the insurance requirements specified contract of the U.S. Government. above. However, this exemption applies (3) Any contract aircraft (see defini- to bailed aircraft only if the contract tion § 766.2(b)(1)) or other civil aircraft under which the aircraft is bailed which is authorized to use the facility specifies that insurance is not required. on official business. (4) Aircraft employed to train opera- § 766.10 Cancellation or suspension of tors in the use of precision approach the aviation facility license (OPNAV systems (GCA, ILS, et al.) provided Form 3770/1). full-stop or touch-and-go landings are (a) Cancellation. (1) If the user fails to not performed. comply with the terms of the Aviation (5) Aircraft owned and operated by ei- Facility License (OPNAV Form 3770/1) ther Navy/Marine Corps Flying Clubs or of any applicable regulations, all or Aero Clubs or other military serv- current Aviation Facility Licenses for ices which are operated as instrumen- that user will be canceled. A canceled talities of the U.S. Government. Aviation Facility License cannot be re- (6) Aircraft owned and operated by instated; a new application must be military personnel on active duty (Reg- submitted for approval as explained in ular and Reserve) or retired, provided § 766.7. the aircraft is not used for commercial (2) If the commanding officer of a purposes. naval aviation facility has reason to (7) Landing fees incident to emer- believe that the use of an Aviation Fa- gency landings for which the landing cility License is not in accordance with fee has been waived by the com- the terms of the license he should im- manding officer in accordance with mediately notify the Chief of Naval Op- § 766.5(i)(5)(i). erations, giving the name of the user, (b) Fee for unauthorized landing. If an the Aviation Facility License number, aircraft lands at a Navy/Marine Corps and citing the circumstances of the aviation facility without obtaining misuse. prior permission (except for a bona fide

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emergency landing), a landing fee in § 766.12 Unauthorized landings. excess of the normal landing fee will be An aircraft that lands at a Navy/Ma- charged to cover the additional ex- rine Corps aviation facility without ob- penses incurred due to special handling taining prior permission from an ap- and processing. The fee for an unau- proving authority, except in a bona thorized landing will be as follows: fide emergency, is in violation of this (1) For aircraft weighing less than part. Civil aircraft landing in violation 12,500 pounds: $100. (2) For aircraft weighing 12,500 of this regulation will have to pay the pounds but less than 40,000 pounds: fee prescribed in § 766.11(b). In those $250. cases where an unauthorized landing is (3) For aircraft weighing 40,000 made at a facility within a Naval De- pounds but less than 100,000 pounds: fense Area, proclaimed as such by Ex- $500. ecutive order of the President, civil (4) For aircraft weighing above aircraft may be impounded and the op- 100,000 pounds: $600. erator prosecuted as indicated in (c) Normal landing fee. The normal OPNAVINST 5500.11C of November 12, landing fee is based on the aircraft 1963. In any event, before the aircraft is maximum authorized gross takeoff authorized to depart, the commanding weight, to the nearest 1,000 pounds. The officer of the facility will: maximum gross takeoff weight may be (a) Inform the aircraft operator of determined either from item 7F of the provisions of this part and the OP OPNAV Form 3770/1 or from the ‘‘Air- NAVINST 5500.11C of November 12, 1963, plane Flight Manual’’ carried aboard if applicable. each aircraft. If the weight cannot be (b) Require the aircraft operator (or determined, it should be estimated. owner), before takeoff, to pay all fees and charges and to comply with the CHARGE PER LANDING following procedure: (1) Execute OPNAV Form 3770/1, ex- Inside CONUS—0.20/1,000 pounds or any portion thereof with a minimum of $5. plaining in item 6 of that form the rea- Outside CONUS—0.30/1,000 pounds or any por- son for the landing. tion thereof with a minimum of $7.50. (2) In lieu of submitting a Certificate of Insurance (NAVFAC 7–11011/36), the (d) Parking and storage fees. Fixed and insurer must furnish evidence of suffi- rotary wing aircraft parking and stor- cient insurance to include waiver of age fees are based upon the gross take- any right of subrogation against the off weight of the aircraft as follows: United States, and that such insurance (1) Outside a hangar. Charges begin 6 applies to the liability assumed by the hours after the aircraft lands. The rate insured under OPNAV Form 3770/1. is 10 cents per thousand pounds for (3) When it appears that the violation each 24-hour period or fraction thereof, may have been deliberate, or is a re- with a minimum charge of $1.50 per air- peated violation, departure authoriza- craft. tion must be obtained from the Chief of (2) Inside a hangar. Charges begin as Naval Operations. soon as the aircraft is placed inside the hangar. The rate is 20 cents per 1,000 (4) Waiver of the requirements in pounds for each 24-hour period or frac- paragraphs (b)(1) and (2) of this section tion thereof, with a minimum charge of may be obtained from the Chief of $5 per aircraft. Naval Operations to expedite removal (e) Reimbursement. Collections inci- of these aircraft when such waiver is dent to direct (out of pocket) costs will considered appropriate. be credited to local operating and [35 FR 14451, Sept. 15, 1970, as amended at 51 maintenance funds. All other collec- FR 22804, June 23, 1986] tions, such as for landing, parking, and storage fees will be credited to Navy § 766.13 Sale of aviation fuel, oil, serv- General Fund Receipt Account 172426. ices and supplies. Accumulation of costs and preparation (a) General policy. In accordance with of billing documents are prescribed in sections 1107 and 1108 of the Federal paragraphs 032500–032503 of the Aviation Act of 1958 (72 Stat. 798 as NAVCOMPT Manual. amended, 49 U.S.C. 1507, 1508), Navy/

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Marine Corps Aviation fuel, oil, serv- 767.15 Application to foreign sunken mili- ices, and supplies are not sold to civil tary craft and U.S. sunken military craft aircraft in competition with private not under the jurisdiction of the Navy. enterprise. Sections 1107 and 1108 of Subpart C—Enforcement Provisions for Vio- Federal Aviation Act of 1958 (72 Stat. lations of the Sunken Military Craft Act 798 as amended, 49 U.S.C. 1507, 1508), and Associated Permit Conditions however, does authorize the sales of fuel, oil, equipment, supplies, mechan- 767.16 Civil penalties for violations of Act or ical service, and other assistance by permit conditions. reason of an emergency. Such sales will 767.17 Liability for damages. be made only where there is no com- 767.18 Notice of Violation and Assessment mercial source and only in the amount (NOVA). necessary for the aircraft to continue 767.19 Procedures regarding service. on its course to the nearest airport op- 767.20 Requirements of respondent or per- erated by private enterprise. mit holder upon service of a NOVA. 767.21 Hearings. (b) Contract aircraft. The sale of avia- 767.22 Final administrative decision. tion fuel, oil, supplies, etc. to aircraft 767.23 Payment of final assessment. under U.S. Government contract or 767.24 Compromise of civil penalty, enforce- charter is permitted at, and limited to, ment costs and/or liability for damages. points where passengers or cargo are 767.25 Factors considered in assessing pen- loaded into or discharged from the air- alties. craft under terms of the contract or 767.26 Criminal law. charter. Sales are not authorized at 767.27 References. naval aviation facilities where com- AUTHORITY: 10 U.S.C. 113 note; Pub. L. 108– mercial supplies and service are avail- 375, Title XIV, sections 1401 to 1408, Oct. 28, able. 2004, 118 Stat. 2094; 5 U.S.C. 301; 16 U.S.C. 470.

SOURCE: 80 FR 52594, Aug. 31, 2015, unless PART 767—GUIDELINES FOR PER- otherwise noted. MITTING ARCHAEOLOGICAL IN- VESTIGATIONS AND OTHER AC- Subpart A—Regulations and TIVITIES DIRECTED AT SUNKEN Obligations MILITARY CRAFT AND TERRES- TRIAL MILITARY CRAFT UNDER § 767.1 Purpose. THE JURISDICTION OF THE DE- The purpose of this part is: PARTMENT OF THE NAVY (a) To assist the Secretary in managing sunken military craft under the Subpart A—Regulations and Obligations jurisdiction of the Department of the Navy (DON) pursuant to the Sunken Sec. Military Craft Act (SMCA), 10 U.S.C. 767.1 Purpose. 113 note; Public Law 108–375, Title XIV, 767.2 [Reserved] 767.3 Definitions. sections 1401 to 1408, Oct. 28, 2004, 118 767.4 Prohibited acts. Stat. 2094. 767.5 Policy. (b) To establish the procedural rules for the issuance of permits authorizing Subpart B—Permit Requirements persons to engage in activities directed at sunken military craft and terres- 767.6 Historic sunken military craft and terrestrial military craft permit applica- trial military craft under the jurisdiction. tion of the DON for archaeological, his- 767.7 Evaluation of permit application. torical, or educational purposes, when 767.8 Credentials of principal investigator. the proposed activities may disturb, re- 767.9 Conditions of permits. move, or injure the sunken military 767.10 Requests for amendments or exten- craft or terrestrial military craft. sions of active permits. (c) To set forth the procedures gov- 767.11 Content of permit holder’s final re- erning administrative proceedings for port. 767.12 Special use permit application. assessment of civil penalties or liabil- 767.13 Monitoring of performance. ity damages in the case of a sunken 767.14 Amendment, suspension, or revoca- military craft permit violation or vio- tion of permits. lation of section 1402 of the SMCA.

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§ 767.2 [Reserved] of any portion of a sunken military craft or terrestrial military craft. § 767.3 Definitions. Permit holder means any person au- Agency means the Department of the thorized and given the right by the Navy. Naval History and Heritage Command Artifact means any portion of a sunk- (NHHC) to conduct activities author- en military craft or terrestrial mili- ized under these regulations. tary craft that by itself or through its Permitted activity means any activity relationship to another object or as- that is authorized by the NHHC under semblage of objects, regardless of age, the regulations in this part. whether in situ or not, may carry ar- Person means an individual, corpora- chaeological or historical data that tion, partnership, trust, institution, as- yields or is likely to yield information sociation; or any other private entity, that contributes to the understanding or any officer, employee, agent, instru- of culture or human history. mentality, or political subdivision of Associated Contents means: the United States. (1) The equipment, cargo, and con- Possession or in possession of means tents of a sunken military craft or ter- having physical custody or control restrial military craft that are within over any portion of a sunken military its debris field; and craft or terrestrial military craft. (2) The remains and personal effects Remove or removal means to move or of the crew and passengers of a sunken relocate any portion of a sunken mili- military craft or terrestrial military tary craft or terrestrial military craft craft that are within its debris field. by lifting, pulling, pushing, detaching, Debris field means an area, whether extracting, or taking away or off. contiguous or non-contiguous, that Respondent means a vessel or person consists of portions of one or more subject to a civil penalty, enforcement sunken military craft or terrestrial costs and/or liability for damages based military craft and associated artifacts on an alleged violation of this part or distributed due to, or as a consequence a permit issued under this part. of, a wrecking event and post-deposi- Secretary means the Secretary of the tional site formation processes. Navy or his or her designee. The Direc- Directed at means an intentional or tor of the NHHC is the Secretary’s des- negligent act that disturbs, removes, ignee for DON sunken military craft or injures a craft that the person knew and terrestrial military craft manage- or should have known to be a sunken ment and policy; the permitting of ac- military craft. tivities that disturb, remove, or injure Disturb or disturbance means to affect DON sunken military craft and terres- the physical condition of any portion trial military craft; the permitting of of a sunken military craft or terres- activities that disturb, remove, or in- trial military craft, alter the position jure sunken military craft of other de- or arrangement of any portion of a partments, agencies or sovereigns in- sunken military craft or terrestrial corporated into the DON permitting military craft, or influence the program; the initiation of enforcement wrecksite or its immediate environ- actions; and, assessment of civil pen- ment in such a way that any portion of alties or liability for damages. The a craft’s physical condition is affected Secretary’s designee for appeals of No- or its position or arrangement is al- tices of Violations is the Defense Office tered. of Hearings and Appeals (DOHA). Historic in the case of a sunken military Secretary concerned means: craft or a terrestrial military craft means (1) The Secretary of a military de- fifty (50) years have elapsed since the partment; date of its loss and/or the craft is listed (2) In the case of a Coast Guard sunk- on, eligible for, or potentially eligible en military craft, the Secretary of the for listing on the National Register of Department in which the Coast Guard Historic Places. is operating. Injure or injury means to inflict phys- Sunken military craft means all or any ical damage on or impair the soundness portion of:

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(1) Any sunken warship, naval auxil- of the United States determined in ac- iary, or other vessel that was owned or cordance with international law. operated by a government on military United States waters means United noncommercial service when it sank; States internal waters, the United (2) Any sunken military aircraft or States territorial sea, and the United military spacecraft that was owned or States contiguous zone. operated by a government when it Wrecksite means the location of a sank; sunken military craft or terrestrial (3) The associated contents of a craft military craft. The craft may be intact, referred to in paragraph (1) or (2) of scattered or completely deteriorated, this definition; and may presently be on land or in (4) Any craft referred to in paragraph water. The wrecksite includes any (1) or (2) of this definition which may physical remains of the craft and all now be on land or in water, if title associated contents. thereto has not been abandoned or transferred by the government con- § 767.4 Prohibited acts. cerned. (a) Unauthorized activities directed at Sunken Military Craft Act refers to the sunken military craft or terrestrial mili- provisions of 10 U.S.C. 113 note; Public tary craft. No person shall engage in or Law 108–375, Title XIV, sections 1401 to attempt to engage in any activity di- 1408, Oct. 28, 2004, 118 Stat. 2094. rected at a sunken military craft or Terrestrial military craft means the terrestrial military craft that disturbs, physical remains of all or any portion removes, or injures any sunken mili- of a historic ship, aircraft, spacecraft, tary craft or terrestrial military craft, or other craft, intact or otherwise, except: manned or unmanned, along with all (1) As authorized by a permit issued associated contents, located on land pursuant to these regulations; and under the jurisdiction of the DON. (2) As otherwise authorized by these Terrestrial military craft sites are dis- regulations; or tinguished from sunken military craft (3) As otherwise authorized by law. by never having sunk in a body of (b) Possession of sunken military craft water. or terrestrial military craft. No person United States Contiguous Zone means may possess, disturb, remove, or injure the contiguous zone of the United any sunken military craft or terres- States declared by Presidential Procla- trial military craft in violation, where mation 7219, dated September 2, 1999. applicable, of: Accordingly, the contiguous zone of (1) Section 1402 of the SMCA; or the United States extends to 24 nau- (2) Any regulation set forth in this tical miles from the baselines of the part or any permit issued under it; or United States determined in accord- (3) Any prohibition, rule, regulation, ance with international law, but in no ordinance, or permit that applies under case within the territorial sea of an- any other applicable law. other nation. (c) Limitations on application. Prohibi- United States internal waters means all tions in section 1402 of the SMCA shall waters of the United States on the not apply to: landward side of the baseline from (1) Actions taken by, or at the direc- which the breadth of the United States tion of, the United States. territorial sea is measured. (2) Any action by a person who is not United States sunken military craft a citizen, national, or resident alien of means all or any portion of a sunken the United States, except in accord- military craft owned or operated by ance with: the United States. (i) Generally recognized principles of United States territorial sea means the international law; waters of the United States territorial (ii) An agreement between the United sea claimed by and described in Presi- States and the foreign country of dential Proclamation 5928, dated De- which the person is a citizen; cember 27, 1988. Accordingly, the terri- (iii) In the case of an individual who torial sea of the United States extends is a crew member or other individual to 12 nautical miles from the baselines on a foreign vessel or foreign aircraft,

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an agreement between the United military craft. Permit applications will States and the flag State of the foreign only be issued in instances where there vessel or aircraft that applies to the in- is a clear demonstrable benefit to the dividual. DON, and only special use permits can be issued in the case of non-historic § 767.5 Policy. sunken military craft. In such in- (a) As stewards of the DON’s sunken stances, prior to issuing a special use military craft and terrestrial military permit, the NHHC will consult with ap- craft, the NHHC is responsible for man- propriate DON offices within affected aging these irreplaceable resources for commands or offices, including, but not the continued education and apprecia- limited to, the Naval Sea Systems tion of present and future generations. Command, Naval Air Systems Com- To ensure consistent and effective mand, Space and Naval Warfare Sys- stewardship, the NHHC has developed a tems Command, Naval Supply Systems comprehensive program that encom- Command, Naval Facilities Engineer- passes the following aspects: Preserva- ing Command, Navy Personnel Com- tion planning; wrecksite management; mand, Military Sealift Command, Su- archaeological research; conservation pervisor of Salvage and Diving, Office and curation; and public information, of the Judge Advocate General of the interpretation, and education. The Navy, the Office of the Chief of Naval NHHC strongly encourages cooperation Operations, or other interested offices. with other Department of Defense com- (d) The NHHC will serve as the per- mands, Federal and State agencies, mitting authority for disturbance of educational institutions, and individ- those foreign state sunken military uals interested in preserving DON’s craft located in U.S. waters addressed maritime and aviation heritage. in § 767.15. The NHHC, in consultation (b) Subject to operational require- with the Department of State as appro- ments, sunken military craft and ter- priate, will make a reasonable effort to restrial military craft will generally be inform the applicable agency of a for- managed in place unless wrecksite dis- eign state of the discovery or signifi- turbance, recovery, or injury is justi- cant changes to the condition of its fied and necessary to protect the craft sunken military craft upon becoming or the environment, to address matters aware of such information. The NHHC pertaining to human remains or public will also serve as the permitting au- safety, to mitigate adverse effects, to thority for disturbance of those sunken conduct research, or to provide for pub- military craft of another military de- lic education. While the NHHC prefers partment, or the Department in which non-intrusive in situ research on sunk- the Coast Guard is operating, that have en military craft and terrestrial mili- been incorporated into the DON per- tary craft, it recognizes that wrecksite mitting program in accordance with disturbance, removal, or injury may § 767.15(e). become necessary or appropriate. At (e) The DON recognizes that, in ac- such times, wrecksite disturbance, re- cordance with section 1402(a)(3) of the moval, or injury may be permitted by Act and other statutes, certain federal the NHHC with respect to DON sunken agencies have statutory authority to military craft for archaeological, his- conduct and permit specific activities torical, or educational purposes, sub- directed at DON sunken military craft ject to conditions set forth in accord- and terrestrial military craft. The ance with these regulations. Historic NHHC will coordinate, consult, and shipwrecks under the jurisdiction of enter into interagency agreements the DON that do not qualify as sunken with those federal agencies to ensure military craft are to be provided the effective management of DON sunken same consideration and treatment as military craft and terrestrial military terrestrial military craft. craft and compliance with applicable (c) In addition to managing historic law. sunken military craft and terrestrial (f) Where appropriate, the NHHC will military craft, the NHHC will serve as coordinate, consult, and enter into the permitting authority for the dis- agreements with the appropriate State turbance of non-historic DON sunken Historic Preservation Office (SHPO), or

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state land or resource manager, to en- Subpart B—Permit Requirements sure effective management of DON sunken military craft and terrestrial § 767.6 Historic sunken military craft military craft and compliance with ap- and terrestrial military craft permit plicable law. application. (g) Notwithstanding any other sec- (a) Any person seeking to engage in tion of this part, no act by the owner of an activity otherwise prohibited by a vessel, or authorized agent of the section 1402 of the SMCA with respect owner of a vessel, under a time charter, to a historic sunken military craft or voyage charter, or demise charter to any activity that might affect a terres- the DON and operated on military serv- trial military craft under the jurisdic- ice at the time of its sinking, provided tion of the DON shall apply for a per- that the sunken military craft is not mit for the proposed activity and shall considered historic as determined by not begin the proposed activity until a the NHHC, shall be prohibited by, nor permit has been issued. The Secretary require a permit under, the SMCA or or his designee may issue a permit to these regulations. This paragraph (g) any qualified person, in accordance shall not be construed to otherwise af- with these regulations, subject to ap- fect any right or remedy of the United propriate terms and conditions. States existing at law, in equity, or (b) To request a permit application otherwise, in regard to any such sunk- form, please write to: Department of en military craft, in regard to cargo the Navy, U.S. Naval History and Her- owned by the United States on board or itage Command, Underwater Archae- associated with any such craft, or in ology Branch, 805 Kidder Breese St. regard to other property or contents SE., Washington Navy Yard, Wash- owned by the United States on board or ington, DC 20374–5060. Application associated with any such sunken mili- forms and guidelines can also be found tary craft. on the NHHC’s Web site at: (h) The NHHC reserves the right to www.history.navy.mil. deny an applicant a permit if the pro- (c) Each applicant must submit a dig- posed activity does not meet the per- ital (electronic) and two printed copies mit application requirements; is incon- of their complete application at least sistent with DON policy or interests; 120 days in advance of the requested ef- does not serve the best interests of the fective date to allow sufficient time for sunken military craft or terrestrial evaluation and processing. Completed military craft in question; in the case applications should be sent to the De- of foreign sunken military craft, is in- partment of the Navy, U.S. Naval His- consistent with the desires of a foreign tory and Heritage Command, Under- sovereign; is inconsistent with an ex- water Archaeology Branch, 805 Kidder isting resource management plan; is di- Breese St. SE., Washington Navy Yard, rected towards a sunken military craft Washington, DC 20374–5060. or terrestrial military craft upon (d) Each permit application shall in- which other activities are being consid- clude: ered or have been authorized; will be (1) A statement of research objec- undertaken in such a manner as will tives, scientific methods, and signifi- not permit the applicant to meet final cance of the proposed work to the U.S. report requirements; raises profes- Navy or the nation’s maritime cultural sional ethical conduct concerns or con- heritage. This should include discus- cerns over commercial exploitation; sion articulating clearly the archae- raises concerns over national security, ological, historical, or educational pur- foreign policy, environmental or ord- poses of the proposed activity; nance issues; or out of respect for any (2) A summary of significant previous human remains that may be associated work in the area of interest; with a wrecksite. The NHHC also re- (3) A discussion of how the proposed serves the right to deny an applicant a activity could disturb, remove, or in- permit if the applicant has not fulfilled jure the sunken military craft or the requirements of permits previously terrestrial military craft and the re- issued by the NHHC to the applicant. lated physical environment;

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(4) A discussion of the methodology (ii) A plan for applicable post- planned to accomplish the project’s ob- fieldwork artifact analysis, including jectives. This should include a map an associated timetable. showing the study location(s) and a de- (iii) The name of the facility in scription of the wrecksite(s) of par- which the recovered materials and cop- ticular interest; ies of associated records derived from (5) An analysis of the extent and na- the work will be curated. This will in- ture of potential environmental im- clude written certification, signed by pacts from permitted activities and an authorized official of the institu- feasible mitigation measures that tion, of willingness to assume curato- could reduce, avoid, or reverse environ- rial responsibilities for the collection. mental impacts, as well as any associ- The named repository must, at a minimum, meet the standards set forth in ated permits or authorizations required 36 CFR part 79, Curation of Federally- by foreign, federal, state, or local law; Owned and Administered Archae- (6) A detailed plan for wrecksite res- ological Collections, in accordance toration and remediation with rec- with § 767.9(h). ommendations on wrecksite preserva- (iv) Acknowledgement that the appli- tion and protection of the wrecksite lo- cant is responsible for all conservation- cation; related and long-term curation costs, (7) In addition to identification and unless otherwise agreed upon by NHHC. qualifications of the principal investi- (11) A proposed project timetable to gator, required by § 767.8, identification incorporate all phases of the project of all other members of the research through to the final report and/or any team and their qualifications. Changes other project-related activities. to the primary research team subse- (e) If the applicant believes that com- quent to the issuance of a permit must pliance with one or more of the factors, be authorized via a permit amendment criteria, or procedures in the regula- request in accordance with § 767.10(a); tions contained in this part is not prac- (8) A proposed budget, identification ticable, the applicant should set forth of funding source, and sufficient data why and explain how the purposes of to substantiate, to the satisfaction of the SMCA (if applicable), these regula- the NHHC, the applicant’s financial cations, and the policies of the DON are pability to complete the proposed re- better served without compliance with search and, if applicable, any conserva- the specified requirements. If the tion and curation costs associated with NHHC believes that the policies of the or resulting from that activity; DON are better served without compli- (9) A proposed plan for the public in- ance with one or more of the factors, criteria, or procedures in the regula- terpretation and professional dissemi- tions, or determines that there is merit nation of the proposed activity’s rein an applicant’s request and that full sults; compliance is not required to meet (10) Where the application is for the these priorities, the NHHC will provide excavation and/or removal of artifacts a written waiver to the applicant stipu- from a sunken military craft or terres- lating which factors, criteria, or proce- trial military craft, or for the exca- dures may be foregone or amended. In vation and/or removal of a sunken exceptional circumstances, verbal per- military craft or terrestrial military mission may be obtained in cases of un- craft in its entirety, the following expected or emergent finds that may must be included: require immediate unanticipated dis- (i) A conservation plan, estimated turbance, removal, or injury of a sunk- cost, and the name of the university, en or terrestrial military craft or its museum, laboratory, or other scientific associated contents. However, the or educational institution in which the NHHC will not waive statutory proce- material will be conserved, including dures or requirements. written certification, signed by an au- (f) Persons carrying out official thorized official of the institution, of NHHC duties under the direction of the willingness to assume conservation re- NHHC Director, or his/her designee, or sponsibilities. conducting activities at the direction

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of or in coordination with the NHHC as approach; conservation and long-term recognized through express written management plan; qualifications of the permission by the NHHC Director, or applicants relative to the type and his/her designee, need not follow the scope of the work proposed; and fund- permit application procedures set forth ing to carry out proposed activities. in this section and §§ 767.7 and 767.9 to The NHHC will also take into consider- 767.12 if those duties or activities are ation the historic, cultural, or other associated with the management of concerns of a foreign state when con- sunken military craft or terrestrial sidering an application to disturb a for- military craft. Where appropriate, such eign sunken military craft of that persons will coordinate with Federal state located within U.S. waters, subse- Land Managers, the Bureau of Ocean quent to an understanding or agree- Energy Management, State Historic ment with the foreign state in accord- Preservation Offices, or state land or ance with § 767.15. The same consider- resource managers, as applicable, prior ation may be applied to U.S. sunken to engaging in the aforementioned ac- military craft that are brought under tivities. The NHHC Director, or his/her the jurisdiction of the DON for permit- designee, shall ensure that the provi- ting purposes following an agreement sions of paragraph (d) of this section with the Secretary of any military de- and §§ 767.8 and 767.11 have been met by partment, or in the case of the Coast other documented means and that such Guard, the Secretary of the Depart- documents and all resulting data will ment in which the Coast Guard is oper- be archived within the NHHC. ating, as set forth in § 767.15(e). (g) Federal agencies carrying out ac- (b) Prior to issuing a permit, the tivities that disturb, remove, or injure NHHC will consult with the appro- sunken military craft or terrestrial priate federal resource manager when military craft need not follow the per- it receives applications for research at mit application procedures set forth in wrecksites located in areas that in- this section and §§ 767.7 and 767.9 to clude units of the National Park Sys- 767.12 if those activities are associated tem, National Wildlife Refuge System, with the management of sunken mili- National Marine Sanctuary System, tary craft or terrestrial military craft Marine National Monuments, within within their areas of responsibility. lease blocks managed by the Bureau of Where appropriate, Federal agencies Ocean Energy Management, or within will coordinate with the NHHC prior to areas of responsibility of other Federal engaging in the aforementioned activi- Land Managers. ties. (c) Prior to issuing a permit, the NHHC will consult with the appro- § 767.7 Evaluation of permit applica- priate SHPO, state land or resource tion. manager or Tribal Historic Preserva- (a) Permit applications are reviewed tion Office (THPO) when it receives ap- for completeness, compliance with pro- plications for research at wrecksites gram policies, and adherence to the located on state lands, including lands regulations of this subpart. Incomplete beneath navigable waters as defined in applications will be returned to the ap- the Submerged Lands Act, 43 U.S.C. plicant for clarification. Complete ap- 1301–1315, or tribal lands. plications are reviewed by NHHC per- (d) The applicant is responsible for sonnel who, when appropriate, may obtaining any and all additional per- seek outside guidance or peer reviews. mits or authorizations, such as but not In addition to the criteria set forth in limited to those issued by another fed- §§ 767.6(d) and 767.8, applications are eral or state agency, or foreign govern- also judged on the basis of: Project ob- ment. In the case of U.S. sunken mili- jectives being consistent with DON pol- tary craft or terrestrial military craft icy and the near- and long-term inter- located within foreign jurisdictions, ests of the DON; relevance or impor- the NHHC may review and issue a con- tance of the proposed project; archae- ditional permit authorizing activities ological, historical, or educational pur- upon receipt of the appropriate permits poses achieved; appropriateness and en- and authorizations of the applicable vironmental consequences of technical foreign government by the applicant.

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The applicant must file a copy of the (c) The demonstrated ability to plan, foreign government authorization with equip, fund, staff, organize, and super- the NHHC when submitting the pre- vise the type and scope of activity pro- liminary report stipulated in § 767.9(d) posed. and final report stipulated in § 767.9(f). (d) If applicable, the demonstrated Failure to do so will be considered a ability to submit post-operational ar- permit violation. chaeological or other technical reports (e) Based on the findings of the NHHC in a timely manner. evaluation, NHHC personnel will recommend an appropriate action to the § 767.9 Conditions of permits. NHHC Deputy Director. If approved, (a) Permits are valid for one year the NHHC Deputy Director, or his or from the date of issue. her designee, will issue the permit; if (b) Upon receipt of a permit, permit denied, applicants are notified of the holders shall counter-sign the permit reason for denial and may request re- and return copies to the NHHC and the consideration within 30 days of receipt appropriate SHPO, state land or re- of the denial. Requests for reconsider- source manager, THPO, or foreign gov- ation must be submitted in writing to: ernment official, if applicable, prior to Director of Naval History, Naval His- conducting permitted activities on the tory and Heritage Command, 805 Kid- wrecksite. When the sunken military der Breese St. SE., Washington Navy craft or terrestrial military craft is lo- Yard, Washington, DC 20374–5060. cated within federal areas such as a unit of the National Park System, the § 767.8 Credentials of principal investi- National Wildlife Refuge System, the gator. National Marine Sanctuary System, or The principal investigator shall be Marine National Monuments, the per- suitably qualified as evidenced by mit holder shall provide copies of training, education, and/or experience, countersigned permits to the applica- and possess demonstrable competence ble federal resource manager. Upon the in archaeological theory and method, NHHC confirming receipt of the and in collecting, handling, analyzing, counter-signed permit, the permitted evaluating, and reporting archae- activities may commence, provided ological data, relative to the type and that any other federal or state regu- scope of the work proposed. A resume latory and permitting requirements or curriculum vitae detailing the pro- that apply are met. fessional qualifications of the principal (c) Permits shall be carried on-site investigator must be submitted with and made available upon request for in- the permit application. Additionally, spection by federal or state law en- the principal investigator will be re- forcement officials. Permits are non- quired to attest that all persons on the transferable. The permit holder, or the project team shall be qualified and activity’s authorized principal investi- have demonstrated competence appro- gator in the case where a permit holder priate to their roles in the proposed ac- is not concurrently the authorized tivity. The principal investigator must, principal investigator, is expected to at a minimum, meet the following re- remain on-site for the duration of oper- quirements: ations prescribed in the permit. In the (a) The minimum professional quali- event a permit holder or the authorized fication standards for archaeology as principal investigator is unable to di- determined by the Secretary of the In- rectly oversee operations, the permit terior’s Standards and Guidelines for holder must nominate a suitable quali- Archeology and Historic Preservation. fied representative who may only serve (b) At least one year of full-time pro- in that function upon written approval fessional supervisory experience in the by the NHHC. archaeological study of historic mari- (d) Permit holders must abide by all time resources or historic aviation re- provisions set forth in the permit as sources. This experience requirement well as applicable state or federal regu- may concurrently account for certain lations. Permit holders must abide by stipulations of paragraph (a) of this applicable regulations of a foreign gov- section. ernment for activities directed at a

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sunken military craft when the sunken ity. The interim report must include military craft is located in the internal information required by § 767.11 to the waters, territorial sea, contiguous maximum extent possible, and an ac- zone, or continental shelf of a foreign count of both the progress that has State, as defined by customary inter- been achieved and the objectives re- national law reflected in the United maining to be accomplished. The NHHC Nations Convention on the Law of the shall review interim and final reports Sea. If the physical environment is to for thoroughness, accuracy, and qual- be impacted by the permitted activity, ity and shall inform the permit holder the permit holder will be expected to of their formal acceptance in writing. meet any associated permit or author- (h) The permit holder shall agree to ization stipulations required by for- protect all sensitive information re- eign, federal, state, or local law, as garding the location and character of a well as apply mitigation measures to wrecksite that could potentially expose limit such impacts and where feasible it to non-professional recovery tech- return the physical environment to the niques, looters, or unauthorized sal- condition that existed before the activ- vage. Sensitive information includes ity occurred. specific location data and information (e) At least 30 days prior to the expi- about the cargo of a sunken military ration of the original permit, the per- craft or terrestrial military craft, the mit holder shall submit to the NHHC a existence of armaments, munitions and preliminary report that includes a other hazardous materials, or the pres- working log and, where applicable, a ence of, or potential presence of, diving log, listing days spent con- human remains. ducting field research, activities pur- (i) All recovered DON sunken mili- sued, working area locations including tary craft, terrestrial military craft, precise coordinates, an inventory of ar- and their associated contents, remain tifacts observed or recovered, and pre- the property of the United States. liminary results and conclusions. The These resources and copies of associ- NHHC shall review preliminary reports ated archaeological records and data for thoroughness, accuracy, and qual- must be preserved by a suitable univer- ity and shall inform the permit holder sity, museum, or other scientific or of their formal acceptance in writing. educational institution that, at a min- (f) In the case of one or more permit imum, meets the standards set forth in extensions received through the proc- 36 CFR part 79, Curation of Federally- ess identified in § 767.10(b), a prelimi- Owned and Administered Archae- nary report that includes all the infor- ological Collections, at the expense of mation stated in paragraph (e) of this the applicant or facility, unless other- section is to be submitted by the per- wise agreed upon in writing by the mit holder annually at least 30 days NHHC. The curatorial facility must es- prior to the renewed permit’s expira- tablish a loan of resources agreement tion date. with the NHHC and maintain it in good (g) The permit holder shall prepare standing. If a loan of resources agree- and submit a final report as detailed in ment is not established, or at the dis- § 767.11, summarizing the results of the cretion of the NHHC, resources are to permitted activity to the NHHC, and be managed, conserved and curated di- any applicable SHPO, THPO, federal or rectly by the NHHC at the expense of state land or resource manager, or for- the applicant, unless otherwise agreed eign government official within an ap- upon in writing by the NHHC. Copies of propriate time frame as specified in the associated archaeological and con- permit. Failure to submit a final report servation records and data will be within the specified time-frame will be made available to the NHHC, and to considered a permit violation. If the the applicable SHPO, THPO, the fed- final report is not due to be submitted eral or state land or resource manager, within two years of commencement of or foreign government official upon re- a permitted activity, interim reports quest. must be filed biennially, with the first (j) The disposition of foreign sunken interim report submitted within two military craft or associated contents years of commencement of the activ- shall be determined on a case-by-case

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basis in coordination with the respec- prior to its expiration. A pending ex- tive foreign state prior to the issuance tension request does not guarantee an of a NHHC permit. extension of the original permit. All (k) In the event that credible evi- requests for a permit extension must dence for or actual human remains, be sent to the Deputy Director, Naval unexploded ordnance, hazardous mate- History and Heritage Command, 805 rials or environmental pollutants such Kidder Breese St. SE., Washington as oil are discovered during the course Navy Yard, Washington, DC 20374–5060, of research, the permit holder shall at least 30 days prior to the original cease all work and immediately notify permit’s expiration date. Reference to the NHHC. Permitted work may not re- the original application may be given sume until authorized by the NHHC. in lieu of a new application, provided (l) The permittee shall purchase and the scope of work does not change sig- maintain sufficient comprehensive gen- nificantly. Applicants may apply for eral liability, and such other types of one-year extensions subject to annual insurance, in an amount consistent review. with generally accepted industry (c) Permit holders may appeal denied standards throughout the period cov- requests for amendments or extensions ered by the permit, or post an equiva- to the appeal authority listed in lent bond. Such insurance shall cover § 767.7(e). against any third party claims arising out of activities conducted under the § 767.11 Content of permit holder’s permit. The permittee must further final report. agree to hold the United States harm- The permit holder’s final report shall less against such claims. at minimum include the following: (a) A wrecksite history and a contex- § 767.10 Requests for amendments or tual history relating the wrecksite to extensions of active permits. the general history of the region; (a) Requests for amendments to ac- (b) A master wrecksite map; tive permits (e.g., a change in study de- (c) Feature map(s) of any recovered sign or research personnel) must con- artifacts showing their positions with- form to the regulations in this part. in the wrecksite; All information deemed necessary by (d) Where environmental conditions the NHHC to make an objective evalua- allow, photographs of significant tion of the amendment must be in- wrecksite features and significant arti- cluded as well as reference to the origi- facts both in situ and after removal; nal application. Requests for amend- (e) If applicable, a section that in- ments must be sent to the Deputy Di- cludes an inventory of recovered arti- rector, Naval History and Heritage facts, description of conserved arti- Command, 805 Kidder Breese St. SE., facts, laboratory conservation records, Washington Navy Yard, Washington documentation of analyses undertaken, DC 20374–5060. A pending amendment photographs of recovered artifacts be- request does not guarantee approval fore and after conservation treatment, and proposed activities cannot com- and recommended curation conditions; mence until approval is granted. All re- (f) A written report describing the quests for permit amendments must be wrecksite’s discovery, environment, submitted during the period within past and current archaeological which an existing permit is active and fieldwork, results, and analysis; at least 30 days prior to the desired ef- (g) A summary of the survey and/or fect date of the amendment. Time-sen- excavation process including methods sitive or non-substantive amendments and techniques employed, an account must be submitted in writing to the of operational phases, copies of appli- point of contact included in the permit cable logs, as well as thorough analysis and will be considered and expedited on of the recovered data; a case-by-case basis. (h) An evaluation of the completed (b) Permit holders desiring to con- permitted activity that includes an as- tinue research activities beyond the sessment of the project’s degree of suc- original permit expiration date must cess compared to the goals specified in apply for an extension of a valid permit the permit application;

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(i) Recommendations for future ac- (d) The NHHC Deputy Director, or his tivities, if applicable; or her designee, may authorize a spe- (j) An account of how the public in- cial use permit under the following terpretation or dissemination plan de- conditions: scribed in the permit application has (1) The proposed activity is compat- been or is being carried out. Addition- ible with the NHHC policies and in the ally, identification of any sensitive in- case of non-historic sunken military formation as detailed in § 767.9(g). craft is not opposed by consulted DON parties; § 767.12 Special use permit applica- (2) The activities carried out under tion. the permit are conducted in a manner (a) Any person proposing to engage in that is minimally intrusive and does an activity to document a sunken mili- not purposefully significantly disturb, tary craft utilizing diving methods or remove or injure the sunken military remotely-operated or autonomously- craft or wrecksite; operated equipment, or collect data or (3) When applicable, the pilot(s) of re- samples from a wrecksite, whether a motely-operated equipment holds a sunken military craft or terrestrial certificate of operation from a nation- military craft, that would result in the ally-recognized organization; wrecksite’s disturbance but otherwise (4) The principal investigator must be minimally intrusive, may apply for hold a graduate degree in archaeology, anthropology, maritime history, ocean- a special use permit. Any person pro- ography, marine biology, marine geol- posing to engage in an activity that ogy, other marine science, closely re- would disturb, remove, or injure a non- lated field, or possess equivalent train- historic sunken military craft must ing and experience. This requirement apply for a special use permit. may be waived by the NHHC on a case (b) To request a special use permit by case basis depending on the activity application form, please refer to stipulated in the application. § 767.6(b) and (c). Special use permit ap- (e) The permittee shall submit the plications must be sent to the Depart- following information subsequent to ment of the Navy, U.S. Naval History the conclusion of the permitted activ- and Heritage Command, Underwater ity within an appropriate time frame Archaeology Branch, 805 Kidder Breese as specified in the special use permit: St. SE., Washington Navy Yard, Wash- (1) A summary of the activities un- ington, DC 20374–5060. dertaken that includes an assessment (c) Each special use permit applica- of the goals specified in the permit ap- tion shall include: plication; (1) A statement of the project’s objec- (2) Identification of any sensitive in- tives and an explanation on how they formation as detailed in § 767.9(h); would serve the NHHC’s objectives (3) Complete and unedited copies of stated in § 767.5; any and all documentation and data (2) A discussion of the methodology collected (photographs, video, remote planned to accomplish the project’s ob- sensing data, etc.) during the per- jectives. This should include a map mitted activity and results of any sub- showing the study location(s) and a de- sequent analyses. scription of the wrecksite(s) of par- (f) The following additional sections ticular interest; of this subpart shall apply to special (3) An analysis of the extent and na- use permits: §§ 767.7(e); 767.9(a), (b), (c), ture of potential direct or indirect im- (e), (f), (g), (h), (k), and (l); 767.10; 767.13; pacts on the resources and their sur- 767.14; and 767.15(c). rounding environment from permitted (g) All sections of subpart A of this activities, as well as any proposed part shall apply to all special use per- mitigation measures; mits, and all sections of subpart C of (4) Where appropriate, a plan for this part shall apply to special use per- wrecksite restoration and remediation mits pertaining to sunken military with recommendations on wrecksite craft. preservation and protection of the (h) Unless stipulated in the special wrecksite location; use permit, the recovery of artifacts

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associated with any wrecksite is pro- ership over a specified sunken military hibited. craft or group of sunken military craft; (2) The foreign government must re- § 767.13 Monitoring of performance. quest assistance from the United Permitted activities will be mon- States government; itored to ensure compliance with the (3) The foreign government must ac- conditions of the permit. In addition to knowledge that subparts B and C of remotely monitoring operations, NHHC this part will apply to the specified personnel, or other designated authori- sunken military craft or group of sunk- ties, may periodically assess work in en military craft for which the request progress through on-site monitoring at is submitted. the location of the permitted activity. (b) Upon receipt and favorable review The discovery of any potential irreg- of a request from a foreign govern- ularities in performance under the per- ment, the Secretary of the Navy, or his mit by NHHC on-site personnel, other or her designee, in consultation with designated authorities, or the permit the Department of State, will proceed holder, must be promptly reported to to accept the specified sunken military the NHHC for appropriate action. Ad- craft or group of sunken military craft into the present permitting program. verse action may ensue in accordance The Secretary of the Navy, or his or with § 767.14. Findings of unauthorized her designee, in consultation with the activities will be taken into consider- Department of State, reserves the right ation when evaluating future permit to decline a request by the foreign gov- applications. ernment. Should there be a need to for- § 767.14 Amendment, suspension, or malize an understanding with the for- revocation of permits. eign government in response to a submitted request stipulating conditions The NHHC Deputy Director, or his/ such as responsibilities, requirements, her designee may amend, suspend, or procedures, and length of effect, the revoke a permit in whole or in part, Secretary of State, or his or her des- temporarily or indefinitely, if in his/ ignee, in consultation with the Sec- her view the permit holder has acted in retary of Defense, or his or her des- violation of the terms of the permit or ignee, will proceed to formalize an un- of other applicable regulations, or for derstanding with the foreign govern- other good cause shown. Any such ac- ment. Any views on such a foreign gov- tion will be communicated in writing ernment request or understanding ex- to the permit holder or the permit pressed by applicable federal, tribal, holder’s representative and will set and state agencies will be taken into forth the reason for the action taken. account. The permit holder may request the Di- (c) Persons may seek a permit to dis- rector of the NHHC reconsider the ac- turb foreign sunken military craft lo- tion in accordance with § 767.7(e). cated in U.S. waters that have been accepted into the present permitting pro- § 767.15 Application to foreign sunken gram or are covered under a formalized military craft and U.S. sunken mili- understanding as per paragraph (b) of tary craft not under the jurisdiction this section, by submitting a permit of the Navy. application or special use permit appli- (a) Sunken military craft are gen- cation, as appropriate, for consider- erally entitled to sovereign immunity ation by the NHHC in accordance with regardless of where they are located or subparts B and C of this part. when they sank. Foreign governments (d) In the case where there is reason- may request, via the Department of able dispute over the sovereign immu- State, that the Secretary of the Navy nity or ownership status of a foreign administer a permitting program for a sunken military craft, the Secretary of specific or a group of its sunken mili- the Navy, or his or her designee, main- tary craft in U.S. waters. The request tains the right to postpone action on must include the following: §§ 767.6 and 767.12, as well as requests (1) The foreign government must as- under paragraph (a) of this section, sert the sovereign immunity of or own- until the dispute over the sovereign

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immunity or ownership status is re- (2) The cost of retrieving, from the solved. site where the sunken military craft (e) The Secretary of any military de- was disturbed, removed, or injured, any partment, or in the case of the Coast information of an archaeological, his- Guard the Secretary of the Department torical, or cultural nature. in which the Coast Guard is operating, may request that the Secretary of the § 767.18 Notice of Violation and Assess- Navy administer the DON permitting ment (NOVA). program with regard to sunken mili- (a) A NOVA will be issued by the Di- tary craft under the cognizance of the rector of the NHHC and served in per- Secretary concerned. Upon the agree- son or by registered, certified, return ment of the Secretary of the Navy, or receipt requested, or express mail, or his or her designee, subparts A, B, and by commercial express package serv- C of this part shall apply to those agreed upon craft. ice, upon the respondent, or in the case of a vessel respondent, the owner of the vessel. A copy of the NOVA will be Subpart C—Enforcement Provi- similarly served upon the permit hold- sions for Violations of the er, if the holder is not the respondent. Sunken Military Craft Act and The NOVA will contain: Associated Permit Conditions (1) A concise statement of the facts believed to show a violation; § 767.16 Civil penalties for violations of Act or permit conditions. (2) A specific reference to the provision(s) of the SMCA, regulation, or per- (a) In general. Any person who vio- mit violated; lates the SMCA, or any regulation or permit issued thereunder, shall be lia- (3) The findings and conclusions upon ble to the United States for a civil pen- which the Director of the NHHC bases alty. the assessment; (b) Assessment and amount. The Sec- (4) The amount of civil penalty, en- retary may assess a civil penalty under forcement costs and/or liability for this section of not more than $100,000 damages assessed; and for each violation. (5) An advisement of the respondent’s (c) Continuing violations. Each day of rights upon receipt of the NOVA, in- a continuing violation of the SMCA or cluding a citation to the regulations these regulations or any permit issued governing the proceedings. hereunder constitutes a separate viola- (b) The NOVA may also contain a tion. proposal for compromise or settlement (d) In rem liability. A vessel used to of the case. violate the SMCA shall be liable in rem (c) Prior to assessing a civil penalty for a penalty for such violation. or liability for damages, the Director § 767.17 Liability for damages. of the NHHC will take into account information available to the Agency con- (a) Any person who engages in an ac- cerning any factor to be considered tivity in violation of section 1402 or under the SMCA and any other infor- any regulation or permit issued under mation required by law or in the inter- the Act that disturbs, removes, or in- ests of justice. The respondent will jures any U.S. sunken military craft have the opportunity to review infor- shall pay the United States enforce- mation considered and present infor- ment costs and damages resulting from such disturbance, removal, or injury. mation, in writing, to the Director of (b) Damages referred to in paragraph the NHHC. At the discretion of the Di- (a) of this section may include: rector of the NHHC, a respondent will (1) The reasonable costs incurred in be allowed to present information in storage, restoration, care, mainte- person. nance, conservation, and curation of any sunken military craft that is dis- § 767.19 Procedures regarding service. turbed, removed, or injured in viola- (a) Whenever this part requires serv- tion of section 1402 or any regulation ice of a document, such service may ef- or permit issued under the Act; and fectively be made either in person or

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by registered or certified mail (with re- (b) The respondent or permit holder turn receipt requested) on the respond- may seek amendment, modification, or ent, the respondent’s agent for service rescindment of the NOVA to conform of process or on a representative des- to the facts or law as that person sees ignated by that agent for receipt of them by notifying the Director of the service. Refusal by the respondent, the NHHC in writing at the address speci- respondent’s agent, or other designated fied in the NOVA. If amendment or representative to be served, or refusal modification is sought, the Director of by his or her designated representative the NHHC will either amend the NOVA of service of a document will be consid- or decline to amend it, and so notify ered effective service of the document the respondent, permit holder, or ves- as of the date of such refusal. Service sel owner, as appropriate. will be considered effective on the date (c) The respondent or permit holder the document is mailed to an address- may, within the 45-day period specified ee’s last known address. in paragraph (a) of this section, request (b) A document will be considered in writing an extension of time to reserved and/or filed as of the date of the spond. The Director of the NHHC may postmark; or (if not mailed) as of the grant an extension in writing of up to date actually delivered in person; or as 30 days unless he or she determines shown by electronic mail transmission. that the requester could, exercising (c) Time periods begin to run on the reasonable diligence, respond within day following service of the document the 45-day period. or date of the event. Saturdays, Sun- (d) The Director of the NHHC may, days, and Federal holidays will be infor good cause, grant an additional excluded in computing such time, except tension beyond the 30-day period speci- that when such time expires on a Sat- fied in paragraph (c) of this section. urday, Sunday, or Federal holiday, (e) Any denial, in whole or in part, of such period will be extended to include any request under this section that is the next business day. This method of based upon untimeliness will be in computing time periods also applies to writing. any act, such as paying a civil penalty (f) If the respondent or permit holder or liability for damages, required by desires a hearing, the request must be this part to take place within a speci- in writing, dated and signed, and must fied period of time. be sent by mail to the Director, De- fense Office of Hearings and Appeals, § 767.20 Requirements of respondent 875 North Randolph St., Suite 8000, Ar- or permit holder upon service of a lington, VA 22203. The Director, De- NOVA. fense Office of Hearings and Appeals (a) The respondent or permit holder may, at his or her discretion, treat any has 45 days from service receipt of the communication from a respondent or a NOVA in which to reply. During this permit holder as a proper request for a time the respondent or permit holder hearing. The requester must attach a may: copy of the NOVA. A single hearing (1) Accept the penalty or compromise will be held for all parties named in a penalty, if any, by taking the actions NOVA and who timely request a hear- specified in the NOVA; ing. (2) Seek to have the NOVA amended, modified, or rescinded under paragraph § 767.21 Hearings. (b) of this section; (a) Hearings before a DOHA Adminis- (3) Request a hearing before a DOHA trative Judge are de novo reviews of the Administrative Judge under paragraph circumstances alleged in the NOVA and (f) of this section; penalties assessed. Hearings are gov- (4) Request an extension of time to erned by procedures established by the respond under paragraph (c) of this sec- Defense Office of Hearings and Appeals. tion; or Hearing procedures will be provided in (5) Take no action, in which case the writing to the parties and may be NOVA becomes final in accordance accessed on-line at http://www.dod.mil/ with § 767.22(a). dodgc/doha/. Hearings shall be held at

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the Defense Office of Hearings and Ap- tion is in addition to any similar au- peals, Arlington VA, either in person thority provided in any applicable stat- or by video teleconference. Each party ute or regulation, and may be exercised shall bear their own costs. either upon the initiative of the Direc- (b) In any DOHA hearing held in re- tor of the NHHC or in response to a response to a request under § 767.20(f), the quest by the respondent or other inter- Administrative Judge will render a ested person. Any such request should final written Decision which is binding be sent to the Director of the NHHC at on all parties. the address specified in the NOVA. (c) Neither the existence of the com- § 767.22 Final administrative decision. promise authority of the Director of If no request for a hearing is timely the NHHC under this section nor the filed as provided in § 767.20(f), the Director’s exercise thereof at any time NOVA becomes effective as the final changes the date upon which an assess- administrative decision and order of ment is final or payable. the Agency on the 45th day after service of the NOVA or on the last day of § 767.25 Factors considered in assess- any delay period granted. ing penalties. (a) Factors to be taken into account § 767.23 Payment of final assessment. in assessing a penalty may include the (a) Respondent must make full pay- nature, circumstances, extent, and ment of the civil penalty, enforcement gravity of the alleged violation; the re- costs and/or liability for damages as- spondent’s degree of culpability; any sessed within 30 days of the date upon history of prior offenses; ability to pay; which the assessment becomes effec- and such other matters as justice may tive as the final administrative deci- require. sion and order of the Agency. Payment (b) The Director of the NHHC may, in must be made by mailing or delivering consideration of a respondent’s ability to the Agency at the address specified to pay, increase or decrease a penalty in the NOVA a check or money order from an amount that would otherwise made payable in U.S. currency in the be warranted by other relevant factors. amount of the assessment to the A penalty may be increased if a re- ‘‘Treasurer of the United States’’, or as spondent’s ability to pay is such that a otherwise directed. higher penalty is necessary to deter fu- (b) Upon any failure to pay the civil ture violations, or for commercial vio- penalty, enforcement costs and/or li- lators, to make a penalty more than ability for damages assessed, the Agen- the profits received from acting in vio- cy may request the Department of Jus- lation of the SMCA, or any regulation tice to recover the amount assessed in or permit issued thereunder. A penalty any appropriate district court of the may be decreased if the respondent es- United States, or may act under any tablishes that he or she is unable to law or statute that permits any type of pay an otherwise appropriate penalty recovery, including but not limited to amount. arrest, attachment, seizure, or garnish- (c) If a respondent asserts that a pen- ment, of property and/or funds to sat- alty should be reduced because of an isfy a debt owed to the United States. inability to pay, the respondent has the burden of proving such inability by § 767.24 Compromise of civil penalty, providing verifiable, complete, and ac- enforcement costs and/or liability curate financial information to the Di- for damages. rector of the NHHC. The Director of (a) The Director of the NHHC, in his/ the NHHC will not consider a respond- her sole discretion, may compromise, ent’s inability to pay unless the re- modify, remit, or mitigate, with or spondent, upon request, submits such without conditions, any civil penalty financial information as the Director or liability for damages imposed, or of the NHHC determines is adequate to which is subject to imposition, except evaluate the respondent’s financial as provided in this subpart. condition. Depending on the cir- (b) The compromise authority of the cumstances of the case, the Director of Director of the NHHC under this sec- the NHHC may require the respondent

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to complete a financial information re- (a) National Historic Preservation quest form, answer written interrog- Act (NHPA) of 1966, as amended, 54 atories, or submit independent U.S.C. 300101 et seq. (2014), and Protec- verification of his or her financial in- tion of Historic Properties, 36 CFR part formation. If the respondent does not 800. This statute and its implementing submit the requested financial infor- regulations govern the section 106 re- mation, he or she will be presumed to view process established by the NHPA. have the ability to pay the penalty. (b) National Environmental Policy (1) Financial information relevant to Act of 1969, as amended, 42 U.S.C. 4321 a respondent’s ability to pay includes, et seq., and Protection of the Environ- but is not limited to, the value of re- ment, 40 CFR parts 1500 through 1508. spondent’s cash and liquid assets and This statute and its implementing reg- non-liquid assets, ability to borrow, ulations require agencies to consider net worth, liabilities, income, prior and the effects of their actions on the anticipated profits, expected cash flow, human environment. and the respondent’s ability to pay in (c) Secretary of the Interior’s Stand- installments over time. A respondent ards and Guidelines for Archeology and will be considered able to pay a penalty Historic Preservation available at even if he or she must take such ac- http://www.cr.nps.gov/local-law/ tions as pay in installments over time, archlstndsl0.htm. These guidelines es- borrow money, liquidate assets, or re- tablish standards for the preservation organize his or her business. The Direc- planning process with guidelines on im- tor of the NHHC’s consideration of a plementation. respondent’s ability to pay does not (d) Archaeological Resources Protec- preclude an assessment of a penalty in tion Act of 1979, as amended, 16 U.S.C. an amount that would cause or con- 470aa–mm, and the Uniform Regula- tribute to the bankruptcy or other dis- tions, 43 CFR part 7, subpart A. This continuation of the respondent’s busi- statute and its implementing regula- ness. tions establish basic government-wide (2) Financial information regarding standards for the issuance of permits respondent’s ability to pay should be for archaeological research, including submitted to the Director of the NHHC the authorized excavation and/or re- as soon after receipt of the NOVA as moval of archaeological resources on possible. In deciding whether to submit public lands or Indian lands. such information, the respondent (e) Secretary of the Interior’s regula- should keep in mind that the Director tions, Curation of Federally-Owned and of the NHHC may assess de novo a civil Administered Archaeological Collec- penalty, enforcement costs and/or li- tions, 36 CFR part 79. These regulations ability for damages either greater or establish standards for the curation smaller than that assessed in the and display of federally-owned artifact NOVA. collections. (f) Antiquities Act of 1906, Public § 767.26 Criminal law. Law 59–209, 34 Stat. 225 (codified at 16 Nothing in these regulations is in- U.S.C. 431 et seq. (1999)). tended to prevent the United States (g) Executive Order 11593, 36 FR 8291, from pursuing criminal sanctions for 3 CFR, 1971–1975 Comp., p. 559 (Protec- plundering of wrecks, larceny of Gov- tion and Enhancement of the Cultural ernment property, or violation of appli- Environment). cable criminal law, whether the in- (h) Department of Defense Instruc- fringement pertains to a sunken mili- tion 4140.21M (DoDI 4140.21M, August tary craft, a terrestrial military craft 1998). Subject: Defense Disposal Man- or other craft under the jurisdiction of ual. the DON. (i) Secretary of the Navy Instruction 4000.35A (SECNAVINST 4000.35A, 9 § 767.27 References. April 2001). Subject: Department of the References for submission of permit Navy Cultural Resources Program. application, including but not limited to, and as may be further amended: PARTS 768–769 [RESERVED] 486

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PART 770—RULES LIMITING PUBLIC 770.46 Violations. ACCESS TO PARTICULAR INSTAL- Subpart F—Base Entry Regulations for LATIONS Puget Sound Naval Shipyard, Brem- erton, Washington Subpart A—Hunting and Fishing at Marine Corps Base, Quantico, Virginia 770.47 Purpose. 770.48 Definition. Sec. 770.49 Background. 770.1 Purpose. 770.50 Entry restrictions. 770.51 Entry procedures. 770.2 Licenses. 770.52 Violations. 770.3 Fishing regulations. 770.4 Hunting regulations. Subpart G—Entry Regulations for Ports- 770.5 Safety regulations. mouth Naval Shipyard, Portsmouth, 770.6 Restrictions. New Hampshire 770.7 Violations and environmental regulations. 770.53 Purpose. 770.8 Reports. 770.54 Background. 770.9 Miscellaneous. 770.55 Responsibility. 770.56 Entry restrictions. Subpart B—Base Entry Regulations for 770.57 Entry procedures. Naval Submarine Base, Bangor, 770.58 Violations. Silverdale, Washington AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714, unless otherwise 770.15 Purpose. noted. 770.16 Definition. 770.17 Background. 770.18 Entry restrictions. Subpart A—Hunting and Fishing at 770.19 Entry procedures. Marine Corps Base, Quantico, 770.20 Violations. Virginia

Subpart C—Base Entry Regulations for SOURCE: 41 FR 22345, June 3, 1976, unless Naval Installations in the State of Hawaii otherwise noted.

770.25 Purpose. § 770.1 Purpose. 770.26 Definitions. 770.27 Background. This subpart provides regulations 770.28 Entry restrictions. and related information governing 770.29 Entry procedures. hunting and fishing on the Marine 770.30 Violations. Corps Base Reservation, Quantico, VA. 770.31 List of major naval installations in the State of Hawaii and cognizant com- § 770.2 Licenses. manders authorized to grant access (a) Every person who hunts or fishes under these regulations. on Marine Corps Base, Quantico, VA, Subpart D—Entry Regulations for Naval must possess appropriate valid licenses Installations and Property in Puerto Rico in compliance with the Laws of the United States and the State of Vir- 770.35 Purpose. ginia. 770.36 Definitions. (b) In addition, hunting and fishing 770.37 Background. privilege cards, issued by the authori- 770.38 Entry restrictions. ties at Marine Corps Base, Quantico, 770.39 Entry procedures. VA, are required for all persons be- 770.40 Violations. tween the ages sixteen and sixty-four, inclusive. Subpart E—Base Entry Regulations for (1) The privilege card may be pur- Naval Submarine Base New London, chased from the Natural Resources and Groton, Connecticut Environmental Affairs Branch, Build- 770.41 Purpose. ing 5–9, Marine Corps Base, Quantico, 770.42 Background. VA. 770.43 Responsibility. (2) The privilege cards are effective 770.44 Entry restrictions. for the same period as the Virginia 770.45 Entry procedures. hunting and fishing licenses.

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(c) All hunters must obtain a Base ditional prohibitions and requirements hunting permit, and a parking permit, are in effect at Marine Corps Base, if applicable, from the Game Check Quantico, VA. Station, Building 5–9 Station (located (1) No trout lines are permitted in at the intersection of Russell Road and Marine Corps Base waters; MCB–1) for each day of hunting. The (2) No Large Mouth Bass will be hunting permit must be carried by the taken, creeled or possessed in a slot hunter and the parking permit must be limit of 12–15 inches in length. All displayed on the left dashboard of Large Mouth Bass within this slot will parked vehicles. The hunting and park- be immediately returned to the water; ing permits must be returned within (3) No Striped Bass will be taken, one hour after either sunset or the creeled or possessed under the size of hour hunting is secured on holidays or twenty (20) inches in length. All during special season. Striped Bass under this size will be im- (d) Eligibility for a Base hunting per- mediately returned to the water. mit is predicated on: (1) Possession of required Federal and [41 FR 22345, June 3, 1976, as amended at 48 State licenses for the game to be hunt- FR 23205, May 24, 1983; 65 FR 53591, Sept. 5, 2000] ed including Marine Corps Base hunting privilege card; § 770.4 Hunting regulations. (2) Attendance at a safety lecture given daily except Sunday during the All persons possessing the proper hunting season given at the Game State, Federal and Base licenses and Check Station. The lectures commence permits are permitted to hunt in the at the times posted in the Annual areas designated daily by the Annual Hunting Bulletin and are posted on all Hunting Bulletin on Marine Corps base bulletin boards; Base, Quantico, VA, on any authorized (3) Understanding of Federal, State hunting day. In addition, a minimum and Base hunting regulations; of fifteen percent of the daily hunting (4) And, if civilian, an executed re- spaces will be reserved to civilians on a lease of U.S. Government responsi- first come, first served basis until 0600 bility in case of accident or injury. on each hunting day, at which time, the Game Check Station may fill va- [41 FR 22345, June 3, 1976, as amended at 48 cancies from any authorized persons FR 23205, May 24, 1983; 65 FR 53591, Sept. 5, waiting to hunt. 2000] [65 FR 53591, Sept. 5, 2000] § 770.3 Fishing regulations. (a) All persons possessing the proper § 770.5 Safety regulations. state license and Base permit are per- (a) Hunting is not permitted within mitted to fish in the areas designated 200 yards of the following: Ammunition by the Annual Fishing Regulations on dumps, built-up areas, rifle or pistol Marine Corps Base, Quantico, VA, on ranges, dwelling or other occupied any authorized fishing day. A Base structures, and areas designated by the Fishing Privilege Card is required for Annual Hunting Bulletin as recreation all persons aged 16 to 65. areas. (b) Fishing is permitted on all waters (b) From the end of the special arch- within the boundaries of Marine Corps ery season until the end of the regular Base, Quantico, VA, unless otherwise firearms winter hunting season, except posted, under the conditions and re- for duck hunters in approved blinds, strictions and during the periods pro- hunters will wear an outer garment vided by Marine Corps Base, Quantico, with at least two square foot of blaze VA. Information regarding specific reg- orange visible both front and back ulations for each fishing area must be above the waist and a blaze orange cap obtained from the Natural Resources while hunting, or while in the woods and Environmental Affairs Branch, for any reason, during the hours that Building 5–9 prior to use of Base fishing hunting is authorized. Any person trav- facilities. eling on foot in or adjacent to an area (c) In addition to the requirements of open for hunting will comply with this the Laws of Virginia, the following ad- requirement.

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(c) Weapons will be unloaded while (d) Hunting will not commence be- being transported in vehicles, and will fore one half hour before sunrise, and be left in vehicles by personnel check- will end not later than sunset. The ing in or out at the Game Check Sta- hours of sunrise and sunset are posted tion. Weapons will not be discharged daily at the Game Checking Station. from vehicles, or within 200 yards of (e) Weapons will not be loaded out- hard surfaced roads. side of hunting hours. (d) Certain hunting areas contain nu- (f) There will be no use of a muzzle- merous unexploded munitions (duds) loader or slug shotgun after obtaining which are dangerous and must not be the daily or yearly game bag limits. removed or disturbed. Hunters should (g) There will be no possession or use mark such duds with stakes or other of drugs or alcohol while checked out means and report their location to the to hunt. Game Warden. (e) Hunters must stay in their as- [41 FR 22345, June 3, 1976, as amended at 48 signed areas when hunting. FR 23205, May 24, 1983; 65 FR 53592, Sept. 5, 2000] [41 FR 22345, June 3, 1976, as amended at 65 FR 53592, Sept. 5, 2000] § 770.7 Violations and environmental regulations. § 770.6 Restrictions. Violations of hunting regulations, (a) There will be no hunting on fishing regulations, safety regulations, Christmas Eve, Christmas Day, New or principles of good sportsmanship are Years Day, or after 1200 on Thanks- subject to administrative restriction of giving Day. hunting or fishing privileges and pos- (b) Hunters under 18 years of age sible judicial proceedings in State or must be accompanied by an adult (21 Federal courts. years of age or older) while hunting or (a) The Marine Corps Base Game in a hunting area. The adult is limited Wardens are Federal Game Wardens. to a maximum of two underage hunt- They have authority to issue summons ers, and must stay within sight and to appear in Federal court for game voice contact and no more than 100 violations. yards away from the underage hunters. (b) Offenders in violation of a Federal (c) The following practices or actions or State hunting or fishing laws will be are expressly forbidden: Use of rifles, referred to a Federal court. except muzzleloaders of .40 caliber or (c) Offenders in violation of a Fed- larger as specified below, revolvers or eral, State or Base hunting or fishing pistols; use of shotguns larger than 10 law or regulation will receive the fol- gauge or crossbows (this prohibition lowing administrative actions. extends to carrying such weapons on the person or in a vehicle while hunt- (1) The Base Game Warden shall have ing), use of buckshot to hunt any the authority to temporarily suspend game; use of a light, attached to a ve- hunting and fishing privileges. hicle or otherwise, for the purpose of (2) Suspensions of hunting and fish- spotting game; use of dogs for hunting ing privileges will be outlined in the or tracking deer; training deer dogs on Annual Fish and Wildlife Procedures the Reservation; training or running Manual. dogs in hunting areas between 1 March (d) Civilians found in violation of a and 1 September; driving deer; baiting hunting or fishing regulation or law or salting traps or blinds; hunting on may be permanently restricted from Sunday; molesting wildlife. Those per- entering the base. sonnel who are authorized to hunt on (e) Serious hunting and fishing of- Base, desiring to train or exercise dogs fenses include, but are not limited to: other than deer dogs between 2 Sep- spotlighting, false statement on a li- tember and 28 February, may do so by cense, hunting under the influence, em- obtaining Walking Pass to enter train- ployment of a light in an area that ing areas at the Range Control Office. deer frequent, and taking game or fish This Walking Pass is not permission to during closed seasons. hunt, and carrying weapons under [41 FR 22345, June 3, 1976, as amended at 65 these conditions is prohibited. FR 53592, Sept. 5, 2000]

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§ 770.8 Reports. vital to national defense that the oper- Upon killing a deer or turkey, a hun- ation and use of SUBASE Bangor be ter must attach the appropriate tab continued without undue and unneces- from his big game license to the car- sary interruption. Many areas of cass before moving the game from the SUBASE Bangor are of an industrial place of kill. The game will then be nature, including construction sites, taken to the Game Checking Station where inherently dangerous conditions where the tab will be exchanged for an exist. official game tag. All other game, not (b) For prevention of the interruption requiring a tag, killed on the Reserva- of the stated use of the base by the tion will be immediately reported to presence of any unauthorized person the Game Warden when checking out within the boundaries of SUBASE Ban- at the end of a hunt. gor, and prevention of injury to any such person as a consequence of the [41 FR 22345, June 3, 1976, as amended at 48 dangerous conditions which exist, as FR 23206, May 24, 1983; 65 FR 53592, Sept. 5, 2000] well as for other reasons, it is essential to restrict entry upon SUBASE Bangor § 770.9 Miscellaneous. to authorized persons only. Refer to the Annual Fishing and § 770.18 Entry restrictions. Hunting Bulletins that will cover any annual miscellaneous changes. Except for military personnel and civilian employees of the United States [65 FR 53592, Sept. 5, 2000] in the performance of their official duties, entry upon Naval Submarine Subpart B—Base Entry Regulations Base, Bangor, or remaining thereon by for Naval Submarine Base, any person whatsoever for any purpose Bangor, Silverdale, Wash- without the advance consent of the ington Commanding Officer, SUBASE Bangor or his authorized representative is pro- AUTHORITY: 50 U.S.C. 797; DoDDir. 5200.8 of hibited. See, 18 U.S.C. 1382; the Internal April 25, 1991; 5 U.S.C. 301; 10 U.S.C. 6011; 32 Security Act of 1950, Section 21 (50 CFR 700.702; 32 CFR 700.714. U.S.C. 797); Department of Defense Di- SOURCE: 44 FR 32368, June 6, 1979, unless rective 5200.8 of 25 April 1991; Secretary otherwise noted. of the Navy Instruction 5511.36A of 21 July 1992. § 770.15 Purpose. [44 FR 32368, June 6, 1979, as amended at 65 The purpose of this subpart is to pro- FR 53592, Sept. 5, 2000] mulgate regulations governing entry upon Naval Submarine Base (SUBASE), § 770.19 Entry procedures. Bangor. (a) Any person or group of persons § 770.16 Definition. desiring the advance consent of the Commanding Officer, SUBASE Bangor For the purpose of this subpart, or his authorized representative shall, SUBASE Bangor shall include that in writing, submit a request to the area of land in Kitsap and Jefferson Counties, State of Washington which Commanding Officer, Naval Submarine has been set aside for use of the Fed- Base, Bangor, 1100 Hunley Road, eral Government by an Act of the legis- Silverdale, WA 98315. lature of the State of Washington, ap- (b) Each request for entry will be proved March 15, 1939 (Session laws of considered on an individual basis 1939, chapter 126). weighing the operational, security, and safety requirements of SUBASE Ban- § 770.17 Background. gor with the purpose, size of party, du- (a) SUBASE Bangor has been des- ration of visit, destination, and mili- ignated as the West Coast home port of tary resources which would be required the Trident Submarine. Facilities for by the granting of the request. the repair or overhaul of naval vessels [44 FR 32368, June 6, 1979, as amended at 65 are located at SUBASE Bangor. It is FR 53592, Sept. 5, 2000]

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§ 770.20 Violations. only as a representative guide. For the (a) Any person entering or remaining purposes of this subpart the area of on SUBASE Bangor, without the con- water within Pearl Harbor is consid- sent of the Commanding Officer, ered to be within a naval installation. SUBASE Bangor or his authorized rep- (b) Outleased areas. Certain portions resentative, shall be subject to the pen- of naval installations in Hawaii which alties prescribed by 18 U.S.C. 1382, are not for the time needed for public which provides in pertinent part: use or for which a dual use is feasible have been outleased to private inter- Whoever, within the jurisdiction of the ests. Examples of such outleased areas United States, goes upon any military, naval are the Moanalua Shopping Center and * * * reservation, post, fort, arsenal, yard, station, or installation, for any purpose pro- lands such as Waipio Peninsula, which hibited by law or lawful regulation * * * has been outleased for agricultural pur- shall be fined not more than $5,000 or impris- poses. For the purpose of this Subpart, oned not more than six months or both. outleased areas which are not within fenced portions of naval installations (b) Moreover, any person who willfully violates this subpart is subject to are not considered to be a part of naval a fine not to exceed $5,000 or imprison- installations. Rules for entry onto the ment for not more than one (1) year or outleased areas are made by the les- both as provided in 50 U.S.C. 797. sees, except in the case of Waipio Pe- ninsula where the lessee (Oahu Sugar [44 FR 32368, June 6, 1979, as amended at 65 Company) is not authorized to allow FR 53592, Sept. 5, 2000] anyone to enter Waipio Peninsula for any purpose not connected with sugar Subpart C—Base Entry Regulations cane production. for Naval Installations in the State of Hawaii § 770.27 Background. (a) Naval installations in Hawaii con- AUTHORITY: 50 U.S.C. 797; DoD Dir. 5200.8 of stitute a significant element of the na- Aug. 20, 1954; 5 U.S.C 301; 10 U.S.C. 6011; 32 tional defense establishment. It is vital CFR 700.702, 770.714. to the national defense that the use of SOURCE: 44 FR 76279, Dec. 26, 1979, unless such areas be at all times under the otherwise noted. positive control of the Department of the Navy. Strict control must be exer- § 770.25 Purpose. cised over access to naval installations The purpose of this subpart is to pro- in order to preclude damage accidental mulgate regulations governing entry to and intentional to Government prop- naval installations in the State of Ha- erty, injury to military personnel, and waii. interference in the orderly accomplishment of the mission of command. § 770.26 Definitions. (b) There are several industrial areas For the purpose of this subpart the within naval installations in Hawaii following definitions apply: wherein construction activities and the (a) Naval installations. A naval instal- use of heavy machinery pose grave risk lation is a shore activity and is any of danger to visitors. area of land, whether or not fenced or (c) Various types of flammable or in- covered by water, that is administered cendiary materials and ordnance are by the Department of the Navy or by stored at a number of locations within any subordinate naval command. The naval installations in Hawaii. term ‘‘naval installation’’ applies to all (d) Classified documents and equip- such areas regardless of whether the ment requiring protection from unau- areas are being used for purely mili- thorized disclosure by Executive order tary purposes, for housing, for support 12065 for reasons of national security purposes, or for any other purpose by a are located at various locations within naval command. Section 770.31 con- naval installations in Hawaii. tains a list of the major naval installa- (e) In order to effect the positive con- tions in Hawaii. This list is not consid- trol of the Navy over its installations ered to be all inclusive and is included in Hawaii, it is essential that entry

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onto those installations be restricted portion of one installation does not to authorized persons only. necessarily include the authorization (f) These entry regulations are being to enter any other naval installation or promulgated under the authority of all portions of an installation. Commander, Naval Base, Pearl Harbor, who has been assigned as immediate § 770.30 Violations. area coordinator for all naval installa- (a) Any person entering or remaining tions in the State of Hawaii by Com- on a naval installation in the State of mander-in-Chief, U.S. Pacific Fleet. Hawaii, without consent of the commander or his authorized representa- § 770.28 Entry restrictions. tive, shall be subject to the penalties of Each commander is responsible for a fine of not more than $500 or impris- the security of his/her command. onment for not more than six months, Therefore, entry onto a command or or both. See 18 U.S.C. 1382. into part of a command may be con- (b) Moreover, any person who will- trolled by the commander through the fully violates this regulation is subject imposition of such restrictions as may to a fine not to exceed $5,000 or impris- be required by attendant cir- onment for one year, or both. See 50 cumstances. Within the State of Ha- U.S.C. 797. waii, entry into a naval installation is not permitted without the permission § 770.31 List of major naval installa- of the responsible commander. tions in the State of Hawaii and cognizant commanders authorized § 770.29 Entry procedures. to grant access under these regulations. (a) Operational, security, and safety considerations take priority over re- (a) On Oahu. (1) Naval Base, Pearl quests by individuals to visit a naval Harbor (including the Naval Station, installation. Consistent with such con- Naval Submarine Base, Naval Ship- siderations, visits by members of the yard, Naval Supply Center, Naval Pub- general public may be authorized at lic Works Center, Marine Barracks, the discretion of the commander. The Ford Island, Bishop Point Dock Area, commitment of resources which would Commander-in-Chief Pacific Fleet and be required to safeguard the persons Commander Naval Logistics Command and property of visitors as well as mili- Headquarters Areas, Johnson Circle tary property and personnel must of Navy Exchange/Commissary Store necessity preclude or severely restrict Area, Navy-Marine Golf Course, mis- such visiting. The purpose and dura- cellaneous other commands, and areas tion of the visit and the size of the within the Naval Base, Pearl Harbor party and areas to be visited are other complex, and the waters of Pearl Har- considerations which may affect the bor). Contact: commander’s decision whether to per- Commander, Naval Base, Pearl Harbor, HI mit visiting by members of the public. 96860. (b) Any person or group desiring to (2) Naval Western Oceanography Cen- enter a particular naval installation or ter, Pearl Harbor. Contact: portion thereof, shall submit a written request to the commander of the in- Commanding Officer, Naval Western Ocean- stallation well enough in advance to ography Center, Box 113, Pearl Harbor, HI allow a reasonable time for reply by 96860. mail. Mailing addresses for com- (3) Naval Air Station, Barbers Point. manders of major installations covered Contact: by this subpart are listed in § 770.31. Commanding Officer, Naval Air Station, Bar- Full compliance with a naval installa- bers Point, HI 96862. tion’s local visitor registration and entry control procedures shall be (4) Naval Communication Area Mas- deemed the equivalent of obtaining the ter Station, Eastern Pacific, Wahiawa. advance consent of the commander for Contact: entrance upon the installation for the Commanding Officer, Naval Communication purpose of this subpart. Authorization Area Master Station, Eastern Pacific, to enter one naval installation or a Wahiawa, HI 96786.

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(5) Naval Magazine (Lualualei, Halawa, Hokulani, Manana, Pearl City Waikele, and West Loch). Contact: Peninsula, Red Hill, Iroquois Point, Puuloa, and Camp Stover). Contact: Commanding Officer, Naval Magazine, Lualualei, HI 96792. Commander, Naval Base, Pearl Harbor, HI (6) Naval Radio Transmitting Facil- 96860. ity, Lualualei. Contact: (b) On Kauai. (1) Pacific Missile Commanding Officer, Naval Base, Pearl Har- Range Facility, Barking Sands, bor, HI 96860. Kekaha. (7) Naval and Marine Corps Reserve Contact: Commanding Officer, Pacific Mis- Training Center, Honolulu. Contact: sile Range Facility, Hawaiian Area, Bark- ing Sands, Kekaha, HI 96752. Commanding Officer, Naval and Marine Corps Reserve Training Center, Honolulu, (c) Other areas. (1) Kaho’olawe Island. 530 Peltier Avenue, Honolulu, HI 96818. Contact: (8) Military Sealift Command Office. Commander Naval Base, Pearl Harbor, HI Contact: 96860. Also see 32 CFR part 763. Commander, Naval Base, Pearl Harbor, HI (2) Kaula. Contact: 96860. (9) Mauna Kapu (Pacific Missile Commander Naval Base, Pearl Harbor, HI 96860. Range Facility). Contact: [44 FR 76279, Dec. 26, 1979, as amended at 52 Commanding Officer, Pacific Missile Range FR 20074, May 29, 1987] Facility, Hawaiian Area, Barking Sands, Kekaha, Kauai, HI 96752. Subpart D—Entry Regulations for (10) Kunia Facility; FORACS III Sites; Degaussing Station, Waipio Pe- Naval Installations and Prop- ninsula; Damon Tract (Remanant) erty in Puerto Rico Opana Communciations Site. Contact: Commander, Naval Base, Pearl Harbor, HI SOURCE: 46 FR 22756, Apr. 21, 1981, unless 96860. otherwise noted. (11) Outlying areas of the Naval Sup- § 770.35 Purpose. ply Center, Pearl Harbor (including the The purpose of this subpart is to pro- Ewa Junction Storage Area, Ewa Drum mulgate standard regulations and pro- Storage Area, Manana Supply Area, cedures governing entry upon U.S. Pearl City Supply Area, and the Red Naval installations and properties in Hill Fuel Storage Area). Contact: Puerto Rico. Commander, Naval Base, Pearl Harbor, HI 96860. § 770.36 Definitions. (12) Pump Stations (Halawa, Waiawa, For purposes of these regulations, Red Hill, and Barbers Point). Contact: U.S. Naval installations and properties Commander, Naval Base, Pearl Harbor, HI in Puerto Rico include, but are not 96860. limited to, the U.S. Naval Station, Roosevelt Roads (including the Vieques (13) Halawa Water Storage Area; Bar- Island Eastern Annexes, consisting of bers Point, Independent Water Supply Camp Garcia, the Eastern Maneuver Reservoir Site; Sewage Treatment Area, and the Inner Range); the Naval Plant; Fort Kam (tri-service); Utility Ammunition Facility, Vieques Island; Corridors, Lynch Park (Ohana Nui). and the Naval Security Group Activity, Contact: Sabana Seca. Commander, Naval Base, Pearl Harbor, HI 96860. § 770.37 Background. (14) Navy housing areas (including In accordance with 32 CFR 765.4, Moanalua Terrace, Radford Terrace, Naval installations and properties in Makalapa, Maloelap, Halsey Terrace, Puerto Rico are not open to the gen- Catlin Park, Hale Moku, Pearl Harbor, eral public, i.e., they are ‘‘closed’’ mili- Naval Shipyard, McGrew Point, tary bases. Therefore admission to the

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general public is only by the permis- military resources necessary if the re- sion of the respective Commanding Of- quest is granted. ficers in accordance with their respective installation instructions. § 770.40 Violations. Any person entering or remaining on § 770.38 Entry restrictions. U.S. Naval installations and properties Except for duly authorized military in Puerto Rico, without the advance personnel and civilian employees, in- consent of those officials hereinabove cluding contract employees, of the enumerated, or their authorized rep- United States in the performance of resentatives, shall be considered to be their official duties, entry upon any in violation of these regulations and U.S. Navy installation or property in Puerto Rico at anytime, by any person therefore subject to the penalties pre- for any purpose whatsoever without scribed by 18 U.S.C. 1382, which pro- the advance consent of the Com- vides in pertinent part: ‘‘Whoever, manding Officer of the installation or within the jurisdiction of the United property concerned, or an authorized States, goes upon any military, naval representative of that Commanding Of- * * * reservation, post, fort, arsenal, ficer, is prohibited. yard, station, or installation, for any purpose prohibited by law or lawful § 770.39 Entry procedures. regulation * * * shall be fined not more (a) Any person or group of persons than $500.00 or imprisoned not more desiring to obtain advance consent for than six months, or both,’’ or any other entry upon any U.S. Naval installation applicable laws or regulations. or property in Puerto Rico from the Commanding Officer of the Naval in- Subpart E—Base Entry Regulations stallation or property, or an authorized for Naval Submarine Base representative of that Commanding Of- ficer, shall present themselves at an New London, Groton, Con- authorized entry gate at the installa- necticut tion or property concerned or, in the alternative, submit a request in writ- AUTHORITY: 50 U.S.C. 797; DoD Directive ing to the following respective address- 5200.8 of July 29, 1980; SECNAVINST 5511.36 es: of December 20, 1980; OPNAVINST 5510.45 of (1) Commanding Officer, U.S. Naval April 19, 1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 Station, Roosevelt Roads, Box 3001, CFR 700.702; 32 CFR 700.714. Ceiba, PR 00635. SOURCE: 48 FR 5555, Feb. 7, 1983, unless oth- (2) Officer in Charge, Naval Ammuni- erwise noted. tion Facility, Box 3027, Ceiba, PR 00635. (3) Commanding Officer, U.S. Naval § 770.41 Purpose. Security Group Activity, Sabana Seca, The purpose of this subpart is to pro- PR 00749. mulgate regulations and procedures (b) The above Commanding Officers governing entry upon Naval Submarine are authorized to provide advance consent only for installations and prop- Base New London, and to prevent the erties under their command. Requests interruption of the stated functions for entry authorization to any other fa- and operations of Naval Submarine cility or property shall be addressed to Base New London, by the presence of the following: any unauthorized person within the boundaries of Naval Submarine Base Commander, U.S. Naval Forces, Carib- bean, Box 3037, Ceiba, PR 00635. New London. (c) Each request for entry will be § 770.42 Background. considered on an individual basis and consent will be determined by applica- Naval Submarine Base New London ble installation entry instructions. maintains and operates facilities to Factors that will be considered include support training and experimental op- the purpose of visit, the size of party, erations of the submarine force includ- duration of visit, destination, security ing providing support to submarines, safeguards, safety aspects, and the submarine rescue vessels, and assigned

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service and small craft; within capa- manding Officer, Naval Submarine bilities, to provide support to other ac- Base New London or his authorized tivities of the Navy and other govern- representative, shall be subject to the mental activities in the area; and to penalties prescribed in 18 U.S.C. 1382, perform such other functions as may be which provides in pertinent part: directed by competent authority. Whoever, within the jurisdiction of the § 770.43 Responsibility. United States, goes upon any military, naval The responsibility for proper identi- . . . reservation, post, fort, arsenal, yard, station, or installation, for any purpose pro- fication and control of personnel and hibited by law or lawful regulation . . . shall vehicle movement on the Naval Sub- be fined not more than $500 or imprisoned marine Base New London is vested not more than six months or both. with the Security Officer. (b) Moreover, any person who will- § 770.44 Entry restrictions. fully violates this subpart is subject to Except for military personnel, their a fine not to exceed $5000 or imprison- authorized dependents, or guests, and ment for not more than one (1) year or employees of the United States in the both as provided in 50 U.S.C. 797. performance of their official duties, entry upon Naval Submarine Base New Subpart F—Base Entry Regulations London, or remaining thereon by any person for any purpose without the ad- for Puget Sound Naval Ship- vance consent of the Commanding Offi- yard, Bremerton, Washington cer, Naval Submarine Base New Lon- don, or his authorized representative is AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 50 prohibited. See 18 U.S.C. 1382j, the In- U.S.C. 797; DoD Directive 5200.8 of April 25, ternal Security Act of 1950 (50 U.S.C. 1991; SECNAVINST 5511.36A of July 21, 1992; 797); Chief of Naval Operations Instruc- OPNAVINST 5530.14C of December 10, 1998; 32 tion 5510.45B of April 19, 1971; and Sec- CFR 700.702; 32 CFR 700.714. retary of the Navy Instruction 5511.36 SOURCE: 65 FR 53592, Sept. 5, 2000, unless of December 20, 1980. otherwise noted.

§ 770.45 Entry procedures. § 770.47 Purpose. (a) Any individual person or group of To promulgate regulations and proce- persons desiring the advance consent of dures governing entry upon Puget the Commanding Officer, Naval Sub- Sound Naval Shipyard, and to prevent marine Base New London, or his au- the interruption of the functions and thorized representative shall, in writing, submit a request to the Com- operations of Puget Sound Naval Ship- manding Officer, Naval Submarine yard by the presence of any unauthor- Base New London, at the following ad- ized person within the boundaries of dress: Commanding Officer (Attn: Se- the Puget Sound Naval Shipyard. curity Officer), Box 38, Naval Sub- marine Base New London, Groton, CT § 770.48 Definition. 06349. For the purpose of this subpart, (b) Each request for entry will be Puget Sound Shipyard shall include considered on an individual basis that area of land, whether or not weighing the operational, security, and fenced or covered by water, in Kitsap safety requirements of Naval Sub- County in the State of Washington marine Base New London with the pur- under the operational control of the pose, size of party, duration of visit, Commander, Puget Sound Naval Ship- destination, and military resources yard or any tenant command. This in- which would be required by the grant- cludes all such areas regardless of ing of the request. whether the areas are being used for § 770.46 Violations. purely military purposes, for housing, for support purposes, or for any other (a) Any person entering or remaining purpose by a naval command or other on Naval Submarine Base New London, Federal agency. without the consent of the Com-

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§ 770.49 Background. * * * reservation, post, fort, arsenal, yard, station or installation, for any purpose pro- (a) Puget Sound Naval Shipyard is a hibited by law or lawful regulation * * * major naval ship repair facility, with shall be fined not more than $500.00 or im- operational requirements to complete prisoned not more than six months or both. repairs and overhaul of conventionally (b) Moreover, any person who will- powered and nuclear powered naval fully violates this subpart is subject to vessels. It is vital to national defense a fine not to exceed $5000.00 or impris- that the operation and use of the ship- onment for not more than one year or yard be continued without interrup- both as provided in 50 U.S.C. 797. tion. Additionally, most of Puget Sound Naval Shipyard is dedicated to heavy industrial activity where poten- Subpart G—Entry Regulations for tially hazardous conditions exist. Portsmouth Naval Shipyard, (b) For prevention of the interruption Portsmouth, New Hampshire of the stated use of Puget Sound Naval Shipyard and prevention of injury to AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 50 any unsupervised or unauthorized per- U.S.C. 797; DoD Directive 5200.8 of April 25, son as a consequence of the hazardous 1991; SECNAVINST 5511.36A of July 21, 1992; conditions that exist, as well as for NAVCOMSYSCOMINST 5510.2B of April 18, other reasons, it is essential to restrict 1990; 32 CFR 700.702; 32 CFR 700.714. entry upon Puget Sound Naval Ship- SOURCE: 49 FR 34003, Aug. 28, 1984, unless yard to authorized persons only. otherwise noted.

§ 770.50 Entry restrictions. § 770.53 Purpose. Except for military personnel and ci- To promulgate regulations and proce- vilian employees of the United States dures governing entry upon Ports- in the performance of their official du- mouth Naval Shipyard, and to prevent ties, entry upon Puget Sound Naval the interruption of the functions and Shipyard, or remaining thereon by any operations of Portsmouth Naval Ship- person for any purpose without ad- yard by the presence of any unauthor- vance consent of the Commander, ized person within the boundaries of Puget Sound Naval Shipyard or his/her Portsmouth Naval Shipyard. authorized representative, is prohibited. § 770.54 Background. § 770.51 Entry procedures. (a) Portsmouth Naval Shipyard maintains and operates facilities ‘‘to (a) Any person or group of persons provide logistic support for assigned desiring the advance consent of the ships and service craft; to perform au- Commander, Puget Sound Naval Ship- thorized work in connection with con- yard, or his authorized representative, struction, conversion, overhaul, repair, shall, in writing, submit a request to alteration, drydocking, and outfitting the Commander, Puget Sound Naval of ships and craft, as assigned; to per- Shipyard, at the following address: form manufacturing, research, develop- Commander, Puget Sound Naval Ship- ment, and test work, as assigned; and yard, 1400 Farragut Avenue, Brem- to provide services and material to erton, WA 98314–5001. other activities and units, as directed by competent authority.’’ § 770.52 Violations. (b) Portsmouth Naval Shipyard is a (a) Any person entering or remaining major naval ship repair facility, with on Puget Sound Naval Shipyard, with- operational requirements to complete out the consent of the Commander, repairs and overhaul of conventionally Puget Sound Naval Shipyard, or an au- powered and nuclear-powered naval thorized representative, shall be sub- vessels. It is vital to national defense ject to the penalties prescribed by 18 that the operation and use of the ship- U.S.C. 1382, which provides in pertinent yard be continued without undue or part: unnecessary interruptions. Addition- Whoever, within the jurisdiction of the ally, most of Portsmouth Naval Ship- United States, goes upon any military, naval yard is dedicated to heavy industrial

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activity where potentially hazardous and military resources which would be conditions exist. required by the granting of the request. (c) For prevention of interruption of the stated use of the base by the pres- [49 FR 34003, Aug. 28, 1984, as amended at 65 FR 53593, Sept. 5, 2000] ence of any unauthorized person within the boundaries of Portsmouth Naval § 770.58 Violations. Shipyard, and prevention of injury to any such unsupervised person as a con- (a) Any person entering or remaining sequence of the dangerous conditions on Portsmouth Naval Shipyard with- which exist, as well as for other rea- out the consent of the Commander, sons, it is essential to restrict entry Portsmouth Naval Shipyard, or his au- upon Portsmouth Naval Shipyard to thorized representative, shall be sub- authorized persons only. ject to the penalties prescribed in 18 U.S.C. 1382, which provides in pertinent § 770.55 Responsibility. part: The responsibility for proper identi- Whoever, within the jurisdiction of the fication and control of personnel and United States, goes upon any military, naval vehicle movement on the Portsmouth . . . reservation, post, fort, arsenal, yard, Naval Shipyard is vested with the station, or installation, for any purpose pro- Shipyard Security Manager (Code 1700). hibited by law or lawful regulation . . . Shall be fined not more than $500 or imprisoned [49 FR 34003, Aug. 28, 1984, as amended at 65 not more than six months, or both. FR 53593, Sept. 5, 2000] (b) Moreover, any person who will- § 770.56 Entry restrictions. fully violates this instruction is sub- Except for military personnel, their ject to a fine not to exceed $5000 or im- authorized dependents, or guests, and prisonment for not more than one (1) civilian employees of the United States year, or both, as provided by 50 U.S.C. in the performance of their official du- 797. ties, entry upon Portsmouth Naval Shipyard, or remaining thereon by any PARTS 771–774 [RESERVED] person for any purpose without the advance consent of the Commander, Portsmouth Naval Shipyard, or his au- PART 775—PROCEDURES FOR IM- thorized representative, is prohibited. PLEMENTING THE NATIONAL EN- In many instances, Commander, Naval VIRONMENTAL POLICY ACT Sea Systems Command, approval is required. Sec. 775.1 Purpose and scope. § 770.57 Entry procedures. 775.2 Definitions. (a) Any person or group desiring the 775.3 Policy. advance consent of the Commander, 775.4 Responsibilities. Portsmouth Naval Shipyard, or his au- 775.5 Classified actions. thorized representative, shall, in writ- 775.6 Planning considerations. 775.7 Time limits for environmental docu- ing, submit a request to the Com- ments. mander, Portsmouth Naval Shipyard, 775.8 Scoping. at the following address: Commander, 775.9 Documentation and analysis. Portsmouth Naval Shipyard, Ports- 775.10 Relations with state, local and re- mouth, NH 03801, Attention: Security gional agencies. Manager (Code 1700). For groups, for- 775.11 Public participation. eign citizens, and news media, the re- 775.12 Delegation of authority. quest must be forwarded to the Com- mander, Naval Sea Systems Command, AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 4321–4361; 40 CFR parts 1500–1508. for approval. (b) Each request for entry will be SOURCE: 55 FR 33899, Aug. 20, 1990, unless considered on an individual basis, otherwise noted. weighing the operational, security, and safety requirements of Portsmouth § 775.1 Purpose and scope. Naval Shipyard, with the purpose, size (a) To implement the provisions of of party, duration of visit, destination, the National Environmental Policy Act

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(NEPA), 42 U.S.C. 4321 et seq., the Coun- preparation of an EIS when one is nec- cil on Environmental Quality Regula- essary. tions for Implementing the Procedural (d) Categorical Exclusion (CATEX). A Provisions of NEPA, 40 CFR 1500–1508, published category of actions that do and the Department of Defense Instruc- not individually or cumulatively have tion on Environmental Planning and a significant impact on the human en- Analysis, DODINST 4715.9, and to as- vironment under normal cir- sign responsibilities within the Depart- cumstances, and, therefore, do not re- ment of the Navy (DON) for prepara- quire either an environmental assess- tion, review, and approval of environment or an environmental impact mental documents prepared under statement. NEPA. (e) Record of Decision (ROD). An envi- (b) The policies and responsibilities ronmental document signed by an ap- set out in this part apply to the DON, propriate official of the DON. A ROD including the Office of the Secretary of sets out a concise summary of the final the Navy, and Navy and Marine Corps decision and selected measures for commands, operating forces, shore es- mitigation (if any) of adverse environ- tablishments, and reserve components. mental impacts of the alternative cho- This part is limited to the actions of sen from those considered in an EIS. these elements with environmental ef- (f) Finding of No Significant Impact fects in the United States, its terri- (FONSI). A document that sets out the tories, and possessions. reasons why an action not otherwise categorically excluded will not have a [69 FR 8109, Feb. 23, 2004] significant impact on the human envi- § 775.2 Definitions. ronment, and for which an EIS will not therefore be prepared. A FONSI will in- (a) Action proponent. The commander, clude the EA or a summary of it and commanding officer, or civilian direc- shall note any other environmental tor of a unit, activity, or organization documents related to it. A FONSI may who initiates a proposal for action, as be one result of review of an EA. defined in 40 CFR 1508.23, and who has command and control authority over [69 FR 8109, Feb. 23, 2004] the action once it is authorized. For some actions, the action proponent will § 775.3 Policy. also serve as the decision-making au- (a) It is the DON policy regarding thority for that action. In specific cir- NEPA, consistent with its mission and cumstances, the action proponent and regulations and the environmental decision maker may be identified in laws and regulations of the United Navy Regulations, other SECNAV In- States, to: structions, operational instructions (1) Initiate the NEPA processes at and orders, acquisition instructions, the earliest possible time to be an ef- and other sources which set out au- fective decision making tool in the thority and responsibility within the course of identifying a proposed action. DON. (2) Develop and carefully consider a (b) Environmental Impact Statement reasonable range of alternatives for (EIS). An environmental document pre- achieving the purpose(s) of proposed pared according to the requirements of actions. Council on Environmental Quality (3) Assign responsibility for prepara- (CEQ) regulations (40 CFR parts 1500– tion of action specific environmental 1508) for a major action that will have analysis under NEPA to the action pro- a significant effect on the quality of ponent. The action proponent should the human environment. understand the plans, analyses, and en- (c) Environmental Assessment (EA). A vironmental documents related to that concise document prepared according action. to the requirements of 40 CFR parts (b) NEPA is intended to ensure that 1500–1508 that briefly provides suffi- environmental issues are fully consid- cient evidence and analysis for deter- ered and incorporated into the Federal mining whether to prepare an EIS. An decision making process. Con- EA aids compliance with NEPA when sequently, actions for which the DON no EIS is necessary and facilitates has no decision-making authority and

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no discretion in implementing the ac- proposed acquisition or research and tion, such as those carried out under a development related actions. non discretionary mandate from Con- (c) The General Counsel of the Navy gress (e.g., congressional direction to and the Judge Advocate General of the transfer Federal property to a par- Navy shall: ticular entity for a particular purpose (1) Ensure that legal advice for com- that leaves DON no discretion in how pliance with environmental planning the transfer will be implemented) or as requirements is available to all deci- an operation of law (e.g., reversionary sion-makers. interests in land recorded at the time (2) Advise the Secretary of the Navy, the property was obtained and that the Chief of Naval Operations, and the provide no discretion in whether to Commandant of the Marine Corps as to trigger the reversion or how the rever- the legal requirements that must be sion will be implemented), require no met, and the conduct and disposition of analysis or documentation under all legal matters arising in the context NEPA or its implementing regulations. of environmental planning. [69 FR 8109, Feb. 23, 2004] (d) The Chief of Naval Operations (CNO) and the Commandant of the Ma- § 775.4 Responsibilities. rine Corps (CMC) shall: (a) The Assistant Secretary of the (1) Implement effective environ- Navy (Installations and Environment) mental planning throughout their re- (ASN (I&E)) shall: spective services. (1) Act as principal liaison with the (2) Prepare and issue instructions or Office of the Secretary of Defense, the orders to implement environmental Council on Environmental Quality, the planning policies of the DON. Forward Environmental Protection Agency, proposed CNO/CMC environmental other Federal agencies, Congress, state planning instructions or orders to ASN governments, and the public with re- (I&E) and, when appropriate, ASN spect to significant NEPA matters. (RD&A) for review and comment prior (2) Direct the preparation of appro- to issuance. priate environmental analysis and doc- (3) Make decisions on environmental umentation and, with respect to those assessments as to whether a Finding of matters governed by SECNAV Instruc- No Significant Impact is appropriate or tion 5000.2 series, advise the Assistant preparation of an environmental im- Secretary of the Navy (Research Devel- pact statement is required. opment and Acquisition) (ASN (4) Ensure that subordinate com- (RD&A)) concerning environmental mands establish procedures for imple- issues and the appropriate level of en- menting mitigation measures described vironmental analysis and NEPA docu- in NEPA documents. mentation needed in any particular cir- (5) Provide coordination as required cumstance. for the preparation of NEPA docu- (3) Except for proposed acquisition- ments for actions initiated by non- related actions addressed in paragraph DON/DOD entities, state or local agen- (b)(2) of this section, review, sign, and cies and/or private individuals for approve for publication, as appropriate, which service involvement may be rea- documents prepared under NEPA. sonably foreseen. (4) Establish and publish a list of cat- (6) Bring environmental planning egorical exclusions for the DON. matters that involve controversial (b) The Assistant Secretary of the issues or which may affect environ- Navy (Research, Development and Ac- mental planning policies or their im- quisition (ASN (RD&A)) shall, in ac- plementation to the attention of ASN cordance with SECNAV Instruction (I&E) and, where appropriate, ASN 5000.2 series: (RD&A) for coordination and deter- (1) Ensure that DON acquisition pro- mination. grams, research programs, and procure- (7) Notify ASN (I&E), and when ap- ments comply with NEPA. propriate, ASN (RD&A) of any pro- (2) Review, sign, and approve for pub- posed EIS, and of any EA that may in- lication, as appropriate, environmental volve potentially sensitive public in- documents prepared under NEPA for terest issues. EIS notification shall

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occur prior to commencing NEPA doc- to assist the agency in determining ument preparation or receiving any whether to prepare an EIS. If the agen- public or regulatory agency involve- cy determination in the case of an EA ment. EA notification shall be made as is that there is no significant impact soon as it becomes apparent that po- on the environment, the findings will tentially sensitive public issues are in- be reflected in a FONSI. If the EA de- volved. termines that the proposed action is likely to significantly affect the envi- [69 FR 8109, Feb. 23, 2004] ronment (even after mitigation), then § 775.5 Classified actions. an EIS will be prepared. An EA also may be used where it otherwise will aid (a) The fact that a proposed action is compliance with NEPA. of a classified nature does not relieve (c) CEQ regulations (40 CFR the proponent of the action from com- 1508.18(a)) define major federal actions plying with NEPA and the CEQ regula- subject to evaluation under NEPA to tions. Therefore, environmental docu- include, among other things, ‘‘new and ments shall be prepared, safeguarded continuing activities’’. The term new and disseminated in accordance with activities is intended to encompass fu- the requirements applicable to classi- ture actions, i.e., those which are not fied information. When feasible, these ongoing at the time of the proposal. documents shall be organized in such a The term continuing activities which manner that classified portions are in- may necessitate the preparation of a cluded as appendices so that unclassi- NEPA document will be applied by the fied portions can be made available to the public. Review of classified NEPA Department of Navy to include activi- documentation will be coordinated ties which are presently being carried with the Environmental Protection out in fulfillment of the Navy mission Agency (EPA) to fulfill requirements of and function, including existing train- section 309 of the Clean Air Act (42 ing functions, where: U.S.C. 7609 et seq.). (1) The currently occurring environ- (b) It should be noted that a classi- mental effects of which have not been fied EA/EIS serves the same ‘‘informed previously evaluated in a NEPA docu- decisionmaking’’ purpose as does a ment, and there is a discovery that published unclassified EA/EIS. Even substantial environmental degradation though the classified EA/EIS does not is occurring, or is likely to occur, as a undergo general public review and result of ongoing operations (e.g., a dis- comment, it must still be part of the covery that significant beach erosion is information package to be considered occurring as a result of continuing am- by the decisionmaker for the proposed phibious exercises, new designation of action. The content of a classified EA/ wetland habitat, or discovery of an en- EIS (or the classified portion of a pub- dangered species residing in the area of lic EA/EIS) will therefore meet the the activity), or same content requirements applicable (2) There is a discovery that the envi- to a published unclassified EA/EIS. ronmental effects of an ongoing activity are significantly and qualitatively § 775.6 Planning considerations. different or more severe than predicted (a) An EIS must be prepared for pro- in a NEPA document prepared in con- posed major Federal actions that will nection with the commencement of the have significant impacts on the human activity. environment. The agency decision in A substantial change in a continuing the case of an EIS is reflected in a activity (such as a substantial change ROD. in operational tempo, area of use, or in (b) Where a proposed major Federal methodology/equipment) which has the action has the potential for signifi- potential for significant environmental cantly affecting the human environ- impacts should be considered a pro- ment, but it is not clear whether the posal for a new action and be docu- impacts of that particular action will mented accordingly. Preparation of a in fact be significant, or where the na- NEPA document is not a necessary pre- ture of an action precludes use of a cat- requisite, nor a substitute, for compli- egorical exclusion, an EA may be used ance with other environmental laws.

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(d) Where emergency circumstances (f) Categorical exclusions. Subject to require immediate action, for the pro- the criteria in paragraph (e) above, the tection of lives and for public health following categories of actions are ex- and safety, which could result in sig- cluded from further analysis under nificant harm to the environment, the NEPA. The CNO and CMC shall deter- activity Commanding Officer or his mine whether a decision to forego prep- designee shall report the emergency aration of an EA or EIS on the basis of action to CNO (OP–44E)/CMC (LFL) one or more categorical exclusions who will facilitate the appropriate con- must be documented in an administra- sultation with CEQ as soon as prac- tive record and the format for such ticable. record. (e) A categorical exclusion (CATEX), (1) Routine fiscal and administrative as defined and listed in this regulation, activities, including administration of may be used to exclude a proposed ac- contracts; tion from further analysis. Even (2) Routine law and order activities though a proposed action generally is performed by military personnel, mili- covered by a listed categorical exclu- tary police, or other security per- sion, a categorical exclusion will not sonnel, including physical plant protec- be used if the proposed action: tion and security; (1) Would adversely affect public (3) Routine use and operation of ex- health or safety; isting facilities, laboratories, and (2) Involves effects on the human en- equipment; vironment that are highly uncertain, (4) Administrative studies, surveys, involve unique or unknown risks, or and data collection; which are scientifically controversial; (5) Issuance or modification of ad- (3) Establishes precedents or makes ministrative procedures, regulations, decisions in principle for future actions directives, manuals, or policy; that have the potential for significant (6) Military ceremonies; impacts; (7) Routine procurement of goods and (4) Threatens a violation of Federal, services conducted in accordance with state, or local environmental laws ap- applicable procurement regulations, plicable to the Department of the executive orders, and policies; Navy; or (8) Routine repair and maintenance (5) Involves an action that, as deter- of buildings, facilities, vessels, aircraft, mined in coordination with the appro- and equipment associated with existing priate resource agency, may: operations and activities (e.g., local- (i) Have an adverse effect on Feder- ized pest management activities, minor ally listed endangered/threatened spe- erosion control measures, painting, re- cies or marine mammals; fitting); (ii) Have an adverse effect on coral (9) Training of an administrative or reefs or on Federally designated wil- classroom nature; derness areas, wildlife refuges, marine (10) Routine personnel actions; sanctuaries, or parklands; (11) Routine movement of mobile as- (iii) Adversely affect the size, func- sets (such as ships and aircraft) for tion or biological value of wetlands and homeport reassignments, for repair/ is not covered by a nation-wide or re- overhaul, or to train/perform as oper- gional permit; ational groups where no new support (iv) Have an adverse effect on archae- facilities are required; ological resources or resources (includ- (12) Routine procurement, manage- ing but not limited to ships, aircraft, ment, storage, handling, installation, vessels and equipment) listed or deter- and disposal of commercial items, mined eligible for listing on the Na- where the items are used and handled tional Register of Historic Places; or in accordance with applicable regula- (v) Result in an uncontrolled or tions (e.g., consumables, electronic unpermitted release of hazardous sub- components, computer equipment, stances or require a conformity deter- pumps); mination under standards of the Clean (13) Routine recreational/welfare ac- Air Act General Conformity Rule. tivities;

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(14) Alteration of and additions to ex- operation rate, or increases of 50 oper- isting buildings, facilities, structures, ations per day, whichever is greater. vessels, aircraft, and equipment to con- Frequent use of this CATEX at an inform or provide conforming use specifi- stallation requires further analysis to cally required by new or existing appli- determine there are no cumulative im- cable legislation or regulations (e.g., pacts; hush houses for aircraft engines, scrub- (22) Decommissioning, disposal, or bers for air emissions, improvements to transfer of Navy vessels, aircraft, vehi- storm water and sanitary and indus- cles, and equipment when conducted in trial wastewater collection and treat- accordance with applicable regula- ment systems, and installation of fire tions, including those regulations ap- fighting equipment); plying to removal of hazardous mate- (15) The modification of existing sys- rials; tems or equipment when the environ- (23) Non-routine repair and renova- mental effects will remain substan- tion, and donation or other transfer of tially the same and the use is con- structures, vessels, aircraft, vehicles, sistent with applicable regulations; landscapes or other contributing ele- (16) Routine movement, handling and ments of facilities listed or eligible for distribution of materials, including listing on the National Register of His- hazardous materials/wastes that are toric Places which will result in no ad- moved, handled, or distributed in ac- verse effect; cordance with applicable regulations; (24) Hosting or participating in public (17) New activities conducted at es- events (e.g., air shows, open houses, tablished laboratories and plants (in- Earth Day events, and athletic events) cluding contractor-operated labora- where no permanent changes to exist- tories and plants) where all airborne ing infrastructure (e.g., road systems, emissions, waterborne effluent, exter- parking and sanitation systems) are renal ionizing and non-ionizing radiation quired to accommodate all aspects of levels, outdoor noise, and solid and the event; bulk waste disposal practices are in (25) Military training conducted on compliance with existing applicable or over nonmilitary land or water Federal, state, and local laws and regu- areas, where such training is con- lations; sistent with the type and tempo of ex- (18) Studies, data, and information isting non-military airspace, land, and gathering that involve no permanent water use (e.g., night compass training, physical change to the environment forced marches along trails, roads and (e.g., topographic surveys, wetlands highways, use of permanently estab- mapping, surveys for evaluating envi- lished ranges, use of public waterways, ronmental damage, and engineering ef- or use of civilian airfields); forts to support environmental anal- (26) Transfer of real property from yses); DON to another military department (19) Temporary placement and use of or to another Federal agency; simulated target fields (e.g., inert (27) Receipt of property from another mines, simulated mines, or passive hy- Federal agency when there is no antici- drophones) in fresh, estuarine, and ma- pated or proposed substantial change rine waters for the purpose of non-ex- in land use; plosive military training exercises or (28) Minor land acquisitions or dis- research, development, test and evalua- posals where anticipated or proposed tion; land use is similar to existing land use (20) Installation and operation of pas- and zoning, both in type and intensity; sive scientific measurement devices (29) Disposal of excess easement in- (e.g., antennae, tide gauges, weighted terests to the underlying fee owner; hydrophones, salinity measurement de- (30) Renewals and minor amendments vices, and water quality measurement of existing real estate grants for use of devices) where use will not result in Government-owned real property where changes in operations tempo and is no significant change in land use is an- consistent with applicable regulations; ticipated; (21) Short-term increases in air oper- (31) Land withdrawal continuances or ations up to 50 percent of the typical extensions that merely establish time

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periods and where there is no signifi- increase in vehicular traffic beyond the cant change in land use; capacity of the supporting road net- (32) Renewals and/or initial real es- work to accommodate such an in- tate in grants and out grants involving crease); existing facilities and land wherein use (40) Pre-lease upland exploration ac- does not change significantly (e.g., tivities for oil, gas or geothermal releasing of federally-owned or privately- serves, (e.g., geophysical surveys); owned housing or office space, and ag- (41) Installation of devices to protect ricultural out leases); human or animal life (e.g., raptor elec- (33) Grants of license, easement, or trocution prevention devices, fencing similar arrangements for the use of ex- to restrict wildlife movement onto air- isting rights-of-way or incidental ease- fields, and fencing and grating to pre- ments complementing the use of exist- vent accidental entry to hazardous ing rights-of-way for use by vehicles areas); (not to include significant increases in (42) Reintroduction of endemic or na- vehicle loading); electrical, telephone, tive species (other than endangered or and other transmission and commu- threatened species) into their historic nication lines; water, wastewater, habitat when no substantial site prepa- storm water, and irrigation pipelines, ration is involved; pumping stations, and facilities; and (43) Temporary closure of public ac- for similar utility and transportation cess to DON property in order to pro- uses; tect human or animal life; (34) New construction that is similar (44) Routine testing and evaluation of to existing land use and, when com- military equipment on a military res- pleted, the use or operation of which ervation or an established range, re- complies with existing regulatory restricted area, or operating area; simi- quirements (e.g., a building within a lar in type, intensity and setting, in- cantonment area with associated dis- cluding physical location and time of charges/runoff within existing handling year, to other actions for which it has capacities); been determined, through NEPA anal- (35) Demolition, disposal, or improve- ysis where the DON was a lead or co- ments involving buildings or structures operating agency, that there are no when done in accordance with applica- significant impacts; and conducted in ble regulations including those regula- accordance with all applicable stand- tions applying to removal of asbestos, ard operating procedures protective of PCBs, and other hazardous materials; the environment; (36) Acquisition, installation, and op- (45) Routine military training associ- eration of utility (e.g., water, sewer, ated with transits, maneuvering, safety electrical) and communication systems and engineering drills, replenishments, (e.g., data processing cable and similar flight operations, and weapons systems electronic equipment) which use exist- conducted at the unit or minor exercise ing rights of way, easements, distribu- level; similar in type, intensity and tion systems, and/or facilities; setting, including physical location (37) Decisions to close facilities, de- and time of year, to other actions for commission equipment, and/or tempo- which it has been determined, through rarily discontinue use of facilities or NEPA analysis where the DON was a equipment, where the facility or equip- lead or cooperating agency, that there ment is not used to prevent/control en- are no significant impacts; and con- vironmental impacts); ducted in accordance with all applica- (38) Maintenance dredging and debris ble standard operating procedures pro- disposal where no new depths are re- tective of the environment. quired, applicable permits are secured, [55 FR 33899, Aug. 20, 1990, as amended at 55 and disposal will be at an approved dis- FR 39960, Oct. 1, 1990; 69 FR 8110, Feb. 23, posal site; 2004] (39) Relocation of personnel into existing Federally-owned or commer- § 775.7 Time limits for environmental cially leased space that does not in- documents. volve a substantial change affecting (a) The timing of the preparation, the supporting infrastructure (e.g., no circulation, submission and public

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availability of environmental docu- § 775.9 Documentation and analysis. ments is important in achieving the (a) Environmental documentation purposes of NEPA. Therefore, the and analyses required by this rule NEPA process shall begin as early as should be integrated as much as prac- possible in the decisionmaking process. ticable with any environmental stud- (b) The EPA publishes a weekly no- ies, surveys and impact analyses re- tice in the FEDERAL REGISTER of envi- quired by other environmental review ronmental impact statements filed laws and executive orders (40 CFR during the preceding week. The min- 1502.25). When a cost-benefit analysis imum time periods set forth below has been prepared in conjunction with shall be calculated from the date of an action which also requires a NEPA publication of notices in the FEDERAL analysis, the cost-benefit analysis shall REGISTER. No decision on the proposed be integrated into the environmental action may take place until the later documentation. of the following dates: (b) CEQ regulations encourage the (1) Ninety days after publication of use of tiering whenever appropriate to the notice of availability for a draft en- eliminate repetitive discussions of the vironmental impact statement (DEIS). same issues and to focus on the actual Draft statements shall be available to issues ripe for discussion at each level the public for 15 days prior to any pub- of environmental review (40 CFR lic hearing on the DEIS (40 CFR 1502.20). Tiering is accomplished 1506.6(c)(2)). through the preparation of a broad programmatic environmental impact (2) Thirty days after publication of statement discussing the impacts of a the notice of availability for a final en- wide ranging or long term stepped pro- vironmental impact statement (FEIS). gram followed by narrower statements If the FEIS is available to the public or environmental assessments concen- within ninety days from the avail- trating solely on issues specific to the ability of the DEIS, the minimum thir- analysis subsequently prepared (40 CFR ty day period and the minimum nintey 1508.28). day period may run concurrently. How- (1) Appropriate use of tiering: Tiering ever, not less than 45 days from publi- is appropriate when it helps the lead cation of notice of filing shall be al- agency to focus on issues which are lowed for public comment on draft ripe for decision and exclude from con- statements prior to filing of the FEIS sideration issues already decided or not (40 CFR 1506.10(c)). yet ripe. (40 CFR 1508.28(b).) The sequence of statements or analyses is: § 775.8 Scoping. (i) From a broad program, plan, or As soon as practicable after the deci- policy environmental impact state- sion to prepare an EIS is made, an ment (not necessarily site specific) to a early and open process called subordinate/smaller scope program, ‘‘scoping’’ shall be used to determine plan, or policy statement or analysis the scope of issues to be addressed and (usually site specific) (40 CFR 1508.28 to identify the significant issues to be (a)). analyzed in depth related to the pro- (ii) From an environmental impact posed action (40 CFR 1501.7). This proc- statement on a specific action at an ess also serves to deemphasize insig- early stage (such as need and site selec- nificant issues, narrowing the scope of tion) to a supplement (which is preferred) or a subsequent statement or the EIS process accordingly (40 CFR analysis at a later stage (such as envi- 1500.4(g)). Scoping results in the identi- ronmental mitigation) (40 CFR fication by the proponent of the range 1508.28(b)). of actions, alternatives, and impacts to (iii) In addition to the discussion re- be considered in the EIS (40 CFR quired by these regulations for inclu- 1508.25). For any action, this scope may sion in environmental impact state- depend on the relationship of the pro- ments, the programmatic environ- posed action to other existing environmental impact statement shall also mental documentation. discuss:

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(A) A description of the subsequent § 775.11 Public participation. stages or sites that may ultimately be The importance of public participa- proposed in as much detail as presently tion (40 CFR 1501.4(b)) in preparing en- possible; vironmental assessments is clearly rec- (B) All of the implementing factors ognized and it is recommended that of the program that can be ascertained commands proposing an action develop at the time of impact statement prepa- a plan to ensure appropriate commu- ration; nication with affected and interested (C) All of the environmental impacts parties. The command Public Affairs that will result from establishment of Office can provide assistance with de- the overall program itself that will be veloping and implementing this plan. similar for subsequent stages or sites In determining the extent to which as further implementation plans are public participation is practicable, the proposed; and following are among the factors to be (D) All of the appropriate mitigation weighed by the command: measures that will be similarly pro- (a) The magnitude of the environ- posed for subsequent stages or sites. mental considerations associated with (iv) The analytical document used for the proposed action; stage or site specific analysis subse- (b) The extent of anticipated public quent to the programmatic environ- interest; and mental impact statement shall also be (c) Any relevant questions of na- an environmental impact statement tional security and classification. when the subsequent tier itself may have a significant impact on the qual- § 775.12 Delegation of authority. ity of the human environment or when an impact statement is otherwise re- (a) The ASN (I&E) may delegate his/ quired. Otherwise, it is appropriate to her responsibilities under this instruc- document the tiered analysis with an tion for review, approval and/or signa- environmental assessment to fully as- ture of EISs and RODs to appropriate sess the need for further documenta- Executive Schedule/Senior Executive tion or whether a FONSI would be ap- Service civilians or flag/general offi- propriate. cers. ASN (I&E), CNO, and CMC may (2) [Reserved] delegate all other responsibilities assigned in this instruction as deemed § 775.10 Relations with state, local and appropriate. regional agencies. (b) The ASN (RD&A) delegation of Close and harmonious planning rela- authority for approval and signature of tions with local and regional agencies documents under NEPA is contained in and planning commissions of adjacent SECNAV Instruction 5000.2 series, cities, counties, and states, for co- which sets out policies and procedures operation and resolution of mutual for acquisition programs. land use and environment-related prob- (c) Previously authorized delegations lems should be established. Additional of authority are continued until re- coordination may be obtained from vised or withdrawn. state and area-wide planning and devel- [69 FR 8112, Feb. 23, 2004] opment ‘‘clearinghouses’’. These are agencies which have been established PART 776—PROFESSIONAL CON- pursuant to Executive Order 12372 of DUCT OF ATTORNEYS PRAC- July 14, 1982 (3 CFR, 1982 Comp., p. 197). TICING UNDER THE COG- The clearinghouses serve a review and coordination function for Federal ac- NIZANCE AND SUPERVISION OF tivities and the proponent may gain in- THE JUDGE ADVOCATE GEN- sights on other agencies’ approaches to ERAL environmental assessments, surveys, and studies in relation to any current Subpart A—General proposal. The clearinghouses would Sec. also be able to assist in identifying pos- 776.1 Purpose. sible participants in scoping proce- 776.2 Applicability. dures for projects requiring an EIS. 776.3 Policy.

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776.4 Attorney-client relationships. 776.56 Professional independence of a cov- 776.5 Judicial conduct. ered USG attorney. 776.6 Conflict. 776.57 Unauthorized practice of law. 776.7 Reporting requirements. 776.58–776.65 [Reserved] 776.8 Professional Responsibility Com- 776.66 Bar admission and disciplinary mat- mittee. ters. 776.9 Rules Counsel. 776.67 Judicial and legal officers. 776.10 Informal ethics advice. 776.68 Reporting professional misconduct. 776.11 Outside practice of law. 776.12 Maintenance of files. 776.69 Misconduct. 776.13–776.17 [Reserved] 776.70 Jurisdiction. 776.71 Requirement to remain in good Subpart B—Rules of Professional Conduct standing with licensing authorities. 776.72–776.75 [Reserved] 776.18 Preamble. 776.19 Principles. Subpart C—Complaint Processing 776.20 Competence. Procedures 776.21 Establishment and scope of representation. 776.76 Policy. 776.22 Diligence. 776.77 Related investigations and actions. 776.23 Communication. 776.78 Informal complaints. 776.24 Fees. 776.79 The formal complaint. 776.25 Confidentiality of information. 776.26 Conflict of interest: General rule. 776.80 Initial screening. 776.27 Conflict of interests: Prohibited 776.81 Forwarding the complaint. transactions. 776.82 Interim suspension. 776.28 Conflict of interest: Former client. 776.83 Preliminary inquiry. 776.29 Imputed disqualification: General 776.84 Ethics investigation. rule. 776.85 Effect of separate proceeding. 776.30 Successive Government and private 776.86 Action by the Judge Advocate Gen- employment. eral. 776.31 Former judge or arbitrator. 776.87 Finality. 776.32 Department of the Navy as client. 776.88 Report to licensing authorities. 776.33 Client with diminished capacity. 776.34 Safekeeping property. Subpart D—Outside Practice of Law by 776.35 Declining or terminating representation. Covered USG Attorneys 776.36 Prohibited sexual relations. 776.89 Background. 776.37 Advisor. 776.90 Definition. 776.38 Mediation. 776.91 Policy. 776.39 Evaluation for use by third persons. 776.40 Meritorious claims and contentions. 776.92 Action. 776.41 Expediting litigation. 776.93 Revalidation. 776.42 Candor and obligations toward the APPENDIX TO SUBPART D OF PART 776—OUT- tribunal. SIDE LAW PRACTICE QUESTIONNAIRE AND 776.43 Fairness to opposing party and coun- REQUEST sel. 776.44 Impartiality and decorum of the tri- Subpart E—Relations with Non-USG bunal. Counsel 776.45 Extra-tribunal statements. 776.46 Attorney as witness. 776.94 Relations with Non-USG Counsel. 776.47 Special responsibilities of a trial counsel and other government counsel. Subpart F [Reserved] 776.48 Advocate in nonadjudicative proceedings. AUTHORITY: 10 U.S.C. 806, 806a, 826, 827, 1044; 776.49 Truthfulness in statements to others. Manual for Courts-Martial, United States, 776.50 Communication with person rep- 2012; U.S. Navy Regulations, 1990; Depart- resented by counsel. ment of Defense Instruction 1442.02 (series); 776.51 Dealing with an unrepresented per- Secretary of the Navy Instruction 5430.27 (se- son. ries), Responsibility of the Judge Advocate 776.52 Respect for rights of third persons. General of the Navy and the Staff Judge Ad- 776.53 Responsibilities of the Judge Advo- vocate to the Commandant of the Marine cate General and supervisory attorneys. Corps for Supervision and Provision of Cer- 776.54 Responsibilities of a subordinate attain Legal Services. torney. 776.55 Responsibilities regarding non-attor- SOURCE: 80 FR 68389, Nov. 4, 2015; 80 FR ney assistants. 73991, Nov. 27, 2015, unless otherwise noted.

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Subpart A—General (iii) All civil service and contracted civilian attorneys who practice law or § 776.1 Purpose. perform legal services under the cog- In furtherance of the authority cita- nizance and supervision of the JAG. tions (which, if not found in local li- This includes civilian attorneys em- braries, are available from the Office of ployed by the DoN as Executive Agent the Judge Advocate General, 1322 Pat- for Combatant Commands, and for terson Avenue SE., Suite 3000, Wash- whom the JAG serves as the ‘‘quali- ington Navy Yard DC 20374–5066), which fying authority’’ under the authority require the Judge Advocate General of citations. the Navy (JAG) to supervise the per- (iv) All Reserve or Retired judge ad- formance of legal services under JAG vocates of the Navy or Marine Corps cognizance throughout the Department (and any other U.S. armed force), who, of the Navy (DoN), this part is promul- while performing official DoN duties, gated: practice law, provide legal services (a) To establish Rules of Professional under the cognizance and supervision Conduct (subpart B of this part) for at- of the JAG or are serving in non-legal torneys subject to this part; MOS billets. (b) To establish procedures for re- (v) All other attorneys appointed by ceiving, processing, and taking action the JAG (or the Staff Judge Advocate on complaints of professional mis- to the Commandant of the Marine conduct made against attorneys prac- Corps (SJA to CMC) in Marine Corps ticing under the supervision of the matters) to serve in billets or to pro- JAG, whether arising from professional vide legal services normally provided legal activities in DoN proceedings and by Navy or Marine Corps judge advo- matters, or arising from other, non- cates. This policy applies to officer and U.S. Government related professional enlisted Reservists, active-duty per- legal activities or personal misconduct sonnel, and any other personnel who that suggests the attorney is ethically, are licensed to practice law by any professionally, or morally unqualified Federal or state authority but who are to perform legal services within the not members of the Judge Advocate DoN; General’s Corps or who do not hold the (c) To prescribe limitations on and 4402 or 9914 MOS designation in the Ma- procedures for processing requests to rine Corps. engage in the outside practice of law (vi) All qualified volunteer attorneys by those DoN attorneys practicing that have been certified as legal assist- under the supervision of the JAG; and ance attorneys by the JAG, or his des- (d) To ensure quality legal services at ignee, pursuant to the authority cita- all proceedings under the cognizance tions. and supervision of the JAG. (2) The following non-U.S. Govern- ment attorneys, referred to collec- § 776.2 Applicability. tively as ‘‘covered non-USG attorneys’’ (a) This part applies to all ‘‘covered throughout this part: attorneys’’ as defined herein.’’ (i) All civilian attorneys representing (b) ‘‘Covered attorneys’’ include: individuals in any matter for which the (1) The following U.S. Government JAG is charged with supervising the (USG) attorneys, referred to collec- provision of legal services. These mat- tively as ‘‘covered USG attorneys’’ ters include, but are not limited to, throughout this part: courts-martial, administrative separa- (i) All active-duty Navy judge advo- tion boards or hearings, boards of in- cates (designator 2500 or 2505) or Ma- quiry, and disability evaluation pro- rine Corps judge advocates (Military ceedings. Occupational Specialty (MOS) 4402 or (3) The term ‘‘covered attorney’’ does 9914). not include those civil service or civil- (ii) All active-duty judge advocates ian attorneys who practice law or per- of other U.S. armed forces who practice form legal services under the cog- law or provide legal services under the nizance and supervision of the General cognizance and supervision of the JAG. Counsel of the Navy.

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(c) Professional or personal mis- partment of Defense Joint Ethics Reg- conduct unrelated to a covered attor- ulation, the Code of Conduct for mem- ney’s DoN activities, while normally bers of the Armed Forces, the Uniform outside the ambit of Subpart B of this Code of Military Justice (UCMJ), and part, may be reviewed under proce- the general precepts of ethical conduct dures established herein and may pro- to which all DoN service members and vide the basis for decisions by the JAG employees are expected to adhere. regarding the covered attorney’s con- Similarly, action taken per this part is tinued qualification to provide legal not supplanted or barred by, and does services in DoN matters. not, even if the underlying misconduct (d) Although subpart B of this part do is the same, supplant or bar the fol- not apply to non-attorneys, they do de- lowing action from being taken by au- fine the type of ethical conduct that thorized officials: the public and the military community (1) Punitive or disciplinary action have a right to expect from DoN legal under the UCMJ; or personnel. Accordingly, Subpart B of this part shall serve as the model of (2) Administrative action under the ethical conduct for the following per- Manual for Courts-Martial (MCM), U.S. sonnel when involved with the delivery Navy Regulations, or under other ap- of legal services under the supervision plicable authority. of the JAG: (c) Inquiries into allegations of pro- (1) Navy Legalmen and Marine Corps fessional misconduct will normally be legal administrative officers, legal held in abeyance until any related service specialists, and legal services criminal investigation or proceeding is reporters; complete. However, a pending criminal (2) Limited duty officers (LAW); investigation or proceeding does not (3) Legal interns; and bar the initiation or completion of a (4) civilian support personnel includ- professional misconduct investigation ing paralegals, legal secretaries, legal stemming from the same or related technicians, secretaries, court report- conduct or prevent the JAG from im- ers, and other personnel holding simi- posing professional disciplinary sanc- lar positions. Covered USG attorneys tions as provided for in this part. who supervise non-attorney DON employees are responsible for their eth- § 776.4 Attorney-client relationships. ical conduct to the extent provided for (a) The executive agency to which in § 776.55 of this part. the covered USG attorney is assigned § 776.3 Policy. (DoN in most cases) is the client served by the covered USG attorney unless de- (a) Covered attorneys shall maintain tailed to represent another client by the highest standards of professional competent authority. Specific guide- ethical conduct. Loyalty and fidelity lines are contained in § 776.32 of this to the United States, the law, clients, part. both institutional and individual, and the rules and principles of professional (b) Covered USG attorneys will not ethical conduct set forth in subpart B establish attorney-client relationships of this part must come before private with any individual unless detailed, as- gain or personal interest. signed, or otherwise authorized to do (b) Subpart B of this part and related so by competent authority. Wrongfully procedures set forth herein concern establishing an attorney-client rela- matters solely under the purview of the tionship may subject the attorney to JAG. Whether conduct or failure to act discipline administered per this part. constitutes a violation of the profes- See § 776.21 of this part. sional duties imposed by this part is a (c) Employment of a non-USG attor- matter within the sole discretion of the ney by an individual client does not JAG or officials authorized to act for alter the professional responsibilities the JAG. Subpart B of this part are not of a covered USG attorney detailed or substitutes for, and do not take the otherwise assigned by competent au- place of, other rules and standards gov- thority to represent that client. Spe- erning DoN personnel, such as the De- cific guidance is set forth in subpart E.

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§ 776.5 Judicial conduct. § 776.8 Professional Responsibility Committee. To the extent that it does not conflict with statutes, regulations, or this (a) Composition. This standing com- part, the current version of the Amer- mittee will consist of the Assistant ican Bar Association Model Code of Ju- Judge Advocate General (AJAG) for dicial Conduct (as amended), hereafter Military Justice; the Deputy Chiefs of referred to as the ‘Code of Judicial Staff for Naval Legal Service Offices Conduct,’ applies to all military and (or Defense Services Offices, effective 1 October 2012), and Region Legal Service appellate judges and to all other cov- Offices; the Chief Judge, Navy-Marine ered USG attorneys performing judicial Corps Trial Judiciary; and in cases in- functions under the JAG’s supervision volving Marine Corps judge advocates, within the DoN. the Deputy Staff Judge Advocate to the Commandant of the Marine Corps § 776.6 Conflict. (DSJA to CMC); and such other per- (a) To the extent that a conflict ex- sonnel as the JAG from time-to-time ists between this part and the rules of may appoint. A majority of the mem- other jurisdictions that regulate the bers constitutes a quorum. The Chair- professional conduct of attorneys, this man of the Committee shall be the part will govern the conduct of covered AJAG for Military Justice. The Chair- attorneys engaged in legal functions man may excuse members disqualified under JAG cognizance and supervision. for cause, illness, or exigencies of mili- Specific and significant instances of tary service, and may appoint addi- conflict between the rules contained in tional or alternate members on a per- subpart B of this part and the rules of manent basis. other jurisdictions shall be reported (b) Purpose. (1) When requested by the promptly to the Rules Counsel (see JAG, the SJA to CMC, or the Rules § 776.9 of this part), via the supervisory Counsel, the Committee will provide attorney. See § 776.53 of this part. formal advisory opinions to the JAG (b) In the case of Navy and Marine regarding application of subpart B of Corps personnel engaged in legal func- this part to individual or hypothetical tions under Department of Defense cases. (DoD) vice JAG cognizance and super- (2) On its own motion, the Committee vision (e.g., DoD Office of Military may also issue formal advisory opin- Commissions), this part and the appli- ions on ethical issues of importance to cable DoD professional responsibility the DoN legal community. (3) Upon written request, the Com- rules apply. In such a case, to the ex- mittee may also provide formal advi- tent that a conflict exists between Sub- sory opinions to covered attorneys part B of this part and applicable DoD about the propriety of proposed courses professional responsibility rules, the of action under subpart B of this part. DoD rules shall take precedence. If such requests are predicated upon § 776.7 Reporting requirements. full disclosure of all relevant facts, and if the Committee advises that the pro- Covered USG attorneys shall report posed course of conduct does not vio- promptly to the Rules Counsel (see late subpart B of this part, then no ad- § 776.9 of this part) any disciplinary or verse action under this rule may be administrative action, including initi- taken against a covered attorney who ation of investigation, by any licensing acts consistently with the Committee’s authority or Federal, State, or local advice. Such requests must be made via bar, possessing the power to revoke, the Rules Counsel. suspend, or in any way limit the au- (4) The Chairman will forward copies thority to practice law in that jurisdic- of all opinions issued by the Committee tion, upon himself, herself, or another to the Rules Counsel. covered attorney. Failure to report (c) Limitation. The Committee will such discipline or administrative ac- not normally provide ethics advice or tion may subject the covered USG at- opinions concerning professional re- torney to discipline administered per sponsibility matters that are then the this part. See § 776.71 of this part. subject of litigation.

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§ 776.9 Rules Counsel. form legal services under the cog- Appointed by JAG to act as special nizance and supervision of SJA to assistants for the administration of CMC; subpart B of this part, the Rules Coun- (6) Deputy Chief Judge, Navy-Marine sel derive authority from JAG and, as Corps Trial Judiciary: Judicial mat- detailed in this part, have ‘‘by direc- ters; and tion’’ authority. The Rules Counsel (7) Professional Responsibility Coor- shall cause opinions issued by the Pro- dinator, Administrative Law Division fessional Responsibility Committee of (OJAG Code 13): All other matters. general interest to the DoN legal com- (b) Limitation. Informal ethics advice munity to be published in summarized, will not normally be provided by JAG/ non-personal form in suitable publica- HQMC advisors concerning professional tions. Unless another officer is ap- responsibility matters that are then pointed by JAG to act in individual the subject of litigation. cases, the following officers shall act (c) Written advice. A request for infor- as Rules Counsel: mal advice does not relieve the re- (a) The SJA to CMC, for cases involv- quester of the obligation to comply ing Marine Corps judge advocates, or with subpart B of this part. Although civil service and contracted civilian at- covered attorneys are encouraged to torneys who perform legal services seek advice when in doubt as to their under his cognizance; responsibilities, they remain person- (b) Assistant Judge Advocate Gen- ally accountable for their professional eral, Chief Judge, DoN (AJAG–CJ) for conduct. If, however, an attorney re- cases involving Navy and Marine Corps ceives written advice on an ethical trial and appellate judges; and matter after full disclosure of all rel- (c) AJAG (Civil Law), in all other evant facts and reasonably relies on cases. such advice, no adverse action under this part will be taken against the at- § 776.10 Informal ethics advice. torney. Written advice may be sought (a) Advisors. Covered attorneys may from either a supervisory attorney or seek informal ethics advice either from the appropriate advisor in paragraph the officers named below or from su- (a) of this section. The JAG is not pervisory attorneys in the field. Within bound by unwritten advice or by advice the Office of the Judge Advocate Gen- provided by personnel who are not su- eral (OJAG) and the Office of the SJA pervisory attorneys or advisors. See to CMC, the following officials are des- §§ 776.8(b)(3) and 776.54(c) of this part. ignated to respond, either orally or in writing, to informal inquiries con- § 776.11 Outside practice of law. cerning this rule in the areas of prac- A covered USG attorney’s primary tice indicated: professional responsibility is to the cli- (1) Director, Criminal Law Division ent, as defined by § 776.4 of this part, (OJAG Code 20): Military justice mat- and he or she is expected to ensure that ters; representation of such client is free (2) Director, Trial Counsel Assistance from conflicts of interest and otherwise Program (TCAP): Trial counsel mat- conforms to the requirements of Sub- ters; part B of this part and other regula- (3) Director, Defense Counsel Assist- tions concerning the provision of legal ance Program (DCAP): Defense counsel services within the DoN. The outside matters; practice of law, therefore, must be (4) Director, Legal Assistance Divi- carefully monitored. Covered USG at- sion (OJAG Code 16): Legal assistance torneys who wish to engage in the out- matters; side practice of law, including while on (5) The DSJA to CMC and Head, Re- terminal leave, must first obtain per- search and Civil Law Branch (JAR), mission from the JAG. Failure to ob- Judge Advocate (JA) Division, Head- tain permission before engaging in the quarters United States Marine Corps outside practice of law may subject the (HQMC): Cases involving Marine Corps covered USG attorney to administra- judge advocates, or civil service and tive or disciplinary action, including contracted civilian attorneys who per- professional sanctions administered

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per subpart C of this part. Further de- §§ 776.13–776.17 [Reserved] tails are contained in § 776.57 and subpart D of this part. Subpart B—Rules of Professional Conduct § 776.12 Maintenance of files. Pursuant to SECNAVINST 5211.5 (se- § 776.18 Preamble. ries) and SECNAVINST 5212.5 (series) (a) A covered attorney is a represent- ethics complaint records and outside ative of clients, an officer of the legal practice of law request files shall be system, an officer of the Federal Gov- maintained by the Office of the Chief ernment, and a public citizen who has Judge, DoN (Code 05) for judicial con- a special responsibility for the quality duct matters; the Research and Civil of justice and legal services provided to Law Branch, JA Division, HQMC (JAR) the DoN and to individual clients. for Marine matters; and the Office of These Rules of Professional Conduct the JAG, Administrative Law Division (Subpart B of this part) govern the eth- (Code 13) for all other matters. ical conduct of covered attorneys practicing under the Uniform Code of Mili- (a) Requests for access to such tary Justice, the MCM, 10 U.S.C. 1044 records should be referred to the Office (Legal Assistance), other laws of the of the Chief Judge, Washington Navy United States, and regulations of the Yard, 1254 Charles Morris Street SE., DoN. Suite 320 Washington, DC, 20374–5124; (b) Subpart B of this part not only Deputy Assistant Judge Advocate Gen- address the professional conduct of eral (Administrative Law), Office of judge advocates, but also apply to all the Judge Advocate General (Code 13), other covered attorneys who practice 1322 Patterson Avenue SE Suite 3000, under the cognizance and supervision Washington Navy Yard, DC, 20374–5066; of the Navy JAG. or to Head, Research and Civil Law (c) All covered attorneys are subject Branch, Office of the Staff Judge Advo- to professional disciplinary action, as cate to the Commandant of the Marine outlined in this part, for violation of Corps, Headquarters United States Ma- subpart B of this part. Action on alle- rine Corps, 3000 Marine Corps Pentagon gations of professional or personal mis- (Room 4D556), Washington DC, 20350– conduct undertaken per subpart B of this part does not prevent other Fed- 3000, as appropriate. eral, state, or local bar associations, or (b) Local command files regarding other licensing authorities, from tak- professional responsibility complaints ing professional disciplinary or other will not be maintained. Commanding administrative action for the same or officers and other supervisory attor- similar conduct. neys may, however, maintain personal files but must not share their contents § 776.19 Principles. with others. Subpart B of this part is based on the (c) All records maintained under this following principles. Interpretation of part shall be maintained in accordance subpart B of this part should flow from with the following procedures estab- their common meaning. To the extent lished by JAGINST 5801.2 (series) and that any ambiguity or conflict exists, DON Privacy Act Notice N05813–1: subpart B of this part should be inter- (1) Records shall be maintained for a preted consistent with these general minimum of two years; principles. (2) Records shall be maintained for as (a) Covered attorneys shall: long as an attorney remains subject to (1) Obey the law and applicable military regulations, and counsel clients to JAG-imposed limitations on practice; do so. and (2) Follow all applicable ethics rules. (3) Records pertaining to unsubstan- (3) Protect the legal rights and inter- tiated complaints, or to attorneys who ests of clients, organizational and indi- are no longer subject to limitation on vidual. practice, shall be destroyed after 10 (4) Be honest and truthful in all deal- years. ings.

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(5) Not derive personal gain, except (c) A covered attorney shall follow as authorized, for the performance of the client’s well-informed and lawful legal services. decisions concerning case objectives, (6) Maintain the integrity of the legal choice of counsel, forum, pleas, wheth- profession. er to testify, and settlements. (b) Ethical rules should be consistent (d) A covered attorney’s representa- with law. If law and ethics conflict, the tion of a client does not constitute an law prevails unless an ethical rule is endorsement of the client’s political, constitutionally based. economic, social, or moral views or ac- (c) The military criminal justice sys- tivities. tem is a truth-finding process con- (e) A covered attorney shall not sistent with constitutional law. counsel or assist a client to engage in conduct that the attorney knows is § 776.20 Competence. criminal or fraudulent, but a covered (a) A covered attorney shall provide attorney may discuss the legal and competent, diligent, and prompt rep- moral consequences of any proposed resentation to a client. Competent rep- course of conduct with a client, and resentation requires the legal knowl- may counsel or assist a client in mak- edge, skill, access to evidence, thor- ing a good faith effort to determine the oughness, and expeditious preparation validity, scope, meaning, or applica- reasonably necessary for representation of the law. tion. Initial determinations as to com- (f) [Reserved] petence of a covered USG attorney for a particular assignment shall be made § 776.22 Diligence. by a supervising attorney before case (a) A covered attorney shall act with or issue assignments; however, as- reasonable diligence and promptness in signed attorneys may consult with su- representing a client, and shall consult pervisors concerning competence in a with a client as soon as practicable and particular case. as often as necessary upon being as- (b) [Reserved] signed to the case or issue. (b) [Reserved] § 776.21 Establishment and scope of representation. § 776.23 Communication. (a) Formation of attorney-client re- (a) A covered attorney shall keep a lationships by covered USG attorneys client reasonably informed about the with, and representation of, clients is status of a matter and promptly com- permissible only when the attorney is ply with reasonable requests for infor- authorized to do so by competent au- mation. thority. For purposes of this part, Mili- (b) A covered attorney shall explain a tary Rules of Evidence 502, the Manual matter to the extent reasonably nec- of the Judge Advocate General essary to permit the client to make in- (JAGINST 5800.7 series), and the Naval formed decisions regarding the rep- Legal Service Command Manual resentation. (COMNAVLEGSVCCOMINST 5800.1 se- (c) [Reserved] ries), generally define when an attorney-client relationship is formed be- § 776.24 Fees. tween a covered USG attorney and a (a) A covered USG attorney shall not client servicemember, dependent, or accept any salary, fee, compensation, employee. or other payments or benefits, directly (b) Generally, the subject matter or indirectly, other than Government scope of a covered attorney’s represen- compensation, for services provided in tation will be consistent with the the course of the covered USG attor- terms of the assignment to perform ney’s official duties or employment. specific representational or advisory (b) A covered USG attorney shall not duties. A covered attorney shall inform accept any salary or other payments as clients at the earliest opportunity of compensation for legal services ren- any limitations on representation and dered, by that covered USG attorney in professional responsibilities of the at- a private capacity, to a client who is torney towards the client. eligible for assistance under the DoN

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Legal Assistance Program, unless so method by which the fee is to be deter- authorized by the JAG. This rule does mined, including the percentage or per- not apply to Reserve or Retired judge centages that shall accrue to the cov- advocates not then serving on extended ered non-USG attorney in the event of active-duty. settlement, trial or appeal, litigation (c) A Reserve or Retired judge advo- and other expenses to be deducted from cate, whether or not serving on ex- the recovery, and whether such extended active-duty, who has initially penses are to be deducted before or represented or interviewed a client or after the contingent fee is calculated. prospective client concerning a matter Upon conclusion of a contingent fee as part of the attorney’s official Navy matter, the covered non-USG attorney or Marine Corps duties, shall not ac- shall provide the client with a written cept any salary or other payments as statement stating the outcome of the compensation for services rendered to matter and, if there is a recovery, that client in a private capacity con- showing the remittance to the client cerning the same general matter for and the method of its determination. which the client was seen in an official (g) A covered non-USG attorney shall capacity, unless so authorized by the not enter into an arrangement for, JAG. charge, or collect a contingent fee for (d) Covered non-USG attorneys may representing an accused in a criminal charge fees. Fees shall be reasonable. case. Factors considered in determining the (h) A division of fees between covered reasonableness of a fee include the fol- non-USG attorneys who are not in the lowing: same firm may be made only if: (1) The time and labor required, the (1) The division is in proportion to novelty and difficulty of the questions the services performed by each attor- involved, and the skill requisite to per- ney or, by written agreement with the form the legal service properly; client, each attorney assumes joint re- (2) The likelihood, if apparent to the sponsibility for the representation; client, that the acceptance of the par- (2) The client is advised of and does ticular employment will preclude other not object to the participation of all employment by the attorney; the attorneys involved; and (3) The fee customarily charged in (3) The total fee is reasonable. the locality for similar legal services; (i) Covered Non-USG Attorneys. (4) The amount involved and the re- Paragraphs (d) through (h) of this sec- sults obtained; tion apply only to private civilian at- (5) The time limitations imposed by torneys practicing in proceedings con- the client or by the circumstances; ducted under the cognizance and super- (6) The nature and length of the provision of the JAG. The primary pur- fessional relationship with the client; poses of paragraphs (d) through (h) of (7) The experience, reputation, and this section are not to permit the JAG ability of the attorney or attorneys to regulate fee arrangements between performing the services; and civilian attorneys and their clients but (8) Whether the fee is fixed or contin- to provide guidance to covered USG at- gent. torneys practicing with non-USG at- (e) When the covered non-USG attor- torneys and to supervisory attorneys ney has not regularly represented the who may be asked to inquire into al- client, the basis or rate of the fee shall leged fee irregularities. Absent para- be communicated to the client, pref- graphs (d) through (h) of this section, erably in writing, before or within a such supervisory attorneys have no reasonable time after commencing the readily available standard against representation. which to compare allegedly question- (f) A fee may be contingent on the able conduct of a civilian attorney. outcome of the matter for which the service is rendered, except in a matter § 776.25 Confidentiality of information. in which a contingent fee is prohibited (a) A covered attorney shall not re- by paragraph (a)(7) of this section or veal information relating to represen- other law. A contingent fee agreement tation of a client unless the client shall be in writing and shall state the gives informed consent, the disclosure

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is impliedly authorized in order to tem. Examples of such conduct are: Ab- carry out the representation, or the sence without authority from a peace- disclosure is permitted by paragraph time training exercise; intentional (b) of this section. damage to an individually assigned (b) A covered attorney shall reveal weapon; and intentional minor damage information relating to the representa- to military property. tion of a client to the extent the covered attorney reasonably believes nec- § 776.26 Conflict of interest: General essary: rule. (1) To prevent reasonably certain (a) Except as provided by paragraph death or substantial bodily harm; or (b) of this section, a covered attorney (2) To prevent the client from com- shall not represent a client if the rep- mitting a criminal act that the covered resentation of that client involves a attorney reasonably believes is likely concurrent conflict of interest. A con- to result in the significant impairment current conflict of interest exists if: of national security or the readiness or (1) The representation of one client capability of a military unit, vessel, will be directly adverse to another cli- aircraft, or weapon system. ent; or (c) A covered attorney may reveal (2) There is a significant risk that such information to the extent the cov- the representation of one or more cli- ered attorney reasonably believes nec- ents will be materially limited by the essary: covered attorney’s responsibilities to (1) To secure legal advice about the another client, a former client or a covered attorney’s compliance with third person or by a personal interest subpart B of this part; of the covered attorney. (2) To establish a claim or defense on (b) Notwithstanding the existence of behalf of the covered attorney in a con- a concurrent conflict of interest under troversy between the covered attorney paragraph (a) of this section, a covered and the client, to establish a defense to attorney may represent a client if: a criminal charge or civil claim (1) The covered attorney reasonably against the covered attorney based believes that the covered attorney will upon conduct in which the client was be able to provide competent and dili- involved, or to respond to allegations gent representation to each affected in any proceeding concerning the at- client; torney’s representation of the client; (2) The representation is not prohib- and/or ited by law or regulation; (3) To comply with other law or a (3) The representation does not in- court order. volve the assertion of a claim by one (d) Examples of conduct likely to re- client against another client rep- sult in the significant impairment of resented by the covered attorney in the national security or the readiness or same litigation or other proceeding be- capability of a military unit, vessel, fore a tribunal; and aircraft, or weapon system include: Di- (4) Each affected client gives in- vulging the classified location of a spe- formed consent, confirmed in writing. cial operations unit such that the lives (c) These conflict-of-interest rules of members of the unit are placed in apply to Reservists only while they are immediate danger; sabotaging a vessel actually drilling or on active-duty-for- or aircraft to the extent that the vessel training, or, as is the case with Retir- or aircraft could not conduct an as- ees, on extended active-duty or when signed mission, or that the vessel or performing other duties subject to JAG aircraft and crew could be lost; and supervision. Therefore, unless other- compromising the security of a weap- wise prohibited by criminal conflict-of- ons site such that the weapons are interest statutes, Reserve or Retired likely to be stolen or detonated. Para- attorneys providing legal services in graph (b) of this section is not intended their civilian capacity may represent to and does not mandate the disclosure clients, or work in firms whose attor- of conduct that may have a slight im- neys represent clients, with interests pact on the readiness or capability of a adverse to the United States. Reserve unit, vessel, aircraft, or weapon sys- judge advocates who, in their civilian

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capacities, represent persons whose in- (5) Prior to the conclusion of rep- terests are adverse to the DoN will pro- resentation of the client, make or ne- vide written notification to their su- gotiate an agreement giving a covered pervisory attorney and commanding of- attorney literary or media rights for a ficer, detailing their involvement in portrayal or account based in substan- the matter. Reserve judge advocates tial part on information relating to shall refrain from undertaking any of- representation of a client; ficial action or representation of the (6) Represent a client in a matter di- DoN with respect to any particular rectly adverse to a person whom the matter in which they are providing covered attorney knows is represented representation or services to other cli- by another attorney who is related as ents. parent, child, sibling, or spouse to the covered attorney, except upon consent § 776.27 Conflict of interests: Prohib- by the client after consultation regard- ited transactions. ing the relationship; or (a) Covered USG attorneys shall (7) Acquire a proprietary interest in strictly adhere to current DoD Ethics the cause of action or subject matter of Regulations and shall not: litigation the covered attorney is con- (1) Knowingly enter into any business ducting for a client. transactions on behalf of, or adverse (c) [Reserved] to, a client’s interest that directly or § 776.28 Conflict of interest: Former indirectly relate to or result from the client. attorney-client relationship; or (a) A covered attorney who has for- (2) Provide any financial assistance merly represented a client in a matter to a client or otherwise serve in a fi- shall not thereafter represent another nancial or proprietorial fiduciary or person in the same or a substantially bailment relationship, unless otherwise related matter in which that person’s specifically authorized by competent interests are materially adverse to the authority. interests of the former client, unless (b) No covered attorney shall: the former client gives informed con- (1) Use information relating to rep- sent, confirmed in writing. resentation of a client to the disadvan- (b) A covered attorney who has for- tage of the client unless the client con- merly represented a client in a matter sents after consultation, except as per- shall not thereafter: mitted or required by subpart B of this (1) Use information relating to the part; representation to the disadvantage of (2) Prepare an instrument giving the the former client or to the covered at- covered attorney or a person related to torney’s own advantage, except as Sub- the covered attorney as parent, child, part B of this part would permit or re- sibling, or spouse any gift from a cli- quire with respect to a client, or when ent, including a testamentary gift, ex- the information has become generally cept where the client is related to the known; or donee; (2) Reveal information relating to the (3) In the case of covered non-USG at- representation except as subpart B of torneys, accept compensation for rep- this part would permit or require with resenting a client from one other than respect to a client. the client unless the client consents (c) [Reserved] after consultation, there is no interference with the covered attorney’s § 776.29 Imputed disqualification: Gen- independence of professional judgment eral rule. or with the attorney-client relation- (a) Imputed disqualification: General ship, and information relating to rep- rule. Covered USG attorneys working resentation of a client is protected as in the same military law office are not required by § 776.25 of this part; automatically disqualified from rep- (4) Negotiate any settlement on be- resenting a client because any of them half of multiple clients in a single mat- practicing alone would be prohibited ter unless each client provides fully in- from doing so by § 776.26, § 776.27, formed consent; § 776.28, or § 776.38 of this part. Covered

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non-USG attorneys must consult their neys work together. A covered USG at- federal, state, and local bar rules gov- torney may have general access to files erning the representation of multiple of all clients of a military law office or adverse clients within the same of- (e.g., legal assistance attorney) and fice before such representation is initi- may regularly participate in discus- ated, as such representation may ex- sions of their affairs; it may be inferred pose them to disciplinary action under that such a covered USG attorney in the rules established by their licensing fact is privy to all information about authorities. all the office’s clients. In contrast, an- (b) Comment. (1) The circumstances of other covered USG attorney (e.g., mili- military (or Government) service may tary defense counsel) may have access require representation of opposing to the files of only a limited number of sides by covered USG attorneys work- clients and participate in discussion of ing in the same law office. Such rep- the affairs of no other clients; in the resentation is permissible so long as absence of information to the contrary, conflicts of interests are avoided and it should be inferred that such a cov- independent judgment, zealous rep- ered USG attorney in fact is privy to resentation, and protection of con- information about the clients actually fidences are not compromised. Thus, served but not to information of other the principle of imputed disqualifica- clients. Additionally, a covered USG tion is not automatically controlling attorney changing duty stations or for covered USG attorneys. The knowl- changing assignments within a mili- edge, actions, and conflicts of interests tary office has a continuing duty to of one covered USG attorney are not preserve confidentiality of information imputed to another simply because about a client formerly represented. they operate from the same office. For See § 776.25 and § 776.28 of this part. example, the fact that a number of de- (4) In military practice, where cov- fense attorneys operate from one office ered USG attorneys representing ad- and normally share clerical assistance verse interests are sometimes required would not prohibit them from rep- to share common spaces, equipment, resenting co-accused at trial by court- and clerical assistance, inadvertent martial. Imputed disqualification rules disclosure of confidential or privileged for non-USG attorneys are established material may occur. A covered attor- by their individual licensing authori- ney who mistakenly receives any such ties and may well proscribe all attor- confidential or privileged materials neys from one law office from rep- should refrain from reviewing them resenting a co-accused, or a party with (except for the limited purpose of an adverse interest to an existing cli- ascertaining ownership or proper rout- ent, if any attorney in the same office ing), notify the attorney to whom the were so prohibited. material belongs that he or she has (2) Whether a covered USG attorney such material, and either follow in- is disqualified requires a functional structions of the attorney with respect analysis of the facts in a specific situa- to the disposition of the materials or tion. The analysis should include con- refrain from further reviewing or using sideration of whether the following will the materials until a definitive resolu- be compromised: Preserving attorney- tion of the proper disposition of the client confidentiality; maintaining materials is obtained from a court. A independence of judgment; and avoid- covered attorney’s duty to provide his ing positions adverse to a client. See, or her client zealous representation e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA does not justify a rule allowing the re- 1987). ceiving attorney to take advantage of (3) Preserving confidentiality is a inadvertent disclosures of privileged question of access to information. Ac- and/or confidential materials. This pol- cess to information, in turn, is essen- icy recognizes and reinforces the prin- tially a question of fact in a particular ciples of: Confidentiality and the attor- circumstance, aided by inferences, de- ney-client privilege; analogous prin- ductions, or working presumptions ciples governing the inadvertent waiv- that reasonably may be made about er of the attorney-client privilege; the the way in which covered USG attor- law governing bailments and missent

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property; and considerations of com- former covered USG attorney, who has mon sense, reciprocity, and profes- information known to be confidential sional courtesy. Government information about a per- (5) Maintaining independent judg- son which was acquired while a covered ment allows a covered USG attorney to USG attorney, may not represent a pri- consider, recommend, and carry out vate client whose interests are adverse any appropriate course of action for a to that person in a matter in which the client without regard to the covered information could be used to the mate- USG attorney’s personal interests or rial disadvantage of that person. The the interests of another. When such former covered USG attorney may con- independence is lacking or unlikely, tinue association with a firm, partner- representation cannot be zealous. ship, or association representing any (6) Another aspect of loyalty to a cli- such client only if the disqualified cov- ent is the general obligation of any at- ered USG attorney is screened from torney to decline subsequent represen- any participation in the matter and is tations involving positions adverse to a apportioned no part of the fee or any former client in substantially related other benefit therefrom. matters. This obligation normally re- (c) Except as the law or regulations quires abstention from adverse rep- may otherwise expressly permit, a cov- resentation by the individual covered ered USG attorney shall not: attorney involved, but, in the military (1) Participate in a matter in which legal office, abstention is not required the covered USG attorney participated by other covered USG attorneys personally and substantially while in through imputed disqualification. private practice or nongovernmental employment, unless under applicable § 776.30 Successive Government and law no one is, or by lawful delegation private employment. may be, authorized to act in the cov- (a) Except as the law or regulations ered USG attorney’s stead in the mat- may otherwise expressly permit, a ter; or, former covered USG attorney, who has (2) Negotiate for private employment information known to be confidential with any person who is involved as a Government information about a per- party or as attorney for a party in a son that was acquired while a covered matter in which the covered USG at- USG attorney, may not represent a pri- torney is participating personally and vate client whose interests are adverse substantially. to that person in a matter in which the (d) As used in this paragraph (d), the information could be used to the mate- term ‘‘matter’’ includes: rial disadvantage of that person. The (1) Any judicial or other proceeding, former covered USG attorney may con- application, request for a ruling or tinue association with a firm, partner- other determination, contract, claim, ship, or association representing any controversy, investigation, charge, ac- such client only if the disqualified cov- cusation, arrest, or other particular ered USG attorney is screened from matter involving a specific party or any participation in the matter and is parties, and apportioned no part of the fee or any (2) Any other matter covered by the other benefit therefrom. conflict-of-interest rules of the DoD, (1) The disqualified former covered DoN, or other appropriate Government USG attorney must ensure that he or agency. she is screened from any participation (e) As used in the rule, the term in the matter and is apportioned no ‘‘confidential Governmental informa- part of the fee or any other benefit tion’’ means information that has been therefrom; and, obtained under Governmental author- (2) Must provide written notice ity and that, at the time this Rule is promptly to the appropriate Govern- applied, the Government is prohibited ment agency to enable it to ascertain by law or regulations from disclosing compliance with the provisions of ap- to the public or has a legal privilege plicable law and regulations. not to disclose, and that is not other- (b) Except as the law or regulations wise available to the public. may otherwise expressly permit, a (f) [Reserved]

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§ 776.31 Former judge or arbitrator. tiality for the head of the organiza- (a) Except as stated in paragraph (c) tion’s own benefit but may invoke ei- of this section, a covered USG attorney ther for the benefit of the DoN. In in- shall not represent anyone in connec- voking either the attorney-client privi- tion with a matter in which the cov- lege or attorney-client confidentiality ered USG attorney participated person- on behalf of the DoN, the head of the ally and substantially as a judge or organization is subject to being over- other adjudicative officer, arbitrator, ruled by higher authority. or law clerk to such a person, unless all (b) If a covered USG attorney knows parties to the proceeding give informed that an officer, employee, or other consent, confirmed in writing. member associated with the organiza- (b) A covered USG attorney shall not tional client is engaged in action, in- negotiate for employment with any tends to act or refuses to act in a mat- person who is involved as a party or as ter related to the representation that attorney for a party in a matter in is either adverse to the legal interests which the covered USG attorney is par- or obligations of the DoN or a violation ticipating personally and substantially of law that reasonably might be im- as a judge or other adjudicative officer. puted to the DoN, the covered USG at- A covered USG attorney serving as law torney shall proceed as is reasonably clerk to a judge, other adjudicative of- necessary in the best interest of the ficer, or arbitrator may negotiate for naval service. In determining how to employment with a party or attorney proceed, the covered USG attorney involved in a matter in which the clerk shall give due consideration to the seri- is participating personally and sub- ousness of the violation and its con- stantially, but only after the covered sequences, the scope and nature of the USG attorney has notified the judge, covered USG attorney’s representation, other adjudicative officer, or arbi- the responsibility in the naval service trator, and been disqualified from fur- and the apparent motivation of the ther involvement in the matter. person involved, the policies of the (c) An arbitrator selected as a par- naval service concerning such matters, tisan of a party in a multi-member ar- and any other relevant considerations. bitration panel is not prohibited from Any measures taken shall be designed subsequently representing that party. to minimize prejudice to the interests (d) [Reserved] of the naval service and the risk of revealing information relating to the § 776.32 Department of the Navy as cli- representation to persons outside the ent. service. Such measures shall include: (a) Except when representing an indi- (1) Asking for reconsideration of the vidual client pursuant to paragraph (f) matter by the acting official; of this section, a covered USG attorney (2) Advising that a separate legal represents the DoN (or the Executive opinion on the matter be sought for agency to which assigned) acting presentation to appropriate authority through its authorized officials. These in the naval service; officials include the heads of organiza- (3) Referring the matter to, or seek- tional elements within the naval serving guidance from, higher authority in ice, such as the commanders of fleets, the chain of command including, if divisions, ships and other heads of ac- warranted by the seriousness of the tivities. When a covered USG attorney matter, referral to the supervisory at- is assigned to such an organizational torney assigned to the staff of the act- element and designated to provide ing official’s next superior in the chain legal services to the head of the organi- of command; or zation, an attorney-client relationship (4) Advising the acting official that exists between the covered attorney his or her personal legal interests are and the DoN as represented by the head at risk and that he or she should con- of the organization as to matters with- sult counsel as there may exist a con- in the scope of the official business of flict of interest for the covered USG at- the organization. The head of the orga- torney, and the covered USG attor- nization may not invoke the attorney- ney’s responsibility is to the organiza- client privilege or the rule of confiden- tion.

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(c) If, despite the covered USG attor- adequately act in the client’s own in- ney’s efforts per paragraph (b) of this terest, the covered attorney may take section, the highest authority that can reasonably necessary protective action, act concerning the matter insists upon including consulting with individuals action or refuses to act, in clear viola- or entities that have the ability to tion of law, the covered USG attorney take action to protect the client. shall terminate representation with re- (c) Information relating to the rep- spect to the matter in question. In no resentation of a client with diminished event shall the attorney participate or capacity is protected by § 776.25 of this assist in the illegal activity. In this part. When taking protective action case, a covered USG attorney shall re- pursuant to paragraph (b) of this sec- port such termination of representation, the covered attorney is impliedly tion to the attorney’s supervisory at- authorized under § 776.25(a) of this part torney or attorney representing the to reveal information about the client, next superior in the chain of command. but only to the extent reasonably nec- (d) In dealing with the officers, em- essary to protect the client’s interests. ployees, or members of the naval serv- (d) [Reserved] ice a covered USG attorney shall explain the identity of the client when it § 776.34 Safekeeping property. is apparent that the naval service’s interests are adverse to those of the offi- (a) Covered USG attorneys shall not cer, employee, or member. normally hold or safeguard property of (e) A covered USG attorney rep- a client or third persons in connection resenting the naval service may also with representational duties. See represent any of its officers, employ- § 776.27 of this part. ees, or members, subject to the provi- (b) [Reserved] sions of § 776.26 of this part and other applicable authority. If the DoN’s con- § 776.35 Declining or terminating rep- sent to dual representation is required resentation. by § 776.26 of this part, the consent (a) Except as stated in paragraph (c) shall be given by an appropriate offi- of this section, a covered attorney cial of the DoN other than the indi- shall not represent a client or, when vidual who is to be represented. representation has commenced, shall (f) A covered USG attorney who has seek to withdraw from the representa- been duly assigned to represent an in- tion of a client if: dividual who is subject to criminal or (1) The representation will result in disciplinary action or administrative violation of subpart B of this part or proceedings, or to provide legal assist- other law or regulation; ance to an individual, has, for those (2) The covered attorney’s physical or purposes, an attorney-client relation- mental condition materially impairs ship with that individual. his or her ability to represent the cli- (g) [Reserved] ent; or § 776.33 Client with diminished capac- (3) The covered attorney is dismissed ity. by the client. (a) When a client’s capacity to make (b) Except as stated in paragraph (c) adequately considered decisions in con- of this section, a covered attorney may nection with the representation is di- seek to withdraw from representing a minished, whether because of minority, client if withdrawal can be accom- mental impairment, or for some other plished without material adverse effect reason, the covered attorney shall, as on the interests of the client, or if: far as reasonably possible, maintain a (1) The client persists in a course of normal attorney-client relationship action involving the covered attorney’s with the client. services that the covered attorney rea- (b) When the covered attorney reasonably believes is criminal or fraudu- sonably believes that the client has di- lent; minished capacity, is at risk of sub- (2) The client has used the covered stantial physical, financial, or other attorney’s services to perpetrate a harm unless action is taken and cannot crime or fraud;

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(3) The client insists upon pursuing other matter for which representation an objective that the covered attorney has been established, including but not considers repugnant or imprudent; limited to witnesses, victims, co-ac- (4) In the case of covered non-USG at- cused, and court-martial or board torneys, the representation will result members. in an unreasonable financial burden on (e) For purposes of this paragraph (e), the attorney or has been rendered un- ‘‘sexual relations’’ means: reasonably difficult by the client; or (1) Sexual intercourse; or (5) Other good cause for withdrawal (2) Any touching of the sexual or exists. other intimate parts of a person or (c) A covered attorney must comply causing such person to touch the sex- with applicable law requiring notice to ual or other intimate parts of the cov- or permission of a tribunal when termi- ered attorney for the purpose of arous- nating a representation. When ordered ing or gratifying the sexual desire of to do so by a tribunal or other com- either party. petent authority, a covered attorney shall continue representation notwith- (f) [Reserved] standing good cause for terminating § 776.37 Advisor. the representation. (d) Upon termination of representa- (a) In representing a client, a covered tion, a covered attorney shall take attorney shall exercise independent steps to the extent reasonably prac- professional judgment and render can- ticable to protect a client’s interests, did advice. In rendering advice, a cov- such as giving reasonable notice to the ered attorney may refer not only to client, allowing time for assignment or law but to other considerations such as employment of other counsel, and sur- moral, economic, social, and political rendering papers and property to which factors that may be relevant to the cli- the client is entitled and, where a non- ent’s situation. USG attorney provided representation, (b) [Reserved] refunding any advance payment of fee that has not been earned. The covered § 776.38 Mediation. attorney may retain papers relating to (a) A covered attorney may act as a the client to the extent permitted by mediator between individuals if: law. (1) The covered attorney consults (e) [Reserved] with each individual concerning the § 776.36 Prohibited sexual relations. implications of the mediation, including the advantages and risks involved, (a) A covered attorney shall not have and the effect on the attorney-client sexual relations with a current client. confidentiality, and obtains each indi- A covered attorney shall not require, vidual’s consent to the mediation; demand, or solicit sexual relations with a client incident to any profes- (2) The covered attorney reasonably sional representation. believes that the matter can be re- (b) A covered attorney shall not en- solved on terms compatible with each gage in sexual relations with another individual’s best interests, that each attorney currently representing a individual will be able to make ade- party whose interests are adverse to quately informed decisions in the mat- those of a client currently represented ter, and that there is little risk of ma- by the covered attorney. terial prejudice to the interests of any (c) A covered attorney shall not en- of the individuals if the contemplated gage in sexual relations with a judge resolution is unsuccessful; and, who is presiding or who is likely to pre- (3) The covered attorney reasonably side over any proceeding in which the believes that the mediation can be un- covered attorney will appear in a rep- dertaken impartially and without im- resentative capacity. proper effect on other responsibilities (d) A covered attorney shall not en- the covered attorney has to any of the gage in sexual relations with other per- individuals. sons involved in the particular case, ju- (b) While acting as a mediator, the dicial or administrative proceeding, or covered attorney shall consult with

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each individual concerning the deci- § 776.41 Expediting litigation. sions to be made and the consider- (a) A covered attorney shall make ations relevant in making them, so reasonable efforts to expedite litiga- that each individual can make ade- tion or other proceedings consistent quately informed decisions. with the interests of the client. (c) A covered attorney shall with- (b) [Reserved] draw as a mediator if any of the individuals so requests, or if any of the § 776.42 Candor and obligations to- conditions stated in paragraph (a)(1) of ward the tribunal. this section is no longer satisfied. Upon (a) A covered attorney shall not withdrawal, the covered attorney shall knowingly: not represent any of the individuals in (1) Make a false statement of mate- the matter that was the subject of the rial fact or law to a tribunal or fail to mediation unless each individual con- correct a false statement of material sents. fact or law previously made to the tri- (d) [Reserved] bunal by the covered attorney; (2) Fail to disclose to the tribunal § 776.39 Evaluation for use by third persons. legal authority in the controlling jurisdiction known to the covered attorney (a) A covered attorney may provide to be directly adverse to the position of an evaluation of a matter affecting a the client and not disclosed by oppos- client for the use of someone other ing counsel; than the client if: (3) Offer evidence that the covered (1) The covered attorney reasonably attorney knows to be false. If a covered believes that making the evaluation is attorney, the attorney’s client, or a compatible with other aspects of the witness called by the covered attorney, covered attorney’s relationship with has offered material evidence and the the client; and covered attorney comes to know of its (2) The client provides informed con- falsity, the covered attorney shall take sent, confirmed in writing. reasonable remedial measures, includ- (b) Except as disclosure is required in ing, if necessary, disclosure to the tri- connection with a report of an evalua- bunal. A covered attorney may refuse tion, information relating to the eval- to offer evidence, other than the testi- uation is otherwise protected by § 776.25 mony of an accused in a criminal mat- of this part. ter, that the covered attorney reason- (c) [Reserved] ably believes is false; or (4) Disobey an order imposed by a tri- § 776.40 Meritorious claims and con- bunal unless done openly before the tri- tentions. bunal in a good faith assertion that no valid order should exist. (a) A covered attorney shall not (b) A covered attorney who rep- bring or defend a proceeding, or assert resents a client in an adjudicative pro- or controvert an issue therein, unless ceeding and who knows that a person there is a basis for doing so that is not intends to engage, is engaging or has frivolous, which includes a good faith engaged in criminal or fraudulent con- argument for an extension, modifica- duct related to the proceeding shall tion, or reversal of existing law. A cov- take reasonable remedial measures, in- ered attorney representing an accused cluding, if necessary, disclosure to the in a criminal proceeding or the re- tribunal. spondent in an administrative pro- (c) The duties stated in paragraph (a) ceeding, that could result in incarcer- of this section continue to the conclu- ation, discharge from the Naval serv- sion of the proceedings, and apply even ice, or other adverse personnel action, if compliance requires disclosure of in- may nevertheless defend the client at formation otherwise protected by the proceeding as to require that every § 776.25 of this part. element of the case is established. (d) In an ex parte proceeding, a cov- (b) [Reserved] ered attorney shall inform the tribunal

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of all material facts known to the cov- tribunal, or other official by means ered attorney that will enable the tri- prohibited by law or regulation; bunal to make an informed decision, (2) Communicate ex parte with such a whether or not the facts are adverse. person except as permitted by law or (e) [Reserved] regulation; or (3) Engage in conduct intended to dis- § 776.43 Fairness to opposing party rupt a tribunal. and counsel. (b) [Reserved] (a) A covered attorney shall not: (1) Unlawfully obstruct a party’s ac- § 776.45 Extra-tribunal statements. cess to evidence or unlawfully alter, (a) A covered attorney shall not destroy, or conceal a document or make an extrajudicial statement about other material having potential evi- any person or case pending investiga- dentiary value. A covered attorney tion or adverse administrative or dis- shall not counsel or assist another per- ciplinary proceedings that a reasonable son to do any such act; person would expect to be disseminated (2) Falsify evidence, counsel or assist by means of public communication if a witness to testify falsely, or offer an the covered attorney knows or reason- inducement to a witness that is prohib- ably should know that it will have a ited by law; substantial likelihood of materially (3) Knowingly disobey an order of the prejudicing an adjudicative proceeding tribunal except for an open refusal or an official review process thereof. based on an assertion that no valid ob- (b) A statement referred to in para- ligation exists; graph (a) of this section ordinarily is (4) In pretrial procedure, make a friv- likely to have such an effect when it olous discovery request or fail to make refers to a civil matter triable to a reasonably diligent effort to comply jury, a criminal matter (including be- with a legally proper discovery request fore a military tribunal or commis- by a party; sion), or any other proceeding that (5) In trial, allude to any matter that could result in incarceration, discharge the covered attorney does not reason- from the naval service, or other ad- ably believe is relevant or that will not verse personnel action, and the state- be supported by admissible evidence, ment relates to: assert personal knowledge of facts in (1) The character, credibility, reputa- issue except when testifying as a wit- tion, or criminal record of a party, sus- ness, or state a personal opinion as to pect in a criminal investigation, vic- the justness of a cause, the credibility tim, or witness, or the identity of a of a witness, the culpability of a civil victim or witness, or the expected tes- litigant, or the guilt or innocence of an timony of a party, suspect, victim, or accused; or witness; (6) Request a person other than a cli- (2) The possibility of a plea of guilty ent to refrain from voluntarily giving to the offense or the existence or con- relevant information to another party tents of any confession, admission, or unless: statement given by an accused or sus- (i) The person is a relative, an em- pect or that person’s refusal or failure ployee, or other agent of a client; and to make a statement; (ii) The covered attorney reasonably (3) The performance or results of any believes that the person’s interests will forensic examination or test or the re- not be adversely affected by refraining fusal or failure of a person to submit to from giving such information. an examination or test, or the identity (b) [Reserved] or nature of physical evidence expected to be presented; § 776.44 Impartiality and decorum of (4) Any opinion as to the guilt or in- the tribunal. nocence of an accused or suspect in a (a) A covered attorney shall not: criminal case or other proceeding that (1) Seek to influence a judge, court could result in incarceration, discharge member, member of a tribunal, pro- from the naval service, or other ad- spective court member or member of a verse personnel action;

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(5) Information the covered attorney (d) Notwithstanding paragraphs (a) knows or reasonably should know is and (b)(1) through (7) of this section, a likely to be inadmissible as evidence covered attorney may make a state- before a tribunal and would, if dis- ment that a reasonable covered attor- closed, create a substantial risk of ma- ney would believe is required to protect terially prejudicing an impartial pro- a client from the substantial undue ceeding; prejudicial effect of recent publicity (6) The fact that an accused has been not initiated by the covered attorney charged with a crime, unless there is or the attorney’s client. A statement included therein a statement explain- made pursuant to this paragraph shall ing that the charge is merely an accu- be limited to such information as is sation and that the accused is pre- necessary to mitigate the recent ad- sumed innocent until and unless prov- verse publicity. en guilty; or (e) The protection and release of in- (7) The credibility, reputation, mo- formation in matters pertaining to the tives, or character of civilian or mili- DoN is governed by such statutes as tary officials of the DoD. the Freedom of Information Act and (c) Notwithstanding paragraphs (a) the Privacy Act, in addition to those and (b)(1) through (7) of this section, a governing protection of national de- covered attorney involved in the inves- fense information. In addition, other tigation or litigation of a matter may laws and regulations may further re- state without elaboration: strict the information that can be re- (1) The general nature of the claim, leased or the source from which it is to offense, or defense; be released (e.g., the Manual of the (2) The information contained in a Judge Advocate General). public record; (f) [Reserved] (3) That an investigation of the mat- § 776.46 Attorney as witness. ter is in progress, including the general scope of the investigation, the offense (a) A covered attorney shall not act or claim or defense involved and, ex- as advocate at a trial in which the cov- cept when prohibited by law or regula- ered attorney is likely to be a nection, the identity of the persons in- essary witness except when: volved; (1) The testimony relates to an (4) The scheduling or result of any uncontested issue; step in litigation; (2) The testimony relates to the nature and quality of legal services ren- (5) A request for assistance in obtain- dered in the case; or ing evidence and information necessary (3) Disqualification of the covered at- thereto; torney would work substantial hard- (6) A warning of danger concerning ship on the client. the behavior of the person involved, (b) A covered attorney may act as ad- when there is reason to believe that vocate in a trial in which another at- there exists the likelihood of substan- torney in the covered attorney’s office tial harm to an individual or to the is likely to be called as a witness, un- public interest; and less precluded from doing so by § 776.26 (7) In a criminal case, in addition to or § 776.28 of this part. paragraphs (c)(1) through (6) of this (c) [Reserved] section: (i) The identity, duty station, occu- § 776.47 Special responsibilities of a pation, and family status of the ac- trial counsel and other government cused; counsel. (ii) If the accused has not been appre- (a) A trial counsel in a criminal case hended, information necessary to aid in shall: apprehension of that person; (1) Recommend to the convening au- (iii) The fact, time, and place of ap- thority that any charge or specifica- prehension; and tion not supported by probable cause (iv) The identity of investigating and be withdrawn; apprehending officers or agencies and (2) Make reasonable efforts to assure the length of the investigation. that the accused has been advised of

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the right to, and the procedure for ob- or listening to such privileged commu- taining, counsel and has been given nications. reasonable opportunity to obtain coun- (c)(1) The trial counsel represents the sel; United States in the prosecution of (3) Not seek to obtain from an unrep- special and general courts-martial. See resented accused a waiver of important Article 38(a), UCMJ; see also R.C.M. pretrial rights; 103(16), 405(d)(3)(A), and 502(d)(5). Ac- (4) Make timely disclosure to the de- cordingly, a trial counsel has the re- fense of all evidence or information sponsibility of administering justice known to the trial counsel that tends and is not simply an advocate. This re- to negate the guilt of the accused or sponsibility carries with it specific ob- mitigates the offense, and, in connec- ligations to see that the accused is action with sentencing, disclose to the corded procedural justice and that defense all unprivileged mitigating in- guilt is decided upon the basis of suffi- formation known to the trial counsel, cient evidence. Paragraph (a)(1) of this except when the trial counsel is re- section recognizes that the trial coun- lieved of this responsibility by a pro- sel does not have all the authority tective order or regulation; vested in modern civilian prosecutors. (5) Exercise reasonable care to pre- The authority to convene courts-mar- vent investigators, law enforcement tial, and to refer and withdraw specific charges, is vested in convening au- personnel, employees, or other persons thorities. Trial counsel may have the assisting or associated with the trial duty, in certain circumstances, to counsel from making an extrajudicial bring to the court’s attention any statement that the trial counsel would charge that lacks sufficient evidence to be prohibited from making under support a conviction. See United § 776.45 of this part; and States v. Howe, 37 M.J. 1062 (NMCMR (6) Except for statements that are 1993). Such action should be under- necessary to inform the public of the taken only after consultation with a nature and extent of the trial counsel’s supervisory attorney and the con- actions and that serve a legitimate law vening authority. See also § 776.42(d) of enforcement purpose, refrain from this part (governing ex parte pro- making extrajudicial comments that ceedings). Applicable law may require have a substantial likelihood of height- other measures by the trial counsel. ening public condemnation of the ac- Knowing disregard of those obligations cused. or a systematic abuse of prosecutorial (b) Trial counsel and other govern- discretion could constitute a violation ment counsel shall exercise reasonable of § 776.69 of this part. care to avoid intercepting, seizing, (2) Paragraph (a)(3) of this section copying, viewing, or listening to com- does not apply to an accused appearing munications protected by the attorney- pro se with the approval of the tri- client privilege during investigation of bunal. Nor does it forbid the lawful a suspected offense (particularly when questioning of a suspect who has know- conducting government-sanctioned ingly waived the rights to counsel and searches where attorney-client privi- to remain silent. leged communications may be present), (3) The exception in paragraph (a)(4) as well as in the preparation or pros- of this section recognizes that a trial ecution of a case. Such communica- counsel may seek an appropriate pro- tions expressly include, but are not tective order from the tribunal if dis- limited to, land-line telephone con- closure of information to the defense versations, facsimile transmissions, could result in substantial harm to an U.S. mail, and Email. Trial counsel and individual or organization or to the other government counsel must not in- public interest. This exception also fringe upon the confidential nature of recognizes that applicable statutes and attorney-client privileged communica- regulations may proscribe the disclo- tions and are responsible for the ac- sure of certain information without tions of their agents or representatives proper authorization. when they induce or assist them in (4) A trial counsel may comply with intercepting, seizing, copying, viewing, paragraph (a)(5) of this section in a

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number of ways. These include person- fraudulent act by a client, unless dis- ally informing others of the trial coun- closure is prohibited by § 776.25 of this sel’s obligations under § 776.46 of this part. part, conducting training of law en- (b) [Reserved] forcement personnel, and appropriately supervising the activities of personnel § 776.50 Communication with person assisting the trial counsel. represented by counsel. (5) Paragraph (a)(6) of this section (a) In representing a client, a covered supplements § 776.45 of this part, which attorney shall not communicate about prohibits extrajudicial statements that the subject of the representation with have a substantial likelihood of a party the covered attorney knows to prejudicing an adjudicatory pro- be represented by another attorney in ceeding. A trial counsel can, and the matter, unless the covered attor- should, avoid comments that have no ney has the consent of the other attor- legitimate law enforcement purpose ney or is authorized by law to do so. and have a substantial likelihood of in- (b) [Reserved] creasing public opprobrium of the accused. Nothing in this Comment is in- § 776.51 Dealing with an unrepre- tended to restrict the statements that sented person. a trial counsel may make that comply (a) When dealing on behalf of a client with § 776.45 of this part. with a person who is not represented by (6) The ‘‘ABA Standards for Criminal counsel, a covered attorney shall not Justice: The Prosecution Function,’’ state or imply that the covered attor- (3d ed. 1993), has been used by appellate ney is disinterested. When the covered courts in analyzing issues concerning attorney knows or reasonably should trial counsel conduct. To the extent know that the unrepresented person consistent with these Rules, the ABA misunderstands the covered attorney’s standards may be used to guide trial role in the matter, the covered attor- counsel in the prosecution of criminal ney shall make reasonable efforts to cases. See United States v. Howe, 37 correct the misunderstanding. M.J. 1062 (NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993); United (b) [Reserved] States v. Hamilton, 41 M.J. 22 (CMA § 776.52 Respect for rights of third per- 1994); United States v. Meek, 44 M.J. 1 sons. (CMA 1996). (d) [Reserved] (a) In representing a client, a covered attorney shall not use means that have § 776.48 Advocate in nonadjudicative no substantial purpose other than to proceedings. embarrass, delay, or burden a third (a) A covered attorney representing a person, or use methods of obtaining client before a legislative or adminis- evidence that violate the legal rights trative tribunal in a nonadjudicative of such a person. proceeding shall disclose that the ap- (b) [Reserved] pearance is in a representative capacity and shall conform to the provisions § 776.53 Responsibilities of the Judge of §§ 776.42 (a) through (d), 776.43, and Advocate General and supervisory attorneys. 776.44 of this part. (b) [Reserved] (a) The JAG and supervisory attorneys shall make reasonable efforts to § 776.49 Truthfulness in statements to ensure that all covered attorneys con- others. form to subpart B of this part. (a) In the course of representing a cli- (b) A covered attorney having direct ent a covered attorney shall not know- supervisory authority over another ingly; covered attorney shall make reason- (1) Make a false statement of mate- able efforts to ensure that the other at- rial fact or law to a third person; or torney conforms to subpart B of this (2) Fail to disclose a material fact to part. a third person when disclosure is nec- (c) A supervisory attorney shall be essary to avoid assisting a criminal or responsible for another subordinate

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covered attorney’s violation of subpart compatible with the professional obli- B of this part if: gations of a covered attorney; and (1) The supervisory attorney orders (3) A covered attorney shall be re- or, with knowledge of the specific con- sponsible for conduct of such a person duct, ratifies the conduct involved; or that would be a violation of this part if (2) The supervisory attorney has di- engaged in by a covered attorney if: rect supervisory authority over the (i) The covered attorney orders or, other attorney and knows of the con- with the knowledge of the specific conduct at a time when its consequences duct, explicitly or impliedly ratifies can be avoided or mitigated but fails to the conduct involved; or take reasonable remedial action. (ii) The covered attorney has direct (d) A supervisory attorney is respon- supervisory authority over the person, sible for ensuring that the subordinate covered attorney is properly trained and knows of the conduct at a time and is competent to perform the duties when its consequences can be avoided to which the subordinate covered at- or mitigated but fails to take reason- torney is assigned. able remedial action. (e) [Reserved] (b) [Reserved]

§ 776.54 Responsibilities of a subordi- § 776.56 Professional independence of nate attorney. a covered USG attorney. (a) A covered attorney is bound by (a) Notwithstanding a judge advo- this part notwithstanding that the cov- cate’s status as a commissioned officer ered attorney acted at the direction of subject, generally, to the authority of another person. superiors, a judge advocate detailed or (b) In recognition of the judge advo- assigned to represent an individual cate’s unique dual role as a commis- member or employee of the DoN is ex- sioned officer and attorney, subordi- pected to exercise unfettered loyalty nate judge advocates shall obey lawful and professional independence during directives and regulations of super- the representation consistent with sub- visory attorneys when not inconsistent part B of this part and remains ulti- with this part or the duty of a judge mately responsible for acting in the advocate to exercise independent pro- best interest of the individual client. fessional judgment as to the best inter- (b) Notwithstanding a civilian USG est of an individual client. attorney’s status as a Federal em- (c) A subordinate covered attorney ployee subject, generally, to the au- does not violate this part if that cov- thority of superiors, a civilian USG at- ered attorney acts in accordance with a torney detailed or assigned to rep- supervisory attorney’s written and rea- resent an individual member or em- sonable resolution of an arguable ques- ployee of the DoN is expected to exer- tion of professional duty. cise unfettered loyalty and professional (d) [Reserved] independence during the representation § 776.55 Responsibilities regarding consistent with this part and remains non-attorney assistants. ultimately responsible for acting in the (a) With respect to a non-attorney best interest of the individual client. acting under the authority, super- (c) The exercise of professional judg- vision, or direction of a covered attor- ment in accordance with paragraph (a) ney: or (b) of this section shall not, standing (1) The senior supervisory attorney alone, be a basis for an adverse evalua- in an office shall make reasonable ef- tion or other prejudicial action. forts to ensure that the person’s con- (1) Subpart B of this part recognizes duct is compatible with the profes- that a judge advocate is a military offi- sional obligations of a covered attor- cer required by law to obey the lawful ney; orders of superior officers. It also rec- (2) A covered attorney having direct ognizes the similar status of a civilian supervisory authority over the non-at- USG attorney. Nevertheless, the prac- torney shall make reasonable efforts to tice of law requires the exercise of ensure that the person’s conduct is judgment solely for the benefit of the

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client and free of compromising influ- does not prohibit a covered USG attor- ences and loyalties. Thus, when a cov- ney from using the services of non-at- ered USG attorney is assigned to rep- torneys and delegating functions to resent an individual client, neither the them, so long as the covered attorney attorney’s personal interests, the in- supervises the delegated work and re- terests of other clients, nor the inter- tains responsibility for it. See § 776.55 ests of third persons should affect loy- of this part. Likewise, it does not pro- alty to the individual client. hibit covered USG attorneys from pro- (2) Not all direction given to a subor- viding professional advice and instruc- dinate covered attorney is an attempt tion to non-attorneys whose employ- to influence improperly the covered at- ment requires knowledge of law; for ex- torney’s professional judgment. Each ample, claims adjusters, social work- situation must be evaluated by the ers, accountants and persons employed facts and circumstances, giving due consideration to the subordinate’s in Government agencies. In addition, a training, experience, and skill. A cov- covered USG attorney may counsel in- ered attorney subjected to outside dividuals who wish to proceed pro se or pressures should make full disclosure non-attorneys authorized by law or of them to the client. If the covered at- regulation to appear and represent torney or the client believes the effec- themselves or others before military tiveness of the representation has been proceedings. or will be impaired thereby, the covered attorney should take proper steps §§ 776.58–776.65 [Reserved] to withdraw from representation of the client. § 776.66 Bar admission and discipli- (3) Additionally, a judge advocate has nary matters. a responsibility to report any instances (a) A covered attorney, in connection of unlawful command influence. See with any application for bar admission, R.C.M. 104, MCM, 1998. appointment as a judge advocate, employment as a civilian USG attorney, § 776.57 Unauthorized practice of law. certification by the JAG or his des- (a) A covered USG attorney shall not: ignee, or in connection with any dis- (1) Except as authorized by an appro- ciplinary matter, shall not: priate military department, practice (1) Knowingly make a false state- law in a jurisdiction where doing so is ment of fact; or prohibited by the regulations of the (2) Fail to disclose a fact necessary to legal profession in that jurisdiction; or correct a misapprehension known by (2) Assist a person who is not a mem- the person to have arisen in the mat- ber of the bar in the performance of acter, or knowingly fail to respond to a tivity that constitutes the unauthorized practice of law. lawful demand for information from an (3) Engage in the outside practice of admissions or disciplinary authority, law without receiving proper author- except that this part does not require ization from the JAG. disclosure of information otherwise (b) Limiting the practice of law to protected by § 776.25 of this part. members of the bar protects the public (b) The duty imposed by subpart B of against rendition of legal services by this part extends to covered attorneys unqualified persons. A covered USG at- and other attorneys seeking admission torney’s performance of legal duties to a bar, application for appointment pursuant to a military department’s as a covered USG attorney (military or authorization, however, is considered a civilian) or certification by the JAG or Federal function and not subject to his designee. Hence, if a person makes regulation by the states. Thus, a cov- a false statement in connection with ered USG attorney may perform legal an application for admission or certifi- assistance duties even though the cov- cation (e.g., misstatement by a civilian ered attorney is not licensed to prac- attorney before a military judge re- tice in the jurisdiction within which garding qualifications under R.C.M. the covered attorney’s duty station is 502), it may be the basis for subsequent located. Paragraph (a)(2) of this section

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disciplinary action if the person is ad- § 776.69 Misconduct. mitted, and in any event may be rel- (a) It is professional misconduct for a evant in a subsequent admission appli- covered attorney to: cation. The duty imposed by subpart B (1) Violate or attempt to violate sub- of this part applies to a covered attor- part B of this part, knowingly assist or ney’s own admission or discipline as induce another to do so, or do so well as that of others. Thus, it is a sep- through the acts of another; arate professional offense for a covered (2) Commit a criminal act that re- attorney to make a knowing misrepre- flects adversely on the covered attor- sentation or omission in connection ney’s honesty, trustworthiness, or fit- with a disciplinary investigation of the ness as an attorney in other respects; covered attorney’s own conduct. Sub- (3) Engage in conduct involving dis- part B of this part also requires affirm- honesty, fraud, deceit, or misrepresen- ative clarification of any misunder- tation; standing on the part of the admissions, (4) Engage in conduct that is preju- certification, or disciplinary authority dicial to the administration of justice; of which the person involved becomes (5) State or imply an ability to influ- aware. ence improperly a government agency § 776.67 Judicial and legal officers. or official; or (6) Knowingly assist a judge or judi- (a) A covered attorney shall not cial officer in conduct that is a viola- make a statement that the covered at- tion of applicable rules of judicial con- torney knows to be false or with reck- duct or other law. less disregard as to its truth or falsity (b)(1) Judge advocates hold a com- concerning the qualifications or integ- mission as an officer in the Navy or rity of a judge, investigating officer, Marine Corps and assume legal respon- hearing officer, adjudicatory officer, or sibilities going beyond those of other public legal officer, or of a candidate citizens. A judge advocate’s abuse of for election or appointment to judicial such commission can suggest an inabil- or legal office. ity to fulfill the professional role of (b) [Reserved] judge advocate and attorney. This concept has similar application to civilian § 776.68 Reporting professional misconduct. USG attorneys. (2) Covered non-USG attorneys, Re- (a) A covered attorney having knowl- servists, and Retirees (acting in their edge that another covered attorney has civilian capacity), like their active- committed a violation of subpart B of duty counterparts, are expected to this part that raises a substantial ques- demonstrate model behavior and exem- tion as to that covered attorney’s hon- plary integrity at all times. The JAG esty, trustworthiness, or fitness as a may consider any and all derogatory or covered attorney in other respects, beneficial information about a covered shall report such violation in accord- attorney, for purposes of determining ance with the procedures set forth in the attorney’s qualification, profes- this part. sional competence, or fitness to prac- (b) A covered attorney having knowl- tice law in DoN matters, or to admin- edge that a judge has committed a vio- ister discipline under this rule. Such lation of applicable rules of judicial consideration shall be made, except in conduct that raises a substantial ques- emergency situations necessitating im- tion as to the judge’s fitness for office mediate action, according to the proce- shall report such violation in accord- dures established in this rule. ance with the procedures set forth in this part. § 776.70 Jurisdiction. (c) This part does not require disclo- (a) All covered attorneys shall be sure of information otherwise pro- governed by this part. tected by § 776.25 of this part. (b)(1) Many covered USG attorneys (d) [Reserved] practice outside the territorial limits

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of the jurisdiction in which they are li- ney may require any covered USG at- censed. While covered attorneys re- torney over whom they exercise au- main subject to the governing author- thority to establish that the attorney ity of the jurisdiction in which they continues to be in good standing with are licensed to practice, they are also his or her licensing authority. Rep- subject to subpart B of this part. resentatives of the JAG or of the Staff (2) When covered USG attorneys are Judge Advocate to the Commandant of engaged in the conduct of Navy or Ma- the Marine Corps may also inquire di- rine Corps legal functions, whether rectly of any such covered USG attor- serving the Navy or Marine Corps as a ney’s licensing authority to establish client or serving an individual client as whether he or she continues to be in authorized by the Navy or Marine good standing and has no disciplinary Corps, the provisions contained in sub- action pending. part B of this part supersede any con- (c) Each covered USG attorney shall flicting rules applicable in jurisdic- immediately report to the JAG if any tions in which the covered attorney jurisdiction in which the covered USG may be licensed. However, covered at- attorney is or has been a member in torneys practicing in State or Federal good standing commences disciplinary civilian court proceedings will abide by investigation or action against him or the rules adopted by that State or Fed- her or if the covered USG attorney is eral civilian court during the pro- disciplined, suspended, or disbarred ceedings. As for covered non-USG at- from the practice of law in any juris- torneys practicing under the super- diction. vision of the JAG, violation of the pro- (d) Each covered non-USG attorney visions contained in subpart B of this representing an accused in any court- part may result in suspension from martial or administrative separation practice in DoN proceedings. proceeding shall be a member in good (3) Covered non-USG attorneys, Re- standing with, and authorized to prac- servists, or Retirees (acting in their ci- tice law by, the bar of a Federal court vilian capacity) who seek to provide or of the bar of the highest court of a legal services in any DoN matter under State, or a lawyer otherwise authorized JAG cognizance and supervision, may by a recognized licensing authority to be precluded from such practice of law practice law and found by the military if, in the opinion of the JAG (as exer- judge to be qualified to represent the cised through this rule) the attorney’s accused. conduct in any venue renders that at- (e)(1) Generally, the JAG relies on torney unable or unqualified to prac- the licensing authority granting the tice in DoN programs or proceedings. certification or privilege to practice law to define the phrase ‘‘good stand- § 776.71 Requirement to remain in ing.’’ However, as circumstances re- good standing with licensing au- quire, the JAG may, instead, use sepa- thorities. rate criteria to determine compliance. (a) Each officer of the Navy ap- At a minimum, ‘‘good standing’’ means pointed as a member of the JAG Corps, the individual: each officer of the Marine Corps des- (i) Is subject to the jurisdiction’s dis- ignated a judge advocate, and each ciplinary review process; civil service and contracted civilian at- (ii) Has not been suspended or dis- torney who practices law under the barred from the practice of law within cognizance and supervision of the JAG the jurisdiction; shall maintain a status considered ‘‘in (iii) Is current in the payment of all good standing’’ at all times with the li- required fees; censing authority admitting the indi- (iv) Has met applicable continuing vidual to the practice of law before the legal education requirements that the highest court of at least one State, jurisdiction has imposed (or the cog- Territory, Commonwealth, or the Dis- nizant authority has waived); and trict of Columbia. (v) Has met such other requirements (b) The JAG, the Staff Judge Advo- as the cognizant authority has set for cate to the Commandant of the Marine eligibility to practice law. So long as Corps, or any other supervisory attor- these conditions are met, a covered

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USG attorney may be ‘‘inactive’’ as to a member of the bar, such as a military the practice of law within a particular judge per 10 U.S.C. 826(b). The JAG, the jurisdiction and still be ‘‘in good stand- SJA to CMC, or any other supervisory ing’’ for purposes of subpart B of this attorney may need to verify the profes- part. sional qualifications of a judge advo- (2) Rule for Court-Martial 502(d)(3)(A) cate, either periodically or on an occa- requires that any civilian defense coun- sional basis. JAGINST 5803.2 (series) sel representing an accused in a court- establishes a biennial requirement for martial be a member of the bar of a all covered attorneys to provide proof Federal court or of the bar of the high- of good standing. est court of a State. This civilian de- (6) Certification by the United States fense counsel qualification only has Court of Appeals for the Armed Forces meaning if the attorney is a member that a judge advocate is in good stand- ‘‘in good standing,’’ and is then author- ing with that court will not satisfy the ized to practice law within that juris- requirement of this section, since such diction. See United States v. status is normally dependent on Arti- Waggoner, 22 M.J. 692 (AFCMR 1986). It cle 27, UCMJ, certification. is appropriate for the military judge, in each and every case, to ensure that a §§ 776.72–776.75 [Reserved] civilian defense counsel is qualified to represent the accused. Subpart C—Complaint Processing (3) Failure of a judge advocate to Procedures comply with the requirements of subpart B of this part may result in pro- § 776.76 Policy. fessional disciplinary action as pro- (a) It is JAG’s policy to investigate vided for in this rule, loss of certifi- and resolve, expeditiously and fairly, cation under Articles 26 and/or 27(b), all allegations of professional impro- UCMJ, adverse entries in military serv- priety lodged against covered attor- ice records, and administrative separa- neys under JAG supervision. tion under SECNAVINST 1920.6 (series) (b) Rules Counsel approval will be ob- based on the officer’s failure to maintained before conducting any prelimi- tain professional qualifications. In the nary inquiry or formal investigation case of civil service and contracted ci- into an alleged violation of the Rules vilian attorneys practicing under the of Professional Conduct (subpart B of JAG’s cognizance and supervision, fail- this part) or the ABA Model Code of ure to maintain good standing or oth- Judicial Conduct (Code of Judicial Con- erwise to comply with the require- duct). The Rules Counsel will notify ments of subpart B of this part may re- the JAG prior to the commencement of sult in adverse administrative action any preliminary inquiry or investiga- under applicable personnel regulations, tion. The preliminary inquiry and any including termination of employment. subsequent investigation will be con- (4) A covered USG attorney need only ducted according to the procedures set remain in good standing in one juris- forth in this subpart. diction. If admitted to the practice of law in more than one jurisdiction, how- § 776.77 Related investigations and ac- ever, and any jurisdiction commences tions. disciplinary action against or dis- Acts or omissions by covered attor- ciplines, suspends or disbars the cov- neys may constitute professional mis- ered USG attorney from the practice of conduct, criminal misconduct, poor law, the covered USG attorney must so performance of duty, or a combination advise the JAG. of all three. Care must be taken to (5) An essential time to verify that a characterize appropriately the nature judge advocate is currently in good of a covered attorney’s conduct to de- standing is upon accession. Other ap- termine who may and properly should propriate times for verification are be- take official action. fore a judge advocate is promoted to a (a) Questions of legal ethics and pro- higher grade, detailed to a new com- fessional misconduct by covered attor- mand, or assigned to duties where neys are within the exclusive province there is a statutory requirement to be of the JAG. Ethical or professional

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misconduct will not be attributed to formal complaint described in § 776.79 any covered attorney in any official of this part. record without a final JAG determination, made in accordance with this part § 776.79 The formal complaint. that such misconduct has occurred. (a) The formal complaint shall: (b) Criminal misconduct is properly (1) Be in writing and be signed by the addressed by the covered USG attor- complainant; ney’s commander through the discipli- (2) State that the complainant has nary process provided under the UCMJ personal knowledge, or has otherwise and implementing regulations, or received reliable information indi- through referral to appropriate civil cating, that: authority. (i) The covered attorney concerned (c) Poor performance of duty is prop- is, or has been, engaged in misconduct erly addressed by the covered USG at- that demonstrates a lack of integrity, torney’s reporting senior through a va- that constitutes a violation of this part riety of administrative actions, includ- or the Code of Judicial Conduct or a ing documentation in fitness reports or failure to meet the ethical standards of employee appraisals. the profession; or (ii) The covered attorney concerned (d) Prior JAG approval is not re- is ethically, professionally, or morally quired to investigate allegations of unqualified to perform his or her du- criminal conduct or poor performance ties; and of duty involving covered attorneys. (3) Contain a complete, factual state- When, however, investigations into ment of the acts or omissions consti- criminal conduct or poor performance tuting the substance of the complaint, reveal conduct that constitutes a viola- as well as a description of any at- tion of this part or of the Code of Judi- tempted resolution with the covered cial Conduct in the case of judges, such attorney concerned. Supporting state- conduct shall be reported to the Rules ments, if any, should be attached to Counsel immediately. the complaint. (e) Generally, professional responsi- (b) A complaint may be initiated by bility complaints will be processed in any person, including the Administra- accordance with this part upon receipt. tive Law Division of the Office of the Rules Counsel may, however, on a case- Judge Advocate General (OJAG) Ad- by-case basis, delay such processing to ministrative Law Division (Code 13) or await the outcome of pending related the Judge Advocate Research and Civil criminal, administrative, or investiga- Law Branch, Office of the SJA to CMC, tive proceedings. HQMC (JAR). (f) Nothing in this part prevents a military judge or other appropriate of- § 776.80 Initial screening. ficial from removing a covered attor- (a) Complaints involving conduct of a ney from acting in a particular court- Navy or Marine Corps trial or appellate martial or prevents the JAG, the SJA judge shall be forwarded to OJAG (Code to CMC, or the appropriate official 05). All other complaints shall be for- from reassigning a covered attorney to warded to OJAG (Code 13) or, in cases different duties prior to, during, or sub- involving Marine Corps judge advo- sequent to proceedings conducted cates or civil service and contracted ci- under the provision of this part. vilian attorneys who perform legal services under the cognizance and su- § 776.78 Informal complaints. pervision of the SJA to CMC, to JAR. Informal, anonymous, or ‘‘hot line’’ In cases involving Marine judge advo- type complaints alleging professional cates, including trial and appellate misconduct must be referred to the ap- judges, where the SJA to CMC is not propriate authority (such as the JAG the Rules Counsel, the cognizant Rules Inspector General or the concerned su- Counsel will notify the SJA to CMC pervisory attorney) for inquiry. Such when a complaint is received. complaints are not, by themselves, cog- (b) OJAG (Code 05), OJAG (Code 13), nizable under this subpart but may, if and JAR shall log all formal com- reasonably confirmed, be the basis of a plaints received and will ensure a copy

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of the complaint and allied papers is violation of subpart B of this part or provided to the covered attorney who Code of Judicial Conduct has occurred. is the subject of the complaint. Service (e) The cognizant Rules Counsel shall of the formal complaint and other ma- close the file without further action if terials on the covered attorney must be the complaint does not establish prob- accomplished through personal service able cause to believe a violation has or registered/certified mail sent to the occurred. The Rules Counsel shall no- covered attorney’s last known address tify the complainant, the covered at- reflected in official Navy and Marine torney concerned, and the supervisory Corps records or in the records of the attorney, that the file has been closed. state bar(s) that licensed the attorney OJAG (Code 05), OJAG (Code 13), and to practice law. The covered attorney’s JAR will maintain copies of all cor- supervisory attorney must also be pro- respondence related to the closing of vided notice of the complaint. the file. (c) The covered attorney concerned (f) The cognizant Rules Counsel may may elect to provide an initial state- close the file if there is a determina- ment, normally within ten calendar tion that the complaint establishes days from receipt, regarding the com- probable cause but the violation is of a plaint for the Rules Counsel’s consider- minor or technical nature appro- ation. The covered attorney will priately addressed through corrective promptly inform OJAG (Code 05), counseling. The Rules Counsel shall re- OJAG (Code 13), or JAR if he or she in- port any such decision, to include a tends to submit any such statement. brief summary of the case, to the JAG. At this screening stage, forwarding of (In cases relating to Marine judge ad- the complaint to the Rules Counsel vocates, including trial and appellate will not be unduly delayed to await the judges, in which the SJA to CMC is not covered attorney’s submission. the cognizant Rules Counsel, an infor- (d) The cognizant Rules Counsel shall mation copy shall be forwarded to the initially review the complaint, and any SJA to CMC.) The Rules Counsel shall statement submitted by the covered at- ensure the covered attorney concerned torney complained of, to determine receives appropriate counseling and whether it complies with the require- shall notify the complainant, the cov- ments set forth in paragraph (4) of this ered attorney concerned, and the su- section. The Rules Counsel is not re- pervisory attorney that the file has quired to delay the initial review of the been closed. OJAG (Code 05), OJAG complaint awaiting the covered attor- (Code 13), and JAR will maintain copies ney’s submission. of all correspondence related to the (1) Complaints that do not comply closing of the file. The covered attor- with the requirements may be returned ney concerned is responsible, under to the complainant for correction or these circumstances, to determine if completion, and resubmission to OJAG his or her Federal, state, or local li- (Code 05), OJAG (Code 13), or JAR. If censing authority requires reporting of the complaint is not corrected or com- such action. pleted and resubmitted within 30 days of the date of its return, the Rules § 776.81 Forwarding the complaint. Counsel may close the file without fur- (a) If the Rules Counsel determines ther action. OJAG (Code 05), OJAG there is probable cause to believe that (Code 13), and JAR will maintain copies a violation of subpart B of this part or of all correspondence relating to the of the Code of Judicial Conduct has oc- return and resubmission of a com- curred, and the violation is not of a plaint, and shall notify the covered at- minor or technical nature, the Rules torney concerned, as well as the super- Counsel shall notify the JAG. (In cases visory attorney, if and when the Rules relating to Marine Corps judge advo- Counsel takes action to close the file. cates, including trial and appellate (2) Complaints that comply with the judges, in which the SJA to CMC is not requirements shall be further reviewed the cognizant Rules Counsel, the SJA by the cognizant Rules Counsel to de- to CMC shall also be notified.) The termine whether the complaint estab- Rules Counsel shall forward the com- lishes probable cause to believe that a plaint and any allied papers, as follows:

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(1) In cases involving a military trial military service attorney discipline judge, if practicable, to a covered at- section. torney with experience as a military trial judge (normally senior to and of § 776.82 Interim suspension. the same Service (Navy or Marine (a) Where the Rules Counsel deter- Corps) as the covered attorney com- mines there is probable cause to be- plained of and not previously involved lieve that a covered attorney has com- in the case) and assign the officer to mitted misconduct and poses a sub- conduct a preliminary inquiry into the stantial threat of irreparable harm to matter; his or her clients or the orderly admin- (2) In cases involving a military ap- istration of military justice, the Rules pellate judge, if practicable, to a cov- Counsel shall so advise the JAG. Exam- ered attorney with experience as a ples of when a covered attorney may military appellate judge (normally sen- pose a ‘‘substantial threat of irrep- ior to and of the same Service (Navy or arable harm’’ include, but are not lim- Marine Corps) as the covered attorney ited to: complained of and not previously in- (1) When charged with the commis- volved in the case) and assign the offi- sion of a crime which involves moral cer to conduct a preliminary inquiry turpitude or reflects adversely upon into the matter; the covered attorney’s fitness to prac- (3) In all other cases, to such covered attorney as the cognizant Rules Coun- tice law, and where substantial evi- sel may designate (normally senior to dence exists to support the charge; the covered attorney complained of and (2) When engaged in the unauthorized not previously involved in the case), practice of law (e.g., failure to main- and assign the officer to conduct a pre- tain good standing in accordance with liminary inquiry into the matter. § 776.71 of this part); or (b) The Rules Counsel shall provide (3) Where unable to represent client notice of the complaint (if not pre- interests competently. viously informed) as well as notice of (b) Upon receipt of information from the preliminary inquiry: the Rules Counsel, JAG may order the (1) To the covered attorney against covered attorney to show cause why he whom the complaint is made as well as or she should not face interim suspen- the supervisory attorney; sion, pending completion of a profes- (2) In cases involving a covered USG sional responsibility investigation. The attorney on active duty or in civilian covered attorney shall have 10 calendar Federal service, to the commanding of- days in which to respond. Notice of the ficer, or equivalent, of the covered USG show cause order shall be provided as attorney concerned; outlined in § 776.81(b) of this part. (3) In cases involving Navy or Marine (c) If an order to show cause has been Corps judge advocates serving in Naval issued under paragraph (b) of this sec- Legal Service Command (NLSC) units, tion, and the period for response has to Commander, NLSC; passed without a response, or after con- (4) In cases involving Navy attorneys sideration of any response and finding serving in Marine Corps units, involv- sufficient evidence demonstrating ing Marine Corps attorneys serving in probable cause to believe that the cov- Navy units, or involving Marine Corps ered attorney is guilty of misconduct trial and appellate judges, to the SJA and poses a substantial threat of irrep- to CMC (Attn: JAR); arable harm to his or her client or the (5) In cases involving trial or appel- orderly administration of military jus- late court judges, to either the Chief tice, the JAG may direct an interim Judge, Navy-Marine Corps Trial Judici- suspension of the covered attorney’s ary or Chief Judge, Navy-Marine Corps certification under Articles 26(b) or Court of Criminal Appeals, as appro- 27(b), UCMJ, or R.C.M. 502(d)(3), or the priate; and authority to provide legal assistance, (6) In cases involving covered attor- pending the results of the investigation neys certified by the Judge Advocates and final action under this part. Notice General/Chief Counsel of the other uni- of such action shall be provided as out- formed services, to the appropriate lined in § 776.81(b) of this part.

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(d) Within 10 days of the JAG’s deci- investigations. Reports of relevant in- sion to impose an interim suspension, vestigations by other authorities in- the covered attorney may request an cluding, but not limited to, the com- opportunity to be heard before an im- mand, the Inspector General, and State partial officer designated by the JAG. licensing authorities should be used. Where so requested, that opportunity The PIO should also: will be scheduled within 10 calendar (1) Identify and obtain sworn affida- days of the request. The designated of- vits or statements from all relevant ficer shall receive any information and material witnesses to the extent that the covered attorney chooses to practicable; submit on the limited issue of whether (2) Identify, gather, and preserve all to continue the interim suspension. The designated officer shall submit a other relevant and material evidence; recommendation to the JAG within 5 and calendar days of conclusion. (3) Provide the covered attorney con- (e) A covered attorney may, based cerned an opportunity to review all upon a claim of changed circumstances evidence, affidavits, and statements or newly discovered evidence, petition collected and a reasonable period of for dissolution or amendment of the time (normally not exceeding 10 cal- JAG’s imposition of interim suspen- endar days) to submit a written state- sion. ment or any other written material (f) Any professional responsibility in- that the covered attorney wishes con- vestigation involving a covered attor- sidered. ney who has been suspended pursuant (c) The PIO may appoint and use to subpart B of this part shall proceed such assistants as may be necessary to and be concluded without appreciable conduct the preliminary inquiry. delay. However, the JAG may deter- (d) The PIO shall personally review mine it necessary to await completion the results of the preliminary inquiry of a related criminal investigation or to determine whether, by a preponder- proceeding, or completion of a profes- ance of the evidence, a violation of sub- sional responsibility action initiated part B of this part or of the Code of Ju- by other licensing authorities. In such cases, the JAG shall cause the Rules dicial Conduct has occurred. Counsel to so notify the covered attor- (1) If the PIO determines that no vio- ney under interim suspension as well lation has occurred or that the viola- as those officials outlined in § 776.81(b) tion is minor or technical in nature of this part. Where necessary, continu- and warrants only corrective coun- ation of the interim suspension shall be seling, then he or she may recommend reviewed by the JAG every 6 months. that the file be closed. (2) If the PIO determines by a prepon- § 776.83 Preliminary inquiry. derance of the evidence that a viola- (a) The purpose of the preliminary in- tion did occur, and that corrective ac- quiry is to determine whether, in the tion greater than counseling may be opinion of the officer appointed to con- warranted, he or she shall: duct the preliminary inquiry (PIO), the (i) Draft a list of substantiated viola- questioned conduct occurred and, if so, tions of these Rules of Professional whether the preponderance of the evi- Conduct or the Code of Judicial Con- dence demonstrates that such conduct duct; constitutes a violation of subpart B of (ii) Recommend appropriate action; this part or the Code of Judicial Con- and duct. The PIO is to recommend appro- (iii) Forward the preliminary inquiry priate action in cases of substantiated violations. to the Rules Counsel, providing copies (b) Upon receipt of the complaint, the to the covered attorney concerned and PIO shall promptly investigate the al- the supervisory attorney. legations, generally following the for- (e) The Rules Counsel shall review all mat and procedures set forth in the preliminary inquiries. If the report is Manual of the Judge Advocate General determined by the Rules Counsel to be (JAGMAN) for the conduct of command

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incomplete, the Rules Counsel shall re- with experience as a military trial turn it to the PIO, or to another in- judge (normally senior to and of the quiry officer, for further or supple- same Service (Navy or Marine Corps) mental inquiry. If the report is com- as the covered attorney complained of plete, then: and not previously involved in the (1) If the Rules Counsel determines, case) and assign the officer to conduct either consistent with the PIO rec- an ethics investigation into the matter ommendation or through the Rules (see R.C.M. 109 of the Manual for Counsel’s own review of the report, Courts-Martial); that a violation of this part has not oc- (ii) In cases involving a military ap- curred and that further action is not pellate judge, forward the rec- warranted, the Rules Counsel shall ommendation to a covered attorney close the file and notify the complain- with experience as a military appellate ant, the covered attorney concerned, judge (normally senior to and of the and all officials previously provided no- same Service (Navy or Marine Corps) tice of the complaint. OJAG (Code 05), as the covered attorney complained of OJAG (Code 13), and/or JAR, as appro- and not previously involved in the priate, will maintain copies of all cor- case) and assign the officer to conduct respondence related to the closing of an ethics investigation into the matter the file. (see R.C.M. 109 of the Manual for (2) If the Rules Counsel determines, Courts-Martial); or either consistent with a PIO rec- (iii) In all other cases, assign a cov- ommendation or through the Rules ered attorney (normally senior to the Counsel’s own review of the report, covered attorney complained of and that a violation of subpart B of this not previously involved in the case) to part has occurred but that the viola- conduct an ethics investigation. tion is of a minor or technical nature, then the Rules Counsel may determine § 776.84 Ethics investigation. that corrective counseling is appro- (a) When an ethics investigation is priate and close the file. The Rules initiated, the covered attorney con- Counsel shall report any such decision, cerned shall be so notified, in writing, to include a brief summary of the case, by the Rules Counsel. Notice of such to the JAG. The Rules Counsel shall action shall also be provided as out- ensure that the covered attorney con- lined in § 776.81(b) of this part. cerned receives appropriate counseling (b) The covered attorney concerned and shall notify the complainant, the will be provided written notice of the covered attorney concerned, and all of- following rights in connection with the ficials previously provided notice of ethics investigation: the complaint that the file has been (1) To request a hearing before the in- closed. OJAG (Code 05), OJAG (Code vestigating officer (IO); 13), and/or JAR, as appropriate, will (2) To inspect all evidence gathered; maintain copies of all correspondence (3) To present written or oral state- related to the closing of the file. The ments or materials for consideration; covered attorney concerned is respon- (4) To call witnesses at his or her own sible, under these circumstances, to de- expense (local military witnesses termine if his or her Federal, state, or should be made available at no cost); local licensing authority requires re- (5) To be assisted by counsel (see porting such action. paragraph (c) of this section); (3) If the Rules Counsel determines, (6) To challenge the IO for cause either consistent with a PIO rec- (such challenges must be made in writ- ommendation or through the Rules ing and sent to the Rules Counsel via Counsel’s own review of the report, the challenged officer); and that further professional discipline or (7) To waive any or all of these corrective action may be warranted, rights. Failure to affirmatively elect the Rules Counsel shall notify the JAG any of the rights included in this sec- and take the following action: tion shall be deemed a waiver by the (i) In cases involving a military trial covered attorney. judge, if practicable, forward the rec- (c) If a hearing is requested, the cov- ommendation to a covered attorney ered attorney may be represented by

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counsel at the hearing. Such counsel late judge, the Code of Judicial Con- may be: duct; (1) A civilian attorney retained at no (ii) Recommend appropriate action; expense to the Government; or, and (2) In the case of a covered USG at- (iii) Forward the ethics investigation torney, another USG attorney: to the Rules Counsel with a copy to the (i) Detailed by the cognizant Naval attorney investigated. Legal Service Office (NLSO), (or De- (g) The Rules Counsel shall review all fense Services Office (DSO), effective ethics investigations. If the report is October 1, 2012), Law Center, or Legal determined by the Rules Counsel to be Service Support Section (LSSS); or incomplete, the Rules Counsel shall re- (ii) Requested by the covered attor- turn it to the IO, or to another inquiry ney concerned, if such counsel is officer, for further or supplemental in- deemed reasonably available in accord- quiry. If the report is complete, then: ance with the provisions regarding in- (1) If the Rules Counsel determines, dividual military counsel set forth in either consistent with the IO rec- Chapter I of the JAGMAN. There is no ommendation or through the Rules right to detailed counsel if requested Counsel’s own review of the investiga- counsel is made available. tion, that a violation of subpart B of (d) If a hearing is requested, the IO this part or Code of Judicial Conduct will conduct the hearing after reason- has not occurred and that further ac- able notice to the covered attorney tion is not warranted, the Rules Coun- concerned. The hearing will not be unreasonably delayed. The hearing is not sel shall close the file and notify the adversarial in nature and there is no complainant, the covered attorney con- right to subpoena witnesses. Rules of cerned, and all officials previously no- evidence do not apply. The covered at- tified of the complaint. OJAG (Code torney concerned or his or her counsel 05), OJAG (Code 13) and/or JAR, as ap- may question witnesses that appear. propriate, will maintain copies of all The proceedings shall be recorded but correspondence related to the closing no transcript of the hearing need be of the file. made. Evidence gathered during, or (2) If the Rules Counsel determines, subsequent to, the preliminary inquiry either consistent with the IO rec- and such additional evidence as may be ommendation or through the Rules offered by the covered attorney shall Counsel’s own review of the investiga- be considered. tion, that a violation of this part or (e) The IO may appoint and use such Code of Judicial Conduct has occurred assistants as may be necessary to con- but that the violation is of a minor or duct the ethics investigation. technical nature, then the Rules Coun- (f) The IO shall prepare a report sel may determine that corrective which summarizes the evidence, to in- counseling is appropriate and close the clude information presented at any file. The Rules Counsel shall report any hearing. such decision, to include a brief sum- (1) If the IO believes that no violation mary of the case, to the JAG. (In cases has occurred or, by clear and con- relating to Marine judge advocates, in- vincing evidence, that the violation cluding trial and appellate judges, in has occurred but the violation is minor which the SJA to CMC is not the cog- or technical in nature and warrants nizant Rules Counsel, an information only corrective counseling, then he or copy shall be forwarded to the SJA to she may recommend that the file be CMC.) The Rules Counsel shall ensure closed. that the covered attorney concerned (2) If the IO believes by clear and con- receives appropriate counseling and vincing evidence that a violation did shall notify the complainant, the cov- occur, and that corrective action great- ered attorney concerned, and all offi- er than counseling is warranted, he or cials previously notified of the com- she shall: plaint that the file has been closed. (i) Modify, as necessary, the list of OJAG (Code 05), OJAG (Code 13), and/or substantiated violations of this part or, JAR, as appropriate, will maintain cop- in the case of a military trial or appel- ies of all correspondence related to the

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closing of the file. The covered attor- (d) Notwithstanding paragraphs (b) ney concerned is responsible, under and (c) in this section, the Rules Coun- these circumstances, to determine if sel may dispense with the preliminary his or her Federal, state, or local li- inquiry and ethics investigation and, censing authority requires reporting after affording the covered attorney such action. concerned written notice and an oppor- (3) If the Rules Counsel believes, ei- tunity to be heard in writing, rec- ther consistent with the IO recommend to the JAG that the covered ommendation or through the Rules attorney concerned be disciplined Counsel’s own review of the inquiry re- under this part when the covered attor- port, that professional disciplinary ac- ney has been: tion greater than corrective counseling (1) Decertified or suspended from the is warranted, the Rules Counsel shall practice of law or otherwise subjected forward the investigation, with rec- to professional responsibility discipline ommendations as to appropriate dis- by the JAG or Chief Counsel of another position, to the JAG. (In cases relating Military Department; to Marine judge advocates, including (2) Disbarred or suspended from the trial and appellate judges, in which the practice of law or otherwise subjected SJA to CMC is not the cognizant Rules to professional responsibility discipline Counsel, an information copy shall be by the Court of Appeals for the Armed forwarded to the SJA to CMC.) Forces or by any Federal, State, or local bar; or § 776.85 Effect of separate proceeding. (3) Convicted of a felony (or any of- (a) For purposes of this section, the fense punishable by one year or more of term ‘‘separate proceeding’’ includes, imprisonment) in a civilian or military but is not limited to, court-martial, court that, in the opinion of the Rules non-judicial punishment, administra- Counsel, renders the attorney unquali- tive board, or similar civilian or mili- fied or incapable of properly or ethi- tary proceeding. cally representing the DoN or a client (b) In cases in which a covered attor- when the Rules Counsel has determined ney is determined, at a separate pro- that the attorney was afforded proce- ceeding determined by the Rules Coun- dural protection equal to that provided sel to afford procedural protection by an ethics investigation under this equal to that provided by a preliminary part. inquiry under this part, to have committed misconduct that forms the basis § 776.86 Action by the Judge Advocate for ethics charges under this part, the General. Rules Counsel may dispense with the (a) The JAG is not bound by the rec- preliminary inquiry and proceed di- ommendation rendered by the Rules rectly with an ethics investigation. Counsel, IO, PIO, or any other inter- (c) In those cases in which a covered ested party, but will base any action on attorney is determined to have com- the record as a whole. Nothing in this mitted misconduct at a separate pro- part limits the JAG’s authority to sus- ceeding which the Rules Counsel deter- pend from the practice of law in DoN mines has afforded procedural protec- matters any covered attorney alleged tion equal to that provided by an eth- or found to have committed profes- ics investigation under this part, the sional misconduct or violated subpart previous determination regarding the B of this part, either in DoN or civilian underlying misconduct is res judicata proceedings, as detailed in this part. with respect to that issue during an (b) The JAG may, but is not required ethics investigation. A subsequent eth- to, refer any case to the Professional ics investigation based on such mis- Responsibility Committee for an advi- conduct shall afford the covered attor- sory opinion on interpretation of sub- ney a hearing into whether the under- part B of this part or its application to lying misconduct constitutes a viola- the facts of a particular case. tion of subpart B of this part, whether (c) Upon receipt of the ethics inves- the violation affects his or her fitness tigation, and any requested advisory to practice law, and what sanctions, if opinion, the JAG will take such action any, are appropriate. as the JAG considers appropriate in

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the JAG’s sole discretion. The JAG provided copies of the complaint; and may, for example: notifying appropriate tribunals and au- (1) Direct further inquiry into speci- thorities of any action taken to sus- fied areas. pend, decertify, or limit the practice of (2) Determine the allegations are un- a covered attorney as counsel before founded, or that no further action is courts-martial or the U.S. Navy-Ma- warranted, and direct the Rules Coun- rine Corps Court of Criminal Appeals, sel to make appropriate file entries and administrative boards, as a legal as- notify the complainant, covered attor- sistance attorney, or in any other legal ney concerned, and all officials pre- proceeding or matter conducted under viously notified of the complaint. JAG cognizance and supervision. (3) Determine the allegations are supported by clear and convincing evi- § 776.87 Finality. dence, and take appropriate corrective Any action taken by the JAG is final. action including, but not limited to: (i) Limiting the covered attorney to § 776.88 Report to licensing authori- practice under direct supervision of a ties. supervisory attorney; (ii) Limiting the covered attorney to Upon determination by the JAG that practice in certain areas or forbidding a violation of subpart B of this part or him or her from practice in certain the Code of Judicial Conduct has oc- areas; curred, the JAG may cause the Rules (iii) Suspending or revoking, for a Counsel to report that fact to the Fed- specified or indefinite period, the cov- eral, State, or local bar or other licens- ered attorney’s authority to provide ing authority of the covered attorney legal assistance; concerned. If so reported, notice to the (iv) Finding that the misconduct so covered attorney shall be provided by adversely affects the covered attor- the Rules Counsel. This decision in no ney’s ability to practice law in the way diminishes a covered attorney’s naval service or so prejudices the rep- responsibility to report adverse profes- utation of the DoN legal community, sional disciplinary action as required the administration of military justice, by the attorney’s Federal, State, and the practice of law under the cog- local bar or other licensing authority. nizance of the JAG, or the armed services as a whole, that certification Subpart D—Outside Practice of under Article 27(b), UCMJ, or R.C.M. Law by Covered USG Attorneys 502(d)(3), should be suspended or is no longer appropriate, and directing such § 776.89 Background. certification to be suspended for a prescribed or indefinite period or perma- (a) A covered USG attorney’s pri- nently revoked; mary professional responsibility is to (v) In the case of a judge, finding that the DoN, and he or she is expected to the misconduct so prejudices the rep- devote the required level of time and utation of military trial and/or appel- effort to satisfactorily accomplish as- late judges that certification under Ar- signed duties. Covered USG attorneys ticle 26(b), UCMJ (10 U.S.C. 826(b)), engaged in the outside practice of law, should be suspended or is no longer ap- including while on terminal leave, propriate, and directing such certifi- must comply with local bar rules gov- cation to be suspended for a prescribed erning professional responsibility and or indefinite period or to be perma- conduct and obtain proper authoriza- nently revoked; and tion from the JAG as required by (vi) Directing the Rules Counsel to §§ 776.57 and 776.88 of this part. contact appropriate authorities such as (b) Outside employment of DoN per- the Chief of Naval Personnel or the sonnel, both military and civilian, is Commandant of the Marine Corps so limited by the UCMJ, MCM, and 10 that pertinent entries in appropriate U.S.C. 1044. A covered USG attorney DoN records may be made; notifying may not provide compensated legal the complainant, covered attorney con- services, while working in a private ca- cerned, and any officials previously pacity, to persons who are eligible for

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legal assistance, unless specifically au- tired judge advocates unless serving on thorized by the JAG. See § 776.24. Be- active duty for more than 30 consecu- cause of the appearance of misuse of tive days. public office for private gain, this prohibition is based upon the status of the § 776.91 Policy. proposed client and applies whether or (a) As a general rule, the JAG will not the services provided are actually not approve requests by covered USG available in a DoN/DoD legal assistance attorneys to practice law in associa- office. tion with attorneys or firms which rep- (c) Additionally, DoN officers and resent clients with interests adverse to employees are prohibited by 18 U.S.C. the DoN. 209 from receiving pay or allowances (b) The JAG’s approval of a par- from any source other than the United ticular request does not constitute States for the performance of any offi- DoN certification of the requesting at- cial service or duty unless specifically torney’s qualifications to engage in the authorized by law. Furthermore, 18 proposed practice or DoN endorsement U.S.C. 203 and 205 prohibit Federal offi- of activities undertaken after such cers and employees from personally practice begins. Moreover, because any representing or receiving, directly or outside law practice is necessarily be- indirectly, compensation for rep- yond the scope of a covered USG attor- resenting any other person before any ney’s official duties, the requesting at- Federal agency or court on matters in torney should consider obtaining per- which the United States is a party or sonal malpractice insurance coverage. has an interest. (d) These limitations are particularly § 776.92 Action. significant when applied to covered (a) Covered USG attorneys, who con- USG attorneys who intend to engage template engaging in the outside prac- concurrently in a civilian law practice. tice of law, including while on terminal In such a situation, the potential is leave, must first obtain approval from high for actual or apparent conflict the JAG. Requests should be forwarded arising from the mere opportunity to in the form prescribed in appendix to obtain clients through contacts in the subpart D of part 776 to OJAG (Code course of official business. Unique con- 05), JAG (Code 13), or JAR, as appro- flicts or adverse appearances may also priate, via the attorney’s chain of com- develop because of a covered USG at- mand. torney’s special ethical responsibilities (b) The requesting attorney’s com- and loyalties. manding officer may: (1) Disapprove and return the request § 776.90 Definition. if he or she perceives actual or appar- (a) Outside practice of law is defined ent conflicts of interests; as any provision of legal advice, coun- (2) Recommend disapproval of the re- sel, assistance or representation, with quest and forward it, along with his or or without compensation, that is not her rationale for such a recommenda- performed pursuant or incident to du- tion; or ties as a covered USG attorney (includ- (3) Forward the request recom- ing while on terminal leave). Occa- mending approval and providing such sional uncompensated assistance ren- other information as may be relevant. dered to relatives or friends is excluded (c) The JAG will review the request from this definition (unless otherwise and advise applicants in writing of the limited by statute or regulation). decision, and of any conditions and Teaching a law course as part of a pro- limitations under which a particular gram of education or training offered practice may be undertaken. Until per- by an institution of higher education is mission is granted, applicants will not not practicing law for purposes of this commence any outside law practice. rule. (b) The requirement to seek permis- § 776.93 Revalidation. sion prior to engaging in the outside (a) Covered USG attorneys to whom practice of law does not apply to non- permission is given to engage in the USG attorneys, or to Reserve or Re- outside practice of law will notify the

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JAG in writing, via their chain of com- services before the Federal Government by mand, within 30 days of any material yourself or by another): change in: h. Provide a description of any military-re- (1) The nature or scope of the outside lated work to which your proposed practice may be applied including, but not limited to, practice described in their requests, in- courts-martial, administrative discharge cluding termination, or boards, claims against the Department of the (2) Their DoN assignment or respon- Navy, and so forth: sibilities. (b) Covered USG attorneys to whom 3. Attorneys With Whom Outside Practice Is/ Will Be Affiliated, Collocated, or Otherwise permission is given to engage in the Associated outside practice of law will annually resubmit an application to continue a. Identify the type of organization with the practice, with current information, which you will be affiliated (sole practitioner, partnership, and so forth), the num- by October 1 each year. ber of attorneys in the firm, and the names of the attorneys with whom you will be APPENDIX TO SUBPART D OF PART 776— working: OUTSIDE LAW PRACTICE QUESTION- b. Identify the attorneys in the firm who NAIRE AND REQUEST. are associated in any way with the military legal community (e.g., active, Reserve, or re- DATE tired judge advocate), and specify their rela- From: (Attorney Requesting Outside Prac- tionship to any of the military services: tice of Law) c. Identify the nature of your affiliation To: Deputy Chief Judge, Navy-Marine Corps with the organization with which you intend Trial Judiciary/Deputy Assistant Judge to be associated (staff attorney, partner, as- Advocate General (Administrative Law)/ sociate, space-sharing, rental arrangement, Head, Judge Advocate Research and Civil other): Law Branch, Judge Advocate Division d. Provide a brief description of the type of Via: (Chain of Command) legal practice engaged in by the organization Subj: OUTSIDE PRACTICE OF LAW RE- with which you intend to affiliate, including QUEST ICO (Name of attorney) a general description of the practice, as well as the clientele: 1. Background Data e. Describe the clientele who are military a. Name, rank/pay grade: personnel or their dependents, and the num- b. Current command and position: ber and type of cases handled: c. Description of duties and responsibilities f. Describe whether your affiliates will (including collateral duty assignments): refer clients to you, and the anticipated fre- d. Describe any DoN responsibilities that quency of referral: require you to act officially in any way with g. Describe respect to any matters in which your antici- (1) Whether your associates will assist or pated outside employer or clients have inter- represent clients with interests adverse to ests: the United States or in matters in which the e. Normal DoN working hours: United States has an interest: (2) Those clients, matters, and interests in 2. Proposed Outside Practice of Law detail: Information (3) What support will you provide in such a. Mailing address and phone number: cases: b. Working hours: (4) What compensation, in any form, you c. Number of hours per month: will receive related to such cases: d. Description of proposed practice (indi- 4. Desired Date of Commencement of Outside cate the type of clientele you anticipate Practice serving, as well as the type of work that you will perform): a. Identify if this is your first request or an e. Describe whether you will be a sole prac- annual submission for re-approval: titioner, or collocated, renting from, or oth- b. If this is an annual submission, indicate erwise affiliated or associated in any matter when your outside practice began: with other attorneys: c. If this is your first request, indicate f. Describe, in detail, any anticipated rep- when you wish to begin your practice: resentation of any client before the United 5. Conflicts of Interest and Professional Con- States or in any matter in which the United duct (Include the following statement in States has an interest: your request) g. Describe the manner in which you will be compensated (hourly, by case, fixed sal- ‘‘I certify that I have read and understand ary, and how much of your fees will be re- my obligations under enclosure (3) to lated in any way to any representational JAGINST 5803.1 (series), DOD 5500.7–R, Joint

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Ethics Regulation, JAGMAN Chapter VII, (1) Of the contents of this part; the Legal Assistance Manual, and Title 18, (2) That subpart B of this part apply U.S.C. 203, 205, and 209. I certify that no ap- to civilian counsel practicing before parent or actual conflict of interests or professional improprieties are presented by my military tribunals, courts, boards, or in proposed initiation/continuation of an out- any legal matter under the supervision side law practice. I also certify that if an ap- of the JAG as a condition of such prac- parent conflict of interest or impropriety tice; and arises during such outside practice, I will re- (3) That subpart B of this part take port the circumstances to my supervisory at- precedence over other rules of profes- torney immediately.’’ sional conduct that might otherwise 6. Privacy Act Statement. I understand apply, but that the attorney may still that the preceding information is gathered per the Privacy Act as follows: be subject to rules and discipline estab- Authority: Information is solicited per Ex- lished by the attorney’s Federal, state, ecutive Order 12731 and DOD 5500.7–R. or local bar association or other licens- Primary purpose: To determine whether ing authority. outside employment presents conflicts of in- (b) If an individual client designates terest with official duties. a non-USG attorney as chief counsel, Routine use: Information will be treated as the detailed USG attorney must defer sensitive and used to determine propriety of outside employment. to civilian counsel in any conflict over Disclosure: Disclosure is voluntary. Fail- trial tactics. If, however, the attorneys ure to provide the requested information will have ‘‘co-counsel’’ status, then conflict preclude the Judge Advocate General from in proposed trial tactics requires the approving your outside practice of law re- client to be consulted to resolve the quest. conflict. Signature (c) If the non-USG attorney has, in the opinion of the involved covered Subpart E—Relations With Non- USG attorney, acted or failed to act in a manner which is contrary to subpart USG Counsel B of this part, the matter should be § 776.94 Relations with Non-USG brought to the attention of the civilian Counsel. attorney. If the matter is not resolved with the civilian counsel, the covered (a) This part applies to non-USG at- USG attorney should discuss the situa- torneys representing individuals in any tion with the supervisory attorney. If matter for which the JAG is charged not resolved between counsel, the cli- with supervising the provision of legal ent must be informed of the matter by services, including but not limited to, the covered USG attorney. If, after courts-martial, administrative separa- being apprised of possible misconduct, tion boards or hearings, boards of in- the client approves of the questioned quiry, and disability evaluation pro- conduct, the covered USG attorney ceedings. Employment of a non-USG shall attempt to withdraw from the attorney by an individual client does case in accordance with § 776.35 of this not alter the responsibilities of a cov- part. The client shall be informed of ered USG attorney to that client. Al- such intent to withdraw prior to action though a non-USG attorney is individ- by the covered USG attorney. ually responsible for adhering to the contents of this part, the covered USG attorney detailed or otherwise assigned Subpart F [Reserved] to that client shall take reasonable steps to inform the non-USG attorney: PARTS 777–799 [RESERVED]

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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

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) III Administrative Conference of the United States (Parts 300—399) IV Miscellaneous Agencies (Parts 400—500)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I Office of Management and Budget Governmentwide Guidance for Grants and Agreements (Parts 2—199) II Office of Management and Budget Guidance (Parts 200—299) SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS III Department of Health and Human Services (Parts 300—399) IV Department of Agriculture (Parts 400—499) VI Department of State (Parts 600—699) VII Agency for International Development (Parts 700—799) VIII Department of Veterans Affairs (Parts 800—899) IX Department of Energy (Parts 900—999) X Department of the Treasury (Parts 1000—1099) XI Department of Defense (Parts 1100—1199) XII Department of Transportation (Parts 1200—1299) XIII Department of Commerce (Parts 1300—1399) XIV Department of the Interior (Parts 1400—1499) XV Environmental Protection Agency (Parts 1500—1599) XVIII National Aeronautics and Space Administration (Parts 1800— 1899) XX United States Nuclear Regulatory Commission (Parts 2000—2099) XXII Corporation for National and Community Service (Parts 2200— 2299) XXIII Social Security Administration (Parts 2300—2399) XXIV Housing and Urban Development (Parts 2400—2499) XXV National Science Foundation (Parts 2500—2599) XXVI National Archives and Records Administration (Parts 2600—2699) XXVII Small Business Administration (Parts 2700—2799)

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XXVIII Department of Justice (Parts 2800—2899) XXIX Department of Labor (Parts 2900—2999) XXX Department of Homeland Security (Parts 3000—3099) XXXI Institute of Museum and Library Services (Parts 3100—3199) XXXII National Endowment for the Arts (Parts 3200—3299) XXXIII National Endowment for the Humanities (Parts 3300—3399) XXXIV Department of Education (Parts 3400—3499) XXXV Export-Import Bank of the United States (Parts 3500—3599) XXXVI Office of National Drug Control Policy, Executive Office of the President (Parts 3600—3699) XXXVII Peace Corps (Parts 3700—3799) LVIII Election Assistance Commission (Parts 5800—5899) LIX Gulf Coast Ecosystem Restoration Council (Parts 5900—5999)

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I Government Accountability Office (Parts 1—199)

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) IV Office of Personnel Management and Office of the Director of National Intelligence (Parts 1400—1499) 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 (Parts 2100—2199) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Parts 3200—3299) XXIII Department of Energy (Parts 3300—3399) XXIV Federal Energy Regulatory Commission (Parts 3400—3499) XXV Department of the Interior (Parts 3500—3599) XXVI Department of Defense (Parts 3600—3699) XXVIII Department of Justice (Parts 3800—3899)

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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 (Parts 4300—4399) XXXIV Securities and Exchange Commission (Parts 4400—4499) XXXV Office of Personnel Management (Parts 4500—4599) XXXVI Department of Homeland Security (Parts 4600—4699) XXXVII Federal Election Commission (Parts 4700—4799) XL Interstate Commerce Commission (Parts 5000—5099) XLI Commodity Futures Trading Commission (Parts 5100—5199) XLII Department of Labor (Parts 5200—5299) XLIII National Science Foundation (Parts 5300—5399) XLV Department of Health and Human Services (Parts 5500—5599) XLVI Postal Rate Commission (Parts 5600—5699) XLVII Federal Trade Commission (Parts 5700—5799) XLVIII Nuclear Regulatory Commission (Parts 5800—5899) XLIX Federal Labor Relations Authority (Parts 5900—5999) L Department of Transportation (Parts 6000—6099) LII Export-Import Bank of the United States (Parts 6200—6299) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Parts 6400—6499) LV National Endowment for the Arts (Parts 6500—6599) LVI National Endowment for the Humanities (Parts 6600—6699) LVII General Services Administration (Parts 6700—6799) LVIII Board of Governors of the Federal Reserve System (Parts 6800— 6899) LIX National Aeronautics and Space Administration (Parts 6900— 6999) LX United States Postal Service (Parts 7000—7099) LXI National Labor Relations Board (Parts 7100—7199) LXII Equal Employment Opportunity Commission (Parts 7200—7299) LXIII Inter-American Foundation (Parts 7300—7399) LXIV Merit Systems Protection Board (Parts 7400—7499) LXV Department of Housing and Urban Development (Parts 7500— 7599) LXVI National Archives and Records Administration (Parts 7600—7699) LXVII Institute of Museum and Library Services (Parts 7700—7799) LXVIII Commission on Civil Rights (Parts 7800—7899) LXIX Tennessee Valley Authority (Parts 7900—7999) LXX Court Services and Offender Supervision Agency for the District of Columbia (Parts 8000—8099) LXXI Consumer Product Safety Commission (Parts 8100—8199) LXXIII Department of Agriculture (Parts 8300—8399) LXXIV Federal Mine Safety and Health Review Commission (Parts 8400—8499)

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LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699) LXXVII Office of Management and Budget (Parts 8700—8799) LXXX Federal Housing Finance Agency (Parts 9000—9099) LXXXIII Special Inspector General for Afghanistan Reconstruction (Parts 9300—9399) LXXXIV Bureau of Consumer Financial Protection (Parts 9400—9499) LXXXVI National Credit Union Administration (Parts 9600—9699) XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Parts 9700—9799) XCVIII Council of the Inspectors General on Integrity and Efficiency (Parts 9800—9899) XCIX Military Compensation and Retirement Modernization Commis- sion (Parts 9900—9999) C National Council on Disability (Partys 10000—10049)

Title 6—Domestic Security

I Department of Homeland Security, Office of the Secretary (Parts 1—199) X Privacy and Civil Liberties Oversight Board (Parts 1000—1099)

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)

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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) XX Local Television Loan Guarantee Board (Parts 2200—2299) XXV Office of Advocacy and Outreach, Department of Agriculture (Parts 2500—2599) 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 National Institute of Food and 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)

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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)

Title 10—Energy

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) XIII Nuclear Waste Technical Review Board (Parts 1300—1399) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Parts 1800—1899)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099) II Election Assistance Commission (Parts 9400—9499)

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) X Bureau of Consumer Financial Protection (Parts 1000—1099) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XII Federal Housing Finance Agency (Parts 1200—1299) XIII Financial Stability Oversight Council (Parts 1300—1399) XIV Farm Credit System Insurance Corporation (Parts 1400—1499)

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XV Department of the Treasury (Parts 1500—1599) XVI Office of Financial Research (Parts 1600—1699) 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 (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199) 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—1199) 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)

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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) 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 U.S. Customs and Border Protection, Department of Homeland 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 U.S. 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)

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V Employment and Training Administration, Department of Labor (Parts 600—699) VI Office of Workers’ Compensation Programs, 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 Service, 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)

Title 22—Foreign Relations

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 (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) XIII Millennium Challenge Corporation (Parts 1300—1399) 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)

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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) 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) XV Emergency Mortgage Insurance and Loan Programs, Depart- ment of Housing and Urban Development (Parts 2700—2799) [Reserved] XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXIV Board of Directors of the HOPE for Homeowners Program (Parts 4000—4099) [Reserved] XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

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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 (Parts 1200—1299)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— End)

Title 27—Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399) 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)

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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)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Bureau of Safety and Environmental Enforcement, Department of the Interior (Parts 200—299) IV Geological Survey, Department of the Interior (Parts 400—499) V Bureau of Ocean Energy Management, Department of the Inte- rior (Parts 500—599) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999) XII Office of Natural Resources Revenue, Department of the Interior (Parts 1200—1299)

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)

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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) X Financial Crimes Enforcement Network, Department of the Treasury (Parts 1000—1099)

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) XVII Office of the Director of National Intelligence (Parts 1700—1799) 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) 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)

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IV Office of Career, Technical and Adult Education, Department of Education (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) [Reserved] VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) [Reserved] SUBTITLE C—REGULATIONS RELATING TO EDUCATION XI [Reserved] 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) VI [Reserved] 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 (Parts 1500—1599) 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 U.S. Copyright Office, Library of Congress (Parts 200—299) III Copyright Royalty Board, Library of Congress (Parts 300—399) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—199) II Armed Forces Retirement Home (Parts 200—299)

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I United States Postal Service (Parts 1—999) III Postal Regulatory 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) VIII Gulf Coast Ecosystem Restoration Council (Parts 1800—1899)

Title 41—Public Contracts and Property Management

SUBTITLE A—FEDERAL PROCUREMENT REGULATIONS SYSTEM [NOTE] 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) 62—100 [Reserved] 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) 103—104 [Reserved] 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) 129—200 [Reserved] SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM [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)

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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—599) 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 400— 999) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10099)

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)

Title 45—Public Welfare

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)

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VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) IX Denali Commission (Parts 900—999) 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 Administration for Children and Families, 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) 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) IV National Telecommunications and Information Administration, Department of Commerce, and National Highway Traffic Safe- ty Administration, Department of Transportation (Parts 400— 499)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99)

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2 Defense Acquisition Regulations System, Department of Defense (Parts 200—299) 3 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 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) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) [Reserved] 54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 Civilian Board of Contract Appeals, General Services Adminis- tration (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399)

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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 (Parts 1000—1399) XI Research and Innovative Technology Administration, Depart- ment of Transportation (Parts 1400—1499) [Reserved] 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) 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)

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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Administrative Conference of the United States 1, III Advisory Council on Historic Preservation 36, VIII Advocacy and Outreach, Office of 7, XXV Afghanistan Reconstruction, Special Inspector General for 5, LXXXIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development 2, VII; 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 2, IV; 5, LXXIII Advocacy and Outreach, Office of 7, XXV 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 Economic Research Service 7, XXXVII Energy Policy and New Uses, Office of 2, IX; 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 National Institute of Food and Agriculture 7, XXXIV 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

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VerDate Sep<11>2014 11:36 Aug 29, 2017 Jkt 241135 PO 00000 Frm 00580 Fmt 8092 Sfmt 8092 Y:\SGML\241135.XXX 241135 CFR Title, Subtitle or Agency Chapter 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 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, VII 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 Royalty Board 37, III U.S. 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, LXIV Micronesian Status Negotiations, Office for 32, XXVII Military Compensation and Retirement Modernization 5, XCIX Commission Millennium Challenge Corporation 22, XIII Mine Safety and Health Administration 30, I 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 Museum and Library Services, Institute of 2, XXXI National Aeronautics and Space Administration 2, XVIII; 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 2, XXII; 45, XII, XXV National Archives and Records Administration 2, XXVI; 5, LXVI; 36, XII Information Security Oversight Office 32, XX 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 5, C; 34, XII National Counterintelligence Center 32, XVIII National Credit Union Administration 5, LXXXVI; 12, VII National Crime Prevention and Privacy Compact Council 28, IX National Drug Control Policy, Office of 2, XXXVI; 21, III National Endowment for the Arts 2, XXXII National Endowment for the Humanities 2, XXXIII National Foundation on the Arts and the Humanities 45, XI National Geospatial-Intelligence Agency 32, I National Highway Traffic Safety Administration 23, II, III; 47, VI; 49, V National Imagery and Mapping Agency 32, I National Indian Gaming Commission 25, III National Institute of Food and Agriculture 7, XXXIV National Institute of Standards and Technology 15, II National Intelligence, Office of Director of 5, IV; 32, XVII National Labor Relations Board 5, LXI; 29, I National Marine Fisheries Service 50, II, IV 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

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VerDate Sep<11>2014 11:36 Aug 29, 2017 Jkt 241135 PO 00000 Frm 00582 Fmt 8092 Sfmt 8092 Y:\SGML\241135.XXX 241135 CFR Title, Subtitle or Agency Chapter 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 5, XXXIV; 17, II Selective Service System 32, XVI Small Business Administration 2, XXVII; 13, I Smithsonian Institution 36, V Social Security Administration 2, XXIII; 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 2, VI; 22, I; 28, XI Federal Acquisition Regulation 48, 6 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 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 2, XII; 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; 47, IV; 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 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 2, X;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 19, I Engraving and Printing, Bureau of 31, VI Federal Acquisition Regulation 48, 10 Federal Claims Collection Standards 31, IX Federal Law Enforcement Training Center 31, VII Financial Crimes Enforcement Network 31, X Fiscal Service 31, II Foreign Assets Control, Office of 31, V Internal Revenue Service 26, I Investment Security, 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 U.S. Copyright Office 37, II Utah Reclamation Mitigation and Conservation Commission 43, III

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VerDate Sep<11>2014 11:36 Aug 29, 2017 Jkt 241135 PO 00000 Frm 00583 Fmt 8092 Sfmt 8092 Y:\SGML\241135.XXX 241135 CFR Title, Subtitle or Agency Chapter Veterans Affairs Department 2, VIII; 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 Wage and Hour Division 29, V Water Resources Council 18, VI Workers’ Compensation Programs, Office of 20, I, VII World Agricultural Outlook Board 7, XXXVIII

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VerDate Sep<11>2014 11:36 Aug 29, 2017 Jkt 241135 PO 00000 Frm 00584 Fmt 8092 Sfmt 8092 Y:\SGML\241135.XXX 241135 List of CFR Sections Affected All changes in this volume of the Code of Federal Regulations (CFR) that were made by documents published in the FEDERAL REGISTER since January 1, 2012 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, parts and subparts as well as sections for revisions. For changes to this volume of the CFR prior to this listing, consult the annual edition of the monthly List of CFR Sections Affected (LSA). The LSA is available at www.fdsys.gov. For changes to this volume of the CFR prior to 2001, see the ‘‘List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, and 1986–2000’’ published in 11 separate volumes. The ‘‘List of CFR Sections Affected 1986–2000’’ is available at www.fdsys.gov.

2012 2014 32 CFR 77 FR 32 CFR 79 FR Page Page Chapter VI Chapter VI 701.128 (x) added ...... 56772 706.2 Table One amended.....25007, 68118, 706.2 Table Three amended.....4467, 4468, 68119 13970, 24613, 63224 Table Three amended ...... 25007 Table Four amended.....4467, 4468, 12993, Table Four amended ...... 25007, 68119 39629, 63224, 74113 Table Two amended...... 52556 Table Five amended .....4467, 4468, 12993, Table Five amended ...... 68118, 68119 21613, 28487, 39629, 42989, 72736, 39629, 74113 2015 Table One amended ...... 13970, 74113 32 CFR 80 FR Table Two amended...... 39629, 63224 Page Chapter VI 2013 706.2 Table One amended...... 15166, 32002 32 CFR 78 FR Table Three amended ...... 15166 Page Table Four amended...15166, 19534, 28555 Chapter VI Table Five amended ...... 28832, 32002 767 Revised ...... 52594 701.128 (y) added...... 69553 776 Revised ...... 68389 706.2 Table One amended.....18847, 22422, 48043 Table Three amended ...... 18847, 28491 2016 Table Four amended ...... 18847, 28491, 32 CFR 81 FR 33209 Page Table Five amended ...... 22422, 28491, Chapter VI 45454, 48043, 62438 706.2 Table One amended ...9, 3718, 43078, Table Two amended...... 33209, 62438 47707, 54738, 69678 733.3 (b)(3) through (8) correctly Table Two amended...... 36464 redesignated as (a)(3) through Table Three amended ...... 9, 11117, 36464, (8); CFR correction ...... 26507 43078 751.6 (c)(5) correctly amended; Table Four amended ...... 9, 3718, 11117, CFR correction...... 26507 43078, 47706, 54738, 62009

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32 CFR—Continued 81 FR 2017 Page Chapter VI—Continued (Regulations published from January 1, Table Five amended...... 9, 3718, 11117, 2017, through July 1, 2017) 36464, 47706, 47707, 54738, 62009, 32 CFR 82 FR 69678 Page Chapter VI 706.2 Table One amended ...... 3624 Table Three amended ...... 14606 Table Four amended ...... 3624, 14606 Table Five amended...... 3624, 14606 Æ

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